Kristina Keneally (NSW, Australian Labor Party, Deputy Leader of the Opposition in the Senate) Share this | Hansard source

I rise in support of the Privacy Amendment (Public Health Contact Information) Bill 2020. I and the Australian Labor Party are supporting this bill because it will protect and enshrine in law the protections the Australian public deserves and expects when it comes to the government—to any government. I want to thank the close to six million Australians who've downloaded the COVIDSafe app. I do encourage more people to download it. This is just one small step that Australians can take as part of our national effort to stop the spread of COVID-19.

Downloading this app does not replace hand washing or hand sanitising. It does not replace social distancing. And we must remember: there are still people in our community with health problems or compromised immune systems, and we should refrain from visiting them. Importantly, if you are sick, do not go to work. The app does not solve any of those problems. It is an assistance to our effort to ensure that COVID-19 remains flattened and the community remains safeguarded from the virus.

COVID-19 does still exist in the community. We have undertaken a monumental effort to suppress its spread as much as possible. Children stopped going to school and started learning from home, teachers learned how to move their classes online and parents became teachers' aides. Hundreds of thousands of Australians have worked from home. Sadly, many thousands have lost their jobs and been forced to stay at home.

Now, as our combined health efforts continue and we begin the economic recovery, we must look at ways we can ensure the virus does not take hold in our country again. This app is one of those ways, and, with an app like this, the law must protect the privacy of Australians. Prior to the release of this app, state and territory public health officers have undertaken manual contact tracing. Manual contact tracing means someone diagnosed with coronavirus painstakingly trying to remember the people they have come into contact with and when. While our public health officials have carried out excellent contact tracing in this country, even if you have a near-perfect memory or an impeccable diary, there will always be gaps as to who you have come into contact with. The contact tracing app, this app, relies on technology to digitise this process, to supplement, not replace, manual or paper based tracing, to make sure we can continue to suppress the virus. Not only does the app provide the opportunity to improve the timeliness of contact tracing, it also offers the opportunity to improve reliability.

To be a valuable tool, the app has to work. Australians have to have confidence that there are sufficient safeguards in place to ensure that their privacy is protected. The government released the app with some safeguards in place. The health minister made a determination under section 447 of the Biosecurity Act in relation to the COVIDSafe app on 25 April. The determination included a number of privacy protections for information that Australians provided to the app, and now this bill replaces that determination. Through this crisis, particularly when it comes to passing important legislation, Labor has always been constructive. We have not stood in the way during this unprecedented crisis, because it has required an unprecedented response. That's why we will support the passage of this legislation.

While not perfect, the bill will introduce very strong privacy safeguards. In some respects, these safeguards are unprecedented in Commonwealth law. Like the determination which preceded it, the bill would make it an offence to collect, use or disclose app data except in a number of prescribed circumstances. These include where the collection, use or disclosure of the data is by a person employed by a state or territory health authority for the purpose of contact tracing. The bill would also impose a range of obligations on the Commonwealth, including: to ensure that COVIDSafe app data is not retained on a mobile telecommunications device for more than 21 days; to delete all of an app user's data from the National COVIDSafe Data Store as soon as practical, upon request; and to delete all COVIDSafe app from the National COVIDSafe Data Store when the health minister is satisfied the COVIDSafe app is no longer required to prevent or control the spread of COVID-19 in Australia.

Labor—in particular, my Parliamentary Joint Committee on Intelligence and Security colleague the shadow Attorney-General—has worked with the government to improve the legislation and strengthen protections that the Australian people deserve. I thank the government for accepting a number of those suggestions. There will now be greater oversight of the COVIDSafe app by the Privacy Commissioner. The Office of the Australian Information Commissioner is an independent statutory agency overseen by the Australian Information Commissioner and Privacy Commissioner. The legislation now requires the health minister and the Privacy Commissioner to produce regular public reports about the app every six months. There are now additional oversight and certification responsibilities on the Privacy Commissioner to ensure that the Commonwealth complies with its obligation to delete all COVIDSafe data when the app is no longer in use.

It is reasonable to see how the Privacy Commissioner's workload will increase as a result of these important responsibilities. Labor urges the government to ensure that the Privacy Commissioner has sufficient resources to fill the additional oversight responsibilities. The Office of the Australian Information Commissioner should not be stretched or have to reduce its other capabilities to undertake these important COVIDSafe app oversight duties. Importantly, there is a new provision clarifying that law enforcement and intelligence services may not be given any role in administering or accessing the COVIDSafe Data Store. These protections are unprecedented and mean Australian law enforcement officials and security agencies will not be able to access the app data.

There are legitimate concerns about the government's decision to award the data storage contract relating to the app to Amazon Web Services in the United States. This means that COVIDSafe app data may be obtainable by the United States law enforcement authorities. This concern could have been avoided if the government had chosen to award the data storage contract to an Australian based, owned and operated cloud service provider. In fact, at a time when the Australian economy needs as much stimulus as possible due to this unprecedented economic crisis, I'm perplexed as to why the government did not award the contract to an Australian company.

