This Act governs when and how NSW employers may monitor staff, distinguishing camera, computer and tracking surveillance. Routine monitoring is permitted only with written notice, visible signage and clear policies; covert, hidden surveillance is generally prohibited unless a judge issues a narrowly framed authority to investigate suspected unlawful conduct. It shifts compliance costs and record‑handling duties onto employers, gives judges gatekeeping and oversight roles, and strengthens employee privacy protections and limited access to surveillance records.
The Workplace Surveillance Act 2005 establishes a comprehensive regulatory framework governing the circumstances in which an employer may lawfully monitor employees by camera, computer or tracking means while those employees are “at work”. At its core the Act pursues two interlocking objectives: first, to ensure transparency by mandating prior notification and visible signage for all overt surveillance (Part 2); second, to prohibit or strictly confine covert surveillance unless a Judge is satisfied that reasonable grounds exist to suspect unlawful activity and that privacy intrusions have been minimised (Part 4).
Part 1 supplies the definitional scaffolding. Section 3 defines “surveillance of an employee” exhaustively as camera surveillance (visual monitoring or recording), computer surveillance (monitoring input, output, emails or internet use) or tracking surveillance (GPS or equivalent location monitoring). The same section defines “covert surveillance” as any surveillance that fails to comply with Part 2’s notification and signage requirements. “At work” is given an extended meaning in s 5 so that an employee is covered not only while performing duties but while merely present at the employer’s (or related corporation’s) workplace. The Act binds the Crown (s 6) and expressly states that Work Health and Safety Act 2011 duties do not limit its operation (s 8).
Part 2 imposes affirmative obligations before any surveillance may lawfully commence. Section 10(1) prohibits commencement without prior written notice; the notice must ordinarily be given 14 days in advance (s 10(2)) and must particularise the kind of surveillance, its method, start date, continuity and duration (s 10(4)). Camera surveillance additionally requires clearly visible cameras or casings and entrance signage (s 11). Computer surveillance must follow a pre-notified policy that it is reasonable to assume the employee has read and understood (s 12). Tracking of vehicles or items requires a visible notice on the thing itself (s 13). An exemption exists where employees (or a representative body) have agreed to surveillance for a non-surveillance purpose and the surveillance accords with that agreement (s 14). Failure to comply with Part 2 renders the surveillance “covert” and therefore prima facie unlawful unless a covert surveillance authority is obtained.
Current sections
Direct links to the current provisions in Workplace Surveillance Act 2005.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
In this Act—
at work—see section 5.
camera includes an electronic device capable of monitoring or recording visual images of activities on premises or in any other place.
covert surveillance means surveillance of an employee while at work for an employer carried out or caused to be carried out by the employer and not carried out in compliance with the requirements of Part 2.
covert surveillance authority means an authority issued under Part 4.
(a) in the case of an employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996—the bailor of the public vehicle or the principal contractor under that Chapter, and
(b) a person for whom an employee performs voluntary work, and
(c) another person for whom an employee performs work pursuant to any contract or other arrangement between that other person and the employee’s employer (such as a labour hire contract).
Note.
Paragraph (c) can result in an employee having 2 employers for the purposes of this Act—the employee’s actual employer and another person for whom the employee is doing work under (for example) a labour hire contract between that other person and that employer.
employer’s representative means a person authorised by an employer to act on behalf of the employer for the purposes of this Act.
exercise a function includes perform a duty.
function includes a power, authority or duty.
Judge means a Judge of the Local Court.
law enforcement agency means any of the following—
(a) the NSW Police Force,
(b) a police force or police service of another State or a Territory,
(c) the Australian Federal Police,
(d) the Law Enforcement Conduct Commission,
(e) the Independent Commission Against Corruption,
(f) the New South Wales Crime Commission,
(g) the Australian Crime Commission,
(h) the Department of Corrective Services,
(i) the Department of Juvenile Justice,
(j) any other authority or person responsible for the enforcement of the criminal laws of the Commonwealth or of the State,
(k) a person or body prescribed for the purposes of this definition by the regulations.
related corporation, in relation to an employer that is a corporation, means a corporation that is, with respect to the employer, a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
surveillance of an employee means surveillance of an employee by any of the following means—
(a) camera surveillance, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place,
(b) computer surveillance, which is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer (including, but not limited to, the sending and receipt of emails and the accessing of Internet websites),
(c) tracking surveillance, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).
