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Surveillance Devices (Workplace Privacy) Bill
Introduction Print
EXPLANATORY MEMORANDUM
General
This Bill implements one of the recommendations of the Victorian Law
Reform Commission's Final Report ("VLRC") on Workplace Privacy which
was released in October 2005. The VLRC recommended that surveillance in
private areas of the workplace such as workplace toilets, washrooms,
lactation rooms and change rooms be prohibited.
Clause Notes
Clause 1 sets out the purpose of the Bill which is to amend the
Surveillance Devices Act 1999 ("SDA") to enhance its
operation in workplaces. The Bill is not intended to affect the
existing provisions of the SDA.
Clause 2 provides that the Act will commence on 1 July 2007. Since the
Act creates new criminal offences, the delayed commencement
date is to allow sufficient time for employers to comply.
Clause 3 inserts a new Part 2A into the SDA.
New section 9A inserts some new definitions into the SDA for
the purposes of the new Part 2A.
"Employer" is broadly defined to mean any person (that is, any
natural person or body corporate), unincorporated body or firm
which employs a person under a contract of service or
apprenticeship or under the Public Administration Act 2004 or
any other Act or which engages a person under a contract for
services or to perform work on commission or on an unpaid or
voluntary basis. Thus, the Bill applies to employers in the public
and private sectors, as well as to those organisations that engage
people on a voluntary basis.
"Firm" has the same meaning as in the Partnership Act 1958 but
excludes incorporated limited partnerships.
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"Washroom" is defined to include rooms fitted with bathing or
shower facilities.
"Worker" is broadly defined to mean any person employed or
engaged by an employer (as defined in the Bill). However, a
worker does not include a person engaged to perform services by
another person in connection with that person's family or
domestic affairs.
"Workplace" is defined as any place where workers perform
work.
New section 9B inserts a new prohibition into the SDA.
New section 9B(1) makes it an offence for an employer to
knowingly install, use or maintain an optical surveillance device
or listening device to observe, listen to, record or monitor the
activities or conversations of a worker in workplace toilets,
washrooms, change rooms or lactation rooms.
However, there are some limited exceptions to this general
prohibition.
Section 9B(2) permits surveillance to be conducted--
· in accordance with a warrant or emergency
authorisation or a corresponding warrant or emergency
authorisation;
· in accordance with a law of the Commonwealth; or
· if required by a condition of a liquor licence granted
under the Liquor Control Reform Act 1998.
The first of these exceptions is designed to enable surveillance to
be undertaken in workplace toilets, washrooms, change rooms or
lactation rooms where it is properly authorised by a warrant,
emergency authorisation, corresponding warrant or
corresponding emergency authorisation.
The second exception permits surveillance in accordance with a
law of the Commonwealth, such as a law dealing with national
security issues.
The third exception recognises that there is an existing regime in
place which permits surveillance in licensed venues in
accordance with the requirements of a liquor licence issued under
the Liquor Control Reform Act 1998.
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Where surveillance has taken place in accordance with one of the
exceptions set out in section 9B(2), then section 9C indicates that
a record or report of any conversation or activity obtained from
that surveillance must only be communicated or published in
accordance with that exception.
That is--
· where the report or record is obtained under a warrant,
corresponding warrant, emergency authorisation or
corresponding emergency authorisation, it is "protected
information" and must be handled in accordance with
Part 5 of the SDA;
· where the information is obtained in accordance with a
law of the Commonwealth, any communication or
publication of the information must be authorised by a
law of the Commonwealth relating to the security of the
Commonwealth;
· where the report or record is obtained in accordance
with the conditions of a liquor licence, then the report or
record may be published or communicated as authorised
by or under the Liquor Control Reform Act 1998 or
by the licence.
Section 9D makes it clear that where a partnership or
unincorporated body commits an offence, then each individual
member of the partnership or unincorporated body will be liable
for the offence.
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