{"id":"a-2011-4","name":"Workplace Privacy Act 2011","slug":"workplace-privacy-act-2011","collection":"act","jurisdiction":"act","status":"in_force","isInForce":true,"actNumber":"4 of 2011","makingDate":null,"administeringDepartment":null,"currentVersion":{"id":24554,"registerId":"act-a-2011-4-current","compilationNumber":null,"startDate":"2026-04-01","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"1","sectionType":"section","heading":"Workplace Privacy Act 2011","content":"Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nAustralian Capital Territory\nWorkplace Privacy Act 2011\nA2011-4\nRepublication No 6\nEffective: 23 June 2021\nRepublication date: 23 June 2021\nLast amendment made by A2021-12\n\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nAbout this republication\nThe republished law\nThis is a republication of the Workplace Privacy Act 2011 (including any amendment made under\nthe Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 23 June 2021. It also\nincludes any commencement, amendment, repeal or expiry affecting this republished law to\n23 June 2021.\nThe legislation history and amendment history of the republished law are set out in endnotes 3\nand 4.\nKinds of republications\nThe Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT\nlegislation register at www.legislation.act.gov.au):\n• authorised republications to which the Legislation Act 2001 applies\n• unauthorised republications.\nThe status of this republication appears on the bottom of each page.\nEditorial changes\nThe Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial\namendments and other changes of a formal nature when preparing a law for republication.\nEditorial changes do not change the effect of the law, but have effect as if they had been made by\nan Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The\nchanges are made if the Parliamentary Counsel considers they are desirable to bring the law into\nline, or more closely into line, with current legislative drafting practice.\nThis republication includes amendments made under part 11.3 (see endnote 1).\nUncommenced provisions and amendments\nIf a provision of the republished law has not commenced, the symbol U appears immediately\nbefore the provision heading. Any uncommenced amendments that affect this republished law\nare accessible on the ACT legislation register (www.legislation.act.gov.au). For more\ninformation, see the home page for this law on the register.\nModifications\nIf a provision of the republished law is affected by a current modification, the\nsymbol M appears immediately before the provision heading. The text of the modifying\nprovision appears in the endnotes. For the legal status of modifications, see the Legislation Act\n2001, section 95.\nPenalties\nAt the republication date, the value of a penalty unit for an offence against this law is $160 for an\nindividual and $810 for a corporation (see Legislation Act 2001, s 133).\n\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\ncontents 1\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nAustralian Capital Territory\nWorkplace Privacy Act 2011\nContents\nPage\nPart 1 Preliminary\n1 Name of Act 2\n3 Dictionary 2\n4 Notes 2\n5 Offences against Act—application of Criminal Code etc 2\nPart 2 Object and important concepts\n6 Object of Act 3\n7 Meaning of worker 3\n8 Meaning of employer 3\n9 Meaning of business or undertaking 4\n10 Meaning of workplace 4\n\nContents\nPage\ncontents 2 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n11 Meaning of surveillance etc 4\nPart 3 Notified surveillance\nDivision 3.1 General\n12 Meaning of surveillance—pt 3 6\nDivision 3.2 Notifying workplace surveillance\n13 Notice of surveillance required 6\n14 Requirement for consultation on proposed surveillance 7\n15 Additional requirements for optical surveillance devices 8\n16 Additional requirements for data surveillance devices 8\n17 Additional requirements for tracking devices 9\n18 Offences—failure to comply with notified surveillance requirements 9\nDivision 3.3 Other matters\n19 Surveillance by agreement 10\n20 Offence—restrictions on blocking electronic communication and\ninternet access 11\n21 Notice of blocking electronic communication and internet access 11\n22 Offences—use and disclosure of surveillance records 13\n23 Access to surveillance records of notified surveillance 14\nPart 4 Covert surveillance\nDivision 4.1 General\n24 Meaning of covert surveillance—Act 17\n25 Definitions—pt 4 17\nDivision 4.2 Covert surveillance authorities\n26 Application for covert surveillance authority 18\n27 Hearing in private 19\n28 Issuing covert surveillance authority 19\n29 Appointing surveillance supervisor 21\n30 Duration of covert surveillance authority 21\n31 Conditions on covert surveillance authority 22\n32 Defects in covert surveillance authority 22\n33 Varying or cancelling covert surveillance authority 22\n\nContents\nPage\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\ncontents 3\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n34 Magistrates Court to record details of covert surveillance authority\norders 23\nDivision 4.3 Restrictions on covert surveillance\n35 Offence—conducting covert surveillance other than under covert\nsurveillance authority 23\n36 Defences—surveillance for security of workplaces 24\nDivision 4.4 Reporting on covert surveillance authority\n37 Offence—failure to give covert surveillance report 25\n38 Orders for covert surveillance record 26\nDivision 4.5 Covert surveillance records\n39 Offence—use and disclosure of covert surveillance other than for a\nrelevant purpose 27\n40 Information inadvertently obtained under covert surveillance authority 29\nPart 5 Prohibited surveillance\n41 Offence—surveillance of private areas etc 30\n42 Surveillance of workers not at work 30\n43 Use and disclosure of certain tracking device records 31\nPart 5A Enforcement\n43A The regulator 32\n43B Inspectors 32\n43C Functions and powers of inspectors 33\n43D Securing compliance 33\n43E Enforcement measures 34\nPart 6 Miscellaneous\n44 Offences—security of surveillance records 35\n47 Regulation-making power 35\nDictionary 36\n\nContents\nPage\ncontents 4 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nEndnotes\n1 About the endnotes 38\n2 Abbreviation key 38\n3 Legislation history 39\n4 Amendment history 40\n5 Earlier republications 41\n\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 1\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nAustralian Capital Territory\nWorkplace Privacy Act 2011\nAn Act to regulate surveillance of workers in workplaces, and for other purposes\n\nPart 1 Preliminary\nSection 1\npage 2 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 1 Preliminary\n1 Name of Act\nThis Act is the Workplace Privacy Act 2011.\n3 Dictionary\nThe dictionary at the end of this Act is part of this Act.\nNote 1 The dictionary at the end of this Act defines certain terms used in this\nAct, and includes references (signpost definitions) to other terms defined\nelsewhere.\nFor example, the signpost definition ‘adverse action—see the Fair Work\nAct 2009 (Cwlth), section 342.’ means that the term ‘adverse action’ is\ndefined in that section and the definition applies to this Act.\nNote 2 A definition in the dictionary (including a signpost definition) applies to\nthe entire Act unless the definition, or another provision of the Act,\nprovides otherwise or the contrary intention otherwise appears (see\nLegislation Act, s 155 and s 156 (1)).\n4 Notes\nA note included in this Act is explanatory and is not part of this Act.\nNote See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.\n5 Offences against Act—application of Criminal Code etc\nOther legislation applies in relation to offences against this Act.\nNote 1 Criminal Code\nThe Criminal Code, ch 2 applies to all offences against this Act (see\nCode, pt 2.1).\nThe chapter sets out the general principles of criminal responsibility\n(including burdens of proof and general defences), and defines terms used\nfor offences to which the Code applies (eg conduct, intention,\nrecklessness and strict liability).\nNote 2 Penalty units\nThe Legislation Act, s 133 deals with the meaning of offence penalties\nthat are expressed in penalty units.\n\nObject and important concepts Part 2\nSection 6\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 3\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 2 Object and important concepts\n6 Object of Act\nThe main object of this Act is to regulate the collection and use of\nworkplace surveillance information.\n7 Meaning of worker\nIn this Act:\nworker means an individual who carries out work in relation to a\nbusiness or undertaking, whether for reward or otherwise, under an\narrangement with the person conducting the business or undertaking.\nExamples—worker\n1 employee\n2 independent contractor\n3 outworker\n4 person doing a work experience placement\n5 volunteer\n8 Meaning of employer\n(1) In this Act:\nemployer, of a worker—\n(a) includes—\n(i) a person who engages the worker to carry out work in the\nperson’s business or undertaking; and\n(ii) if the person who engages the worker is a corporation—a\nrelated body corporate of the corporation; but\n\nPart 2 Object and important concepts\nSection 9\npage 4 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) does not include a person (the householder) who engages\nsomeone else to perform domestic duties at the premises where\nthe householder lives.