Note.
This Act does not apply to surveillance by means of a listening device. See section 4 (3) of the Surveillance Devices Act 2007. Camera surveillance that is regulated by this Act will also be regulated by the Surveillance Devices Act 2007 if the camera is used to record a private conversation.
surveillance information means information obtained, recorded, monitored or observed as a consequence of surveillance of an employee.
surveillance record means a record or report of surveillance information.
surveillance supervisor, in relation to a covert surveillance authority, means a person named in the authority as a person who is to be responsible for the oversight of the conduct of the covert surveillance authorised by the authority.
unlawful activity means an act or omission that constitutes an offence against a law of this State or the Commonwealth.
work means work as an employee.
Note.
See section 5 for the meaning of “at work”.
workplace means premises, or any other place, where employees work, or any part of such premises or place.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
s 3: Am 2006 No 94, Sch 3.37; 2007 No 64, Sch 2.9; 2016 No 61, Sch 6.48; 2025 No 61, Sch 2.92[1].
4
Extended meaning of “employer” when corporations related
4 Extended meaning of “employer” when corporations related
4 Extended meaning of “employer” when corporations related
If an employer is a corporation that has one or more related corporations, this Act operates in relation to employees of any such related corporation as if they were also employees of the employer, with the result that a reference in this Act to an employer’s employees includes employees of a related corporation of the employer.
5
Meaning of “at work”
5 Meaning of “at work”
5 Meaning of “at work”
(1) For the purposes of this Act, an employee is at work for an employer when the employee is—
(a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time, or
(b) at any other place while performing work for the employer (or a related corporation of the employer).
(2) An employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996 is considered to be performing work for the employer while engaged under the contract of bailment or carriage concerned.
6
Act to bind Crown
6 Act to bind Crown
6 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
7
Notes
7 Notes
7 Notes
Notes included in this Act do not form part of this Act.
8
Relationship with WHS Act
8 Relationship with WHS Act
8 Relationship with WHS Act
A requirement imposed by or under the Work Health and Safety Act 2011 does not limit or otherwise affect the operation of this Act.
s 8: Am 2011 No 67, Sch 4.32.
Part 2
Notification of workplace surveillance of employees
Part 2 Notification of workplace surveillance of employees
Part 2 Notification of workplace surveillance of employees
Note.
Surveillance of an employee that does not comply with this Part is covert surveillance (see the definition of covert surveillance). Covert surveillance of an employee is an offence unless the surveillance is authorised by a covert surveillance authority (see Part 4).
9
Application of Part
9 Application of Part
9 Application of Part
This Part applies to the surveillance of an employee carried out or caused to be carried out by the employee’s employer while the employee is at work for the employer.
10
Notice of surveillance required
10 Notice of surveillance required
10 Notice of surveillance required
(1) Surveillance of an employee must not commence without prior notice in writing to the employee.
Note.
Subsection (6) provides for an exception to the notice requirement.
(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.
(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.
(4) The notice must indicate—
(a) the kind of surveillance to be carried out (camera, computer or tracking), and
(b) how the surveillance will be carried out, and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or ongoing.
(5) Notice by email constitutes notice in writing for the purposes of this section.
(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.
11
Additional requirements for camera surveillance
11 Additional requirements for camera surveillance
11 Additional requirements for camera surveillance
Camera surveillance of an employee must not be carried out unless—
(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and
(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
12
Additional requirements for computer surveillance
12 Additional requirements for computer surveillance
12 Additional requirements for computer surveillance
Computer surveillance of an employee must not be carried out unless—
(a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and
(b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.
13
Additional requirements for tracking surveillance
13 Additional requirements for tracking surveillance
13 Additional requirements for tracking surveillance
Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.
14
Exemption for certain surveillance by agreement
14 Exemption for certain surveillance by agreement
14 Exemption for certain surveillance by agreement
Surveillance of an employee is taken to comply with the requirements of this Part if the employee (or a body representing a substantial number of employees at the workplace) has agreed to the carrying out of surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and the surveillance is carried out in accordance with that agreement.
Part 3
Prohibited surveillance
Part 3 Prohibited surveillance
Part 3 Prohibited surveillance
15
Surveillance of change rooms and bathrooms prohibited
15 Surveillance of change rooms and bathrooms prohibited
15 Surveillance of change rooms and bathrooms prohibited
An employer must not carry out, or cause to be carried out, any surveillance of an employee of the employer in any change room, toilet facility or shower or other bathing facility at a workplace.
