|
|
[Home] [Databases] [Search] [Feedback] [Help] | |
Privacy Law Resources |
The Privacy Committee believes that the appropriate system for regulation of video surveillance in the workplace is a layered approach, which prohibits some uses of surveillance, and establishes a general policy framework for the legitimate use of surveillance.
The first tier of the proposed strategy involves amendments to the Industrial Relations Act 1991 to prohibit or restrict video surveillance in certain defined circumstances. First, employers should be prohibited from using video surveillance for monitoring individual work performance. Within this framework, if an employee or union believes that an employer is using video surveillance to monitor the behaviour or productivity of employees, they could lodge an application to the Industrial Relations Court alleging breach of the Act and seeking the removal of surveillance cameras. The Court may make an enforceable ruling requiring the employer to remove certain cameras.
Secondly, employers should be prohibited from conducting video surveillance in toilets, showers and change areas as these are locations in which employees have a fundamental right to expect privacy.
Thirdly, the Committee believes that there need to be restrictions on the conduct of covert surveillance. While the Committee believes that a general ban on covert surveillance would provide the maximum protection for employee privacy, it also acknowledges the concerns of employers that they should be able to take reasonable steps to identify individuals responsible for unlawful conduct. The Committee recommends that covert surveillance should only be allowed with a permit, and that there should be stringent controls over its conduct. The Committee recommends that a similar permit system be used for any surveillance of locker rooms and employee recreation rooms. The Committee believes that the Industrial Relations Court would be the most appropriate agency to determine applications for permits to conduct video surveillance; and that if the use of surveillance equipment did not lead to action against an employee, the employer must notify employees who may have been affected by the covert surveillance of the fact that surveillance was conducted at a particular location. The Industrial Relations Court would have the power to impose penalties for clear breaches of provisions relating to surveillance in prohibited areas and covert surveillance.
The above prohibitions would not apply to the conduct of video surveillance by law enforcement officers. The Committee believes that the most appropriate means to ensure the proper use of video surveillance by police would be through a requirement for judicial warrants for the conduct of video surveillance, using a similar structure to that established for audio surveillance devices in the Listening Devices Act 1984. Nevertheless the Committee believes that the requirements of the Act should be strengthened to ensure greater accountability in the use of surveillance devices by law enforcement officers.
The existence of statutory prohibitions on certain forms of surveillance raises the question whether courts should admit into evidence recordings made in breach of the provisions of the Act. Whereas evidence collected from cameras which were installed legally would clearly be admissible before a court, this may not be the case where evidence of a serious crime is collected by an illegally installed video camera. The Committee recommends that in a situation where cameras are installed in breach of the proposed provisions of the industrial relations legislation, the courts should retain their existing discretion in relation to the admissibility of illegally obtained evidence. This discretion would apply in courts with jurisdiction in criminal matters and in the Industrial Relations Court.
The Committee proposes as a second tier of regulation, the implementation of State privacy legislation establishing enforceable privacy standards with general application to both the public and private sectors. The NSW Privacy Commissioner would have the responsibility for developing Codes relating to specific issues and industries in consultation with interested parties; determining exemptions from these Codes; and receiving and investigating complaints relating to the breach of Codes. The attached Guidelines could be used as a framework for developing a specific Code on Video Surveillance in the Workplace. The Privacy Commissioner could also make enforceable determinations and permit exceptions from the Code relating to the conduct of video surveillance. If, after investigating a complaint, the Commissioner concludes that an employer is in breach of the Code or that there are grounds to believe that surveillance cameras are being used for illegal purposes, the Commissioner may make a determination requiring compliance with the Code.
The third tier of the Committee's proposal relates to the period before the above measures are implemented. During this period, the Committee recommends that employers conducting video surveillance adopt the attached Guidelines on Video Surveillance in the Workplace. Until the necessary legislative action is taken, the Committee will receive, investigate and report on any complaints which allege breaches of these Guidelines.