Lawful covert surveillance outside of work

Workplace Directions

On 14 October 2016, the Workplace Privacy Amendment Act 2016 (ACT) (‘the WPAA’) will come into effect and allow employers in the Australian Capital Territory to conduct visual surveillance of employees outside of workplaces, in limited circumstances and with prior Court approval.

Workplace surveillance legislation in Australia

Workplace surveillance laws recognise that employers are justified in monitoring workplaces for the purposes of protecting property, monitoring employee performance and ensuring employee health and safety.

Currently, the regulation of surveillance of electronic communications in the private sector varies depending on the state or territory in which the employer is operating. Specific workplace surveillance laws exist only in the Australian Capital Territory, New South Wales and, to some extent, in Victoria. In most other jurisdictions, workplace surveillance is regulated by general surveillance statutes which prohibit the use of listening, optical or tracking devices except in specified circumstances.

The Workplace Privacy Act 2011 (ACT) (‘the WPA’) was enacted in 2011 and operates in a similar manner to the Workplace Surveillance Act 2002 (NSW). The objective of the WPA is to ensure that employers inform and consult with employees on any surveillance that occurs in the workplace, specifically any optical, data and tracking surveillance. Surveillance of employees is prohibited in places such as toilets, change rooms, nursing rooms, first-aid rooms and prayer rooms. It has been prohibited outside the workplace. Covert surveillance must not be undertaken unless an authority is obtained from the ACT Magistrates Court.

The Surveillance Devices Act 1999 (VIC) makes it an offence to use optical or listening devices to carry out surveillance of the conversations or activities of employees in workplace toilets, washrooms, change rooms or lactation rooms. Workplace surveillance in Victoria is otherwise subject to the same restrictions as general surveillance devices.

The Australian Law Reform Commission has previously conducted an inquiry pushing for uniform workplace surveillance laws across Australia, which would create greater privacy protections for employees and greater certainty for employers operating in multiple jurisdictions. Release of the final report and the Australian Government’s response is pending.

Amendments under the WPAA

The WPAA will make the Australian Capital Territory the first jurisdiction that allows employers to apply to the Magistrates Court for an authority to conduct covert surveillance outside the workplace.

An employer would only succeed in an application for a covert surveillance authority if the Court accepts that they ‘reasonably believe that the relevant employee is committing an offence against a law of the Territory’. A reasonable suspicion is insufficient for this purpose, and the unlawful activity must also be related to work.

The Court would then be required to consider and balance a range of factors, including:

  • The seriousness of the unlawful activity
  • Whether there are any other appropriate ways to find out if the worker is engaged in the unlawful activity
  • Whether it is more appropriate for the unlawful activity to be investigated by a law enforcement agency
  • Whether the unlawful activity is directly related to the worker’s work for the employer
  • Whether surveillance of the worker will be undertaken in a place in which a person would have a heightened expectation of privacy.

The WPAA contains limitations on the exercise of external covert surveillance to recognition of the right to privacy under the Human Rights Act 2004 (ACT). Only visual surveillance is permitted and surveillance may only be undertaken from a public area. Images may only be taken of an area visible from a public place and surveillance of activities within residential premises will not be allowed.

The WPAA also removes notice requirements for tracking devices where it would be unduly difficult to affix a notice to the device, and where the employer has taken appropriate action to notify employees of the device’s tracking capability.

Under the WPAA, the Magistrates Court Act 1930 (ACT) would also be amended to grant the ACT Industrial Court jurisdiction to hear and decide a proceeding under the WPA.

Conclusion

Employers will only succeed in an application to the Court to proceed with covert surveillance outside work in relatively limited circumstances, with justifiable cause, and where the issue in question is related to the workplace. Surveillance must only be conducted in public places, and should not invade the privacy of the employee’s family and children.

Authored by Angel Li, Lawyer, Canberra


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