Workplace surveillance - law reform commission to investigate

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Workplace surveillance - law reform commission to investigate

The Law Reform Commission (‘the Commission’) has rejected the Australian Business Chamber’s submission that it refrain from investigating the issue of workplace surveillance when inquiring into the issue of surveillance generally.

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The Law Reform Commission (‘the Commission’) has rejected the Australian Business Chamber’s submission that it refrain from investigating the issue of workplace surveillance when inquiring into the issue of surveillance generally.

The Commission’s recently released ‘Surveillance’ Issues Paper follows on from a reference from the Attorney General, Mr Jeff Shaw MLC QC, dated 2 July 1996 requesting that the Commission investigate the current scope of the Listening Devices Act 1984as well as the need to regulate the use of visual surveillance equipment (see further HR Link, 4 October 1996).

The Attorney General’s terms of reference also requested that the Commission pay heed to, among other things, the ‘current review of the issue of the regulation of workplace visual surveillance being conducted by the Department of Industrial Relations (DIR)’. That review was concluded earlier this year and its recommendations were reported in HR Link (24 January, Issue No 008/97).

The Commission stated in the Issues Paper that:

"There is obviously significant potential for overlap between the Commission’s reference and the recommendations of the Working Party. It has therefore been suggested that the Commission should avoid considering the issue of workplace surveillance because of the Working Party review [footnote: Australian Business Limited (formerly the Chamber of Manufactures of NSW Ltd) Submission (4 November 1996) at 2]. The Commission does not agree. In the Commission’s view, excluding the area of workplace surveillance would be an artificial limitation on its terms of reference, particularly as many surveillance issues in the workplace are, in principle, the same as surveillance issues in other areas. In any event, such a limitation would involve a difficult definition and demarcation issues, for example, what can be considered to be a workplace, and the overlap between employer and law enforcement roles and duties in this area."

The Commission proceeded to outline a number of difficulties it has with the DIR’s recommendations including the DIR’s recommendation that there be a maximum period of 30 days for covert visual surveillance operations. The Commission argues that this is greater than the 21 days allowed for under the Listening Devices Act 1984, and for the purposes of uniformity, the maximum period of visual and aural surveillance should be the same.

In concluding on the issue of workplace visual surveillance, the Commission stated the following ‘Tentative Conclusions’:

"Although the Commission accepts the need for different rules to be developed for overt visual surveillance, where there are different issues of principle involved than for other types of surveillance, it considers that it is inappropriate to have different and less stringent surveillance requirements for certain interest groups or areas. Instead, the Commission’s tentative view is that all surveillance, regardless of where it occurs, should be regulated in a uniform way and that therefore employees should have certain minimum standards of privacy which cannot be bargained away. The existing protections which are found in the Listening Devices Actand the proposed changes which have been discussed in Chapters 4 and 5 should also, prima facie, apply to both employees and customers in the workplace."

Copies of the Commission’s Issues Paper is available at the Commission’s office on (02) 9228 8230. The closing date for submissions is 31 July 1997.

Present legal position concerning the use of surveillance

The NSW Government is yet to introduce legislation in response to the DIR’s recommendations. It is understood that the Government is still considering the matter in principle, and that legislation is likely to be introduced into the September Parliamentary Session.

Consequently, only the use of aural surveillance is currently regulated in NSW subject to the Listening Devices Act.

Note however that the NSW Industrial Relations Act 1996provides that ‘the surveillance of employees in the workplace’ constitutes an ‘industrial matter’ thereby empowering the State Industrial Relations Commission to hear an industrial dispute concerning workplace surveillance.

 

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