Page 215 - Week 01 - Wednesday, 16 February 2011
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what the surveillance is to be used for, the right to have information about them collected by surveillance protected and used appropriately. Employers also have the right to conduct surveillance that they feel is appropriate and, where they have been open and honest with their workers about the conduct of surveillance, to use information gathered by surveillance to monitor their business.
This legislation is based on the Workplace Surveillance Act that is currently in operation in New South Wales and has been since 2005. This legislation has been working well since its introduction. However, there were concerns raised by some groups, including the Australian Privacy Foundation, and we have addressed those concerns in the bill we are debating today.
This bill is the first in the ACT to explicitly recognise privacy in the relationship between employees and employers. The lack of regulation to date in this area has led to some problematic outcomes.
The vast majority of surveillance that will take place in the ACT under this bill will be notified surveillance. Notified surveillance requires an employer to notify and consult employees on what type of surveillance will take place, where it will take place and what the surveillance can be used for. Once an employer has set out a notice or policy on how the surveillance will be conducted, they must conduct the surveillance in accordance with the notice, including limiting the use of surveillance records to purposes set out in the notice. This prevents employers installing cameras, tracking devices or monitoring software under the guise of security and then using it for performance management.
I will indicate now that I will be moving a minor amendment to the definition of “conducts surveillance” to provide clarity in the bill around who conducts surveillance.
Based upon the experience of the operation of similar legislation in New South Wales, the vast majority of surveillance will be able to continue, provided that employers comply with notification requirements. In many cases, ACT employers who currently use surveillance in the workplace are already complying with the terms of this by having surveillance policies in place in their businesses. This legislation will have little impact on these employers. For those employers who do not have surveillance policies in place currently, there is a six-month period to issue a compliance surveillance notification and to conduct the consultation outlined in the bill. And they will be able to continue surveillance in the interim.
The bill defines three types of surveillance—optical, data and tracking—consistent with the definitions in the Crimes (Surveillance Devices) Act passed earlier this year and places some specific requirements for each type of surveillance. For camera surveillance, employers will be required to ensure that the camera itself is visible and that a sign on the entrance to the workplace notifies workers that they may be subject to surveillance. This is to ensure that workers who do not usually work in the location subject to camera surveillance are aware that surveillance is taking place.
For data surveillance, the bill requires that employers develop a policy and operate data surveillance programs consistently with that policy and take steps to ensure that
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