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Australian Capital Territory
Workplace Privacy Act 2011
A2011-4
Republication No 6
Effective: 23 June 2021
Republication date: 23 June 2021
Last amendment made by A2021-12
Authorised by the ACT Parliamentary Counsel—also accessible at www.legislation.act.gov.au
About this republication
The republished law
This is a republication of the Workplace Privacy Act 2011 (including any amendment made under
the Legislation Act 2001, part 11.3 (Editorial changes)) as in force on 23 June 2021. It also
includes any commencement, amendment, repeal or expiry affecting this republished law to
23 June 2021.
The legislation history and amendment history of the republished law are set out in endnotes 3
and 4.
Kinds of republications
The Parliamentary Counsel’s Office prepares 2 kinds of republications of ACT laws (see the ACT
legislation register at www.legislation.act.gov.au):
• authorised republications to which the Legislation Act 2001 applies
• unauthorised republications.
The status of this republication appears on the bottom of each page.
Editorial changes
The Legislation Act 2001, part 11.3 authorises the Parliamentary Counsel to make editorial
amendments and other changes of a formal nature when preparing a law for republication.
Editorial changes do not change the effect of the law, but have effect as if they had been made by
an Act commencing on the republication date (see Legislation Act 2001, s 115 and s 117). The
changes are made if the Parliamentary Counsel considers they are desirable to bring the law into
line, or more closely into line, with current legislative drafting practice.
This republication includes amendments made under part 11.3 (see endnote 1).
Uncommenced provisions and amendments
If a provision of the republished law has not commenced, the symbol U appears immediately
before the provision heading. Any uncommenced amendments that affect this republished law
are accessible on the ACT legislation register (www.legislation.act.gov.au). For more
information, see the home page for this law on the register.
Modifications
If a provision of the republished law is affected by a current modification, the
symbol M appears immediately before the provision heading. The text of the modifying
provision appears in the endnotes. For the legal status of modifications, see the Legislation Act
2001, section 95.
Penalties
At the republication date, the value of a penalty unit for an offence against this law is $160 for an
individual and $810 for a corporation (see Legislation Act 2001, s 133).
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contents 1
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Workplace Privacy Act 2011
Contents
Page
Part 1 Preliminary
1 Name of Act 2
3 Dictionary 2
4 Notes 2
5 Offences against Act—application of Criminal Code etc 2
Part 2 Object and important concepts
6 Object of Act 3
7 Meaning of worker 3
8 Meaning of employer 3
9 Meaning of business or undertaking 4
10 Meaning of workplace 4
Contents
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11 Meaning of surveillance etc 4
Part 3 Notified surveillance
Division 3.1 General
12 Meaning of surveillance—pt 3 6
Division 3.2 Notifying workplace surveillance
13 Notice of surveillance required 6
14 Requirement for consultation on proposed surveillance 7
15 Additional requirements for optical surveillance devices 8
16 Additional requirements for data surveillance devices 8
17 Additional requirements for tracking devices 9
18 Offences—failure to comply with notified surveillance requirements 9
Division 3.3 Other matters
19 Surveillance by agreement 10
20 Offence—restrictions on blocking electronic communication and
internet access 11
21 Notice of blocking electronic communication and internet access 11
22 Offences—use and disclosure of surveillance records 13
23 Access to surveillance records of notified surveillance 14
Part 4 Covert surveillance
Division 4.1 General
24 Meaning of covert surveillance—Act 17
25 Definitions—pt 4 17
Division 4.2 Covert surveillance authorities
26 Application for covert surveillance authority 18
27 Hearing in private 19
28 Issuing covert surveillance authority 19
29 Appointing surveillance supervisor 21
30 Duration of covert surveillance authority 21
31 Conditions on covert surveillance authority 22
32 Defects in covert surveillance authority 22
33 Varying or cancelling covert surveillance authority 22
Contents
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34 Magistrates Court to record details of covert surveillance authority
orders 23
Division 4.3 Restrictions on covert surveillance
35 Offence—conducting covert surveillance other than under covert
surveillance authority 23
36 Defences—surveillance for security of workplaces 24
Division 4.4 Reporting on covert surveillance authority
37 Offence—failure to give covert surveillance report 25
38 Orders for covert surveillance record 26
Division 4.5 Covert surveillance records
39 Offence—use and disclosure of covert surveillance other than for a
relevant purpose 27
40 Information inadvertently obtained under covert surveillance authority 29
Part 5 Prohibited surveillance
41 Offence—surveillance of private areas etc 30
42 Surveillance of workers not at work 30
43 Use and disclosure of certain tracking device records 31
Part 5A Enforcement
43A The regulator 32
43B Inspectors 32
43C Functions and powers of inspectors 33
43D Securing compliance 33
43E Enforcement measures 34
Part 6 Miscellaneous
44 Offences—security of surveillance records 35
47 Regulation-making power 35
Dictionary 36
Contents
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Endnotes
1 About the endnotes 38
2 Abbreviation key 38
3 Legislation history 39
4 Amendment history 40
5 Earlier republications 41
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Australian Capital Territory
Workplace Privacy Act 2011
An Act to regulate surveillance of workers in workplaces, and for other purposes
Part 1 Preliminary
Section 1
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Part 1 Preliminary
1 Name of Act
This Act is the Workplace Privacy Act 2011.
3 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms used in this
Act, and includes references (signpost definitions) to other terms defined
elsewhere.
For example, the signpost definition ‘adverse action—see the Fair Work
Act 2009 (Cwlth), section 342.’ means that the term ‘adverse action’ is
defined in that section and the definition applies to this Act.
