NSW covert workplace surveillance — the magistrate authority requirement

What the Act covers

The Workplace Surveillance Act 2005 (NSW) governs workplace surveillance of employees in New South Wales. The Act regulates three main types of surveillance: camera surveillance, computer surveillance, and tracking surveillance. Employers seeking to implement surveillance measures must adhere to the requirements of the Act to ensure compliance. Workplace surveillance Acts by state — Australia

The Act distinguishes between notified (overt) and covert surveillance. Notified surveillance is permissible if the employer provides employees with at least 14 days written notice and satisfies all other requirements outlined in the Act. This contrasts with covert surveillance, which is conducted without employee knowledge.

Covert surveillance is only permitted under Part 4 of the Act and requires the employer to obtain a covert surveillance authority. This authority is a specific legal approval needed to conduct surveillance without prior notice to employees. Workplace surveillance Acts by state — Australia

Part 4 — Magistrate authority

A covert surveillance authority in New South Wales can only be issued by a Magistrate. Employers typically make application for this authority, often through their legal representatives.

For an authority to be granted, the Magistrate must be satisfied that there are reasonable grounds to justify covert surveillance. This justification must relate to establishing whether one or more employees are involved in unlawful activity at work.

The issued authority will clearly define the scope of the surveillance. This includes specifying the type of surveillance, the location where it will occur, the duration of the surveillance, and which employees or class of employees will be subject to it.

What surveillance is excluded

Certain types of surveillance are explicitly excluded from the magistrate authority requirement. Covert surveillance undertaken for the purpose of monitoring work performance is prohibited. This means that if the intention of the surveillance is to assess an employee’s productivity or behaviour, it cannot be conducted without adhering to other legal requirements.

Surveillance of specific areas is also always prohibited. This includes change-rooms, toilets, showers and bathing facilities, regardless of the stated purpose. There are no exceptions to this prohibition.

It is important to note that even if surveillance is conducted with magistrate authority, it may still be unlawful. Information obtained through unlawful covert surveillance is generally inadmissible. Furthermore, the Privacy and Personal Information Protection Act 1998 (NSW) and federal Privacy Act may also apply, depending on the entity and the information collected.

Penalties

Conducting covert workplace surveillance in NSW without the required magistrate authority constitutes a criminal offence. This is outlined in Part 4 of the relevant legislation. Individuals found to have violated these provisions face a maximum penalty of 50 penalty units.

For corporations, the maximum penalty is a higher amount than that applicable to individuals. The value of a penalty unit in NSW is currently $110, as determined under the Crimes (Sentencing Procedure) Act 1999 (NSW).

In addition to criminal penalties, affected employees may also have the option to pursue civil action.