\nExamples—employer\n1 principal contractor is an employer of a subcontractor\n2 host organisation is an employer of a labour hire worker\n(2) In this section:\nrelated body corporate—see the Corporations Act, section 9.\n9 Meaning of business or undertaking\nIn this Act:\nbusiness or undertaking includes—\n(a) a not-for-profit business; and\n(b) an activity conducted by a local, state or territory government.\n10 Meaning of workplace\nIn this Act:\nworkplace means a place where work is, has been, or is to be, carried\nout by or for someone conducting a business or undertaking.\n11 Meaning of surveillance etc\n(1) In this Act:\nconduct surveillance—a person conducts surveillance if the person—\n(a) conducts the surveillance personally; or\n(b) causes someone else to conduct the surveillance.\n\nObject and important concepts Part 2\nSection 11\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 5\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\ndata surveillance device—\n(a) means a device or program capable of being used to record or\nmonitor the input of information into or the output of\ninformation from a computer; but\n(b) does not include an optical surveillance device.\noptical surveillance device—\n(a) means a device capable of being used to record visually or\nobserve an activity; but\n(b) does not include spectacles, contact lenses or a similar device\nused by a person with impaired sight to overcome that\nimpairment.\nsurveillance means surveillance using a surveillance device.\nsurveillance device means—\n(a) a data surveillance device, an optical surveillance device or a\ntracking device; or\n(b) a device that is a combination of any 2 or more of the devices\nmentioned in paragraph (a); or\n(c) a device of a kind prescribed by regulation.\ntracking device means an electronic device capable of being used to\nwork out or monitor the location of a person or an object or the status\nof an object.\nExamples—tracking device\nGPS, biometrics, radio frequency identification\n(2) In this section:\ndevice includes an instrument, apparatus or equipment.\n\nPart 3 Notified surveillance\nDivision 3.1 General\nSection 12\npage 6 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 3 Notified surveillance\nDivision 3.1 General\n12 Meaning of surveillance—pt 3\nIn this part:\nsurveillance does not include—\n(a) covert surveillance; or\n(b) prohibited surveillance.\nNote Covert surveillance—see s 24.\nProhibited surveillance—see the dictionary.\nDivision 3.2 Notifying workplace surveillance\n13 Notice of surveillance required\n(1) An employer may only conduct surveillance of a worker in a\nworkplace if—\n(a) the employer gives written notice to the worker under this\nsection; and\nNote For how documents may be given, see the Legislation Act, pt 19.5.\n(b) the surveillance is conducted in accordance with the notice.\n(2) However, an employer need not give written notice to a worker for\nsurveillance using an optical surveillance device in a workplace if the\nworkplace is not a usual workplace of the worker.\n(3) The notice must be given—\n(a) at least 14 days before the surveillance starts; or\n(b) if the worker agrees to a period of less than 14 days for giving\nthe notice—within the agreed lesser period; or\n\nNotified surveillance Part 3\nNotifying workplace surveillance Division 3.2\nSection 14\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 7\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) if a new worker starts work with an employer that already\nconducts surveillance or will start conducting surveillance in\nless than 14 days after the new worker starts work—before the\nnew worker starts work.\n(4) The notice must state—\n(a) the kind of surveillance device to be used for the surveillance;\nand\n(b) how the surveillance will be conducted; and\n(c) who will regularly or ordinarily be the subject of the\nsurveillance; and\n(d) when the surveillance will start; and\n(e) whether the surveillance will be continuous or intermittent; and\n(f) whether the surveillance will be for a stated period or ongoing;\nand\n(g) the purpose for which the employer may use and disclose\nsurveillance records of the surveillance; and\n(h) that the worker may consult with the employer about the conduct\nof the surveillance under section 14.\n(5) A notice may be in the form of a policy of the employer or otherwise.\n14 Requirement for consultation on proposed surveillance\n(1) This section applies if an employer must give a worker notice under\nsection 13.\n(2) The employer must consult with the worker in good faith about the\nconduct of the surveillance for not less than the notice period\nmentioned in section 13 (3).\n(3) For this section, an employer consults with the worker in good faith\nif the employer gives the worker a genuine opportunity to influence\nthe conduct of the surveillance.\n\nPart 3 Notified surveillance\nDivision 3.2 Notifying workplace surveillance\nSection 15\npage 8 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n15 Additional requirements for optical surveillance devices\n(1) An employer may only conduct surveillance of a worker using an\noptical surveillance device if—\n(a) the optical surveillance device used for the surveillance is\nclearly visible in the workplace where the surveillance is\nconducted; and\n(b) a sign is clearly visible at each entrance to the workplace, telling\npeople that they may be under surveillance in the workplace.\n(2) In this section:\noptical surveillance device includes a camera casing or other\nequipment that generally indicates the presence of an optical\nsurveillance device.\n16 Additional requirements for data surveillance devices\n(1) An employer may only conduct surveillance of a worker using a data\nsurveillance device if—\n(a) the surveillance is conducted in accordance with a policy of the\nemployer on surveillance of workers in the workplace using data\nsurveillance devices; and\n(b) the employer has notified the worker, before conducting the\nsurveillance, of the policy in a way that it is reasonable to\nassume that the worker is aware of and understands the policy.\n(2) For subsection (1) (a), the policy must state—\n(a) how the employer’s computer resources may, and must not, be\nused; and\n(b) what information about the use of the employer’s computer\nresources is logged and who may access the logged information;\nand\n\nNotified surveillance Part 3\nNotifying workplace surveillance Division 3.2\nSection 17\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 9\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) how the employer may monitor and audit a worker’s compliance\nwith the policy.\n(3) In this section:\ncomputer resources includes internet access and electronic\ncommunication applications.\n17 Additional requirements for tracking devices\n(1) An employer may only conduct surveillance of a worker that involves\nthe tracking of a vehicle or other thing using a tracking device if there\nis a notice clearly visible on the vehicle or other thing stating that the\nvehicle or thing is being tracked.\n(2) However, subsection (1) does not apply if—\n(a) it is not reasonably practicable to have a notice on the vehicle or\nother thing; and\n(b) the employer has taken reasonable steps to notify workers that\nthe vehicle or other thing is being tracked.\n18 Offences—failure to comply with notified surveillance\nrequirements\n(1) An employer commits an offence if the employer—\n(a) is required to notify a worker of surveillance under section 13;\nand\n(b) the employer fails to comply with a requirement under\nsection 13 in relation to the surveillance.\nMaximum penalty: 20 penalty units.\n(2) An employer commits an offence if the employer—\n(a) conducts surveillance of a worker using an optical surveillance\ndevice; and\n\nPart 3 Notified surveillance\nDivision 3.3 Other matters\nSection 19\npage 10 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) fails to comply with a requirement under section 15 in relation\nto the surveillance.\nMaximum penalty: 20 penalty units.\n(3) An employer commits an offence if the employer—\n(a) conducts surveillance of a worker using a data surveillance\ndevice; and\n(b) fails to comply with a requirement under section 16 in relation\nto the surveillance.\nMaximum penalty: 20 penalty units.\n(4) An employer commits an offence if the employer—\n(a) conducts surveillance of a worker using a tracking device; and\n(b) fails to comply with a requirement under section 17 in relation\nto the surveillance.\nMaximum penalty: 20 penalty units.\nDivision 3.3 Other matters\n19 Surveillance by agreement\n(1) Surveillance of a worker is taken to comply with the requirements of\nthis part if—\n(a) the worker agrees to the conduct of the surveillance for a\npurpose other than surveillance of the worker; and\n(b) the surveillance is conducted in accordance with the agreement.\n(2) For this section, a worker is taken to agree to the conduct of\nsurveillance if a body representing a substantial number of workers\nin the workplace agrees to the conduct of the surveillance.\n\nNotified surveillance Part 3\nOther matters Division 3.3\nSection 20\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 11\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n20 Offence—restrictions on blocking electronic\ncommunication and internet access\n(1) An employer commits an offence if the employer stops the delivery\nof an electronic communication sent to or by a worker, or stops a\nworker’s access to a website.