Note 2 A definition in the dictionary (including a signpost definition) applies to
the entire Act unless the definition, or another provision of the Act,
provides otherwise or the contrary intention otherwise appears (see
Legislation Act, s 155 and s 156 (1)).
4 Notes
A note included in this Act is explanatory and is not part of this Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.
5 Offences against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see
Code, pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used
for offences to which the Code applies (eg conduct, intention,
recklessness and strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
Object and important concepts Part 2
Section 6
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Part 2 Object and important concepts
6 Object of Act
The main object of this Act is to regulate the collection and use of
workplace surveillance information.
7 Meaning of worker
In this Act:
worker means an individual who carries out work in relation to a
business or undertaking, whether for reward or otherwise, under an
arrangement with the person conducting the business or undertaking.
Examples—worker
1 employee
2 independent contractor
3 outworker
4 person doing a work experience placement
5 volunteer
8 Meaning of employer
(1) In this Act:
employer, of a worker—
(a) includes—
(i) a person who engages the worker to carry out work in the
person’s business or undertaking; and
(ii) if the person who engages the worker is a corporation—a
related body corporate of the corporation; but
Part 2 Object and important concepts
Section 9
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(b) does not include a person (the householder) who engages
someone else to perform domestic duties at the premises where
the householder lives.
Examples—employer
1 principal contractor is an employer of a subcontractor
2 host organisation is an employer of a labour hire worker
(2) In this section:
related body corporate—see the Corporations Act, section 9.
9 Meaning of business or undertaking
In this Act:
business or undertaking includes—
(a) a not-for-profit business; and
(b) an activity conducted by a local, state or territory government.
10 Meaning of workplace
In this Act:
workplace means a place where work is, has been, or is to be, carried
out by or for someone conducting a business or undertaking.
11 Meaning of surveillance etc
(1) In this Act:
conduct surveillance—a person conducts surveillance if the person—
(a) conducts the surveillance personally; or
(b) causes someone else to conduct the surveillance.
Object and important concepts Part 2
Section 11
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data surveillance device—
(a) means a device or program capable of being used to record or
monitor the input of information into or the output of
information from a computer; but
(b) does not include an optical surveillance device.
optical surveillance device—
(a) means a device capable of being used to record visually or
observe an activity; but
(b) does not include spectacles, contact lenses or a similar device
used by a person with impaired sight to overcome that
impairment.
surveillance means surveillance using a surveillance device.
surveillance device means—
(a) a data surveillance device, an optical surveillance device or a
tracking device; or
(b) a device that is a combination of any 2 or more of the devices
mentioned in paragraph (a); or
(c) a device of a kind prescribed by regulation.
tracking device means an electronic device capable of being used to
work out or monitor the location of a person or an object or the status
of an object.
Examples—tracking device
GPS, biometrics, radio frequency identification
(2) In this section:
device includes an instrument, apparatus or equipment.
Part 3 Notified surveillance
Division 3.1 General
Section 12
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Part 3 Notified surveillance
Division 3.1 General
12 Meaning of surveillance—pt 3
In this part:
surveillance does not include—
(a) covert surveillance; or
(b) prohibited surveillance.
Note Covert surveillance—see s 24.
Prohibited surveillance—see the dictionary.
Division 3.2 Notifying workplace surveillance
13 Notice of surveillance required
(1) An employer may only conduct surveillance of a worker in a
workplace if—
(a) the employer gives written notice to the worker under this
section; and
Note For how documents may be given, see the Legislation Act, pt 19.5.
(b) the surveillance is conducted in accordance with the notice.
(2) However, an employer need not give written notice to a worker for
surveillance using an optical surveillance device in a workplace if the
workplace is not a usual workplace of the worker.
(3) The notice must be given—
(a) at least 14 days before the surveillance starts; or
(b) if the worker agrees to a period of less than 14 days for giving
the notice—within the agreed lesser period; or
Notified surveillance Part 3
Notifying workplace surveillance Division 3.2
Section 14
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(c) if a new worker starts work with an employer that already
conducts surveillance or will start conducting surveillance in
less than 14 days after the new worker starts work—before the
new worker starts work.
(4) The notice must state—
(a) the kind of surveillance device to be used for the surveillance;
and
(b) how the surveillance will be conducted; and
(c) who will regularly or ordinarily be the subject of the
surveillance; and
(d) when the surveillance will start; and
(e) whether the surveillance will be continuous or intermittent; and
(f) whether the surveillance will be for a stated period or ongoing;
and
(g) the purpose for which the employer may use and disclose
surveillance records of the surveillance; and
(h) that the worker may consult with the employer about the conduct
of the surveillance under section 14.
(5) A notice may be in the form of a policy of the employer or otherwise.
14 Requirement for consultation on proposed surveillance
(1) This section applies if an employer must give a worker notice under
section 13.
(2) The employer must consult with the worker in good faith about the
conduct of the surveillance for not less than the notice period
mentioned in section 13 (3).
(3) For this section, an employer consults with the worker in good faith
if the employer gives the worker a genuine opportunity to influence
the conduct of the surveillance.
Part 3 Notified surveillance
Division 3.2 Notifying workplace surveillance
Section 15
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15 Additional requirements for optical surveillance devices
(1) An employer may only conduct surveillance of a worker using an
optical surveillance device if—
(a) the optical surveillance device used for the surveillance is
clearly visible in the workplace where the surveillance is
conducted; and
(b) a sign is clearly visible at each entrance to the workplace, telling
people that they may be under surveillance in the workplace.
