Workplace Privacy Amendment Act 2016 (ACT)

Workplace Privacy Amendment Act 2016

A2016-22

Contents

Page

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

4            Additional requirements for tracking devicesNew section 17 (2)  2

5            Section 24  3

6            Definitions—pt 4Section 25, definition of unlawful activity  3

7           Application for covert surveillance authoritySection 26 (1), except notes  3

8            Section 26 (2) (a)  4

9            Issuing covert surveillance authoritySection 28 (2) and note  4

10          Section 28 (4) (a)  5

11          New section 28 (5) and (6)  6

12          Conditions on covert surveillance authorityNew section 31 (1A)  7

13          New section 34A  7

14          Offence—use and disclosure of covert surveillance other than for a relevant purposeSection 39 (3) (b) and (c)  8

15          Section 39 (3) (d)  8

16          Surveillance of workers not at workNew section 42 (2) (d)  8

17          New part 5A  9

18          Offences—security of surveillance recordsSection 44 (2) (b)  12

19          Report on covert surveillance to Legislative AssemblySection 45  12

20          Dictionary, new definition of regulator  12

21Magistrates Court Act 1930
New section 291Q (1) (a) (vi)  12

22Work Health and Safety Act 2011
Schedule 2, part 2.1, new section 2.2 (2) (i)  12

Workplace Privacy Amendment Act 2016

A2016-22

An Act to amend the Workplace Privacy Act 2011, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

1. Name of Act

   This Act is the Workplace Privacy Amendment Act 2016.

2. Commencement

   This Act commences on a day fixed by the Minister by written notice.

   Note 1The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

   Note 2A single day or time may be fixed, or different days or times may be fixed, for the commencement of different provisions (see Legislation Act, s 77 (1)).

   Note 3If a provision has not commenced within 6 months beginning on the notification day, it automatically commences on the first day after that period (see Legislation Act, s 79).

3. Legislation amended

   This Act amends the Workplace Privacy Act 2011.

   NoteThis Act also amends the following legislation:

   ·     Magistrates Court Act 1930 (see s 21)

   ·     Work Health and Safety Act 2011 (see s 22).

4. Additional requirements for tracking devices
   New section 17 (2)

   insert

   (2)However, subsection (1) does not apply if—

   (a)it is not reasonably practicable to have a notice on the vehicle or other thing; and

   (b)the employer has taken reasonable steps to notify workers that the vehicle or other thing is being tracked.

5. Section 24

   substitute

6. Meaning of covert surveillance

   In this Act:

   covert surveillance—

   (a)means surveillance conducted by an employer of a worker—

   (i)in a workplace without notifying the worker under part 3 (Notified surveillance); or

   (ii)outside a workplace; but

   (b)does not include prohibited surveillance.

7. Definitions—pt 4
   Section 25, definition of unlawful activity

   omit

   territory law or the law of another jurisdiction

   substitute

   law in force in the Territory

8. Application for covert surveillance authority
   Section 26 (1), except notes

   omit everything after

   surveillance of a worker

   substitute

   only for the purpose of finding out if the worker is engaged in an unlawful activity—

   (a)in the workplace; or

   (b)outside the workplace but in relation to the worker’s work for the employer.

9. Section 26 (2) (a)

   substitute

   (a)the reasonable grounds that the employer has for suspecting a worker is involved in an unlawful activity; and

   (aa)for surveillance of a worker outside a workplace—the reasonable grounds that the employer has for believing a worker is engaged in an unlawful activity; and

10. Issuing covert surveillance authority
    Section 28 (2) and note

    substitute

    (2)In considering whether there are reasonable grounds to issue the covert surveillance authority, the Magistrates Court must consider—

    (a)for surveillance of a worker in a workplace—

    (i)the seriousness of the suspected unlawful activity; and

    (ii)whether there are other appropriate ways to find out if the worker is engaged in the unlawful activity; and

    (iii)whether it is more appropriate for the unlawful activity to be investigated by a law enforcement agency; and

    (iv)if the proposed surveillance may be conducted in a non‑work area—a worker’s heightened expectation of privacy in the area; and

    Note 1Surveillance is prohibited in some non-work areas (see s 41).

    Note 2Non-work area—see the dictionary.

    (b)for surveillance of a worker outside a workplace—

    (i)the seriousness of the unlawful activity in which the worker is reasonably believed to be engaged; and

    (ii)whether there are other appropriate ways to find out if the worker is engaged in the unlawful activity; and

    (iii)whether it is more appropriate for the unlawful activity to be investigated by a law enforcement agency; and

    (iv)whether the unlawful activity is directly related to the worker’s work for the employer; and

    (v)whether surveillance of the worker will be undertaken in a place in which a person would have a heightened expectation of privacy; and

    (c)whether, and the extent to which, the proposed surveillance might intrude on the worker’s or someone else’s privacy; and

    (d)whether the person nominated to be the surveillance supervisor in the application is suitable.

    NoteSection 29 deals with appointing a surveillance supervisor.

11. Section 28 (4) (a)

    substitute

    (a)the name of the worker (if practicable) in relation to which the authority is issued; and

    (aa)the nature of the unlawful activity that the worker is suspected of being, or believed to be, engaged in; and

12. New section 28 (5) and (6)

    insert

    (5)A covert surveillance authority authorising surveillance outside the workplace—

    (a)may only authorise surveillance to be undertaken from a public place; and

    (b)may only authorise surveillance to be undertaken in a place that, if it were in a workplace, would be a prohibited non-work area, if the Magistrates Court is satisfied there are exceptional circumstances justifying the surveillance; and

    Examples—par (b)

    1a toilet facility

    2a change room

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

    (c)must not authorise surveillance to be undertaken of a person in part of a premises that is being used for residential purposes.