\nMaximum penalty: 5 penalty units.\nNote Electronic communication—see the dictionary.\n(2) Subsection (1) does not apply if—\n(a) the employer is acting in accordance with a policy of the\nemployer on electronic communication and internet access; and\n(b) the employer—\n(i) notified the worker, before stopping delivery of the\nelectronic communication or access to the website, of the\npolicy in a way that it is reasonable to assume that the\nworker is aware of and understands the policy; or\n(ii) was not required to notify the worker under section 21 (2)\nor (3).\nNote The employer has an evidential burden in relation to the matters\nmentioned in s (2) (see Criminal Code, s 58).\n21 Notice of blocking electronic communication and internet\naccess\n(1) If an employer stops delivery of an electronic communication under\nsection 20 (2), the employer must give the worker a notice (a stopped\ndelivery notice) that delivery of the electronic communication has\nbeen stopped as soon as practicable after it is stopped.\nNote Electronic communication—see the dictionary.\n\nPart 3 Notified surveillance\nDivision 3.3 Other matters\nSection 21\npage 12 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(2) However, an employer is not required to give a worker a stopped\ndelivery notice if delivery of the electronic communication is\nstopped—\n(a) because the employer believes the electronic communication\nis—\n(i) a communication that is a commercial electronic message\nwithin the meaning of the Spam Act 2003 (Cwlth); or\n(ii) a communication or attachment that might result in an\nunauthorised interference with, or damage to, the operation\nof—\n(A) a computer or computer network operated by the\nemployer; or\n(B) a program run by a computer or computer network of\nthe employer; or\n(C) data stored on a computer or computer network of the\nemployer; or\n(iii) a communication or attachment that might reasonably be\nconsidered to be threatening, harassing or offensive; or\n(b) by the operation of a software program designed to stop a\ncommunication of a type mentioned in paragraph (a).\n(3) Also, an employer is not required to give a worker a stopped delivery\nnotice for an electronic communication sent by the worker if the\nemployer was not, and could not reasonably be expected to be,\naware—\n(a) of the identity of the worker who sent the communication; or\n(b) that the communication was sent by a worker.\n\nNotified surveillance Part 3\nOther matters Division 3.3\nSection 22\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 13\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(4) An employer’s policy on electronic communication and internet\naccess must not provide for delivery of an electronic communication\nor access to a website to be stopped only because—\n(a) the communication was sent by or on behalf of an industrial\nassociation of a worker or an officer of an industrial association;\nor\n(b) the communication or a website contains information relating to\nindustrial matters.\n(5) In this section:\nindustrial association—see the Fair Work Act 2009 (Cwlth),\nsection 12.\nindustrial matters means matters or things affecting or relating to\nwork done or to be done in an industry, or the rights or obligations of\nemployers or workers in an industry.\n22 Offences—use and disclosure of surveillance records\n(1) An employer commits an offence if the employer—\n(a) conducts surveillance of a worker; and\n(b) uses a surveillance record in relation to the surveillance to take\nadverse action against the worker.\nMaximum penalty: 50 penalty units.\nNote Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.\n(2) Subsection (1) does not apply if the notice given to the worker under\nsection 13 stated that the employer may use the surveillance to take\nadverse action against the worker.\n\nPart 3 Notified surveillance\nDivision 3.3 Other matters\nSection 23\npage 14 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) An employer who conducts surveillance of a worker in a workplace\nmust ensure that a surveillance record in relation to the surveillance\nis otherwise only used or disclosed if—\n(a) the record is used or disclosed for a legitimate purpose in\nrelation to the employment of a worker or the legitimate\nbusiness activities or functions of the employer; or\n(b) the record is disclosed to a member of a law enforcement agency\nfor use in connection with the detection, investigation or\nprosecution of an offence; or\n(c) the record is used or disclosed for a purpose directly or indirectly\nrelated to a civil or criminal proceeding; or\n(d) the employer reasonably believes that the use or disclosure of\nthe record is necessary to avoid an imminent risk of death of, or\nserious injury to, someone or substantial damage to property; or\n(e) the record is disclosed under section 23.\nMaximum penalty: 50 penalty units.\n23 Access to surveillance records of notified surveillance\n(1) An employer must, on the written request of a worker, allow the\nworker to have access to surveillance records in relation to the\nworker.\n(2) If an employer fails to allow the worker to have access to surveillance\nrecords under subsection (1), the records must not be used by the\nemployer—\n(a) in a legal proceeding between the employer and the worker; or\n(b) to take adverse action against the worker.\nNote Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.\n\nNotified surveillance Part 3\nOther matters Division 3.3\nSection 23\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 15\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) Subsections (1) and (2) do not apply if—\n(a) disclosing the surveillance records would be an offence under\nsection 22 or otherwise unlawful; or\n(b) the employer is satisfied on reasonable grounds that—\n(i) allowing access would have an unreasonable impact on the\nprivacy of other individuals; or\n(ii) the request for access is frivolous or vexatious; or\n(iii) the information relates to existing or anticipated legal\nproceedings between the employer and the worker and the\ninformation would be accessible by the process of\ndiscovery in those proceedings; or\n(iv) allowing access would reveal the intentions of the\nemployer in relation to negotiations with the individual in\na way that would be likely to prejudice the negotiations; or\n(v) not allowing access is required or authorised under a\nterritory law or the law of another jurisdiction; or\n(vi) allowing access would be likely to prejudice an\ninvestigation of possible unlawful activity; or\n(vii) allowing access would be likely to prejudice—\n(A) the prevention, detection, investigation, prosecution\nor punishment of a criminal offence or breach of a law\nimposing a penalty or sanction; or\n(B) the enforcement of a law relating to the confiscation\nof the proceeds of crime; or\n(C) the prevention, detection, investigation or remedying\nof serious improper conduct; or\n(D) the preparation for, or conduct of, proceedings before\nany court or tribunal, or implementation of its orders,\nby or on behalf of a law enforcement agency; or\n\nPart 3 Notified surveillance\nDivision 3.3 Other matters\nSection 23\npage 16 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) a law enforcement body performing a lawful security function\nasks the employer not to allow access to the information on the\nbasis that allowing access would be likely to cause damage to\nthe security of Australia.\n\nCovert surveillance Part 4\nGeneral Division 4.1\nSection 24\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 17\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 4 Covert surveillance\nDivision 4.1 General\n24 Meaning of covert surveillance—Act\nIn this Act:\ncovert surveillance—\n(a) means surveillance of a worker in a workplace conducted by an\nemployer without notifying the worker under part 3 (Notified\nsurveillance); but\n(b) does not include prohibited surveillance.\n25 Definitions—pt 4\nIn this part:\ncovert surveillance authority—see section 26.\ncovert surveillance record means a surveillance record in relation to\ncovert surveillance.\nsurveillance supervisor, for a covert surveillance authority, means a\nperson named in a covert surveillance authority as responsible for\noverseeing the conduct of the authorised covert surveillance.\nunlawful activity means an act or omission that is an offence against\na law in force in the Territory.\n\nPart 4 Covert surveillance\nDivision 4.2 Covert surveillance authorities\nSection 26\npage 18 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nDivision 4.2 Covert surveillance authorities\n26 Application for covert surveillance authority\n(1) An employer may apply to the Magistrates Court for authority (a\ncovert surveillance authority) to conduct covert surveillance of a\nworker in a workplace only for the purpose of finding out if the\nworker is engaged in an unlawful activity in the workplace.\nNote 1 If a form is approved under the Court Procedures Act 2004, s 8 for the\napplication, the form must be used.\nNote 2 A fee may be determined under the Court Procedures Act 2004, s 13 for\nthis provision.