(2) In this section:
optical surveillance device includes a camera casing or other
equipment that generally indicates the presence of an optical
surveillance device.
16 Additional requirements for data surveillance devices
(1) An employer may only conduct surveillance of a worker using a data
surveillance device if—
(a) the surveillance is conducted in accordance with a policy of the
employer on surveillance of workers in the workplace using data
surveillance devices; and
(b) the employer has notified the worker, before conducting the
surveillance, of the policy in a way that it is reasonable to
assume that the worker is aware of and understands the policy.
(2) For subsection (1) (a), the policy must state—
(a) how the employer’s computer resources may, and must not, be
used; and
(b) what information about the use of the employer’s computer
resources is logged and who may access the logged information;
and
Notified surveillance Part 3
Notifying workplace surveillance Division 3.2
Section 17
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(c) how the employer may monitor and audit a worker’s compliance
with the policy.
(3) In this section:
computer resources includes internet access and electronic
communication applications.
17 Additional requirements for tracking devices
(1) An employer may only conduct surveillance of a worker that involves
the tracking of a vehicle or other thing using a tracking device if there
is a notice clearly visible on the vehicle or other thing stating that the
vehicle or thing is being tracked.
(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.
18 Offences—failure to comply with notified surveillance
requirements
(1) An employer commits an offence if the employer—
(a) is required to notify a worker of surveillance under section 13;
and
(b) the employer fails to comply with a requirement under
section 13 in relation to the surveillance.
Maximum penalty: 20 penalty units.
(2) An employer commits an offence if the employer—
(a) conducts surveillance of a worker using an optical surveillance
device; and
Part 3 Notified surveillance
Division 3.3 Other matters
Section 19
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(b) fails to comply with a requirement under section 15 in relation
to the surveillance.
Maximum penalty: 20 penalty units.
(3) An employer commits an offence if the employer—
(a) conducts surveillance of a worker using a data surveillance
device; and
(b) fails to comply with a requirement under section 16 in relation
to the surveillance.
Maximum penalty: 20 penalty units.
(4) An employer commits an offence if the employer—
(a) conducts surveillance of a worker using a tracking device; and
(b) fails to comply with a requirement under section 17 in relation
to the surveillance.
Maximum penalty: 20 penalty units.
Division 3.3 Other matters
19 Surveillance by agreement
(1) Surveillance of a worker is taken to comply with the requirements of
this part if—
(a) the worker agrees to the conduct of the surveillance for a
purpose other than surveillance of the worker; and
(b) the surveillance is conducted in accordance with the agreement.
(2) For this section, a worker is taken to agree to the conduct of
surveillance if a body representing a substantial number of workers
in the workplace agrees to the conduct of the surveillance.
Notified surveillance Part 3
Other matters Division 3.3
Section 20
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20 Offence—restrictions on blocking electronic
communication and internet access
(1) An employer commits an offence if the employer stops the delivery
of an electronic communication sent to or by a worker, or stops a
worker’s access to a website.
Maximum penalty: 5 penalty units.
Note Electronic communication—see the dictionary.
(2) Subsection (1) does not apply if—
(a) the employer is acting in accordance with a policy of the
employer on electronic communication and internet access; and
(b) the employer—
(i) notified the worker, before stopping delivery of the
electronic communication or access to the website, of the
policy in a way that it is reasonable to assume that the
worker is aware of and understands the policy; or
(ii) was not required to notify the worker under section 21 (2)
or (3).
Note The employer has an evidential burden in relation to the matters
mentioned in s (2) (see Criminal Code, s 58).
21 Notice of blocking electronic communication and internet
access
(1) If an employer stops delivery of an electronic communication under
section 20 (2), the employer must give the worker a notice (a stopped
delivery notice) that delivery of the electronic communication has
been stopped as soon as practicable after it is stopped.
Note Electronic communication—see the dictionary.
Part 3 Notified surveillance
Division 3.3 Other matters
Section 21
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(2) However, an employer is not required to give a worker a stopped
delivery notice if delivery of the electronic communication is
stopped—
(a) because the employer believes the electronic communication
is—
(i) a communication that is a commercial electronic message
within the meaning of the Spam Act 2003 (Cwlth); or
(ii) a communication or attachment that might result in an
unauthorised interference with, or damage to, the operation
of—
(A) a computer or computer network operated by the
employer; or
(B) a program run by a computer or computer network of
the employer; or
(C) data stored on a computer or computer network of the
employer; or
(iii) a communication or attachment that might reasonably be
considered to be threatening, harassing or offensive; or
(b) by the operation of a software program designed to stop a
communication of a type mentioned in paragraph (a).
(3) Also, an employer is not required to give a worker a stopped delivery
notice for an electronic communication sent by the worker if the
employer was not, and could not reasonably be expected to be,
aware—
(a) of the identity of the worker who sent the communication; or
(b) that the communication was sent by a worker.
Notified surveillance Part 3
Other matters Division 3.3
Section 22
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(4) An employer’s policy on electronic communication and internet
access must not provide for delivery of an electronic communication
or access to a website to be stopped only because—
(a) the communication was sent by or on behalf of an industrial
association of a worker or an officer of an industrial association;
or
(b) the communication or a website contains information relating to
industrial matters.
(5) In this section:
industrial association—see the Fair Work Act 2009 (Cwlth),
section 12.
industrial matters means matters or things affecting or relating to
work done or to be done in an industry, or the rights or obligations of
employers or workers in an industry.
22 Offences—use and disclosure of surveillance records
(1) An employer commits an offence if the employer—
(a) conducts surveillance of a worker; and
(b) uses a surveillance record in relation to the surveillance to take
adverse action against the worker.