Maximum penalty—50 penalty units.
16
Prohibition on surveillance using work surveillance device while employee not at work
16 Prohibition on surveillance using work surveillance device while employee not at work
16 Prohibition on surveillance using work surveillance device while employee not at work
(1) An employer must not carry out, or cause to be carried out, surveillance of an employee of the employer using a work surveillance device when the employee is not at work for the employer unless the surveillance is computer surveillance of the use by the employee of equipment or resources provided by or at the expense of the employer.
Maximum penalty—50 penalty units.
(2) A work surveillance device is a device used for surveillance of the employee when at work for the employer.
(3) This section does not apply to the carrying out, or causing to be carried out, of surveillance by an employer that is a law enforcement agency.
s 16: Am 2005 No 98, Sch 1.25 [1].
17
Restrictions on blocking emails or Internet access
17 Restrictions on blocking emails or Internet access
17 Restrictions on blocking emails or Internet access
(1) An employer must not prevent, or cause to be prevented, delivery of an email sent to or by, or access to an Internet website by, an employee of the employer unless—
(a) the employer is acting in accordance with a policy on email and Internet access that has been notified in advance to the employee in such a way that it is reasonable to assume that the employee is aware of and understands the policy, and
(b) in addition, in the case of the preventing of delivery of an email, the employee is given notice (a prevented delivery notice) as soon as practicable by the employer, by email or otherwise, that delivery of the email has been prevented, unless this section provides that a prevented delivery notice is not required.
Maximum penalty—50 penalty units.
(2) An employee is not required to be given a prevented delivery notice for an email if delivery of the email was prevented in the belief that, or by the operation of a program intended to prevent the delivery of an email on the basis that—
(a) the email was a commercial electronic message within the meaning of the Spam Act 2003 of the Commonwealth, or
(b) the content of the email or any attachment to the email would or might have resulted in an unauthorised interference with, damage to or operation of a computer or computer network operated by the employer or of any program run by or data stored on such a computer or computer network, or
(c) the email or any attachment to the email would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive.
(3) An employee is not required to be given a prevented delivery notice for an email sent by the employee if the employer was not aware (and could not reasonably be expected to be aware) of the identity of the employee who sent the email or that the email was sent by an employee.
(4) An employer’s policy on email and Internet access cannot provide for preventing delivery of an email or access to a website merely because—
(a) the email was sent by or on behalf of an industrial organisation of employees or an officer of such an organisation, or
(b) the website or email contains information relating to industrial matters (within the meaning of the Industrial Relations Act 1996).
18
Restrictions on use and disclosure of surveillance records—notified surveillance
18 Restrictions on use and disclosure of surveillance records—notified surveillance
18 Restrictions on use and disclosure of surveillance records—notified surveillance
An employer who carries out or causes to be carried out the surveillance of an employee of the employer while the employee is at work for the employer, not being covert surveillance, must ensure that any surveillance record made as a result of that surveillance is not used or disclosed unless that use or disclosure is—
(a) use or disclosure for a legitimate purpose related to the employment of employees of the employer or the legitimate business activities or functions of the employer, or
(b) disclosure to a member or officer of a law enforcement agency for use in connection with the detection, investigation or prosecution of an offence, or
(c) use or disclosure for a purpose that is directly or indirectly related to the taking of civil or criminal proceedings, or
(d) use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or of substantial damage to property.
Maximum penalty—20 penalty units.
Part 4
Covert surveillance of employees at work
Part 4 Covert surveillance of employees at work
Part 4 Covert surveillance of employees at work
Division 1
Restrictions on covert surveillance
Division 1 Restrictions on covert surveillance
Division 1 Restrictions on covert surveillance
19
Covert surveillance prohibited without covert surveillance authority
19 Covert surveillance prohibited without covert surveillance authority
19 Covert surveillance prohibited without covert surveillance authority
An employer must not carry out, or cause to be carried out, covert surveillance of an employee while the employee is at work for the employer unless the surveillance is authorised by a covert surveillance authority.
Maximum penalty—50 penalty units.
20
What covert surveillance authority authorises
20 What covert surveillance authority authorises
20 What covert surveillance authority authorises
(1) A covert surveillance authority that is issued to an employer or employer’s representative authorises the covert surveillance generally of any employees while at work for the employer but only for the purpose of establishing whether or not one or more particular employees are involved in any unlawful activity while at work for the employer.