\n(2) The application must be in writing and be accompanied by particulars\nof—\n(a) the grounds that the employer has for suspecting a worker is\ninvolved in an unlawful activity and the name of the worker (if\npracticable); and\n(b) the actions (if any) the employer has taken to detect the unlawful\nactivity and the result of the actions; and\n(c) the name of any worker (if practicable) or a description of the\ngroup or class of workers, who will regularly or ordinarily be\nthe subject of the covert surveillance; and\n(d) a description of the premises, place, computer, vehicle or other\nthing that will regularly or ordinarily be the subject of the covert\nsurveillance; and\n(e) the kind of surveillance device that is proposed to be used for\nthe covert surveillance; and\n(f) the period during which the covert surveillance is proposed to\nbe conducted; and\n\nCovert surveillance Part 4\nCovert surveillance authorities Division 4.2\nSection 27\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 19\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(g) if an application for a covert surveillance authority for the\nproposed surveillance has previously been made—the result of\nthe application and, if the authority was issued, any covert\nsurveillance conducted under the authority; and\n(h) anything else prescribed by regulation.\n(3) An application must also nominate at least 1 person to be a\nsurveillance supervisor for the covert surveillance authority.\n(4) If an application for a covert surveillance authority is refused by the\nMagistrates Court, a further application in relation to the same\nsurveillance may only be made if the further application provides\nadditional relevant information.\n27 Hearing in private\nA hearing of an application for a covert surveillance authority must\nbe held in private.\n28 Issuing covert surveillance authority\n(1) The Magistrates Court may, on application, issue a covert\nsurveillance authority if satisfied that there are reasonable grounds to\nissue the authority.\nNote If a form is approved under the Court Procedures Act 2004, s 8 for the\norder, the form must be used.\n(2) In considering whether there are reasonable grounds to issue the\ncovert surveillance authority, the Magistrates Court must consider—\n(a) the seriousness of the suspected unlawful activity; and\n(b) whether and the extent to which the proposed surveillance might\nintrude on the worker’s or someone else’s privacy; and\n\nPart 4 Covert surveillance\nDivision 4.2 Covert surveillance authorities\nSection 28\npage 20 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) if the proposed surveillance may be conducted in a non-work\narea—a worker’s heightened expectation of privacy in the area;\nand\nNote 1 Surveillance is prohibited in some non-work areas (see s 41).\nNote 2 Non-work area—see the dictionary.\n(d) whether there are other appropriate ways to find out if the\nworker is engaged in an unlawful activity in the workplace; and\n(e) whether it is more appropriate for the suspected unlawful\nactivity to be investigated by a law enforcement agency; and\n(f) whether the person nominated to be the surveillance supervisor\nin the application is suitable.\nNote Section 29 deals with appointing a surveillance supervisor.\n(3) The Magistrates Court may consider any other relevant matter.\n(4) The covert surveillance authority must state—\n(a) the nature of the suspected unlawful activity and the name of the\nworker (if practicable) in relation to which the authority is\nissued; and\n(b) the name of any worker (if practicable) or a description of the\ngroup or class of workers who may be the subject of the covert\nsurveillance; and\n(c) the premises, place, computer, vehicle or other thing that may\nbe the subject of the covert surveillance; and\n(d) the kind of surveillance device that may be used for the covert\nsurveillance and where the device may be used or installed; and\n(e) when the covert surveillance may be conducted; and\n(f) the name of each person designated as a surveillance supervisor;\nand\n(g) the period that the authority remains in force; and\n\nCovert surveillance Part 4\nCovert surveillance authorities Division 4.2\nSection 29\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(h) the conditions on the covert surveillance authority; and\nNote For the conditions on a covert surveillance authority, see s 31.\n(i) the requirements for—\n(i) reporting on the use of the covert surveillance authority\nunder section 37; and\n(ii) use and disclosure of covert surveillance records under\nsection 39.\n29 Appointing surveillance supervisor\n(1) The Magistrates Court must appoint at least 1 person to be the\nsurveillance supervisor in relation to a covert surveillance authority.\n(2) The Magistrates Court may appoint a person to be the surveillance\nsupervisor only if satisfied that the person—\n(a) has the experience or expertise to qualify the person to be a\nsurveillance supervisor; and\n(b) is independent of the employer; and\nExample\nthe person is not an employee of the employer\n(c) if the covert surveillance authority allows surveillance to be\nconducted in a non-work area—is able to adequately\naccommodate a worker’s heightened expectation of privacy in\nthe area.\nNote 1 Surveillance is prohibited in some non-work areas (see s 41).\nNote 2 Non-work area—see the dictionary.\n30 Duration of covert surveillance authority\nA covert surveillance authority may be issued for not longer than\n30 days or another period prescribed by regulation.\n\nPart 4 Covert surveillance\nDivision 4.2 Covert surveillance authorities\nSection 31\npage 22 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n31 Conditions on covert surveillance authority\n(1) A covert surveillance authority is subject to the conditions mentioned\nin this section.\n(2) A surveillance supervisor must not give another person access to a\ncovert surveillance record.\n(3) However, a surveillance supervisor may give an employer a part of a\ncovert surveillance record—\n(a) for a purpose for which the covert surveillance authority was\nissued; or\n(b) to identify or detect any other unlawful activity in a workplace.\n(4) A surveillance supervisor must, within 3 months after the expiry of a\ncovert surveillance authority, erase or destroy all covert surveillance\nrecords in relation to the authority, other than records required for\ninvestigative or evidentiary purposes.\n(5) An employer must, on the written request of a worker, give the worker\naccess to any part of a covert surveillance record that an employer\nseeks to rely on to take adverse action in relation to the worker.\nNote Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.\n32 Defects in covert surveillance authority\nA defect in a covert surveillance authority does not invalidate the\nauthority unless the defect affects the substance of the authority in a\nmaterial particular.\n33 Varying or cancelling covert surveillance authority\n(1) The Magistrates Court may, at any time, vary or cancel a covert\nsurveillance authority.\n(2) The Magistrates Court may vary or cancel a covert surveillance\nauthority on its own initiative or on application made by a worker,\nemployer or other person affected by the authority.\n\nCovert surveillance Part 4\nRestrictions on covert surveillance Division 4.3\nSection 34\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 23\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n34 Magistrates Court to record details of covert surveillance\nauthority orders\n(1) If the Magistrates Court issues, varies or cancels a covert surveillance\nauthority, the court must make and keep a written record of the details\nof, and reasons for, issuing, varying or cancelling the authority.\n(2) The Magistrates Court must take all reasonable steps to protect the\nconfidentiality of a record under this section.\n(3) A regulation may prescribe requirements for the following:\n(a) the keeping of records in relation to the issue of covert\nsurveillance authorities;\n(b) the inspection of the records;\n(c) any other matter in relation to the records.\nDivision 4.3 Restrictions on covert surveillance\n35 Offence—conducting covert surveillance other than\nunder covert surveillance authority\n(1) An employer commits an offence if the employer conducts covert\nsurveillance of a worker in a workplace.\nMaximum penalty: 50 penalty units.\n(2) Subsection (1) does not apply if the surveillance is—\n(a) conducted in accordance with a covert surveillance authority; or\n(b) conducted by a member or officer of a law enforcement agency\nin the exercise of a function under a territory law or law of\nanother jurisdiction; or\n\nPart 4 Covert surveillance\nDivision 4.3 Restrictions on covert surveillance\nSection 36\npage 24 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) surveillance using an optical surveillance device in a\ncorrectional centre or another place where a person is in lawful\ncustody; or\n(d) surveillance using an optical surveillance device to monitor\noperations carried out in a casino in accordance with the Casino\nControl Act 2006; or\n(e) surveillance using an optical surveillance device of a legal\nproceeding or proceeding before a law enforcement agency\nconducted by a person in the exercise of a function under a\nterritory law or law of another jurisdiction.\nNote The employer has an evidential burden in relation to the matters\nmentioned in s (2) (see Criminal Code, s 58).