Push to adopt email snooping law recommendations: NSW


Push to adopt email snooping law recommendations: NSW

Unions are pressuring NSW Attorney General Bob Debus to implement Law Reform Commission interim recommendations on workplace email monitoring tabled two years ago in Parliament.


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Unions are pressuring NSW Attorney General Bob Debus to implement Law Reform Commission interim recommendations on workplace email monitoring tabled two years ago in Parliament.

Independent Education Union (IEU) organiser, Sandra White said unions were seeking ‘support for the extension of the Workplace Video Surveillance Act 1998 to other forms of technology, including email, biometrics, computer tracking, etc.’

NSW Labor Council Secretary, John Robertson said he had no problem with employers monitoring email usage, but drew the line at employers monitoring the content of emails.

The NSW Law Reform Commission (LRC) Surveillance: an Interim Report recommended to the Attorney-General that a new Surveillance Act replace the Listening Devices Act 1984 and the Workplace Video Surveillance Act 1998.

The NSW LRC report tabled in the NSW Legislative Assembly December 2001 recommended the new Act cover workplace internet and email surveillance and data surveillance.

Legal extensions
IEU organiser Sandra White said: ‘If extended, the Act will prevent covert monitoring and provide for some transparent procedures when monitoring is reasonably used.

‘The unions are also seeking agreement for union members to use work email for union communication.’

‘The unions see email as the modern noticeboard, and believe that if workplace representatives and union members are denied reasonable access to the work system, then the employer has an unfair advantage in communicating industrial information.’

Federal or state
Sandra White said ‘the NSW Labor Council claimed that NSW Attorney General Bob Debus had made assertions that because work emails were an electronic transmission they came under federal not a state law’.

According to White, the NSW Labor Council added, ‘NSW law could be amended to provide the protections being sought. The argument is that when email is monitored, it sits in one physical location, on the employer’s server at the workplace’.

‘Any electronic transmission has already occurred and ended, and therefore the application of the Federal law does not apply, but State employment law does.’

A spokesperson for NSW Attorney General Bob Debus told WorkplaceInfo that transmissions across a telephone line fell under the jurisdiction of the Commonwealth.

However, he said, the jury was still out as to whether the monitoring of workplace email transmissions could be regulated by the state.

The NSW Government was waiting on a final report on surveillance from the NSW LRC before considering how it should proceed.

He was unable to say when the final report would be released.

Law reform recommendations
The current laws only cover video surveillance and listening devices.

The NSW LRC Surveillance: an Interim Report recommended surveillance regulation be divided into overt and covert monitoring.

The LRC wanted to see tighter controls over workplace than other surveillance.

The LRC recommended employers be required to give longer notice periods when implementing overt surveillance, and recommended any proposed legislation adhere to the following eight legislative principles:
  1. Overt surveillance should not be used in such a way that it breaches an individual's reasonable expectation of privacy.
  2. Overt surveillance must only be undertaken for an acceptable purpose.
  3. Overt surveillance must be conducted in a manner that is appropriate for purpose.
  4. Notice provisions shall identify the surveillance user.
  5. Surveillance users must be accountable for their surveillance devices and the consequences of their use.
  6. Surveillance users must ensure all aspects of their surveillance system are secure.
  7. Material obtained through surveillance to be used in a fair manner and only for the purpose obtained.
  8. Material obtained through surveillance must be destroyed within a specified period.
In relation to the more intrusive covert surveillance, the LRC recommended workplace surveillance be authorised by members of the AIRC.

However, the LRC acknowledged that prior approval may not be possible or practicable and could be obtained retrospectively.

Any proposed laws should also contain accountability and breaches of the law could give rise to criminal prosecution and civil damages suits.


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