13.47 Workplace surveillance legislation is also inconsistent across jurisdictions. Workplace surveillance laws recognise that employers are justified in monitoring workplaces for the purposes of protecting property, monitoring employee performance or ensuring employee health and safety. However, the interests of employers must be balanced against employees’ reasonable expectations of privacy in the workplace. Specific workplace surveillance laws (the workplace surveillance laws) exist only in NSW, the ACT and, to some extent, in Victoria. As with general surveillance device laws, uniformity about workplace surveillance laws would promote certainty, particularly for employers and employees located in multiple jurisdictions.
13.48 The Surveillance Devices Act 1999 (Vic) provides an offence for the use of an optical device or listening device to carry out surveillance of the conversations or activities of workers in workplace toilets, washrooms, change rooms or lactation rooms. Workplace surveillance in Victoria is otherwise subject to the same restrictions as general surveillance devices.
13.49 The Workplace Privacy Act 2011 (ACT) applies to optical devices, tracking devices and data surveillance devices, but not to listening devices. The Act requires an employer to provide particular forms of notice to employees if one of these types of surveillance devices is in use in the workplace, and to consult with employees in good faith before surveillance is introduced. The Act also provides for ‘covert surveillance authorities’, allowing an employer to conduct surveillance without providing notice upon receiving an authority from a court. A covert surveillance authority will be issued only for the purpose of determining whether an employee is carrying out an unlawful activity, and is subject to various safeguards. The ACT Act also prohibits surveillance of employees in places such as toilets, change rooms, nursing rooms, first-aid rooms and prayer rooms, and surveillance of employees outside the workplace.
13.50 The Workplace Surveillance Act 2005 (NSW) similarly applies only to ‘optical surveillance’, ‘computer surveillance’ and ‘tracking surveillance’. The NSW Act contains similar restrictions to those under the ACT Act. Surveillance devices must not be used in a workplace without sufficient notice being provided to employees, must not be used in a change room, toilet, or shower facility, and must not be used to conduct surveillance of the employee outside work. Covert surveillance must not be used unless a covert surveillance authority is obtained. The NSW Act also places limitations on the restriction of employee email and internet access while at work.
13.51 The inconsistencies between these workplace surveillance laws are relatively minor—for example, slightly different definitions apply, and the types of rooms that may not be put under surveillance differ slightly between each law. A more significant need for reform arises because specific workplace surveillance laws exist only in these jurisdictions. The ALRC therefore proposes that there be uniform workplace surveillance laws across Australia.
13.52 Establishing uniform workplace surveillance laws in each of the states and territories would provide greater privacy protections for employees and greater certainty for employers operating in multiple jurisdictions. These laws could be contained in specific workplace surveillance laws, as they are in the ACT and NSW, or integrated into the more general surveillance device laws, as they are in Victoria.
Workplace Surveillance Act 2005 (NSW).
Workplace Privacy Act 2011 (ACT).
Surveillance Devices Act 1999 (Vic) pt 2A.
Ibid s 9B.
Workplace Privacy Act 2011 (ACT) s 11(1) (definition of ‘surveillance device’).
Ibid pt 3.
Ibid pt 4.
Ibid pt 5.
Workplace Surveillance Act 2005 (NSW) s 3. The definition of ‘tracking surveillance’ refers to a device ‘the primary purpose of which is to monitor or record geographical location or movement’. This is arguably another inconsistency in surveillance laws. The definition of ‘tracking device’ in s 4 of the Surveillance Devices Act 2007 (NSW) does not require that tracking be the primary purpose of the device, but the definition of ‘tracking device’ in s 3 of the Workplace Surveillance Act 2005 (NSW) does require that tracking be the primary purpose.
Ibid pt 2.
Ibid s 15.
Ibid s 16. An exception applies where the surveillance is computer surveillance on equipment provided at the employer’s expense.
Ibid pt 4.
Ibid s 17.
The latter, integrated approach was recommended by the NSWLRC: NSW Law Reform Commission, Surveillance: An Interim Report, Report 98 (2001) Rec 57.