Workplace Surveillance Bill 2005

Workplace Surveillance Bill 2005

This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill
The objects of this Bill are:
(a) to prohibit the surveillance by employers of their employees at work except by
surveillance of which employees have been given notice or surveillance
carried out under the authority of a covert surveillance authority issued by a
Magistrate for the purpose of establishing whether or not an employee is
involved in any unlawful activity at work, and
(b) to restrict and regulate the blocking by employers of emails and Internet access
of employees at work, and
(c) to provide for the issue of covert surveillance authorities by Magistrates and
to regulate the carrying out of surveillance under a covert surveillance
authority and the storage of covert surveillance records, and
(d) to restrict the use and disclosure of covert surveillance records.
The Bill applies only to camera surveillance, computer surveillance (surveillance of
the input, output or other use of a computer by an employee) and tracking
surveillance (surveillance of the location or movement of an employee).
The Bill repeals and replaces the Workplace Video Surveillance Act 1998, which
applied only to video (ie camera) surveillance.
Outline of provisions
Part 1 Preliminary
Clause 1 sets out the name (also called the short title) of the proposed Act.
Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.
Clause 3 defines certain words and expressions used in the proposed Act. The
expression surveillance is defined to mean surveillance of an employee by camera
surveillance, computer surveillance or tracking surveillance. The proposed Act
applies only to these forms of surveillance.
Clause 4 gives an extended meaning to employer where corporations are related, so
that an employer’s employees will include employees of a related corporation of the
employer.
Clause 5 defines at work for an employer to mean at a workplace of the employer
(whether or not while working), or at any other place while working for the
employer.
Clause 6 provides that the proposed Act binds the Crown.
Clause 7 provides that notes do not form part of the proposed Act.
Clause 8 deals with the relationship of the proposed Act to the Occupational Health
and Safety Act 2000.
Part 2 Notification of workplace surveillance of
employees
Clause 9 provides for the application of the proposed Part to the surveillance of an
employee carried out or caused to be carried out by the employee’s employer while
the employee is at work for the employer.
Clause 10 deals with how surveillance of employees is to be notified to employees.
Clause 11 imposes additional requirements for the notification of camera
surveillance.
Clause 12 imposes additional requirements for the notification of computer
surveillance.
Clause 13 imposes additional requirements for the notification of tracking
surveillance.
Clause 14 creates an exemption from the employee notification requirements for
surveillance of a workplace that is not for the purpose of employee surveillance and
is done by agreement.
Part 3 Prohibited surveillance
Clause 15 prohibits surveillance by an employer of an employee in a change room,
toilet facility or shower or other bathing facility at a workplace.
Clause 16 prohibits the surveillance by an employer of an employee when not at
work by means of a device used for surveillance of the employee at work except
computer surveillance of the use by the employee of equipment or resources
provided by or at the expense of the employer.
Clause 17 prohibits the blocking of emails sent to or by an employee and Internet
access by an employee unless the employer is acting in accordance with the
employer’s email and Internet access policy notified to the employee and (except in
the case of spam or menacing or offensive emails) the employee is notified as soon
as practicable that an email has been blocked. An employer’s email and Internet
access policy cannot authorise blocking of emails or Internet access merely because
the content relates to industrial matters.
Part 4 Covert surveillance of employees at work
Division 1 Restrictions on covert surveillance
Clause 18 prohibits the covert surveillance of an employee at work except as
authorised by a covert surveillance authority. Covert surveillance is surveillance that
is not carried out in compliance with the requirements of Part 2.
Clause 19 provides that a covert surveillance authority authorises the covert
surveillance of employees for the purpose of establishing whether or not an employee
is involved in any unlawful activity at work. The covert surveillance is required to be
overseen by a surveillance supervisor for the authority.
Clause 20 creates exceptions from the requirement for a covert surveillance
authority for law enforcement agencies, correctional centres, the casino, and camera
surveillance of legal proceedings.
Clause 21 creates a defence in the case of covert surveillance that is necessary for
the security of the workplace.
Division 2 Covert surveillance authorities
Clause 22 provides for the making of an application to a Magistrate for a covert
surveillance authority.
Clause 23 requires an application for a covert surveillance authority to be dealt with
in the absence of the public.
Clause 24 requires that reasonable grounds exist to justify the issue of a covert
surveillance authority.
Clause 25 requires a Magistrate in deciding whether to issue a covert surveillance
authority to have regard to whether the covert surveillance might unduly intrude on
the privacy of employees or any other person.
Clause 26 requires a Magistrate issuing a covert surveillance authority to designate
one or more surveillance supervisors to oversee the conduct of surveillance
operations under the authority.
Clause 27 provides for the form of a covert surveillance authority.
Clause 28 provides for the period for which a covert surveillance authority remains
in force and for the conditions of the authority.
Clause 29 creates the offence of contravening a condition of a covert surveillance
authority.
Clause 30 provides for the variation or cancellation of a covert surveillance
authority.
Clause 31 prevents a further application for a covert surveillance authority being
made if a previous application has been refused, unless additional relevant
information is provided.
Clause 32 requires a Magistrate who issues a covert surveillance authority to make
a record of various particulars and the grounds relied on by the Magistrate for its
issue.
Clause 33 provides that a covert surveillance authority is not invalidated by a defect
except one that affects the substance of the authority in a material particular.
Clause 34 requires an employer or employer’s representative to report to the issuing
Magistrate on surveillance carried out under a covert surveillance authority.
Division 3 Covert surveillance records
Clause 35 imposes restrictions on the storage of records of covert surveillance to
ensure that they are protected against loss or unauthorised access or use.
Clause 36 imposes restrictions on the use and disclosure of records of covert
surveillance for irrelevant purposes.
Clause 37 provides that information obtained inadvertently or unexpectedly as a
result of covert surveillance is not considered to have been obtained unlawfully for
the purposes of determinations about admissibility of evidence.
Part 5 Miscellaneous
Clause 38 makes it clear that the proposed Act does not apply to anything done
under the authority of a warrant or other authority under Commonwealth law.
Clause 39 provides that a conferral of functions on a Magistrate by the proposed Act
is not a conferral of jurisdiction on Local Courts.
Clause 40 provides for application to a judicial member of the Industrial Relations
Commission for the issue, variation or cancellation of a covert surveillance authority
by way of review of a Magistrate’s decision.
Clause 41 provides for an annual report by the Minister to Parliament on covert
surveillance operations.
Clause 42 makes provision for offences by corporations.
Clause 43 is a regulation-making power.
Clause 44 deals with proceedings for offences.
Clause 45 deals with authority to prosecute for an offence under the proposed Act.
Clause 46 gives effect to the Schedule of savings and transitional provisions
(Schedule 1).
Clause 47 repeals the Workplace Video Surveillance Act 1998 and the regulation
under that Act.
Clause 48 requires the proposed Act to be reviewed by the Minister after 5 years.
Schedule 1 Savings and transitional provisions
Schedule 1 provides for the making of savings and transitional regulations as a
consequence of the enactment of the proposed Act and also provides for the saving
of existing covert surveillance authorities and pending applications for such
authorities under the Workplace Video Surveillance Act 1998.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.