\n36 Defences—surveillance for security of workplaces\n(1) It is a defence to a prosecution for an offence against section 35 if the\ndefendant proves that—\n(a) covert surveillance was conducted solely to ensure the security\nof the workplace or people in it (the relevant purpose) and the\nsurveillance of a worker was extrinsic to the relevant purpose;\nand\n(b) there was a real and significant likelihood of the security of the\nworkplace or people in it being jeopardised if covert\nsurveillance was not conducted; and\n(c) the employer notified workers (or a body representing a\nsubstantial number of the workers) in the workplace in writing\nof the intended surveillance for the relevant purpose before it\nwas conducted.\nNote The defendant has a legal burden in relation to the matters mentioned in\ns (1) (see Criminal Code, s 59).\n\nCovert surveillance Part 4\nReporting on covert surveillance authority Division 4.4\nSection 37\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 25\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(2) A covert surveillance record in relation to a worker that results from\nthe conduct of surveillance mentioned in this section is not admissible\nin evidence in a proceeding against the worker unless—\n(a) for a disciplinary or legal proceeding—the proceeding relates to\nthe security of the workplace or people in the workplace; or\n(b) for a legal proceeding—the desirability of admitting the\nevidence outweighs the undesirability of admitting evidence that\nhas been obtained in the way in which the evidence was\nobtained.\nDivision 4.4 Reporting on covert surveillance\nauthority\n37 Offence—failure to give covert surveillance report\n(1) An employer commits an offence if—\n(a) the Magistrates Court issues a covert surveillance authority to\nthe employer; and\n(b) the employer fails to give the court a written report setting out\nthe covert surveillance authority information within 30 days\nafter the end of the covert surveillance authority.\nNote If a form is approved under the Court Procedures Act 2004, s 8 for\nthe report, the form must be used.\nMaximum penalty: 20 penalty units.\n(2) In this section:\ncovert surveillance authority information means the following:\n(a) the name of any worker (if practicable), or a description of the\ngroup or class of workers who were the subject of the covert\nsurveillance;\n(b) the period during which the covert surveillance was conducted;\n\nPart 4 Covert surveillance\nDivision 4.4 Reporting on covert surveillance authority\nSection 38\npage 26 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(c) the kind of surveillance device used and the kind of place where\nthe device was installed or used;\n(d) whether any surveillance device has been removed and, if not,\nwhy not;\n(e) the conditions on the covert surveillance authority;\n(f) details of any covert surveillance records made as a consequence\nof the covert surveillance;\n(g) any action taken or proposed to be taken in light of the\ninformation obtained;\n(h) any reason why a worker who was the subject of the surveillance\nshould not be told of the surveillance;\n(i) details of any previous use of covert surveillance in relation to\nthe suspected unlawful activity to which the covert surveillance\nauthority applies;\n(j) anything else prescribed by regulation.\n38 Orders for covert surveillance record\n(1) This section applies if an employer gives a report to the Magistrates\nCourt under section 37 in relation to a covert surveillance authority.\n(2) The Magistrates Court may make any order in relation to the use and\ndisclosure of a covert surveillance record that the court considers\nappropriate, including 1 or both of the following:\n(a) an order that a covert surveillance record be delivered to the\ncourt to be kept in the court’s safekeeping or to be dealt with by\nthe court as it considers appropriate;\n(b) an order that a stated person or entity be told of the covert\nsurveillance and given access to a covert surveillance record, or\npart of a covert surveillance record of the surveillance.\n\nCovert surveillance Part 4\nCovert surveillance records Division 4.5\nSection 39\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 27\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) The Magistrates Court must make an order under subsection (2) (b)\nin favour of the worker the subject of the covert surveillance unless\nsatisfied there is a good reason not to.\n(4) In considering whether there is a good reason not to make an order\nin favour of the worker, the Magistrates Court must consider whether\nthe surveillance was justified or an unnecessary interference with\nprivacy.\nDivision 4.5 Covert surveillance records\n39 Offence—use and disclosure of covert surveillance other\nthan for a relevant purpose\n(1) A person commits an offence if the person uses or discloses to\nsomeone else surveillance information in a covert surveillance record.\nMaximum penalty: 50 penalty units.\n(2) Subsection (1) does not apply if the person did not know, and had no\nreasonable grounds to know, that the surveillance information was, or\nwas part of, a covert surveillance record.\n(3) Also, subsection (1) does not apply if the person uses or discloses the\ninformation for 1 or more of the following purposes:\n(a) use or disclosure under the conditions of the covert surveillance\nauthority or an order of the Magistrates Court under section 38;\n(b) use or disclosure for a purpose that is directly or indirectly\nrelated to establishing whether or not a worker is engaged in\nunlawful activity while at work for the employer under the\ncovert surveillance authority;\n(c) use or disclosure for a purpose that is directly or indirectly\nrelated to a disciplinary or legal proceeding against a worker as\na consequence of any alleged unlawful activity while at work for\nthe employer;\n\nPart 4 Covert surveillance\nDivision 4.5 Covert surveillance records\nSection 39\npage 28 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(d) use or disclosure for a purpose that is directly or indirectly\nrelated to establishing security arrangements or taking other\nmeasures to prevent or minimise the opportunity for unlawful\nactivity while at work for the employer of a kind identified by\nthe covert surveillance record to occur while at work for the\nemployer;\n(e) use or disclosure that is reasonably believed to be necessary to\navoid an imminent risk of death of, or serious injury to, someone\nor substantial damage to property;\n(f) disclosure to a member or officer of a law enforcement agency\nfor use in connection with the detection, investigation or\nprosecution of an offence;\n(g) use by a member or officer of a law enforcement agency for use\nin connection with the detection, investigation or prosecution of\nan offence;\n(h) use or disclosure for a purpose that is directly or indirectly\nrelated to the taking of proceedings for an offence;\n(i) use or disclosure for a purpose that is directly or indirectly\nrelated to taking any other action under this Act.\n(4) Also, if the covert surveillance record results from covert surveillance\nconducted other than under a covert surveillance authority,\nsubsection (1) does not apply if the person uses or discloses the\ninformation for 1 or more of the following purposes:\n(a) disclosure to a member or officer of a law enforcement agency\nfor use in connection with the detection, investigation or\nprosecution of an offence;\n(b) use or disclosure for a purpose that is directly or indirectly\nrelated to the taking of proceedings for an offence;\n(c) use by a member of a law enforcement agency for any purpose\nin connection with the detection, investigation or prosecution of\nan offence;\n\nCovert surveillance Part 4\nCovert surveillance records Division 4.5\nSection 40\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 29\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(d) if the covert surveillance was in relation to a worker of a law\nenforcement agency—\n(i) disclosure to a member or officer of a law enforcement\nagency for use in connection with disciplinary or\nmanagerial action or legal proceedings against the worker\nas a consequence of any alleged misconduct (other than an\nunlawful activity) or unsatisfactory performance of the\nworker; or\n(ii) use or disclosure for a purpose that is directly or indirectly\nrelated to the taking of disciplinary or managerial action or\nlegal proceedings; or\n(iii) disclosure to a member or officer of a law enforcement\nagency for use in connection with the training of law\nenforcement members or officers.\nNote The person has an evidential burden in relation to the matters mentioned\nin s (2), (3) and (4) (see Criminal Code, s 58).\n40 Information inadvertently obtained under covert\nsurveillance authority\n(1) This section applies to information that inadvertently or unexpectedly\ncomes to the knowledge of a person as a direct or indirect result of\nconducting covert surveillance under a covert surveillance authority.\n(2) For any determination by a court as to the admissibility of evidence\nin a criminal proceeding before the court, the information is not\nconsidered to have been obtained in contravention of section 35.\n(3) Subsection (1) does not apply if the court is of the opinion that the\napplication for the covert surveillance authority was not made in good\nfaith.\n\nPart 5 Prohibited surveillance\nSection 41\npage 30 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 5 Prohibited surveillance\n41 Offence—surveillance of private areas etc\n(1) An employer commits an offence if the employer conducts\nsurveillance of a worker in a prohibited non-work area.