Maximum penalty: 50 penalty units.
Note Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.
(2) Subsection (1) does not apply if the notice given to the worker under
section 13 stated that the employer may use the surveillance to take
adverse action against the worker.
Part 3 Notified surveillance
Division 3.3 Other matters
Section 23
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(3) An employer who conducts surveillance of a worker in a workplace
must ensure that a surveillance record in relation to the surveillance
is otherwise only used or disclosed if—
(a) the record is used or disclosed for a legitimate purpose in
relation to the employment of a worker or the legitimate
business activities or functions of the employer; or
(b) the record is disclosed to a member of a law enforcement agency
for use in connection with the detection, investigation or
prosecution of an offence; or
(c) the record is used or disclosed for a purpose directly or indirectly
related to a civil or criminal proceeding; or
(d) the employer reasonably believes that the use or disclosure of
the record is necessary to avoid an imminent risk of death of, or
serious injury to, someone or substantial damage to property; or
(e) the record is disclosed under section 23.
Maximum penalty: 50 penalty units.
23 Access to surveillance records of notified surveillance
(1) An employer must, on the written request of a worker, allow the
worker to have access to surveillance records in relation to the
worker.
(2) If an employer fails to allow the worker to have access to surveillance
records under subsection (1), the records must not be used by the
employer—
(a) in a legal proceeding between the employer and the worker; or
(b) to take adverse action against the worker.
Note Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.
Notified surveillance Part 3
Other matters Division 3.3
Section 23
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(3) Subsections (1) and (2) do not apply if—
(a) disclosing the surveillance records would be an offence under
section 22 or otherwise unlawful; or
(b) the employer is satisfied on reasonable grounds that—
(i) allowing access would have an unreasonable impact on the
privacy of other individuals; or
(ii) the request for access is frivolous or vexatious; or
(iii) the information relates to existing or anticipated legal
proceedings between the employer and the worker and the
information would be accessible by the process of
discovery in those proceedings; or
(iv) allowing access would reveal the intentions of the
employer in relation to negotiations with the individual in
a way that would be likely to prejudice the negotiations; or
(v) not allowing access is required or authorised under a
territory law or the law of another jurisdiction; or
(vi) allowing access would be likely to prejudice an
investigation of possible unlawful activity; or
(vii) allowing access would be likely to prejudice—
(A) the prevention, detection, investigation, prosecution
or punishment of a criminal offence or breach of a law
imposing a penalty or sanction; or
(B) the enforcement of a law relating to the confiscation
of the proceeds of crime; or
(C) the prevention, detection, investigation or remedying
of serious improper conduct; or
(D) the preparation for, or conduct of, proceedings before
any court or tribunal, or implementation of its orders,
by or on behalf of a law enforcement agency; or
Part 3 Notified surveillance
Division 3.3 Other matters
Section 23
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(c) a law enforcement body performing a lawful security function
asks the employer not to allow access to the information on the
basis that allowing access would be likely to cause damage to
the security of Australia.
Covert surveillance Part 4
General Division 4.1
Section 24
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Part 4 Covert surveillance
Division 4.1 General
24 Meaning of covert surveillance—Act
In this Act:
covert surveillance—
(a) means surveillance of a worker in a workplace conducted by an
employer without notifying the worker under part 3 (Notified
surveillance); but
(b) does not include prohibited surveillance.
25 Definitions—pt 4
In this part:
covert surveillance authority—see section 26.
covert surveillance record means a surveillance record in relation to
covert surveillance.
surveillance supervisor, for a covert surveillance authority, means a
person named in a covert surveillance authority as responsible for
overseeing the conduct of the authorised covert surveillance.
unlawful activity means an act or omission that is an offence against
a law in force in the Territory.
Part 4 Covert surveillance
Division 4.2 Covert surveillance authorities
Section 26
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Division 4.2 Covert surveillance authorities
26 Application for covert surveillance authority
(1) An employer may apply to the Magistrates Court for authority (a
covert surveillance authority) to conduct covert surveillance of a
worker in a workplace only for the purpose of finding out if the
worker is engaged in an unlawful activity in the workplace.
Note 1 If a form is approved under the Court Procedures Act 2004, s 8 for the
application, the form must be used.
Note 2 A fee may be determined under the Court Procedures Act 2004, s 13 for
this provision.
(2) The application must be in writing and be accompanied by particulars
of—
(a) the grounds that the employer has for suspecting a worker is
involved in an unlawful activity and the name of the worker (if
practicable); and
(b) the actions (if any) the employer has taken to detect the unlawful
activity and the result of the actions; and
(c) the name of any worker (if practicable) or a description of the
group or class of workers, who will regularly or ordinarily be
the subject of the covert surveillance; and
(d) a description of the premises, place, computer, vehicle or other
thing that will regularly or ordinarily be the subject of the covert
surveillance; and
(e) the kind of surveillance device that is proposed to be used for
the covert surveillance; and
(f) the period during which the covert surveillance is proposed to
be conducted; and
Covert surveillance Part 4
Covert surveillance authorities Division 4.2
Section 27
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(g) if an application for a covert surveillance authority for the
proposed surveillance has previously been made—the result of
the application and, if the authority was issued, any covert
surveillance conducted under the authority; and
(h) anything else prescribed by regulation.
(3) An application must also nominate at least 1 person to be a
surveillance supervisor for the covert surveillance authority.
(4) If an application for a covert surveillance authority is refused by the
Magistrates Court, a further application in relation to the same
surveillance may only be made if the further application provides
additional relevant information.