    Examples—par (c)

    1the interior of a residence                 

    2the enclosed yard of a residence        

    (6)In this section:

    public place means a place to which the public or a section of the public has access, whether—

    (a)by payment, membership of a body or otherwise; or

    (b)by entitlement or permission.

13. Conditions on covert surveillance authority
    New section 31 (1A)

    insert

    (1A)A covert surveillance authority that authorises surveillance outside the workplace is subject to the following conditions:

    (a)any surveillance of people other than the worker is destroyed or obscured as soon as possible after the record is made;

    (b)if the surveillance is undertaken by a third party—the third party complies with this Act and any applicable privacy laws.

14. New section 34A

    in division 4.2, insert

34AReview of provisions about covert surveillance outside workplace

(1)The Minister must review the operation of this Act, as amended by the Workplace Privacy Amendment Act 2016 (the amending Act), in relation to the operation of provisions about covert surveillance outside a workplace.

(2)The review must be started as soon as practicable 2 years after the commencement of the amending Act.

(3)The Minister must present a report of the review to the Legislative Assembly within 6 months after the day the review is started.

(4)This section expires 4 years after the day it commences.

1. Offence—use and disclosure of covert surveillance other than for a relevant purpose
   Section 39 (3) (b) and (c)

   omit

   while at work for the employer

   substitute

   in relation to the worker’s work for the employer

2. Section 39 (3) (d)

   omit everything after

   unlawful activity

   substitute

   in relation to the worker’s work for the employer of a kind identified by the covert surveillance record to occur in relation to the work;

3. Surveillance of workers not at work
   New section 42 (2) (d)

   before the note, insert

   (d)the surveillance is conducted in accordance with a covert surveillance authority.

4. New part 5A

   insert

Part 5AEnforcement

43AThe regulator

(1)The regulator has the following functions:

(a)to advise and make recommendations to the Minister and report on the operation and effectiveness of this Act;

(b)to monitor and enforce compliance with this Act;

(c)to provide advice and information on workplace privacy to employers and employees under this Act and to the community;

(d)to conduct and defend proceedings under this Act before a court or tribunal;

(e)any other function given to the regulator by this Act.

NoteA reference to an Act includes a reference to statutory instruments made or in force under the Act, including a regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

(2)The regulator has the same powers to obtain information in relation to a possible contravention of this Act or that will assist the regulator to monitor or enforce compliance with this Act that the regulator has under the Work Health and Safety Act 2011, section 155 in relation to that Act.

(3)In addition, the regulator has all the powers that an inspector has under this Act.

(4)The regulator may delegate the regulator’s powers and functions under this Act to another person.

NoteFor the making of delegations and the exercise of delegated functions, see the Legislation Act, pt 19.4.

43BInspectors

An inspector under the Work Health and Safety Act 2011 is an inspector for this Act.

43CFunctions and powers of inspectors

(1)An inspector has the following functions and powers under this Act:

(a)to provide information and advice about compliance with this Act;

(b)to require compliance with this Act through the issuing of notices under the Work Health and Safety Act 2011, part 10 (Enforcement measures);

(c)to investigate contraventions of this Act and assist in the prosecution of offences.

(2)The Work Health and Safety Act 2011, section 161 (Conditions on inspectors’ compliance powers) and section 162 (Inspectors subject to regulator’s directions) apply to an inspector in relation to the exercise of a function or power under this Act.

43DSecuring compliance

(1)An inspector may exercise powers the inspector has under the following provisions of the Work Health and Safety Act 2011 for the purpose of securing compliance with this Act:

(a)division 9.3 (Powers relating to entry);

(b)division 9.5 (Other matters).

(2)The following provisions of the Work Health and Safety Act 2011 apply in relation to any exercise of those functions:

(a)division 9.4 (Damage and compensation);

(b)division 9.6 (Offences in relation to inspectors).

(3)For this section, the provisions of the Work Health and Safety Act 2011 mentioned in this section apply as if—

(a)a reference in those provisions to a workplace were a reference to a workplace under this Act; and

(b)any other necessary changes were made.

43EEnforcement measures

(1)The Work Health and Safety Act 2011, part 10 (Enforcement measures) applies for the purpose of enforcing compliance with this Act.

(2)For this section, the Work Health and Safety Act 2011, part 10 applies as if—

(a)a reference in that part to a workplace were a reference to a workplace under this Act; and

(b)a reference to contravening a provision were a reference to  contravening a provision of this Act; and

(c)any other necessary changes were made.

NoteA reference to an Act includes a reference to statutory instruments made or in force under the Act, including a regulation and any law or instrument applied, adopted or incorporated by the Act (see Legislation Act, s 104).

1. Offences—security of surveillance records
   Section 44 (2) (b)

   omit

   de-indentify

   substitute

   de-identify

2. Report on covert surveillance to Legislative Assembly
   Section 45

   omit

3. Dictionary, new definition of regulator

   insert

   regulator—see the Work Health and Safety Act 2011, dictionary.

4. Magistrates Court Act 1930
   New section 291Q (1) (a) (vi)

   insert

   (vi)the Workplace Privacy Act 2011;

5. Work Health and Safety Act 2011
   Schedule 2, part 2.1, new section 2.2 (2) (i)

   before the note, insert

   (i)the operation of the Workplace Privacy Act 2011.

Endnotes

1. Presentation speech

   Presentation speech made in the Legislative Assembly on 18 February 2016.

2. Notification

   Notified under the Legislation Act on 14 April 2016.

3. Republications of amended laws

   For the latest republication of amended laws, see certify that the above is a true copy of the Workplace Privacy Amendment Bill 2016, which was passed by the Legislative Assembly on 7 April 2016.

   Clerk of the Legislative Assembly

   © Australian Capital Territory 2016