Greenleaf, Graham --- "Private parts" [1997] PrivLawPRpr 7; (1997) 3(9) Privacy Law & Policy Reporter 180

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Private parts

compiled by Graham Greenleaf

VIDEO SURVEILLANCE LAW FOR NSW

NSW Attorney-General and Minister for Industrial Relations, Jeff Shaw, has announced that NSW will legislate in 1997 to control covert video surveillance 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 NSW Privacy Committee.

In summary, the report recommends amendments to the Listening Devices Act 1984 (NSW) to achieve the following results in relation to covert video surveillance.

1. Covert video surveillance to be defined as that conducted without prior notice, visible cameras or signs.
2. Covert surveillance to be prohibited for measuring work performance, and in areas such as toilets and change rooms.
3. 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 erased.

4. A prohibition on the use of surveillance videotapes (whether obtained covertly or overtly) for `illicit or unconscionable purposes' (including `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 representatives 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.

SHAW TO OUTLINE NSW PLANS

Details 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 on an already full program (see < 3 PLPR 140>).

HK PRIVACY LAW SURVIVING?

News 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 following effect:

• 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 the provisions of this Ordinance shall, to the extent of that conflict or inconsistency, as the case may be, prevail over the provisions of that Ordinance.

• The Preparatory Committee made its recommendation on the basis that the section may go against the Basic Law (the mini-constitution for Hong Kong after 1 July 1997) which should instead be the only law that can override others. Subsequently, some legal academics in Hong 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 Ordinance came into force on 20 December 1996, ss 33 and 30 (concerning data-matching) have not been proclaimed. A spokesman for the Secretary for Home 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 be seen.

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 on 20 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.