(2) The authority conferred is subject to the following conditions—
(a) a condition that the conduct of the covert surveillance authorised by the authority must be overseen by a surveillance supervisor for the authority,
(b) any other conditions imposed on the authority by or under this Act.
(3) A covert surveillance authority does not authorise the carrying out, or causing to be carried out, of covert surveillance of any employee—
(a) for the purpose of monitoring the employee’s work performance, or
(b) in any change room, toilet facility or shower or other bathing facility.
(a) for a member or officer of a law enforcement agency to carry out, or cause to be carried out, surveillance in the exercise of a function conferred or imposed on the member or officer by or under any other Act or law, or
(b) for a person to carry out, or cause to be carried out, camera surveillance in a correctional centre or in any other place where a person is in lawful custody, or
(c) for a person to carry out, or cause to be carried out, camera surveillance for the purpose of monitoring operations carried out in a casino in accordance with the Casino Control Act 1992, or
(d) for a person to carry out, or cause to be carried out, camera surveillance of any legal proceedings or proceedings before a law enforcement agency in the exercise of a function conferred or imposed on the person by or under any other Act or law.
22
Defence—surveillance for security of the workplace
22 Defence—surveillance for security of the workplace
22 Defence—surveillance for security of the workplace
(1) It is a defence to a prosecution for an offence against this Part involving the covert surveillance of an employee at a workplace of an employer for the employer to prove that—
(a) the surveillance was carried out, or caused to be carried out, solely for the purpose of ensuring the security of the workplace or persons in it and that surveillance of any employee was extrinsic to that purpose, and
(b) there was a real and significant likelihood of the security of the workplace or persons in it being jeopardised if covert surveillance was not carried out, and
(c) the employer notified employees at the workplace (or a body representing a substantial number of the employees) in writing of the intended surveillance for that purpose before it was carried out.
(2) Evidence of any surveillance record made as a consequence of surveillance of employees in the workplace for the purpose referred to in this section that is unrelated to the security of the workplace or persons in the workplace is not to be admitted in evidence in any disciplinary or legal proceedings against an employee unless 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 2
Covert surveillance authorities
Division 2 Covert surveillance authorities
Division 2 Covert surveillance authorities
23
Application for covert surveillance authority
23 Application for covert surveillance authority
23 Application for covert surveillance authority
(1) An employer or employer’s representative may apply to a Judge for the issue to the employer of an authority authorising covert surveillance generally of employees while at work for the employer for the purpose of establishing whether one or more particular employees are involved in any unlawful activity while at work for the employer.
(2) The application for the authority must include the following—
(a) a statement of the grounds the employer or employer’s representative has for suspecting that a particular employee is or employees are involved in unlawful activity, together with the names of those employees (unless it is not practicable to name them),
(b) a statement as to whether other managerial or investigative procedures have been undertaken to detect the unlawful activity and what has been their outcome,
(c) the names of the employees or (if it is not practicable to name them) a description of the group or class of employees who will regularly or ordinarily be the subject of the covert surveillance,
(d) a description of the premises, place, computer, vehicle or other thing that will regularly or ordinarily be the subject of the covert surveillance,
(e) a statement as to the kind of covert surveillance (camera, computer or tracking) that is proposed to be conducted,
(f) the dates and times during which the covert surveillance is proposed to be conducted,
(g) a statement as to whether any previous application for a covert surveillance authority has been made in respect of the proposed covert surveillance and a statement as to the results of the application and of any covert surveillance conducted under a covert surveillance authority issued as a result of the previous application,
(h) in the case of an application made by an employer’s representative, verification acceptable to the Judge of the employer’s authority for the person to act as an employer’s representative for the purposes of the covert surveillance operation.
(3) The regulations may require an application for an authority to include other specified information and may require the application to be in a form prescribed by the regulations.
(4) An application for an authority must also nominate one or more persons to oversee the conduct of covert surveillance to be authorised by the authority.
(5) A Judge must not issue an authority unless the information given by the applicant in or in connection with the application is verified before the Judge on oath or affirmation or by affidavit.
(6) A Judge may administer an oath or affirmation or take an affidavit for the purposes of an application for an authority.
(7) The applicant must provide (either orally or in writing) such further information as the Judge requires concerning the grounds on which the authority is being sought.
s 23: Am 2025 No 61, Sch 2.92[2].
