Concerns have been raised regarding whether law enforcement should be able to access QR code data from public health apps to investigate criminal matters.
Incidents of police officers accessing this data have thus far occurred in Queensland and Western Australia.
In Queensland, police utilized data from the state’s ‘Check in Qld app’ to investigate an alleged theft of an officer’s police firearm and taser on the night of the last State of Origin game.
Officers legally obtained a warrant for the data, to find information on individuals “reported to be acting suspiciously” in a pub where the items went missing.
“The firearm was subsequently located on June 10 after a more detailed search of the hotel premises,” a QPS spokesperson said.
“The taser is yet to be located and investigations are ongoing. The data was accessed in relation to a group of people reported to be acting suspiciously in the area around the time of this incident.”
Following this, Queensland Police have now stated that they will only apply for a warrant for this data in “extraordinary circumstances”, with approval required from the Deputy Commissioner.
In Western Australia, the ‘SafeWA’ app data has been accessed on two occasions for criminal investigations, including with regard to a ‘high profile’ murder.
Urgent legislation was enacted to prevent police and the Corruption and Crime Commission from accessing the information in Western Australia.
“Because it is so important to maintain community confidence in SafeWA, we’ve come down in favour of nobody” commented Western Australian Attorney-General John Quigley (https://www.innovationaus.com/qld-police-accessed-qr-code-check-in-app-data/#:~:text=It%20was%20revealed%20this%20week%20that%20the%20Queensland,and%20taser%20were%20believed%20to%20have%20been%20stolen.).
In Victoria, police have attempted to access data from the Service Victoria app on three separate occasions but have been denied by the Department.
However, the Victorian state government has not followed Western Australia, with their Acting Police Minister commenting that he wants the option to remain available to police for serious matters.
Therefore, whereas the federal government passed legislation limiting the use of the COVIDSafe app purely for contracting tracing, Western Australia is the only state to do so for a QR code-based check-in app.
Numerous human rights, legal and civil liberty organizations have called on state and territory governments to ensure information provided to these apps can only be used for contact tracing, and not for police investigations.
There have been no reported incidents yet in New South Wales, however, Barrister, Rory Pettit has commented that: “it seems a matter of time before the NSW Police seek to use it – the use of QR codes will certainly be sticking around for a while.”
Click here for an outline on the law on police powers to arrest in NSW (https://www.criminaldefencelawyers.com.au/blog/law-on-nsw-police-arrest-powers/).
Criminal Defence Lawyers Australia, spoke with Mr Pettit about the issue.
How do you anticipate QR code data could be used as evidence?
“Evidence that a person had checked into a particular premises – say a supermarket, or a pub – could, in some circumstances, be highly incriminating.
The most likely scenario for its use would be one in which the evidence was required to prove the identification of a person suspected of having committed a crime nearby. For example, if a person was alleged to have to have committed a robbery at 11pm, evidence that the person had checked into a pub around the corner from where the robbery was committed at 11.05pm would markedly strengthen the case against them.
“It’s worth noting that it could be actually used for the opposite reason: as an alibi.”
How could the evidence arise in criminal trials, and could it be excluded?
“If the evidence was relevant (as it would be in the earlier-described scenario), the most likely basis for an objection to its admission at trial would arise from an assertion that the evidence was improperly or illegally obtained by the police. Such objections are made under section 138 (https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1995-025#sec.138) of the Evidence Act 1995 (NSW) (‘Exclusion of improperly or illegally obtained evidence’).
With that said, it is far from clear that it would succeed: first, NSW Police could argue that the evidence was in fact obtained lawfully; and second, s 138(1) allows for evidence to be discretionarily admitted despite a finding it was obtained unlawfully. Most often due to the seriousness of the alleged offending..
The reason that a section 138 objection could be taken is due to the wording of the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2021 (‘the Order’), which was made under the Public Health Act 2010 (NSW).
The Order has been amended as the pandemic has progressed, and now includes a clause requiring the occupiers of many premises accessible to the public to collect and hold the personal information of entering customers. That requirement is contained within clause 41 of the Order (‘Directions of Minister concerning persons providing contact details’).”
Sub-clause 41(4) states that the occupier of premises to whom a person’s contact details are provided must keep, for at least 4 weeks, a record of the contact details and on request, provide the record to the Chief Health Officer as soon as practicable, but no later than 4 hours, after the request is made.
“That would seem to allow only for the provision of that information to the Chief Health Officer, rather than police. However, clause 41 is not the end of the story.”
Clause 42 provides that a government sector agency or a NSW Minister (the first agency) is authorised to collect information from, or use or disclose information to, a related agency if the first agency considers it necessary to do so for the purposes of protecting the health or welfare of members of the public during the COVID-19 pandemic.
“Government sector agency’ is defined under the Government Sector Employment Act 2013 to include both NSW Police and NSW Health.
As such, if the NSW Police were of the view (as ‘the first agency’) that they required the information to ‘protect the … welfare of members of the public’ (which they could arguably interpret to include protection from crime), they could potentially compel the NSW Health Service to provide the personal information to them under clause 42(1).
That could, in theory, include information of the times and places that a specific person had checked into certain premises. It appears that ‘requests’ like these have been made by Victorian Police of the Health Department consistent with presumably equivalent legislation, although those requests were refused.
However, in NSW the above argument could be used to assert that the evidence was in fact obtained lawfully in response to a section 138 objection in court. A counter-argument might be that the phrase ‘for the purposes of protecting the health or welfare of members of the public during the COVID-19 pandemic’ only contemplates pandemic-related concerns; as a result, the compelled production of the information was still unlawful.
It is not easy to predict how a Court would interpret that provision, which is why the NSW Police (or those prosecuting criminal offences, like the Direction of Public Prosecution) might be able to successfully argue that the evidence had not been unlawfully obtained. Separately, the evidence might be discretionarily admitted despite a finding of unlawfulness per section 138(1).”
Section 138(1) enables a judge to admit evidence, despite it being found to be unlawfully obtained, if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in such a way.
How do you think this impacts the public perception of QR codes as a public health measure?
“It is difficult to know exactly how the public would react to the use of QR codes in prosecutions of criminal offences (https://www.criminaldefencelawyers.com.au/criminal-law/offences/) unrelated to the pandemic. Many people would simply be concerned with the potential wide-spread invasion of privacy.
Furthermore, there should be a real concern that persons might be less willing to use QR codes to check in if they thought that their personal information was being retained or used by government agencies, particularly for reasons unrelated to the pandemic, and particularly by the police.
The fallout – that as a society, we would be less able to contact-trace outbreaks – would be unlikely to be worth the prosecution (even when successful) of a small number of crimes. An exception could be made for very serious crime, although it is difficult to know where we would draw the line between offences for which police should have access to personal information, and where they shouldn’t.”
Do you think New South Wales should follow the lead of South Australia and reform regulations to prevent access by police?
“Yes, but I think it’s very unlikely that they will. New South Wales has a long history of consistently broadening and strengthening police powers.”
What is your opinion on the viewpoint that ‘you have nothing to fear if you have nothing to hide’?
“This line of thinking presumes good faith from those in power, and we know from experience that it’s often not the case. You’ll hear conservative politicians and police officers trying to trot out that idea, and it so crudely ignores all of these important legal and societal principles – it’s important to push against it.
Why should we have to give all of our privacy away, all for the sake of the prosecution of a few crimes – it doesn’t seem like a price worth paying.
Of course, we have to forsake some rights in the name of the greater good but that does not mean that this can be hijacked in another pursuit by police officers, doing it in quite a duplicitous way. People give this information in good faith that it’s being used for health purposes.”
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