When the Victorian Law Reform Commission (VLRC) released its “Workplace Privacy Final Report” in October 2005, the Victorian government welcomed the proposal of workplace privacy reform. Among the VLRC recommendations was a regulatory system, with advisory codes for overt surveillance and email and internet monitoring, and mandatory codes for covert surveillance and on-site drug and alcohol testing.

While most of the recommendations have yet to be fulfilled, the recently introduced Surveillance Devices (Workplace Privacy) Act 2006 (Vic) – which prohibits surveillance in workplace toilets, washrooms, change rooms and lactation rooms – is the first stage of what the Victorian government has indicated will be a “more comprehensive regime to protect privacy in the workplace”. The new Act applies to all employers, which includes corporations, unincorporated bodies and partnerships, and even covers volunteers and contractors. Fines of up to $128,916 apply for each breach of the legislation.

Since the rapid advancement of our technological environment, workplace surveillance has become a significant issue in the protection of workplace privacy. Current and emerging international law and obligations in this area have prompted legislative reviews by state and federal governments, which are at the same time trying to minimise the regulatory burden on business.

Despite this, there are still significant gaps that exist in the protection of workers’ privacy in Australia . Even in Victoria , with the new surveillance laws in operation, the broader privacy issues relating to drug and alcohol testing of workers, handling of personal information, searching of workers and their possessions and carrying out physical and psychological tests still remain.

The Privacy Act 1988 (Cth), which regulates the management of personal information by federal government departments and agencies, only deals with information privacy and even then features an “employee records” exemption.

Recognising the shortfalls in national workplace privacy law, the Australian Law Reform Commission (ALRC) is conducting an inquiry into the Privacy Act. A series of issues papers have recognised proposals that promote: clearer provisions regarding employee records at a national level; the removal of the employee records exemption; renaming the Privacy Act to more accurately reflect the content; and replacing the Information Privacy Principles and the National Privacy Principles with a single set of principles covering the public and private sector.

Ideally all aspects of workplace privacy, including information privacy, should be regulated in a single piece of Commonwealth legislation. Until this happens, workers must be proactive in getting their employers to implement comprehensive privacy policies or assure them protection through federal workplace agreements.

More information

From the LIV Bookshop Global Surveillance & Policing: Borders, Security, Identity by Zurelk & Salter, $60

Useful web links Privacy Victoria offers protection advice at www.privacy.vic.gov.au