24
Dealing with application
24 Dealing with application
24 Dealing with application
An application for a covert surveillance authority must be dealt with in the absence of the public but is otherwise to be dealt with, subject to this Part and the regulations, in such manner as is decided by the Judge to whom the application is made.
s 24: Am 2025 No 61, Sch 2.92[2].
25
Grounds for issue of covert surveillance authority
25 Grounds for issue of covert surveillance authority
25 Grounds for issue of covert surveillance authority
(1) A Judge must not issue a covert surveillance authority unless the Judge is satisfied that the application for the authority shows that reasonable grounds exist to justify its issue.
(2) When determining whether there are reasonable grounds to issue a covert surveillance authority, a Judge must have regard to the seriousness of the unlawful activity with which the application is concerned.
(3) When determining whether there are reasonable grounds to issue a covert surveillance authority authorising covert surveillance of a recreation room, meal room or any other area at a workplace where employees are not directly engaged in work, a Judge must have regard to the affected employees’ heightened expectation of privacy when in such an area.
s 25: Am 2025 No 61, Sch 2.92[2].
26
Privacy must be considered
26 Privacy must be considered
26 Privacy must be considered
A Judge must not issue a covert surveillance authority unless the Judge has had regard to whether covert surveillance of the employee or employees concerned might unduly intrude on their privacy or the privacy of any other person.
s 26: Am 2025 No 61, Sch 2.92[2].
27
Surveillance supervisor
27 Surveillance supervisor
27 Surveillance supervisor
(1) When a Judge issues a covert surveillance authority, the Judge is to designate one or more persons to be surveillance supervisors for the authority, to oversee the conduct of surveillance operations under the authority.
(2) The Judge is not to designate a person as a surveillance supervisor unless satisfied that the person has qualifications or experience that suit the person to be responsible for overseeing the conduct of the surveillance operations to be authorised by the authority.
(3) If the authority is to authorise covert surveillance of a recreation room, meal room or any other area at a workplace where employees are not directly engaged in work, the Judge must also be satisfied that each person designated as a surveillance supervisor is competent and fit to oversee the conduct of the surveillance in such an area, and is capable of adequately accommodating in the conduct of the operation the employees’ heightened expectation of privacy.
s 27: Am 2025 No 61, Sch 2.92[2].
28
Form of covert surveillance authority
28 Form of covert surveillance authority
28 Form of covert surveillance authority
(1) A covert surveillance authority is to be in the form prescribed by the regulations.
(2) The authority is to specify the following—
(a) the purpose for which it authorises the carrying out of covert surveillance,
(b) the names of the employee or employees suspected of involvement in the unlawful activity with which the authority is concerned,
(c) the kind of covert surveillance (camera, computer or tracking) that it authorises and the equipment authorised to be used for that surveillance,
(d) the dates on which and the times during which covert surveillance is authorised to be carried out,
(e) where practicable, the name of any person who is likely to be the subject of the covert surveillance,
(f) the premises, place, computer, vehicle or other thing that is to be the subject of the covert surveillance,
(g) the name of each person who is designated as a surveillance supervisor to oversee the conduct of the covert surveillance,
(h) the period for which the authority remains in force,
(i) the requirements of sections 35 (Report on use of authority) and 37 (Covert surveillance records may be used or disclosed for relevant purpose only),
(j) the conditions to which the authority is subject.
29
Duration and conditions of covert surveillance authority
29 Duration and conditions of covert surveillance authority
29 Duration and conditions of covert surveillance authority
(1) A covert surveillance authority, unless sooner cancelled, remains in force for the period (not exceeding 30 days or such other period as may be prescribed by the regulations) specified in the authority.
(2) A covert surveillance authority is subject to the following conditions—
(a) except as provided by paragraph (b), a surveillance supervisor for the authority and any of his or her supervisees must not give any other person access to any surveillance record made as a consequence of the covert surveillance,
(b) a surveillance supervisor for the authority and any of his or her supervisees may supply the employer, or employer’s representative, only with any portions of a surveillance record made as a consequence of the covert surveillance that are relevant to establishing the involvement of any employee in an unlawful activity while at work for the employer in accordance with the authority conferred by the authority or for identifying or detecting any other unlawful activity at a workplace of the employer or of an employee while at work for the employer,
(c) a surveillance supervisor for the authority must erase or destroy (or cause a supervisee to erase or destroy) within 3 months of the expiry of the authority all parts of surveillance records made by the surveillance supervisor or his or her supervisees as a consequence of the covert surveillance that are not required for evidentiary purposes,
(d) if, as a consequence of the carrying out of covert surveillance of an employee, the employer or employer’s representative takes, or proposes to take, any detrimental action against the employee, the employer or employer’s representative must, within a reasonable period after being requested to do so by the employee (or his or her Australian legal practitioner), give the employee (and his or her Australian legal practitioner, if any) access to any part of the surveillance record supplied to the employer or employer’s representative that relates to the employee or the detrimental action,
(e) such other conditions as are prescribed by the regulations or specified in the authority.
