Knowledge is Power, Know your rights
On 1 July 2007, the Surveillance Devices (Workplace Privacy) Act 2006 (Vic) came into effect, amending the existing Surveillance Devices Act 1999 (Vic) (Act). The new regime was prompted by the Victorian Law Reform Commission’s (VLRC) 2005 inquiry into workplace privacy. In its final report, the VLRC concluded that workers’ privacy was not adequately protected by existing legislation and recommended a prohibition on surveillance of private areas in the workplace.
How the new rules affect employers
The amendments mean that employers cannot use listening devices or optical surveillance devices (such as video cameras) for surveillance of workers in workplace toilets, washrooms, change rooms or lactation rooms. In addition, employers are prohibited from communicating or publishing material obtained through surveillance. These prohibitions apply equally to all public and private sector Victorian employers, regardless of whether they are partnerships, businesses or companies. Contravention of either of these prohibitions may result in imprisonment of up to two years or fines of up to $132,144.
The prohibitions are not absolute, allowing surveillance in three limited circumstances:
where a warrant or emergency authorisation has been granted to permit surveillance
in accordance with a Commonwealth law (eg a law relating to national security)
where required as a condition of a liquor licence (eg in a licensed venue)
In these three circumstances, information obtained from surveillance may only be used in accordance with the relevant warrant, Commonwealth law or licence requirement.
Continuation of existing surveillance prohibitions
The amendments insert new prohibitions into the Act, but otherwise keep existing requirements intact. The Act continues to regulate the use of listening devices, optical surveillance devices and tracking devices (such as GPS tracking devices used on vehicles). These existing requirements apply generally—not just in the employment context—but it was noted by the VLRC that the exceptions for consent and non-private activities meant that often workers could not rely on these requirements to protect them from workplace surveillance.
In addition to the requirements of the Act, any personal information collected through surveillance must also be handled in accordance with information privacy laws such as the Information Privacy Act 2000 (Vic) (for Victorian public sector agencies) and the National Privacy Principles under the Privacy Act 1988 (Cth) (Privacy Act) (for private sector organisations).
Comparison with NSW legislation
The amendments to the Act come two years after the Workplace Surveillance Act 2005 (NSW) (NSW Act) was passed in New South Wales, which we wrote about here. However, the Victorian amendments are not a replica of the NSW Act, and the legislative regimes in each state continue to differ in many ways.
While the NSW Act also prohibits surveillance of private areas such as workplace bathrooms and change rooms, it more broadly regulates camera surveillance, computer surveillance and tracking surveillance. The NSW Act does not regulate the use of listening devices as this is left to the separate Listening Devices Act 1984 (NSW).
Under the NSW Act, surveillance is prohibited unless employees are given notice of the intended surveillance 14 days prior, or before they commence work with the employer. Alternatively, surveillance is allowed where the employer has obtained covert surveillance authority from a Magistrate in order to determine whether the employee is engaging in unlawful activity at work.
In Victoria, the Act does not require notification for optical surveillance of non-‘private activities’, but otherwise requires consent. Either way this differs from the NSW Act. Consent, rather than notification, is also required in Victoria for tracking surveillance. Computer surveillance is not regulated at all in Victoria under the Act.
Possibilities for further reform
Victoria’s Attorney-General Rob Hulls has recognised that the new amendments are just the first stage in developing a more comprehensive regime to protect workplace privacy. This is evident in the fact that the Act only implemented one of the many recommendations made by the VLRC in its final report.
Beyond recommending a prohibition on surveillance of private workplace areas, the VLRC also recommended the introduction of a Workplace Privacy Act containing provisions including:
power to establish a Workplace Privacy Regulator
a general obligation on employers not to unreasonably breach the privacy of workers, while they are working restrictions on the ability of the employer to affect the privacy of workers outside of work, and a prohibition on employers conducting genetic testing of employees, unless permitted by the regulator.
Meanwhile, voices expressing frustration with the inconsistency of privacy laws between Australian jurisdictions—surveillance and workplace privacy being good examples—are finding their audience. The Standing Committee of Attorneys-General is considering the VLRC’s proposed Workplace Privacy Act as the basis of a consistent national scheme.
The issue of national consistency was also noted by Federal Privacy Commissioner Karen Curtis in her review of the private sector provisions of the Privacy Act in 2005. Her review has prompted an inquiry into privacy by the Australian Law Reform Commission (ALRC) which is even reviewing the possibility of changing the Australian Constitution to enact national privacy laws. The ALRC’s final report is due in March 2008.
For further information, please visit the VLRC website and the ALRC website.
This article was written by Kaman Tsoi, Senior Associate, and Emily Sykes, Articled Clerk of the Melbourne Corporate group
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