\nMaximum penalty: 50 penalty units.\n(2) In this section:\nprohibited non-work area means 1 of the following non-work areas\nin a workplace:\n(a) a toilet facility;\n(b) a change room;\n(c) a shower or other bathing facility;\n(d) a parent or nursing room;\n(e) a prayer room;\n(f) a sick bay;\n(g) a first-aid room;\n(h) any other area in a workplace prescribed by regulation.\n42 Surveillance of workers not at work\n(1) An employer commits an offence if the employer conducts\nsurveillance of a worker if the worker is not in a workplace.\nMaximum penalty: 50 penalty units.\n(2) Subsection (1) does not apply if—\n(a) the employer conducts surveillance of a worker’s use of\nequipment or resources provided by the employer using a data\nsurveillance device; or\n\nProhibited surveillance Part 5\nSection 43\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 31\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(b) the employer conducts surveillance using a tracking device that\nincludes a tracking function that cannot be deactivated; or\n(c) the employer is a law enforcement agency.\nNote The employer has an evidential burden in relation to the matters\nmentioned in s (2) (see Criminal Code, s 58).\n(3) For subsection (2) (a), equipment or resources are taken to be\nprovided by an employer if the employer has met the cost of the\nequipment or resources.\n43 Use and disclosure of certain tracking device records\nA surveillance record in relation to a worker that results from the\nconduct of surveillance using a tracking device mentioned in\nsection 42 (2) (b) must not be used or disclosed for any purpose.\n\nPart 5A Enforcement\nSection 43A\npage 32 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 5A Enforcement\n43A The regulator\n(1) The regulator has the following functions:\n(a) to advise and make recommendations to the Minister and report\non the operation and effectiveness of this Act;\n(b) to monitor and enforce compliance with this Act;\n(c) to provide advice and information on workplace privacy to\nemployers and employees under this Act and to the community;\n(d) to conduct and defend proceedings under this Act before a court\nor tribunal;\n(e) any other function given to the regulator by this Act.\nNote A reference to an Act includes a reference to statutory instruments made or\nin force under the Act, including a regulation and any law or instrument\napplied, adopted or incorporated by the Act (see Legislation Act, s 104).\n(2) The regulator has the same powers to obtain information in relation\nto a possible contravention of this Act or that will assist the regulator\nto monitor or enforce compliance with this Act that the regulator has\nunder the Work Health and Safety Act 2011, section 155 in relation to\nthat Act.\n(3) In addition, the regulator has all the powers that an inspector has\nunder this Act.\n(4) The regulator may delegate the regulator’s powers and functions\nunder this Act to another person.\nNote For the making of delegations and the exercise of delegated functions,\nsee the Legislation Act, pt 19.4.\n43B Inspectors\nAn inspector under the Work Health and Safety Act 2011 is an\ninspector for this Act.\n\nEnforcement Part 5A\nSection 43C\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 33\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n43C Functions and powers of inspectors\n(1) An inspector has the following functions and powers under this Act:\n(a) to provide information and advice about compliance with this\nAct;\n(b) to require compliance with this Act through the issuing of\nnotices under the Work Health and Safety Act 2011, part 10\n(Enforcement measures);\n(c) to investigate contraventions of this Act and assist in the\nprosecution of offences.\n(2) The Work Health and Safety Act 2011, section 161 (Conditions on\ninspectors’ compliance powers) and section 162 (Inspectors subject\nto regulator’s directions) apply to an inspector in relation to the\nexercise of a function or power under this Act.\n43D Securing compliance\n(1) An inspector may exercise powers the inspector has under the\nfollowing provisions of the Work Health and Safety Act 2011 for the\npurpose of securing compliance with this Act:\n(a) division 9.3 (Powers relating to entry);\n(b) division 9.5 (Other matters).\n(2) The following provisions of the Work Health and Safety Act 2011\napply in relation to any exercise of those functions:\n(a) division 9.4 (Damage and compensation);\n(b) division 9.6 (Offences in relation to inspectors).\n\nPart 5A Enforcement\nSection 43E\npage 34 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n(3) For this section, the provisions of the Work Health and Safety\nAct 2011 mentioned in this section apply as if—\n(a) a reference in those provisions to a workplace were a reference\nto a workplace under this Act; and\n(b) any other necessary changes were made.\n43E Enforcement measures\n(1) The Work Health and Safety Act 2011, part 10 (Enforcement\nmeasures) applies for the purpose of enforcing compliance with this\nAct.\n(2) For this section, the Work Health and Safety Act 2011, part 10 applies\nas if—\n(a) a reference in that part to a workplace were a reference to a\nworkplace under this Act; and\n(b) a reference to contravening a provision were a reference to\ncontravening a provision of this Act; and\n(c) any other necessary changes were made.\nNote A reference to an Act includes a reference to statutory instruments made\nor in force under the Act, including a regulation and any law or instrument\napplied, adopted or incorporated by the Act (see Legislation Act, s 104).\n\nMiscellaneous Part 6\nSection 44\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 35\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nPart 6 Miscellaneous\n44 Offences—security of surveillance records\n(1) An employer commits an offence if the employer fails to take\nreasonable steps to protect surveillance records it holds from misuse,\nloss, unauthorised access, modification or disclosure.\nMaximum penalty: 20 penalty units.\n(2) An employer commits an offence if—\n(a) a surveillance record is no longer needed for any purpose for\nwhich the record may be used or disclosed under this Act; and\n(b) the employer fails to take reasonable steps to destroy or\npermanently de-identify the surveillance record.\nMaximum penalty: 20 penalty units.\n47 Regulation-making power\nThe Executive may make regulations for this Act.\nNote A regulation must be notified, and presented to the Legislative Assembly,\nunder the Legislation Act.\n\nDictionary\npage 36 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nDictionary\n(see s 3)\nNote 1 The Legislation Act contains definitions and other provisions relevant to\nthis Act.\nNote 2 For example, the Legislation Act, dict, pt 1, defines the following terms:\n• Corporations Act\n• correctional centre\n• Executive\n• exercise\n• function\n• Magistrates Court\n• Minister (see s 162).\nadverse action—see the Fair Work Act 2009 (Cwlth), section 342.\nbusiness or undertaking—see section 9.\ncomputer means an electronic device for storing or processing\ninformation.\nconduct surveillance—see section 11.\ncovert surveillance—see section 24.\ncovert surveillance authority, for part 4 (Covert surveillance)—see\nsection 25.\ncovert surveillance record, for part 4 (Covert surveillance)—see\nsection 25.\ndata surveillance device—see section 11.\nelectronic communication means communication by electronic\nmeans.\nExamples\nemail, instant messaging\nemployer—see section 8.\n\nDictionary\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 37\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nlaw enforcement agency—\n(a) see the Spent Convictions Act 2000, dictionary; and\n(b) includes an entity prescribed by regulation.\nnon-work area means an area in a workplace where a worker is not\ndirectly engaged in work.\nExamples\ntearoom, recreation room\noptical surveillance device—see section 11.\nprohibited surveillance means surveillance prohibited under part 5.\nregulator—see the Work Health and Safety Act 2011, dictionary.\nsurveillance—\n(a) see section 11; or\n(b) for part 3 (Notified surveillance)—see section 12.\nsurveillance device—see section 11.\nsurveillance information means information obtained, recorded,\nmonitored or observed as a result of surveillance conducted in\nrelation to a worker.\nsurveillance record means a record or report of surveillance\ninformation.\nsurveillance supervisor, for part 4 (Covert surveillance)—see\nsection 25.\ntracking device—see section 11.\nunlawful activity, for part 4 (Covert surveillance)—see section 25.\nworker—see section 7.\nworkplace—see section 10.\n\nEndnotes\n1 About the endnotes\npage 38 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\nEndnotes\n1 About the endnotes\nAmending and modifying laws are annotated in the legislation history and the\namendment history. Current modifications are not included in the republished law\nbut are set out in the endnotes.\nNot all editorial amendments made under the Legislation Act 2001, part 11.3 are\nannotated in the amendment history. Full details of any amendments can be\nobtained from the Parliamentary Counsel’s Office.