(3) In this section—
detrimental action means action causing, comprising or involving any of the following—
(a) discrimination, disadvantage or adverse treatment in relation to employment,
(b) dismissal from, or prejudice in, employment,
(c) a disciplinary proceeding.
supervisee, in relation to a surveillance supervisor, means any person conducting covert surveillance under the oversight of the surveillance supervisor.
s 29: Am 2006 No 58, Sch 3.25.
30
Contravention of condition of authority
30 Contravention of condition of authority
30 Contravention of condition of authority
A person who carries out or causes the carrying out of surveillance authorised by a covert surveillance authority must not contravene or cause the contravention of any condition of the covert surveillance authority.
Maximum penalty—50 penalty units.
31
Variation or cancellation of authority
31 Variation or cancellation of authority
31 Variation or cancellation of authority
(1) A Judge may at any time vary or cancel a covert surveillance authority (whether issued by that Judge or another Judge).
(2) A Judge may vary or cancel an authority on the Judge’s own initiative or on application made by any employee, employer or other person affected by the authority.
(3) The Judge may deal with an application for the variation or cancellation of an authority, subject to this Part and the regulations, in such manner as is decided by the Judge.
s 31: Am 2025 No 61, Sch 2.92[2] [3].
32
Further application for authority after refusal
32 Further application for authority after refusal
32 Further application for authority after refusal
If an application by a person for a covert surveillance authority is refused by the Judge, a further application in respect of the same surveillance cannot be made unless the further application provides additional relevant information.
s 32: Am 2025 No 61, Sch 2.92[2].
33
Records relating to covert surveillance authority
33 Records relating to covert surveillance authority
33 Records relating to covert surveillance authority
(1) A Judge who issues, varies or cancels a covert surveillance authority is to cause a record to be made of all relevant particulars of the issue, variation or cancellation of the authority and the grounds on which the Judge has relied to justify the issue, variation or cancellation.
(2) The Judge is to take all reasonable steps to preserve the confidentiality of information contained in such records and the privacy of any persons concerned. However, this subsection does not prevent the Judge from supplying any information to the Minister that is required for the purposes of a report under section 42 (Annual report).
(3) The regulations may make provision for or with respect to—
(a) the keeping of records in connection with the issue of covert surveillance authorities, and
(b) the inspection of any such records, and
(c) any other matter in connection with any such records.
s 33: Am 2025 No 61, Sch 2.92[2].
34
Defects in authority
34 Defects in authority
34 Defects in authority
A covert surveillance authority is not invalidated by any defect, other than a defect that affects the substance of the authority in a material particular.
35
Report on use of authority
35 Report on use of authority
35 Report on use of authority
(1) The employer or employer’s representative to whom a covert surveillance authority is issued must furnish a report in compliance with this section to the Judge who issued the authority within 30 days after the expiry of the authority.
Maximum penalty—20 penalty units.
(2) The report is to be in writing, setting out briefly the result of the surveillance carried out and specifying the following—
(a) if practicable, the name of any employee who was the subject of the surveillance,
(b) the period during which the surveillance was conducted,
(c) details of the type of surveillance device used and of the type of place where any surveillance device was installed or used,
(d) whether any surveillance device has been removed and, if not, why not,
(e) details of the conditions of the covert surveillance authority,
(f) details of any surveillance record made as a consequence of the surveillance,
(g) any action taken or proposed to be taken in light of the information obtained,
(h) any reason why an employee who was the subject of the surveillance should not be informed of the surveillance,
(i) details of any previous use of covert surveillance in connection with suspected unlawful activity with which the authority is concerned.
(3) The regulations may require the report to include other specified information and may require the report to be in a form prescribed by the regulations.