27 Hearing in private
A hearing of an application for a covert surveillance authority must
be held in private.
28 Issuing covert surveillance authority
(1) The Magistrates Court may, on application, issue a covert
surveillance authority if satisfied that there are reasonable grounds to
issue the authority.
Note If a form is approved under the Court Procedures Act 2004, s 8 for the
order, the form must be used.
(2) In considering whether there are reasonable grounds to issue the
covert surveillance authority, the Magistrates Court must consider—
(a) the seriousness of the suspected unlawful activity; and
(b) whether and the extent to which the proposed surveillance might
intrude on the worker’s or someone else’s privacy; and
Part 4 Covert surveillance
Division 4.2 Covert surveillance authorities
Section 28
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(c) if the proposed surveillance may be conducted in a non-work
area—a worker’s heightened expectation of privacy in the area;
and
Note 1 Surveillance is prohibited in some non-work areas (see s 41).
Note 2 Non-work area—see the dictionary.
(d) whether there are other appropriate ways to find out if the
worker is engaged in an unlawful activity in the workplace; and
(e) whether it is more appropriate for the suspected unlawful
activity to be investigated by a law enforcement agency; and
(f) whether the person nominated to be the surveillance supervisor
in the application is suitable.
Note Section 29 deals with appointing a surveillance supervisor.
(3) The Magistrates Court may consider any other relevant matter.
(4) The covert surveillance authority must state—
(a) the nature of the suspected unlawful activity and the name of the
worker (if practicable) in relation to which the authority is
issued; and
(b) the name of any worker (if practicable) or a description of the
group or class of workers who may be the subject of the covert
surveillance; and
(c) the premises, place, computer, vehicle or other thing that may
be the subject of the covert surveillance; and
(d) the kind of surveillance device that may be used for the covert
surveillance and where the device may be used or installed; and
(e) when the covert surveillance may be conducted; and
(f) the name of each person designated as a surveillance supervisor;
and
(g) the period that the authority remains in force; and
Covert surveillance Part 4
Covert surveillance authorities Division 4.2
Section 29
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(h) the conditions on the covert surveillance authority; and
Note For the conditions on a covert surveillance authority, see s 31.
(i) the requirements for—
(i) reporting on the use of the covert surveillance authority
under section 37; and
(ii) use and disclosure of covert surveillance records under
section 39.
29 Appointing surveillance supervisor
(1) The Magistrates Court must appoint at least 1 person to be the
surveillance supervisor in relation to a covert surveillance authority.
(2) The Magistrates Court may appoint a person to be the surveillance
supervisor only if satisfied that the person—
(a) has the experience or expertise to qualify the person to be a
surveillance supervisor; and
(b) is independent of the employer; and
Example
the person is not an employee of the employer
(c) if the covert surveillance authority allows surveillance to be
conducted in a non-work area—is able to adequately
accommodate a worker’s heightened expectation of privacy in
the area.
Note 1 Surveillance is prohibited in some non-work areas (see s 41).
Note 2 Non-work area—see the dictionary.
30 Duration of covert surveillance authority
A covert surveillance authority may be issued for not longer than
30 days or another period prescribed by regulation.
Part 4 Covert surveillance
Division 4.2 Covert surveillance authorities
Section 31
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31 Conditions on covert surveillance authority
(1) A covert surveillance authority is subject to the conditions mentioned
in this section.
(2) A surveillance supervisor must not give another person access to a
covert surveillance record.
(3) However, a surveillance supervisor may give an employer a part of a
covert surveillance record—
(a) for a purpose for which the covert surveillance authority was
issued; or
(b) to identify or detect any other unlawful activity in a workplace.
(4) A surveillance supervisor must, within 3 months after the expiry of a
covert surveillance authority, erase or destroy all covert surveillance
records in relation to the authority, other than records required for
investigative or evidentiary purposes.
(5) An employer must, on the written request of a worker, give the worker
access to any part of a covert surveillance record that an employer
seeks to rely on to take adverse action in relation to the worker.
Note Adverse action—see the Fair Work Act 2009 (Cwlth), s 342.
32 Defects in covert surveillance authority
A defect in a covert surveillance authority does not invalidate the
authority unless the defect affects the substance of the authority in a
material particular.
33 Varying or cancelling covert surveillance authority
(1) The Magistrates Court may, at any time, vary or cancel a covert
surveillance authority.
(2) The Magistrates Court may vary or cancel a covert surveillance
authority on its own initiative or on application made by a worker,
employer or other person affected by the authority.
Covert surveillance Part 4
Restrictions on covert surveillance Division 4.3
Section 34
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34 Magistrates Court to record details of covert surveillance
authority orders
(1) If the Magistrates Court issues, varies or cancels a covert surveillance
authority, the court must make and keep a written record of the details
of, and reasons for, issuing, varying or cancelling the authority.
(2) The Magistrates Court must take all reasonable steps to protect the
confidentiality of a record under this section.
(3) A regulation may prescribe requirements for the following:
(a) the keeping of records in relation to the issue of covert
surveillance authorities;
(b) the inspection of the records;
(c) any other matter in relation to the records.
Division 4.3 Restrictions on covert surveillance
35 Offence—conducting covert surveillance other than
under covert surveillance authority
(1) An employer commits an offence if the employer conducts covert
surveillance of a worker in a workplace.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if the surveillance is—
(a) conducted in accordance with a covert surveillance authority; or
(b) conducted by a member or officer of a law enforcement agency
in the exercise of a function under a territory law or law of
another jurisdiction; or
Part 4 Covert surveillance
Division 4.3 Restrictions on covert surveillance
Section 36
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(c) surveillance using an optical surveillance device in a
correctional centre or another place where a person is in lawful
custody; or
(d) surveillance using an optical surveillance device to monitor
operations carried out in a casino in accordance with the Casino
Control Act 2006; or
(e) surveillance using an optical surveillance device of a legal
proceeding or proceeding before a law enforcement agency
conducted by a person in the exercise of a function under a
territory law or law of another jurisdiction.
