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Legislative Assembly for the ACT: 2010 Week 04 Hansard (Wednesday, 24 March 2010) . . Page.. 1336 ..


commencing the surveillance. In practical terms, the employer needs to tell an employee if they are going to read emails or block access to particular websites or classes of website through any monitoring or network protection system. Again, this does not place undue restrictions on employers doing so; it just places a requirement upon them to do so in an honest, equitable and transparent manner.

Sections 19 and 20 of the bill outline specific requirements and offences relating to employer interception and blocking of electronic communications. These sections stipulate that blocking access to websites or stopping delivery must be either in accordance with policy or for a range of specific reasons, including reasonable suspicion that the communication may be spam or damage a computer or network. Furthermore, an employer may not block a website or communication purely on the basis that it relates to industrial matters, although such websites and communications may be blocked where it is consistent with usage policy, for example where an employer provides a whitelist of approved websites.

In the case of tracking surveillance, the object or vehicle which is being tracked must be marked with a notice informing the user that the object or vehicle is being tracked.

Section 21 of the legislation outlines an offence for improper use or disclosure of surveillance records. This provision prevents improper violations of a worker’s privacy by having surveillance data disclosed for a malicious or inappropriate purpose. Section 22 provides a worker with access to surveillance records, and mirrors the requirements of the national privacy principles as they relate to customer data. Sections 21 and 22 have been included in this bill to correct the anomaly whereby consumer data collected by companies is protected, but data collected by companies on their employees is not.

The Greens believe that the majority of employees operate in good faith and within the bounds of the law whilst at work. However, we recognise that some employees do not, and may engage in illegal activity to the detriment of their employer. We recognise that, in limited circumstances, employees may do so in such a fashion that evades overt surveillance. It is in recognition of this fact that we have provided provisions for limited, authorised and supervised covert surveillance under part 4 of this bill.

The employer, if they wish to conduct covert surveillance, will be required to apply before the Magistrates Court for an authority to do so. This application will place a burden upon the employer to provide the grounds on which they suspect a worker or workers of unlawful activity in the workplace. The employer will be required to specify what surveillance will take place, when it will take place and the manner in which it will take place. Furthermore, an employer will be required to nominate an individual, being a fit and proper person, to act as a surveillance supervisor. This supervisor will be required to conduct and monitor the surveillance in accordance with the legislation.

Section 27 outlines the considerations the court must make prior to issuing a covert surveillance authority. These include considerations of intrusion of privacy of the worker or others, the ability of the employer to gather information on suspected


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