Page 608 - Week 02 - Thursday, 18 February 2016
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I recognise that allowing an employer to conduct covert surveillance outside a workplace limits the right to privacy. To minimise any limitation on a worker’s privacy, the bill contains important safeguards to ensure that the bill complies with the human rights legislation of the ACT. These safeguards strike an appropriate balance between an employer’s need to monitor their workplace and protect against false claims on the one hand and the rights to privacy and protection of the family and children of an employee on the other. An employer may only apply for an authority to conduct covert surveillance outside the workplace to gather information about whether a worker is engaged in unlawful activity in relation to their work for the employer.
Because of an increased expectation of privacy outside the workplace, as a condition of being able to apply for an authority to conduct covert surveillance outside the workplace, the employer must reasonably believe that the worker is committing an offence against a law in force in the ACT. In contrast, to undertake covert surveillance within a workplace an employer only needs to demonstrate a reasonable suspicion, reflecting a lesser expectation of privacy in that environment.
An application for an authority to conduct covert surveillance must be made to the Magistrates Court, which is obliged by the legislation to weigh such factors as the seriousness of the alleged unlawful activity, whether surveillance of a worker will be undertaken in a place in which a person would have a heightened expectation of privacy, and whether there are other more appropriate means to investigate. In addition, when considering the grant of an authority to conduct covert surveillance outside the workplace, the court must consider whether the unlawful activity is directly related to the worker’s work for the employer.
The bill further imposes stringent conditions on the conduct of covert surveillance outside the workplace. Only visual surveillance can be authorised and it must only be undertaken from a public place. This surveillance cannot capture a person inside any premises being used for residential purposes. As a further safeguard to limit covert surveillance in sensitive areas, a magistrate may only authorise surveillance in locations such as rest rooms, prayer rooms or change rooms where it is satisfied that exceptional circumstances justify surveillance in those locations.
To preserve the right to privacy and the right to protection of family and children, any surveillance that captures a person other than the worker must be destroyed or obscured as soon as possible. These requirements and any other relevant privacy laws extend equally to any third parties who undertake covert surveillance of a worker on behalf of the worker’s employer. As an added protection under the existing act, any information gathered through covert surveillance outside the workplace may only be used for the purpose for which it was gathered, for example in a workers compensation claim against the employer.
This bill responds to feedback during the review process about the practical needs of stakeholders while assuring efficient administration and enforcement generally, greater transparency and considered judicial oversight of covert surveillance beyond the workplace.
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