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Personal privacy versus public health in a pandemic

This Opinion Piece was first published by InDaily on 24 November 2020

Personal privacy versus public safety – it’s a trade-off that has been brought into sharp focus as the COVID-19 pandemic has taken hold globally.

And here in SA we’ve seen how one person’s approach to information-sharing with contact tracers led to a three day lock down for the whole state.

We can vilify and be outraged, but there are many reasons why a person might feel disinclined to tell the whole truth when giving information to health authorities.

They might be worried they’ll be deported; they could lose insecure work or simply be afraid of getting “in trouble” with the police. They might be thinking of the implications for their family and friends.

Understanding how to keep people safe and importantly, how to make them feel safe when sharing their data, is not only vital now, but significant in a range of crisis situations.

Making the rules clear for everyone, goes a long way to ensuring people feel they can tell the truth when it matters most.

So legally, what can happen to your personal information if you share it with a government body?

The answer isn’t simple – a range of different laws apply to the collection and use of personal information by health authorities at the federal level, as well as in each Australian state or territory.

Federal laws include the Privacy Act 1988 which sets limits on the purposes for which personal information can be collected and shared among public authorities.

The Act features a set of Information Privacy Principles that contain minimum standards for how personal information should be managed including the principle that personal information should only be collected for a purpose aligned with the agencies core functions (such as provision of health services) and should not be shared without informed consent. And there are exceptions such as when sharing information is deemed necessary to prevent a threat to public health safety or welfare.

In states where human rights legislation applies (ACT, Vic, Qld), there are additional protections around the management of personal information and breaches can be taken to the Human Rights or Privacy Commissioners.

In SA however, there is no such human rights legislation and no such human rights commissioners. Our lawmakers and policy makers don’t have to do a ‘human rights check’ before they enact new laws restricting our movements, but our public agencies are expected to comply with Information Privacy Principles and special Cabinet directives about the handling of personal information.

For example, the SA Cabinet Administrative Instruction 1/89 explains that personal information should not be used except for the ‘purpose to which it is relevant’. It can’t be shared with other agencies unless a range of criteria apply, including consent of the information owner. But they can share the information with other agencies if the disclosure is ‘reasonably necessary for the enforcement of the criminal law’ or if ‘the person disclosing the information believes on reasonable grounds that the disclosure is ‘necessary to prevent or lessen a serious threat to the life, health or safety of the record-subject or of some other person’.

This means that, when South Australians provide information about where they have been and who they have seen to health authorities, their personal information must be handled with great care, but can be shared with the police and other public agencies under those circumstances described.

In the context of the pandemic, it raises some tricky questions, including who makes the decision whether certain personal information should be disclosed to another authority, and what factors should be considered when making that call.

Remember too that, during the pandemic, our Commissioner of Police and Chief Medical Officers have been given wide discretionary powers to develop new directions and impose penalties for breaches, without the need for parliamentary approval, creating a particularly dynamic legal environment when it comes to determining what conduct is inside or outside the law. Like many others, I share the view that these individuals are doing a magnificent job, but it is a lot of pressure to place on a couple of individuals: a lot of power to invest in a handful of government officials without much opportunity for alternative views to be heard or considered.

One response to these tricky questions is to engage with the South Australian community about how they feel about providing personal information to contact tracers, and whether any changes can or should be made to support them to participate more fully in the process.

Early research in this area, conducted by two UniSA researchers, suggests that on the whole South Australians feel confident and comfortably sharing personal information with health authorities and would do so freely and in detail.

But for some, the prospect of sharing personal details, where they live and who they see, triggers past experiences of trauma or gives rise to significant anxiety and concern. Addressing these issues may be critical in managing this pandemic or indeed any future public health crisis.

Another possible response to the current tension between creating incentives to share personal information, and policing compliance with COVID-19 laws, is to adopt a rights-based approach to privacy law and policy making, an approach that could help identify which safeguards and protections could be included in the current regime to help strike the right balance between individual privacy and community protection.

It’s clear that there are no easy answers and that SA authorities are doing an outstanding job to keep our community safe. But it’s also clear that it’s time to have some important conversations in our State not only about how we protect rights, but how we tell people about their rights.

If we’re all in this together, then let’s make sure we all clearly understand our legal rights and responsibilities, so we can call out problems and help develop solutions for the future.

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