Page 1274 - Week 04 - Thursday, 7 April 2016
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Sadly, not everyone is honest. People who are not honest may seek an advantage that ends up costing the broader community money. This amendment recognises that employers have a right to defend themselves in our adversarial legal system. But it is not all one way. For employees, it is equally important that such procedures are clearly limited and defined in law. For this reason, the bill attaches rigorous safeguards to an employer’s ability to apply for and to conduct covert surveillance outside the workplace.
I note that not all stakeholders agree with the proposal to allow limited covert surveillance outside the workplace. Unions ACT does not agree and yesterday made media comments about the proposal. In my view, those comments were unfortunately quite misleading. They do not give an accurate account of the way that this will work in practice, the extensive safeguards in the bill or the involvement of the human rights commissioner in making sure the bill was of the highest standard in terms of its interaction with human rights.
For the benefit of the Assembly, let me provide some more detail about how this surveillance could occur outside the workplace. The amendment acknowledges that there are some circumstances where an employee engages in behaviour connected to their workplace that is unlawful and that an employer is justified in conducting surveillance on the employee. These circumstances would be very limited and must meet the strict requirements set out in the bill.
An employer cannot conduct surveillance on an employee outside the workplace unless a magistrate grants authority to do so. The employer must have a reasonable belief that the employee is engaged in unlawful conduct related to the workplace. The magistrate must not grant authority unless satisfied there are reasonable grounds to do so. In making this assessment, the magistrate must consider the seriousness of the unlawful activity in which the worker is reasonably believed to be engaged, whether there are other appropriate ways to find out if the worker is engaged in the unlawful activity, whether it is more appropriate for the unlawful activity to be investigated by a law enforcement agency, whether the unlawful activity is directly related to the worker’s work for the employer, whether surveillance of the worker will be undertaken in a place in which a person would have a heightened expectation of privacy, whether and the extent to which the proposed surveillance might intrude on the worker’s or someone else’s privacy and whether the person nominated to be the surveillance supervisor in the application is suitable.
If an employer is granted authority to conduct surveillance on an employee outside the workplace, their surveillance activities are governed by conditions. The covert surveillance authority granted by the magistrate must state details such as the nature of the suspected unlawful activity, the means of surveillance, the location of the surveillance and when the covert surveillance may be conducted. These limitations are intended to ensure surveillance occurs only in the most minimal and appropriate circumstances. It is also important to note that, in recognition of the importance of employee privacy, surveillance may only occur in a public place and surveillance cannot be undertaken of a person in part of a premises that is being used for residential purposes.
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