Note The employer has an evidential burden in relation to the matters
mentioned in s (2) (see Criminal Code, s 58).
36 Defences—surveillance for security of workplaces
(1) It is a defence to a prosecution for an offence against section 35 if the
defendant proves that—
(a) covert surveillance was conducted solely to ensure the security
of the workplace or people in it (the relevant purpose) and the
surveillance of a worker was extrinsic to the relevant purpose;
and
(b) there was a real and significant likelihood of the security of the
workplace or people in it being jeopardised if covert
surveillance was not conducted; and
(c) the employer notified workers (or a body representing a
substantial number of the workers) in the workplace in writing
of the intended surveillance for the relevant purpose before it
was conducted.
Note The defendant has a legal burden in relation to the matters mentioned in
s (1) (see Criminal Code, s 59).
Covert surveillance Part 4
Reporting on covert surveillance authority Division 4.4
Section 37
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(2) A covert surveillance record in relation to a worker that results from
the conduct of surveillance mentioned in this section is not admissible
in evidence in a proceeding against the worker unless—
(a) for a disciplinary or legal proceeding—the proceeding relates to
the security of the workplace or people in the workplace; or
(b) for a legal proceeding—the desirability of admitting the
evidence outweighs the undesirability of admitting evidence that
has been obtained in the way in which the evidence was
obtained.
Division 4.4 Reporting on covert surveillance
authority
37 Offence—failure to give covert surveillance report
(1) An employer commits an offence if—
(a) the Magistrates Court issues a covert surveillance authority to
the employer; and
(b) the employer fails to give the court a written report setting out
the covert surveillance authority information within 30 days
after the end of the covert surveillance authority.
Note If a form is approved under the Court Procedures Act 2004, s 8 for
the report, the form must be used.
Maximum penalty: 20 penalty units.
(2) In this section:
covert surveillance authority information means the following:
(a) the name of any worker (if practicable), or a description of the
group or class of workers who were the subject of the covert
surveillance;
(b) the period during which the covert surveillance was conducted;
Part 4 Covert surveillance
Division 4.4 Reporting on covert surveillance authority
Section 38
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(c) the kind of surveillance device used and the kind of place where
the device was installed or used;
(d) whether any surveillance device has been removed and, if not,
why not;
(e) the conditions on the covert surveillance authority;
(f) details of any covert surveillance records made as a consequence
of the covert surveillance;
(g) any action taken or proposed to be taken in light of the
information obtained;
(h) any reason why a worker who was the subject of the surveillance
should not be told of the surveillance;
(i) details of any previous use of covert surveillance in relation to
the suspected unlawful activity to which the covert surveillance
authority applies;
(j) anything else prescribed by regulation.
38 Orders for covert surveillance record
(1) This section applies if an employer gives a report to the Magistrates
Court under section 37 in relation to a covert surveillance authority.
(2) The Magistrates Court may make any order in relation to the use and
disclosure of a covert surveillance record that the court considers
appropriate, including 1 or both of the following:
(a) an order that a covert surveillance record be delivered to the
court to be kept in the court’s safekeeping or to be dealt with by
the court as it considers appropriate;
(b) an order that a stated person or entity be told of the covert
surveillance and given access to a covert surveillance record, or
part of a covert surveillance record of the surveillance.
Covert surveillance Part 4
Covert surveillance records Division 4.5
Section 39
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(3) The Magistrates Court must make an order under subsection (2) (b)
in favour of the worker the subject of the covert surveillance unless
satisfied there is a good reason not to.
(4) In considering whether there is a good reason not to make an order
in favour of the worker, the Magistrates Court must consider whether
the surveillance was justified or an unnecessary interference with
privacy.
Division 4.5 Covert surveillance records
39 Offence—use and disclosure of covert surveillance other
than for a relevant purpose
(1) A person commits an offence if the person uses or discloses to
someone else surveillance information in a covert surveillance record.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if the person did not know, and had no
reasonable grounds to know, that the surveillance information was, or
was part of, a covert surveillance record.
(3) Also, subsection (1) does not apply if the person uses or discloses the
information for 1 or more of the following purposes:
(a) use or disclosure under the conditions of the covert surveillance
authority or an order of the Magistrates Court under section 38;
(b) use or disclosure for a purpose that is directly or indirectly
related to establishing whether or not a worker is engaged in
unlawful activity while at work for the employer under the
covert surveillance authority;
(c) use or disclosure for a purpose that is directly or indirectly
related to a disciplinary or legal proceeding against a worker as
a consequence of any alleged unlawful activity while at work for
the employer;
Part 4 Covert surveillance
Division 4.5 Covert surveillance records
Section 39
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(d) use or disclosure for a purpose that is directly or indirectly
related to establishing security arrangements or taking other
measures to prevent or minimise the opportunity for unlawful
activity while at work for the employer of a kind identified by
the covert surveillance record to occur while at work for the
employer;
(e) use or disclosure that is reasonably believed to be necessary to
avoid an imminent risk of death of, or serious injury to, someone
or substantial damage to property;
(f) disclosure to a member or officer of a law enforcement agency
for use in connection with the detection, investigation or
prosecution of an offence;
(g) use by a member or officer of a law enforcement agency for use
in connection with the detection, investigation or prosecution of
an offence;
(h) use or disclosure for a purpose that is directly or indirectly
related to the taking of proceedings for an offence;
(i) use or disclosure for a purpose that is directly or indirectly
related to taking any other action under this Act.