Regrettably, the concerns about Australian web services cannot be addressed in legislation. Australian law does not override American law, in the same way that American law does not trump ours. However, the government—in particular, the Minister for Foreign Affairs and the Minister for Home Affairs—could address these concerns in non-legislative means. The Foreign Minister could seek diplomatic assurances from the United States, and the Minister for Home Affairs could ensure that access to COVIDSafe app data is excluded from any security or intelligence-sharing arrangement with the United States. He could do this as part of the CLOUD Act executive agreement which is currently being negotiated with the United States. I urge the Minister for Home Affairs to pursue this option as it will provide further assurances to the Australian public and hopefully will result in more downloads of the app. If the government wants this app to be embraced by millions more Australians—something that could continue to keep COVID-19 at bay—they would be taking these steps.

There is no 'set and forget' when it comes to social distancing or washing hands, and the same applies to this app. Labor remains committed to seeing how the measures in the bill are being implemented to ensure that they are working as intended. We will do that through the Senate Select Committee on COVID-19, of which I am a member along with Senators Gallagher and Watt from Labor. We have already had the opportunity to scrutinise the app and we will continue to do so because parliamentary scrutiny is one of the pillars of our democracy. It was through the COVID committee that we learnt the health department never provided the government any advice about targets. In an interview on Perth radio station 6PR on 15 April, the interviewer asked the Prime Minister: 'Reports are that as many as 40 per cent of the population might need to download it for it to work. Is that right or not?' The Prime Minister replied: 'Yes, it is. You'd need at least that.' Forty per cent was the target the Prime Minister set, back on 15 April, for the app to be effective. He had no advice from the health department that that was the target needed. However, in question time in the other place yesterday, the Prime Minister stated: 'We have no real target.' He then said that any target related to a percentage of the number of smartphones in Australia rather than to the Australian population. It's easy to get close to achieving a target if you keep moving the goalposts.

It's small things like this that can make the public question their trust in government. The federal government, along with the state and territory governments, have asked the community to trust them. I acknowledge and understand the reservations and the concerns people have had about the idea of this app, because I myself have also had them. As the saying goes, you can't constantly lie and expect the people to trust you. I'm not calling this government liars when it comes to this app or legislation but, for far too long, the Morrison government have treated the parliament, the press gallery and the Australian people with contempt. They have shirked scrutiny and they have refused to be held accountable. They have dismissed legitimate questions as 'gossip' or said they are matters for 'the Canberra bubble'. They've said one thing and then turned around and done another. And far too often the government chooses marketing spin over substance, ads over outcomes, and marketing over what matters. So you can understand why some Australians have been sceptical about an app such as this and the ability of this government to ensure their privacy. Let's remember: the Australian people first found out about this app not because the Australian parliament was advised but because the New Zealand parliament was told about it. The people of New Zealand were told about the Australian government's plan for this app before the people of Australia were.

We will never know if the government's lack of communication and rush to announce this app have impacted the app's download numbers, but there's one thing I will make clear: the COVIDSafe app does not track your location; it only relies on bluetooth, and only when you come into close contact with someone else—approximately 1½ metres—for 15 minutes or more. This data is then stored on your phone and will remain there for 21 days. It will only be released to health authorities if you choose to release it to them, whether it's because you've been diagnosed with COVID-19 or because someone you have come into contact with has. Finally, if you do release your data to state and territory health authorities, it can only be accessed by them. Regrettably, some of these facts weren't communicated clearly or effectively by the government when this app was first announced in the New Zealand parliament. This was a misstep by the government, and they've been having to clean up this mess ever since. This is what happens when you roll out a minister who wasn't aware he was charging taxpayers tens of thousands of dollars for excess internet downloads to be your spokesperson for this app. I commend the health minister for cleaning up after the social services minister and clarifying any confusion the government has created about this app.

I have downloaded this app because I understand the importance to the broader community of being able to effectively contact-trace outbreaks of COVID-19. This app can be a critical tool in the COVID-19 exit strategy if it works well and if our privacy is safeguarded. We definitely won't be standing in the way of the app, and now is definitely not the time for further amendments or political stunts in this parliament. We will not let the perfect become the enemy of the good. We want this app to be a useful tool, and that depends on getting it right. That's why Labor has worked with the government on amendments to strengthen the privacy protections in the app. The government must be as transparent as possible about everything to do with the COVIDSafe app, including providing additional technical information in relation to the app and being up-front about how the app is working in practice.

This legislation will give Australians more confidence that their privacy will be safeguarded if they choose to download the app. It can play a role alongside social distancing, paper-based contact tracing, handwashing, staying at home when we are sick and all of the other public health measures Australians have taken up in order to safeguard themselves, their family, their community and their country against the threat of coronavirus.