\nUncommenced amending laws and expiries are listed in the legislation history and\nthe amendment history. These details are underlined. Uncommenced provisions\nand amendments are not included in the republished law but are set out in the last\nendnote.\nIf all the provisions of the law have been renumbered, a table of renumbered\nprovisions gives details of previous and current numbering.\nThe endnotes also include a table of earlier republications.\n2 Abbreviation key\nA = Act NI = Notifiable instrument\nAF = Approved form o = order\nam = amended om = omitted/repealed\namdt = amendment ord = ordinance\nAR = Assembly resolution orig = original\nch = chapter par = paragraph/subparagraph\nCN = Commencement notice pres = present\ndef = definition prev = previous\nDI = Disallowable instrument (prev...) = previously\ndict = dictionary pt = part\ndisallowed = disallowed by the Legislative r = rule/subrule\nAssembly reloc = relocated\ndiv = division renum = renumbered\nexp = expires/expired R[X] = Republication No\nGaz = gazette RI = reissue\nhdg = heading s = section/subsection\nIA = Interpretation Act 1967 sch = schedule\nins = inserted/added sdiv = subdivision\nLA = Legislation Act 2001 SL = Subordinate law\nLR = legislation register sub = substituted\nLRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced\nmod = modified/modification or to be expired\n\nEndnotes\nLegislation history 3\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 39\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n3 Legislation history\nWorkplace Privacy Act 2011 A2011-4\nnotified LR 24 February 2011\ns 1, s 2 commenced 24 February 2011 (LA s 75 (1))\npt 3, pt 4 commenced 24 August 2011 (s 2 (2))\nremainder commenced 10 March 2011 (s 2 (1))\nas amended by\nWorkplace Privacy Amendment Act 2016 A2016-22 (as am by\nA2016-37 sch 1 pt 1.22; A2018-10 pt 3)\nnotified LR 14 April 2016\ns 1, s 2 commenced 14 April 2016 (LA s 75 (1))\ns 5, ss 7-16 repealed before commencement (see s 2 (2) (as am by\nA2016-37 amdt 1.44) and A2018-10 s 5)\nremainder commenced 14 October 2016 (s 2 (1) (as am by A2016-37\namdt 1.44) and LA s 79)\nJustice and Community Safety Legislation Amendment Act 2016\nA2016-37 sch 1 pt 1.22\nnotified LR 22 June 2016\ns 1, s 2 commenced 22 June 2016 (LA s 75 (1))\namdt 1.45 never commenced (see A2018-10 s 5)\nsch 1 pt 1.22 remainder (amdt 1.44) commenced 29 June 2016 (s 2)\nNote This Act only amends the Workplace Privacy Amendment\nAct 2016 A2016-22.\nWorkplace Legislation Amendment Act 2018 A2018-10 pt 3\nnotified LR 27 March 2018\ns 1, s 2 commenced 27 March 2018 (LA s 75 (1))\npt 3 commenced 28 March 2018 (s 2)\nNote This Act only amends the Workplace Privacy Amendment\nAct 2016 A2016-22.\nStatute Law Amendment Act 2021 A2021-12 sch 3 pt 3.66\nnotified LR 9 June 2021\ns 1, s 2 commenced 9 June 2021 (LA s 75 (1))\nsch 3 pt 3.66 commenced 23 June 2021 (s 2 (1))\n\nEndnotes\n4 Amendment history\npage 40 Workplace Privacy Act 2011\nEffective: 23/06/21\nR6\n23/06/21\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n4 Amendment history\nCommencement\ns 2 om LA s 89 (4)\nAdditional requirements for tracking devices\ns 17 am A2016-22 s 4\nDefinitions—pt 4\ns 25 def unlawful activity am A2016-22 s 6\nEnforcement\npt 5A hdg ins A2016-22 s 17\nThe regulator\ns 43A ins A2016-22 s 17\nInspectors\ns 43B ins A2016-22 s 17\nFunctions and powers of inspectors\ns 43C ins A2016-22 s 17\nSecuring compliance\ns 43D ins A2016-22 s 17\nEnforcement measures\ns 43E ins A2016-22 s 17\nOffences—security of surveillance records\ns 44 am A2016-22 s 18\nReport on covert surveillance to Legislative Assembly\ns 45 om A2016-22 s 19\nApproved forms\ns 46 om A2021-12 amdt 3.185\nReview of Act\ns 48 exp 10 March 2013 (s 48 (3))\nCourt Procedures Act 2004\nNew section 41 (2) (fa)\ns 49 om LA s 89 (3)\nDictionary\ndict def regulator ins A2016-22 s 20\n\nEndnotes\nEarlier republications 5\nR6\n23/06/21\nWorkplace Privacy Act 2011\nEffective: 23/06/21\npage 41\nAuthorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au\n5 Earlier republications\nSome earlier republications were not numbered. The number in column 1 refers to\nthe publication order.\nSince 12 September 2001 every authorised republication has been published in\nelectronic pdf format on the ACT legislation register. A selection of authorised\nrepublications have also been published in printed format. These republications are\nmarked with an asterisk (*) in column 1. Electronic and printed versions of an\nauthorised republication are identical.\nRepublication\nNo and date\nEffective Last\namendment\nmade by\nRepublication\nfor\nR1\n10 Mar 2011\n10 Mar 2011–\n23 Aug 2011\nnot amended new Act\nR2\n24 Aug 2011\n24 Aug 2011–\n10 Mar 2013\nnot amended commenced\nprovisions\nR3\n11 Mar 2013\n11 Mar 2013–\n13 Oct 2016\nnot amended expiry of provision\n(s 48)\nR4\n14 Oct 2016\n14 Oct 2016–\n27 Mar 2018\nA2016-37 amendments by\nA2016-22 as\namended by\nA2016-37\nR5\n28 Mar 2018\n28 Mar 2018–\n22 June 2021\nA2018-10 updated endnotes\nas amended by\nA2018-10\n© Australian Capital Territory 2021","sortOrder":0}],"analysis":{"flash_summary_failed":{"failed":true,"reason":"Unauthenticated. Configure AI_GATEWAY_API_KEY or use a provider module. Learn more: https://ai-sdk.dev/unauthenticated-ai-gateway","source":"analysis-cron"},"issue_detection":{"absurdities":[],"contradictions":[]},"kimi_summary":{"content_quality":"ok","complexity_score":6,"scope_assessment":{"changed":true,"description":"The original 2011 Act focused primarily on regulating surveillance devices and notification requirements. The 2016 amendments (Part 5A) significantly expanded the scope by importing the entire enforcement framework from the Work Health and Safety Act 2011, including inspector powers, entry rights, and compliance measures. This transformed the Act from a privacy-notification scheme into a fully enforceable regulatory regime with investigative powers. Additionally, the 2016 amendments removed the original requirement for annual reporting to the Legislative Assembly (repealed s 45), shifting from parliamentary oversight to administrative enforcement."},"complexity_factors":["Multiple overlapping regimes: Three distinct surveillance categories (notified, covert, prohibited) with different rules, plus special rules for blocking electronic communications","Extensive cross-referencing: Heavy reliance on external legislation including the Criminal Code (for offences and burdens of proof), Fair Work Act 2009 (for 'adverse action' and 'industrial association'), Work Health and Safety Act 2011 (for enforcement powers and regulator functions), Corporations Act (for 'related body corporate'), and Court Procedures Act 2004","Nested exceptions and defences: Section 20 (blocking communications) has exceptions in subsections (2)-(3); section 35 (covert surveillance offence) has exceptions in subsection (2) and a separate defence section (36); section 39 (use/disclosure of covert records) has multiple layers of exceptions in subsections (2)-(4)","Conditional notification requirements: Section 13 notice requirements vary based on timing (14 days vs new workers), device type (optical vs data vs tracking), and workplace type (usual vs non-usual workplace)","Court order system for covert surveillance: Part 4 creates a mini-administrative scheme with application requirements (s 26), judicial discretion criteria (s 28), supervisor appointments (s 29), duration limits (s 30), conditions (s 31), reporting (s 37), and post-surveillance orders (s 38)","Dual burden structures: Mix of strict liability offences, evidential burdens (ss 20, 35, 39), and legal burdens (s 36), requiring careful navigation of Criminal Code provisions","18 defined terms in the Dictionary plus 7 substantive definitions in sections 7-11, with some terms having part-specific meanings (e.g., 'surveillance' means different things in Part 3 vs general Act)"],"plain_english_summary":"The Workplace Privacy Act 2011 (ACT governs when and how employers may monitor workers — employees, contractors, volunteers and students — aiming to balance business interests with personal privacy. It requires transparency, notice and limits on covert or highly intrusive tracking, bans surveillance in private spaces, restricts blocking of industrial communications, and gives workers access to records.\n\nRegulators can inspect and penalise breaches, making secretive or abusive workplace surveillance difficult and risky."},"flash_summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act has been expanded since enactment to include a formal enforcement regime and inspector powers. Amendments inserted Part 5A (ss 43A–43E) giving a named regulator monitoring, advisory and enforcement functions and equipping inspectors (through the Work Health and Safety Act) to investigate and secure compliance. These additions move the law beyond simply setting surveillance rules and into an integrated compliance‑and‑enforcement model that reuses WHS enforcement mechanisms (see amendment history: Workplace Privacy Amendment Act 2016 A2016‑22). The change broadens the Act’s scope from rule‑setting to active regulatory enforcement, increases the State’s role in monitoring compliance, and creates additional administrative obligations and powers for inspectors and the regulator."