Page 1275 - Week 04 - Thursday, 7 April 2016
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The Magistrates Court must also appoint at least one person to be the surveillance supervisor in relation to a covert surveillance authority. This person must have relevant experience and must be independent of the employer. The supervisor must not give another person access to a covert surveillance record but may give an employer a part of a covert surveillance record only for the purpose for which the covert surveillance authority was issued or to identify or detect any other unlawful activity in a workplace.
The surveillance supervisor must also, within three months after the expiry of a covert surveillance authority, erase or destroy all covert surveillance records in relation to the authority other than records required for investigative or evidentiary purposes. An employer must also, on the written request of a worker, give the worker access to any part of a covert surveillance record that an employer seeks to rely on to take adverse action in relation to the worker. I think members can see that the circumstances in which surveillance can occur are very limited and are controlled very closely including through oversight by a magistrate.
I also point out that this bill closes a loophole in relation to surveillance. In relation to claims for injury, the ACT Insurance Authority, or ACTIA, currently can conduct surveillance on people claiming for injuries in non-work situations, for example, for claims against the ACT government relating to a trip or a fall on public land. This occurs in approximately 50 cases a year. The surveillance evidence is primarily used in assessing the extent of damages to be awarded.
However, ACTIA cannot currently conduct surveillance of people making claims for injuries outside the workplace in relation to a public liability claim if that person just happens to also be an ACT government employee. Prior to 2011 ACTIA could conduct surveillance on ACT government employees in relation to claims against the territory and did so in approximately 10 per cent of cases. This amounted to approximately 10 cases a year. This bill will correct this anomaly by reinstating surveillance ability in a very limited way.
The proposed changes also recognise that covert surveillance occurs in other civil cases that do not relate to the workplace or relationship of employment. In such cases, surveillance evidence is used to inform the assessment of damages and the surveillance is not subject to all of the protections that have been included in this bill. These are, for example, motor vehicle injury claims.
I also advise that the directorate worked closely with the ACT Human Rights Commission in developing the bill. The commission was satisfied with the significant safeguards in the final bill which ensure it does not unnecessarily intrude on human rights such as the right to privacy. The ACT Assembly’s scrutiny of bills committee, with its four members, did not raise concerns with the bill.
I note that I met with Unions ACT on this bill and also wrote to them to try to address their concerns. They do not agree and believe that surveillance should never be permitted outside the workplace. The government disagree and we have introduced a reasonable amendment with a high level of safeguards.
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