NSW workplace surveillance legislation to be expanded

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NSW workplace surveillance legislation to be expanded

Legislation to prohibit all forms of covert electronic surveillance of employees in New South Wales, including email surveillance, will be introduced into Parliament later this year.

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Legislation to prohibit all forms of covert electronic surveillance of employees in New South Wales, including email surveillance, will be introduced into Parliament later this year.

Currently, the Workplace Video Surveillance Act 1998 prohibits covert video surveillance of employees and the provisions of this act will be extended to cover other forms of covert surveillance. These forms will include surveillance of email and the use of tracking devices. 

The New South Wales Government announced on 30 March 2004 that it intends to release an exposure draft of the legislation next month to be followed by a six-week consultation period before a Bill is finalised. 

Only covert surveillance prohibited

It is important to note that the proposed legislation will not completely prohibit surveillance of employees’ email. Employers will be able to conduct surveillance of email provided that they notify employees in advance that they are doing so. This can be done, for example, by having a “warning notice” appear on each employee’s computer screen each time the employee switches the computer on. Instead, the prohibition will apply to surveillance without notifying employees.

Currently, the Workplace Video Surveillance Act requires employers to notify employees in writing at least 14 days before they intend to commence video surveillance. If this requirement is met, the surveillance is not regarded as covert. Employers who wish to conduct covert surveillance have to apply to a Magistrate for a permit to do so, providing information to support the request, such as some evidence to substantiate suspicions that some employees may be involved in illegal activities. The Magistrate must be satisfied that there are reasonable grounds to suspect that unlawful activities are occurring before issuing a permit, but must also take into account whether the proposed surveillance is likely to intrude on the privacy of employees or other people who attend the workplace.

With the proposed amendments to the Act, it is likely that employers will have to apply for a permit to conduct email surveillance by following a similar procedure. The NSW Attorney-General has suggested that covert email surveillance will only be permitted where cases of serious abuse of email are suspected. 

WorkplaceInfo will cover the exposure draft and Bill in detail when they are introduced and keep you up to date with developments as they occur.

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