Page 211 - Week 01 - Wednesday, 16 February 2011
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As members would be aware, the ACT currently relies on the application of commonwealth privacy law. The government continues to examine options for the development of privacy legislation that will ensure a statutory protection for a range of privacy rights, including those relating to the use and storage of electronic data. In effect, this bill from Ms Bresnan anticipates a significant component of the broader privacy protection laws that the government proposes for the territory.
It is appropriate to note at this point that this debate on the bill follows the release and tabling of a discussion draft and a series of meetings between Ms Bresnan, staff from my office and the office of the Minister for Industrial Relations as well as officers from the Department of Justice and Community Safety and the Office of Industrial Relations. I appreciate Ms Bresnan’s willingness to engage in an open discussion with the stakeholders on this important issue. In addition to those consultation meetings, officers from my department have engaged in discussions with relevant agency representatives and with UnionsACT.
The position reached after that detailed consideration is that the bill should be supported. But I will move several amendments which will improve its operation. None of the government amendments alter or take away from the policy intent of the bill. They would better align it with other related legislation, improve its clarity and give detail to improve the effectiveness of its provisions. A number of penalty provisions are amended to align the maximum penalties with penalties provided for in the Listening Devices Act 1992, with similar provisions.
Clause 16 of the bill requires employers to conduct surveillance in accordance with the policy and to notify workers of the policy if the employer is conducting surveillance using a data surveillance device. It does not, however, provide guidance as to what must be included in the employer’s policy. The clause will be amended to include a set of minimum content requirements for policies of employers in relation to data surveillance devices. The government amendment inserts the requirements outlined in the commonwealth Privacy Commissioner’s guidelines on surveillance, web browsing and email.
A number of the amendments simply align penalties in the bill with those set out in the Listening Devices Act 1992 for similar offences. These amendments affect clauses 18, 22, 35, 39 and 42 of the bill. I note that no amendment is proposed to the penalty in clause 20. That provision does not relate to the use of surveillance devices or the disclosure of surveillance records but deals with the inappropriate blocking of electronic communications and website access. The offence is comparatively minor in nature.
The government will also be proposing amendments to clause 23 of the bill to provide that if an employer unlawfully denies access to a surveillance record, the surveillance record cannot be used in any proceedings by the employer against the employee or as a basis for any adverse action under the Fair Work Act 2009. In this respect, I note that section 10 of the Listening Devices Act is the model used for regulating the use of surveillance records. That section renders evidence inadmissible if it is obtained by the unlawful use of a listening device. The evidence would, however, be admissible if
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