Paul Hayes: Vulnerability of contact tracing data should’ve been known sooner

Victorians deserved to know the vulnerability of their contact tracing information as soon as concerns emerged.

The government reassured Victorians throughout 2021 that contact tracing information would be used only for that purpose at a time when the government must have known that the information it had collected, and was collecting this year, was vulnerable to being disclosed.

This is because in the judgment of Justice Keogh, references were made to WorkSafe notices to produce the contact-tracing information being issued in November 2020 and the Health Department initially resisting in December 2020.

Essentially, the government was giving an assurance to Victorians that it was unable to give because of the uncertainty of the outcome of the Supreme Court case (which, ultimately, was not determined by the court because WorkSafe withdrew the notices that the department was challenging).

The government tried to suppress that uncertainty. it sought to turn off the light of the court proceedings which, at the time, would have illuminated the vulnerability of Victorians’ contact-tracing information.

A secret Supreme Court ruling confirmed personal information shared with contact tracers or through QR codes does not have “absolute protection”. Picture: Ian Currie

Further, the government sought to have the proceedings suppressed for a period of five years, which in itself is an arbitrary figure. Why five years?

Any suggestion that the suppression proceeding was to avoid a baseless scare campaign that would have resulted in media reports driving fear and misinformation does a grave disservice to the important role of the media in our democracy.

It is difficult to understand why there could be any suggestion that the media would otherwise not properly, and faithfully, report the court proceedings that were conducted before Justice Keogh on October 20, 2021, and the judgment on November 24, 2021.

In fact, the Herald Sun went so far as to publish the judgment in its entirety. What could be fairer than that?

While all of this was happening in 2021, the government was drafting the pandemic Bill, which resulted in sections 165CA-165CD of the Public Health and Wellbeing Act 2008.

This substantially strengthened the restriction on the use of Victorian’s contact-tracing data.

This was one of the welcome provisions in the pandemic Bill. However, if the contact-tracing information of Victorians was already safe then why was there a need to amend the Act in the way in which the government did?

Perhaps one explanation for the inclusion of sections 165CA-165CD is that the government actually realised the contact-tracing information was not as safe as it could be and needed to strengthen the legislation in light of the vulnerability exposed by the court case it tried to suppress, ultimately unsuccessfully.

— Paul Hayes QC is a prominent barrister and a member of the Victorian Bar