},"complexity_factors":["Multiple surveillance categories with different rules (notified, covert, prohibited) creating branching obligations across Parts 3–5","Device‑specific requirements (optical, data, tracking) with separate obligations and exceptions (ss 15–17)","Covert surveillance court process with application particulars, independent surveillance supervisor requirements, conditions, reporting and record‑keeping (Part 4, ss 26–39)","Extensive cross‑references to other legislation: Criminal Code, Fair Work Act 2009, Work Health and Safety Act 2011, Court Procedures Act 2004, Spam Act 2003, Corporations Act","Numerous exceptions and layered defences (eg security defence s 36, evidential burdens in ss 20–21 and elsewhere)","Multiple offence provisions with varying penalty levels (20 and 50 penalty units) and different mens rea/evidential burdens","Detailed access and disclosure rules with long list of carve‑outs and public‑interest exceptions in s 23 (nested conditions)","Enforcement architecture reusing WHS inspector powers (Part 5A), requiring interpretation of one Act in the context of another"],"plain_english_summary":"**What this law does (mechanics first)**\n\n- Creates a single framework that controls how employers in the Australian Capital Territory may surveil workers in workplaces. It splits surveillance into three categories and applies different rules to each:\n  - **Notified surveillance** (ordinary, visible or known surveillance): employers may only do it after giving written notice and consulting with workers (see s 13–16). Additional rules apply depending on device type — cameras (optical), computer monitoring (data surveillance), and tracking devices each have specific requirements (ss 15–17).\n  - **Covert surveillance** (secret monitoring): employers may only conduct covert surveillance if they obtain a court-issued covert surveillance authority from the Magistrates Court, and must comply with conditions including appointing an independent surveillance supervisor and reporting requirements (ss 24–39).\n  - **Prohibited surveillance**: the Act forbids surveillance in certain non-work private areas (toilets, change rooms, nursing rooms, prayer rooms, sick bays, etc.) and broadly forbids surveilling workers when they are not in a workplace (Part 5, ss 41–43).\n\n- Sets limits on how employers may use and disclose surveillance records. Use of records to take adverse action against a worker is prohibited unless the employer told the worker in advance that such use might occur (ss 22–23).\n\n- Gives workers rights of access to surveillance records about them and requires employers to keep records secure and destroy or de‑identify records when no longer needed (ss 23, 44).\n\n- Creates criminal offences and penalty levels for failures to comply (examples: failing to give notice, conducting prohibited or covert surveillance without authority, improper use/disclosure of records; penalties up to 50 penalty units) (see ss 18, 35, 39, 41, 44).\n\n- Provides an enforcement architecture: a regulator with monitoring, advisory and enforcement functions and powers to obtain information (s 43A), and inspectors (from the Work Health and Safety Act) with powers to enter, inspect and use the WHS Act enforcement measures to secure compliance (Part 5A, ss 43B–43E).\n\n**Official purpose and how the Act says it achieves it**\n\n- The Act’s stated objective is to regulate the collection and use of workplace surveillance information (s 6). It implements that objective by:\n  - Requiring prior written notice and good‑faith consultation for most surveillance (ss 13–14);\n  - Differentiating obligations by surveillance type (optical, data, tracking) so effects on privacy and workplace operations can be addressed specifically (ss 15–17);\n  - Limiting covert surveillance to court‑authorised investigations of suspected unlawful activity and imposing independent oversight and reporting (Part 4, ss 26–39);\n  - Forbidding surveillance in private non‑work areas and in many off‑site contexts (Part 5, ss 41–42);\n  - Regulating access, use and disposal of surveillance records and attaching penalties for misuse (ss 22–23, 44);\n  - Providing enforcement tools and inspector powers by linking to the Work Health and Safety Act (Part 5A).\n\n**Who is affected and who decides**\n\n- Primary duties fall on **employers** (broadly defined to include principals, related corporate groups and host organisations; s 8). Employers bear the compliance costs: drafting and publishing policies, signage, notifying and consulting workers, securing and disposing of records, and, where necessary, applying to the Magistrates Court for covert surveillance authorities (ss 13–17, 26–31).\n\n- **Workers** (defined widely to include employees, contractors, volunteers, trainees — s 7) gain rights to notice, consultation, access to records about them, and protection from certain uses of surveillance evidence (ss 13–14, 23, 37–39).\n\n- **Decisions**: employers decide ordinary surveillance subject to notice and policy constraints; the Magistrates Court decides whether to authorise covert surveillance and sets conditions (ss 26–33); the regulator and inspectors decide when to investigate and enforce (s 43A, Part 5A).\n\n**Key costs, incentives and trade‑offs (practical implications)**\n\n- Compliance costs and administrative burden fall disproportionately on employers: producing written notices and policies (data surveillance) (s 16), installing signage (optical devices) (s 15), maintaining secure records and destruction routines (s 44), and training staff. Small employers will face the same structural obligations as larger employers.\n\n- Getting covert surveillance requires a court application with supporting particulars and an independent surveillance supervisor. That raises the monetary and time costs of pursuing covert monitoring and creates a gatekeeping function intended to limit secret surveillance to suspected unlawful activity (ss 26–31). The gatekeeping shifts the decision from employers to the court and imposes evidential and procedural burdens on employers.\n\n- The Act creates clear incentives to prefer notified, visible surveillance and documented data policies over covert options, because covert use is tightly constrained and subject to reporting and destruction requirements (s 31, s 37–38).\n\n- Workers are given avenues to challenge or obtain access to surveillance records and protections against undisclosed use of surveillance to take adverse action (ss 22–23). That reduces employers’ unilateral freedom to use surveillance outputs in disciplinary or dismissal processes unless explicitly notified.\n\n- The law trades investigative reach against privacy protection: it permits invasive covert monitoring in limited circumstances (suspected unlawful activity) but only under court supervision and with independent oversight and post‑operation reporting. This produces procedural safeguards but increases investigatory costs and court workload (ss 26–39).\n\n- The Act interacts with other laws: it cross‑references the Criminal Code (offence principles), the Fair Work Act (adverse action), the Work Health and Safety Act (enforcement powers), Spam Act and Corporations Act (definitions and specific exceptions). Employers must therefore manage compliance across multiple statutory regimes (see notes and cross‑references in the Act).\n\n**Implementation and enforcement risks**\n\n- Practical risks include court capacity and delay for covert authorisations, availability of suitably independent surveillance supervisors, and the regulator’s ability to coordinate with WHS inspectors (Part 5A).\n\n- Enforcement is channelled through existing WHS inspector powers where possible, which may speed investigations but can also create complexity in aligning WHS procedures with privacy‑specific issues (ss 43C–43E).\n\n**Concentrated benefits and costs / potential for bargaining or substitution**\n\n- Employers who need to investigate theft, fraud or serious misconduct have a formal pathway to covert surveillance but pay the costs of court applications and conditions. Workers and unions obtain concentrated procedural protections (notice, access, prohibitions) that change bargaining dynamics over workplace monitoring (s 19 allows collective agreement by a body representing a substantial number of workers).\n\n- Some employers may substitute to less‑intrusive monitoring, or technical changes (e.g. anonymised logging, stronger access controls) to reduce compliance risk and disclosure obligations.\n\n**Important sections to read for operational detail**\n\n- Notice and consultation: ss 13–14; optical/data/tracking specifics: ss 15–17\n- Use, disclosure and access to records: ss 22–23\n- Covert surveillance procedure and safeguards: ss 26–39\n- Prohibited surveillance and off‑site limits: ss 41–43\n- Enforcement and inspectors: Part 5A (ss 43A–43E)\n- Security and disposal obligations: s 44\n\nThis is an operational law: it prescribes how, when and on what terms employers may collect surveillance information about workers, shifts key decisions (particularly covert monitoring) to the Magistrates Court, establishes worker access and use limits, and adds an enforcement layer by reusing WHS inspector powers."}},"importantCases":[],"_links":{"self":"/api/acts/workplace-privacy-act-2011","history":"/api/acts/workplace-privacy-act-2011/history","analysis":"/api/acts/workplace-privacy-act-2011/analysis","conflicts":"/api/acts/workplace-privacy-act-2011/conflicts","importantCases":"/api/acts/workplace-privacy-act-2011/important-cases","documents":"/api/acts/workplace-privacy-act-2011/documents"}}