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Greenleaf, Graham --- "Private parts"  PrivLawPRpr 7; (1997) 3(9) Privacy Law & Policy Reporter 180
compiled by Graham Greenleaf
VIDEO SURVEILLANCE LAW FOR NSW
Attorney-General and Minister for Industrial Relations, Jeff Shaw, has
announced that NSW will legislate in 1997 to control covert
in the workplace, following the release of the Report of the Working Party
on Video Surveillance in the Workplace (NSW Department of Industrial
Relations, December 1996). The report is by a working party co-ordinated by the
NSW Department of Industrial
Relations comprising private and public sector
employer and trade union representatives, departmental representatives and the
In summary, the report recommends amendments to the Listening Devices Act
1984 (NSW) to achieve the following results in relation to covert
Covert video surveillance to be defined as that conducted without prior
notice, visible cameras or signs.
- Covert surveillance to be prohibited for measuring work performance, and in
areas such as toilets and change rooms.
- Employers must obtain a permit for covert surveillance;
(a) which may attach conditions to it, from a magistrate;
(b) evidence obtained in breach of conditions would be inadmissible; and
(c) any parts of a video not required for evidentiary purposes must be
A prohibition on the use of surveillance videotapes (whether obtained
covertly or overtly) for `illicit or unconscionable purposes'
`blackmail, defamation or entertainment').
The Employers Federation of NSW dissented from any legislative controls over
video surveillance in the workplace. Other committee
members dissented from
various aspects of the report, with union representatives generally wanting
much stronger controls, and endorsing
the approach taken in the NSW Privacy
Committee's Invisible Eyes report (see < 2 PLPR 141>).
The report also recommends adoption by employers of a voluntary code of
practice on the use of overt surveillance in the workplace, involving:
a prohibition on any surveillance in toilets, showers etc;
- various requirements for prior notice and consultation with employees;
- guidelines on ethical use;
- employee's access to tapes;
- destruction policies; and
- a recognition of the Privacy Committee's (or its successor's) role in
investigating and conciliating breaches of the code. Some union
oppose any video surveillance, and some employer groups oppose various aspects
of the proposed code.
This report, and the forthcoming legislative amendments concerning workplace
video surveillance will have to be taken into account
by the NSW Law Reform
Commission in its more general review of all aspects of visual surveillance in
NSW (see < 2 PLPR 95>). NSW appears to be the most activist Australian
jurisdiction in relation to these issues.
of the NSW Government's privacy proposals in relation to both its long-awaited
data protection legislation (see < 3 PLPR 17>) and its more recent visual
surveillance reforms will be provided at `The New Privacy Laws' Conference
hosted by the Communications
Law Centre and sponsored by PLPR on 19 February
1997. Attorney-General Jeff Shaw has agreed to be an additional featured speaker
an already full program (see < 3 PLPR 140>).
reports of recommendations by the People's Republic of China's `shadow'
government for Hong Kong, for the scrapping or amendment
of 15 Hong Kong laws
protecting human rights appeared to include the Personal Data (Privacy)
Ordinance. The recommendations have been made preparatory to the PRC
assuming control of Hong Kong in July.
The HK Privacy Commissioner's office has now provided a clarification, to the
The Legal Subgroup of the Preparatory Committee has only recommended that one
section, s 3(2), of the Ordinance, and not the entire
Ordinance, be repealed.
Specifically, s 3(2) states that:
Where there is any conflict or inconsistency between the provisions
of this Ordinance and the provisions of any other Ordinance, then
provisions of this Ordinance shall, to the extent of that conflict or
inconsistency, as the case may be, prevail over the provisions
- The Preparatory Committee made its
recommendation on the basis that the section may go against the Basic Law (the
for Hong Kong after 1 July 1997) which should instead be the
only law that can override others. Subsequently, some legal academics
Kong commented that this specific section was put in just for the avoidance of
doubt and simply reflects the common law spirit
that the later law always
supersedes any existing inconsistent laws. Even if this section is repealed,
such spirit would remain.
The HK Act also contains restrictions (s 33) on personal data exports to
countries which do not have adequate privacy laws (like
Australian at present)
and these restrictions apply to personal data exports `outside Hong Kong' (that
is, to elsewhere in China).
This significant provision has apparently not been
singled out by the Preparatory Committee. However, while the rest of the
came into force on 20 December 1996, ss 33 and 30 (concerning
data-matching) have not been proclaimed. A spokesman for the Secretary
Affairs said this was because users considered that they needed more guidance
from the Privacy Commissioner, and was in
line with a recommendation by the
Commissioner. The fate of the data-export provision therefore still remains to
The HK Commissioner's office also notes that the Ordinance has been
well-received by the public in Hong Kong since it came into force
December, and that in the first month of its operation they have already
received close to 900 inquiries and 25 complaints.
Graham Greenleaf, General Editor.