(4) Also, if the covert surveillance record results from covert surveillance
conducted other than under a covert surveillance authority,
subsection (1) does not apply if the person uses or discloses the
information for 1 or more of the following purposes:
(a) disclosure to a member or officer of a law enforcement agency
for use in connection with the detection, investigation or
prosecution of an offence;
(b) use or disclosure for a purpose that is directly or indirectly
related to the taking of proceedings for an offence;
(c) use by a member of a law enforcement agency for any purpose
in connection with the detection, investigation or prosecution of
an offence;
Covert surveillance Part 4
Covert surveillance records Division 4.5
Section 40
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(d) if the covert surveillance was in relation to a worker of a law
enforcement agency—
(i) disclosure to a member or officer of a law enforcement
agency for use in connection with disciplinary or
managerial action or legal proceedings against the worker
as a consequence of any alleged misconduct (other than an
unlawful activity) or unsatisfactory performance of the
worker; or
(ii) use or disclosure for a purpose that is directly or indirectly
related to the taking of disciplinary or managerial action or
legal proceedings; or
(iii) disclosure to a member or officer of a law enforcement
agency for use in connection with the training of law
enforcement members or officers.
Note The person has an evidential burden in relation to the matters mentioned
in s (2), (3) and (4) (see Criminal Code, s 58).
40 Information inadvertently obtained under covert
surveillance authority
(1) This section applies to information that inadvertently or unexpectedly
comes to the knowledge of a person as a direct or indirect result of
conducting covert surveillance under a covert surveillance authority.
(2) For any determination by a court as to the admissibility of evidence
in a criminal proceeding before the court, the information is not
considered to have been obtained in contravention of section 35.
(3) Subsection (1) does not apply if the court is of the opinion that the
application for the covert surveillance authority was not made in good
faith.
Part 5 Prohibited surveillance
Section 41
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Part 5 Prohibited surveillance
41 Offence—surveillance of private areas etc
(1) An employer commits an offence if the employer conducts
surveillance of a worker in a prohibited non-work area.
Maximum penalty: 50 penalty units.
(2) In this section:
prohibited non-work area means 1 of the following non-work areas
in a workplace:
(a) a toilet facility;
(b) a change room;
(c) a shower or other bathing facility;
(d) a parent or nursing room;
(e) a prayer room;
(f) a sick bay;
(g) a first-aid room;
(h) any other area in a workplace prescribed by regulation.
42 Surveillance of workers not at work
(1) An employer commits an offence if the employer conducts
surveillance of a worker if the worker is not in a workplace.
Maximum penalty: 50 penalty units.
(2) Subsection (1) does not apply if—
(a) the employer conducts surveillance of a worker’s use of
equipment or resources provided by the employer using a data
surveillance device; or
Prohibited surveillance Part 5
Section 43
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(b) the employer conducts surveillance using a tracking device that
includes a tracking function that cannot be deactivated; or
(c) the employer is a law enforcement agency.
Note The employer has an evidential burden in relation to the matters
mentioned in s (2) (see Criminal Code, s 58).
(3) For subsection (2) (a), equipment or resources are taken to be
provided by an employer if the employer has met the cost of the
equipment or resources.
43 Use and disclosure of certain tracking device records
A surveillance record in relation to a worker that results from the
conduct of surveillance using a tracking device mentioned in
section 42 (2) (b) must not be used or disclosed for any purpose.
Part 5A Enforcement
Section 43A
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Part 5A Enforcement
43A The 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.
Note A 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.
Note For the making of delegations and the exercise of delegated functions,
see the Legislation Act, pt 19.4.
43B Inspectors
An inspector under the Work Health and Safety Act 2011 is an
inspector for this Act.
Enforcement Part 5A
Section 43C
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43C Functions 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.
43D Securing 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).
Part 5A Enforcement
Section 43E
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(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.
43E Enforcement 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.
Note A 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).
Miscellaneous Part 6
Section 44
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Part 6 Miscellaneous
44 Offences—security of surveillance records
(1) An employer commits an offence if the employer fails to take
reasonable steps to protect surveillance records it holds from misuse,
loss, unauthorised access, modification or disclosure.
Maximum penalty: 20 penalty units.
(2) An employer commits an offence if—
(a) a surveillance record is no longer needed for any purpose for
which the record may be used or disclosed under this Act; and
(b) the employer fails to take reasonable steps to destroy or
permanently de-identify the surveillance record.
Maximum penalty: 20 penalty units.
47 Regulation-making power
The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative Assembly,
under the Legislation Act.
Dictionary
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Dictionary
(see s 3)
Note 1 The Legislation Act contains definitions and other provisions relevant to
this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms:
• Corporations Act
• correctional centre
• Executive
• exercise
• function
• Magistrates Court
• Minister (see s 162).
adverse action—see the Fair Work Act 2009 (Cwlth), section 342.
business or undertaking—see section 9.
computer means an electronic device for storing or processing
information.
conduct surveillance—see section 11.
covert surveillance—see section 24.
covert surveillance authority, for part 4 (Covert surveillance)—see
section 25.
covert surveillance record, for part 4 (Covert surveillance)—see
section 25.
data surveillance device—see section 11.
electronic communication means communication by electronic
means.
Examples
email, instant messaging
employer—see section 8.