(4) If the Judge who issued a covert surveillance authority has died, has ceased to be a Judge or is absent, the report is to be furnished to another Judge.
(5) The Judge to whom the report is furnished may make such orders as the Judge thinks appropriate with respect to the use or disclosure of any surveillance record made as a consequence of surveillance conducted in accordance with the authority, including either or both of the following orders—
(a) an order that a surveillance record made as a consequence of the surveillance be delivered up to the Judge to be kept in the custody of the Judge or dealt with as the Judge may otherwise order,
(b) an order that a specified person or body be informed of the surveillance and given access to, or to part of, any surveillance record made as a consequence of the surveillance.
(6) A Judge must make an order under subsection (5) (b) in favour of a person who was the subject of surveillance unless the Judge is satisfied that there is good reason for not making the order.
(7) In considering whether there is good reason for not making an order under subsection (5) (b) in favour of a person, the Judge is to give consideration to whether the surveillance was justified and whether the surveillance was an unnecessary interference with privacy.
s 35: Am 2025 No 61, Sch 2.92[2].
Division 3
Covert surveillance records
Division 3 Covert surveillance records
Division 3 Covert surveillance records
36
Storage of surveillance records of covert surveillance
36 Storage of surveillance records of covert surveillance
36 Storage of surveillance records of covert surveillance
(1) Any surveillance supervisor who oversees the conduct of covert surveillance under the authority of a covert surveillance authority must take such security safeguards as are reasonable in the circumstances to ensure that any surveillance record made as a consequence of the covert surveillance that is in the possession or under the control of the surveillance supervisor is protected against loss or unauthorised access or use.
Maximum penalty—20 penalty units.
(2) An employer or employer’s representative to whom a covert surveillance authority is issued is to ensure that any portion of a surveillance record made as a consequence of covert surveillance under the authority that is in the possession or under the control of the employer or employer’s representative is protected against loss or unauthorised access or use.
Maximum penalty—20 penalty units.
37
Covert surveillance records may be used or disclosed for relevant purpose only
37 Covert surveillance records may be used or disclosed for relevant purpose only
37 Covert surveillance records may be used or disclosed for relevant purpose only
(1) A person must not make use of or disclose to another person surveillance information or a surveillance record knowing or having reasonable cause to suspect that the information has been obtained or the record made as a result, direct or indirect, of covert surveillance of an employee while at work for an employer carried out or caused to be carried out by the employer unless that use or disclosure is for a relevant purpose as provided by this section.
Maximum penalty—20 penalty units.
(2) If the covert surveillance of an employee was authorised by a covert surveillance authority issued to an employer, only the following use or disclosure of the surveillance information or record is for a relevant purpose—
(a) use or disclosure that is authorised or required by the conditions of the covert surveillance authority or an order of a Judge under section 35,
(b) use or disclosure for a purpose that is directly or indirectly related to establishing whether or not an employee is involved in unlawful activity while at work for the employer in accordance with the authority conferred by the covert surveillance authority,
(c) use or disclosure for a purpose that is directly or indirectly related to taking disciplinary action or legal proceedings against an employee as a consequence of any alleged unlawful activity while at work for the employer,
(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 surveillance record to occur while at work for the employer,
(e) use or disclosure that is reasonably believed to be necessary to avert an imminent threat of serious violence to persons or of 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 any purpose 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 authorised or required by or under this Act.
(3) If the covert surveillance of an employee was not authorised by a covert surveillance authority, the following use or disclosure of the information or record is for a relevant purpose—
(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 or officer of a law enforcement agency for any purpose in connection with the detection, investigation or prosecution of an offence.
(4) Without limiting subsection (3), if the covert surveillance of an employee was not authorised by a covert surveillance authority, the following use or disclosure of the information or record is for a relevant purpose—
(a) disclosure to a member or officer of a law enforcement agency for use in connection with disciplinary or managerial action or legal proceedings against an employee of a law enforcement agency as a consequence of any alleged misconduct (other than an unlawful activity) or unsatisfactory performance of the employee,
(b) use or disclosure for a purpose that is directly or indirectly related to the taking of such disciplinary or managerial action or legal proceedings,
(c) disclosure to a member or officer of a law enforcement agency for use in connection with the training of law enforcement members or officers.
s 37: Am 2005 No 98, Sch 1.25 [2] [3]; 2025 No 61, Sch 2.92[2].
