Page 1337 - Week 04 - Wednesday, 24 March 2010
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unlawful activity using other means, and consideration of whether the suspected unlawful activity would be better investigated by the police.
However, it needs to be recognised that the employer is often better suited to investigate crimes such as petty theft, fraud and vandalism that occur within the workplace. The court must also consider whether the person nominated to supervise the surveillance is a fit and proper person for the job.
The surveillance supervisor, who is not the employer, must not give another person access to a covert surveillance record, except to the employer where it relates to unlawful activity in a workplace. Furthermore, the surveillance supervisor is required to erase or destroy all covert surveillance records gathered under the authority except those required for investigative or evidentiary purposes. In the event that an employer relies upon part of a surveillance record disclosed to them by the surveillance supervisor to take detrimental action against a worker, the employer must give a worker access to that surveillance record upon written request of the worker.
Employers are required to provide a report on the operation of a covert surveillance authority to the court within 30 days of the end of the covert surveillance authority.
This part of the bill also outlines offences for conducting covert surveillance without proper authority and improper use or disclosure of covert surveillance records. Furthermore, the bill considers the admissibility of evidence gathered under improperly conducted covert surveillance, and whilst the employer may have committed an offence due to improper conduct of the surveillance, this will not affect the admissibility of evidence for criminal proceedings or detrimental action taken against an employee.
We believe that, based upon the operation of similar measures in place in New South Wales and the improvements that have been made on their legislation as it exists in New South Wales, the issuance and operation of covert surveillance authorities will strike the right balance between maintaining an employer’s ability to investigate unlawful activity in the workplace and protecting the privacy of the workers.
With regard to prohibited surveillance, the three sections of part 5 of this bill outline commonsense measures to prevent surveillance of employees by employers that is inappropriate at any time, that is, surveillance of toilets, change rooms and other specified non-work areas which have an understandably heightened expectation of privacy.
This part of the bill also prohibits surveillance of workers when not at work. The Greens believe that the trend of longer work hours at work and taking work home is a sad one, and the increase in hours that Canberrans put into their job do not reflect a healthy balance between work life and home life. We seek to ensure that when someone is not at work their activities are not monitored, in order to ensure that the hours Canberrans do get at home are theirs to do with what they will. We have recognised, however, that computers provided by an employer and tracking devices that cannot be deactivated are exceptions to this requirement, and are subject to specific exemptions.
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