Requiring the use of COVIDSafe

Section 94H of the Privacy Act 1988

94H Requiring the use of COVIDSafe

  1. A person commits an offence if the person requires another person to:
    1. download COVIDSafe to a communication device; or
    2. have COVIDSafe in operation on a communication device; or
    3. consent to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

  1. A person commits an offence if the person:
    1. refuses to enter into, or continue, a contract or arrangement with another person (including a contract of employment); or
    2. takes adverse action (within the meaning of the Fair Work Act 2009) against another person; or
    3. refuses to allow another person to enter:
      • premises that are otherwise accessible to the public; or
      • premises that the other person has a right to enter; or
    4. refuses to allow another person to participate in an activity; or
    5. refuses to receive goods or services from another person, or insists on providing less monetary consideration for the goods or services; or
    6. refuses to provide goods or services to another person, or insists on receiving more monetary consideration for the goods or services;

on the ground that, or on grounds that include the ground that, the other person:

  1. has not downloaded COVIDSafe to a communication device; or
  2. does not have COVIDSafe in operation on a communication device; or
  3. has not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Penalty: Imprisonment for 5 years or 300 penalty units, or both.

  1. To avoid doubt:
    1. subsection (2) is a workplace law for the purposes of the Fair Work Act 2009; and
    2. the benefit that the other person derives because of an obligation of the person under subsection (2) is a workplace right within the meaning of Part 3‑1 of that Act.

What is the protection?

An employer must not take adverse action[1] against an employee or prospective employee, on the grounds that they:

  • have not downloaded COVIDSafe to a communication device
  • do not have COVIDSafe in operation on a communication device, or
  • have not consented to uploading COVID app data from a communication device to the National COVIDSafe Data Store.

Example

An employer must not dismiss an employee or refuse to employ a person because they haven’t downloaded COVIDSafe. 

Are there exceptions?

There are no exceptions. 

Reference

[1] Privacy Act 1988 (Cth) s.94H(2)(b).

Last updated

02 June 2020

Coercion

Section 343

  1. A person must not organise or take, or threaten to organise or take, any action against another person with intent to coerce the other person, or a third person, to:

    1. exercise or not exercise, or propose to exercise or not exercise, a workplace right; or
    2. exercise, or propose to exercise, a workplace right in a particular way.
  2. Subsection (1) does not apply to protected industrial action.

What is the protection?

A person must not organise, take or threaten any action against another person to force that other person, or a third person, to:

  • exercise or not exercise a workplace right
  • propose to exercise or not exercise a workplace right, or
  • exercise or propose to exercise a workplace right in a particular way.[1]

Example

An employer must not threaten an employee with demotion unless the employee stops a harassment claim against their supervisor. 

Are there exceptions?

This protection does not apply to organising (or threatening) protected industrial action. 

What is coercion?

police thugs
The corrupt, political party corporate government is using the police as enforcers

A person coerces another to act in a particular way if the first person brings about that act by force or compulsion. Coercion will cause a person to act in a way that is non-voluntary.[2]

There must be two elements to prove ‘intent to coerce’:

  • it needs to be shown that it was intended that pressure be exerted which, in a practical sense, will negate choice, and
  • the exertion of the pressure must involve conduct that is unlawful, illegitimate or unconscionable.[3]

Coercion is distinguished from other concepts including influence, persuasion and inducement. Coercion implies a high degree of compulsion and not some lesser form of pressure where a person is left with a realistic choice as to whether or not to comply.[4]

Coercion may take many forms. Persuasion becomes coercion when a person who influences another does so by threatening to take away something they possess, or by preventing them from obtaining an advantage they would otherwise have obtained.[5]

The prohibition applies irrespective of whether the action taken to coerce the other person is effective.[6] However, the actual effect of conduct may indicate the intent or purpose of the alleged contravener when the action was taken.[7]

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