Publications

What is your Avo on Toast really costing you?  Disclosure and collection of information obligations under the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No 3) 2020 (NSW)

Published on June 12, 2020

This is follow-up article to my previous article published on the Carroll & O’Dea Lawyers website on 5 June 2020: What is Old is New Again (sort of): the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No.3) 2020 (NSW).[1]

As canvassed in my last published article, the Public Health (COVID-19 Restrictions on Gathering and Movement) Order (No.3) 2020 (NSW) (the ‘Order’) that commenced on 1 June 2020 provided directions to ease certain restrictions that have previously been imposed on individuals and businesses in NSW.

Whilst most attention has focused on the number of patrons that reopening businesses can now accommodate, less attention has been made of the accompanying requirements obligating occupiers and operators of premises to record details of the patrons that enter through their doors and the obligation to maintain those records for at least 4 weeks.

This is of particular significance given the fines and even prison terms that can be applied to individuals and corporations that fail to meet the requirements of the Order.

In NSW, every person entering:

• a café[2], restaurant[3], pub[4], or registered club[5] premises to consume food or drink on the premises or, access goods and services on the premises,
• or who attend wedding[6] and funeral[7] services,
• as well as those who attend church[8];

must provide their name and contact details (including email address or phone number) to the operator or occupier of the premises (or the relevant person of the wedding, funeral or religious service) so as to allow for the manual tracking of the potential spread of the COVID-19 virus.

Failure to comply with the requirements by the person – such as refusing to provide contact details – can result in serious fines for breaching a direction contained in the Order. A further issue that arises out of a customer’s non-compliance is the issue of the legitimacy of businesses to refuse service to customers who do not comply with the requirements of the Order (as the customer’s non-compliance puts the business in the same position of non-compliance with their own obligations).

Equally the operator or occupier of the premises (or the relevant person of the wedding, funeral or religious service)[9] must record and maintain those information records for a period of at least 4 weeks[10] from the date of visit by the patron and on request must provide those records to the NSW Chief Health Officer.[11]

There is a further direction that a government sector agency or a NSW Minister (the ‘first agency’) is authorised to collect information (which includes personal information or health information)[12] 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.[13] A related agency means a government sector agency or NSW Minister, or an agency or Minister of the Commonwealth or another State or Territory.[14]

These obligations affect thousands of businesses across the State as well as all individuals entering relevant premises including cafés, bars, restaurants, registered clubs, pubs, wedding venues, funeral parlours and churches. Failure to comply with requirements stated in the Order to collect and maintain patron records can result in serious fines and even imprisonment.

Section 10 of the Public Health Act 2010 (NSW) creates an offence if an individual fails to comply with a direction contained in the Order with a maximum penalty of imprisonment of 6 months or a fine of up to $11,000 (or both) plus a further $5,500 fine each day the offence continues. Corporations that fail to comply are liable to a fine of $55,000 and $27,500 each day the offence continues.

With the onus on individuals as well as on  operators and occupiers of premises to comply with the obligations outlined in the Order to disclose, collect and maintain patron records for the purpose of protecting the health and welfare of members of the public during the COVID-19 pandemic, there is the real risk that cannot be ignored of the information that is collected being misused and  disclosed to third parties without the provider’s authorisation.  What is your avo on toast really costing you? 

The discussion on privacy and in particular concerns regarding the breach of privacy is not a novel one, though it has been one highlighted in recent times by the effect that the COVID-19  pandemic has had on businesses and employers, the efforts by the Commonwealth Government to encourage individuals to download the COVIDSafe App and also, the NSW Parliament currently considering the Civil Remedies for Serious Invasions of Privacy Bill 2020 (NSW) –  links to recent articles by my colleagues at Carroll & O’Dea Lawyers: Charles Harrison and Martin Slattery[15], Patricia Monemvasitis and Yue Lucy Han[16], and a further article by Charles Harrison[17] on these privacy issues are here provided.

The disclosure of more of our personal (contact) information to third parties is a vital consideration we need to weigh up in this brave new world.  Are we at ease with the trade-off of providing our name and contact details for the indulgence of brunch at a café or a round of beers at the pub?  How safe is the information we provide? How will our personal information be disposed of after the mandatory record keeping period? Is the risk of misuse or unauthorised disclosure one we can live with? The personal decisions we make regarding our lifestyle choices cannot ignore the privacy considerations that now confront us front and centre.  We must now view these considerations with eyes even wider open – can you please pass the salt?

Click on the link to read Dexter Cabal’s update on the current COVID-19 Restrictions published on 3 July 2020.