Dictionary
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law enforcement agency—
(a) see the Spent Convictions Act 2000, dictionary; and
(b) includes an entity prescribed by regulation.
non-work area means an area in a workplace where a worker is not
directly engaged in work.
Examples
tearoom, recreation room
optical surveillance device—see section 11.
prohibited surveillance means surveillance prohibited under part 5.
regulator—see the Work Health and Safety Act 2011, dictionary.
surveillance—
(a) see section 11; or
(b) for part 3 (Notified surveillance)—see section 12.
surveillance device—see section 11.
surveillance information means information obtained, recorded,
monitored or observed as a result of surveillance conducted in
relation to a worker.
surveillance record means a record or report of surveillance
information.
surveillance supervisor, for part 4 (Covert surveillance)—see
section 25.
tracking device—see section 11.
unlawful activity, for part 4 (Covert surveillance)—see section 25.
worker—see section 7.
workplace—see section 10.
Endnotes
1 About the endnotes
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Endnotes
1 About the endnotes
Amending and modifying laws are annotated in the legislation history and the
amendment history. Current modifications are not included in the republished law
but are set out in the endnotes.
Not all editorial amendments made under the Legislation Act 2001, part 11.3 are
annotated in the amendment history. Full details of any amendments can be
obtained from the Parliamentary Counsel’s Office.
Uncommenced amending laws and expiries are listed in the legislation history and
the amendment history. These details are underlined. Uncommenced provisions
and amendments are not included in the republished law but are set out in the last
endnote.
If all the provisions of the law have been renumbered, a table of renumbered
provisions gives details of previous and current numbering.
The endnotes also include a table of earlier republications.
2 Abbreviation key
A = Act NI = Notifiable instrument
AF = Approved form o = order
am = amended om = omitted/repealed
amdt = amendment ord = ordinance
AR = Assembly resolution orig = original
ch = chapter par = paragraph/subparagraph
CN = Commencement notice pres = present
def = definition prev = previous
DI = Disallowable instrument (prev...) = previously
dict = dictionary pt = part
disallowed = disallowed by the Legislative r = rule/subrule
Assembly reloc = relocated
div = division renum = renumbered
exp = expires/expired R[X] = Republication No
Gaz = gazette RI = reissue
hdg = heading s = section/subsection
IA = Interpretation Act 1967 sch = schedule
ins = inserted/added sdiv = subdivision
LA = Legislation Act 2001 SL = Subordinate law
LR = legislation register sub = substituted
LRA = Legislation (Republication) Act 1996 underlining = whole or part not commenced
mod = modified/modification or to be expired
Endnotes
Legislation history 3
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3 Legislation history
Workplace Privacy Act 2011 A2011-4
notified LR 24 February 2011
s 1, s 2 commenced 24 February 2011 (LA s 75 (1))
pt 3, pt 4 commenced 24 August 2011 (s 2 (2))
remainder commenced 10 March 2011 (s 2 (1))
as amended by
Workplace Privacy Amendment Act 2016 A2016-22 (as am by
A2016-37 sch 1 pt 1.22; A2018-10 pt 3)
notified LR 14 April 2016
s 1, s 2 commenced 14 April 2016 (LA s 75 (1))
s 5, ss 7-16 repealed before commencement (see s 2 (2) (as am by
A2016-37 amdt 1.44) and A2018-10 s 5)
remainder commenced 14 October 2016 (s 2 (1) (as am by A2016-37
amdt 1.44) and LA s 79)
Justice and Community Safety Legislation Amendment Act 2016
A2016-37 sch 1 pt 1.22
notified LR 22 June 2016
s 1, s 2 commenced 22 June 2016 (LA s 75 (1))
amdt 1.45 never commenced (see A2018-10 s 5)
sch 1 pt 1.22 remainder (amdt 1.44) commenced 29 June 2016 (s 2)
Note This Act only amends the Workplace Privacy Amendment
Act 2016 A2016-22.
Workplace Legislation Amendment Act 2018 A2018-10 pt 3
notified LR 27 March 2018
s 1, s 2 commenced 27 March 2018 (LA s 75 (1))
pt 3 commenced 28 March 2018 (s 2)
Note This Act only amends the Workplace Privacy Amendment
Act 2016 A2016-22.
Statute Law Amendment Act 2021 A2021-12 sch 3 pt 3.66
notified LR 9 June 2021
s 1, s 2 commenced 9 June 2021 (LA s 75 (1))
sch 3 pt 3.66 commenced 23 June 2021 (s 2 (1))
Endnotes
4 Amendment history
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4 Amendment history
Commencement
s 2 om LA s 89 (4)
Additional requirements for tracking devices
s 17 am A2016-22 s 4
Definitions—pt 4
s 25 def unlawful activity am A2016-22 s 6
Enforcement
pt 5A hdg ins A2016-22 s 17
The regulator
s 43A ins A2016-22 s 17
Inspectors
s 43B ins A2016-22 s 17
Functions and powers of inspectors
s 43C ins A2016-22 s 17
Securing compliance
s 43D ins A2016-22 s 17
Enforcement measures
s 43E ins A2016-22 s 17
Offences—security of surveillance records
s 44 am A2016-22 s 18
Report on covert surveillance to Legislative Assembly
s 45 om A2016-22 s 19
Approved forms
s 46 om A2021-12 amdt 3.185
Review of Act
s 48 exp 10 March 2013 (s 48 (3))
Court Procedures Act 2004
New section 41 (2) (fa)
s 49 om LA s 89 (3)
Dictionary
dict def regulator ins A2016-22 s 20