38
Information obtained inadvertently pursuant to authority
38 Information obtained inadvertently pursuant to authority
38 Information obtained inadvertently pursuant to authority
(1) Information that has inadvertently or unexpectedly come to the knowledge of a person as a direct or indirect result of the carrying out of covert surveillance authorised by a covert surveillance authority is, for the purposes of any determination by a court as to admissibility of evidence in criminal proceedings before the court, not considered to have been obtained in contravention of section 19 (Covert surveillance prohibited without covert surveillance authority).
(2) Subsection (1) does not apply if the court is of the opinion that the application on the basis of which the covert surveillance authority was granted was not made in good faith.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
39
Commonwealth laws
39 Commonwealth laws
39 Commonwealth laws
This Act does not apply to anything done under the authority of a warrant or other authority under the Telecommunications (Interception) Act 1979 of the Commonwealth or any other law of the Commonwealth.
40
Functions under Act of Judges
40 Functions under Act of Judges
40 Functions under Act of Judges
The imposition of a function on a Judge under this Act is not a conferral of jurisdiction on the Local Court.
s 40: Am 2007 No 94, Sch 1.107; 2025 No 61, Sch 2.92[2] [4].
41
Application to judicial member of Industrial Relations Commission
41 Application to judicial member of Industrial Relations Commission
41 Application to judicial member of Industrial Relations Commission
(1) An applicant for a covert surveillance authority who is aggrieved by a decision of a Judge to refuse to issue or to vary or cancel a covert surveillance authority may apply to a judicial member of the Industrial Relations Commission (a judicial member) to issue, vary or cancel the authority.
(2) An employee affected by a covert surveillance authority who is aggrieved by a decision of a Judge to refuse to vary or cancel a covert surveillance authority may apply to a judicial member to vary or cancel the authority.
(3) The application must be made within 30 days after the decision is given or within a further period as the judicial member allows.
(4) Part 4 applies to or in relation to the issue, variation or cancellation of a covert surveillance authority by a judicial member to whom an application is made under this section in the same way as it applies to the issue, variation or cancellation of an authority by a Judge.
(5) An application to a Judge for the issue, variation or cancellation of an authority is taken, for the purposes only of an application under this section, to have been refused if the application is not decided within the period of 30 days after the making of the application to the Judge.
(6) The imposition of a function on a judicial member under this section is not a conferral of jurisdiction on the Industrial Relations Commission.
s 41: Subst 2016 No 48, Sch 2.39 [1]. Am 2023 No 41, Sch 2.37[1]; 2025 No 61, Sch 2.92[2].
42
Annual report
42 Annual report
42 Annual report
(1) The Minister must, as soon as practicable after 31 December in each year, prepare a report in respect of operations pursuant to covert surveillance authorities during the year and table the report, or cause it to be tabled, in both Houses of Parliament as soon as practicable after it is prepared.
(1A) If a House of Parliament is not sitting when the Minister seeks to lay the report before it, the Minister is to cause a copy of the report to be presented to the Clerk of that House of Parliament.
(1B) A report presented under subsection (1A)—
(a) is, on presentation and for all purposes, taken to have been laid before the House, and
(b) may be printed by authority of the Clerk of the House, and
(c) if so printed, is taken to be a document published by or under the authority of the House, and
(d) is to be recorded—
(i) in the case of the Legislative Council—in the Minutes of the Proceedings of the Legislative Council, and
(ii) in the case of the Legislative Assembly—in the Votes and Proceedings of the Legislative Assembly,
on the first sitting day of the House after receipt of the copy of the report by the Clerk.
(2) A report under this section—
(a) must include details of the number of covert surveillance authorities sought, and the number of such authorities issued (together with a breakdown of the kinds of surveillance to which those issued authorities related), during the year to which the report relates, and
(b) may report on such other matters relating to covert surveillance authorities and the use of covert surveillance as the Minister considers appropriate.
s 42: Am 2014 No 14, Sch 1.5.
43
Offences by corporations
43 Offences by corporations
43 Offences by corporations
(1) If a corporation contravenes any provision of this Act or the regulations, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.
(2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or convicted under that provision.
(3) Nothing in this section affects the liability imposed on a corporation for an offence committed by the corporation under this Act or the regulations.
44
Regulations
44 Regulations
44 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to—
(a) the use, possession, storage and destruction of any surveillance records made in the course of covert surveillance of the activities of an employee, and
(b) applications for the issue, variation and cancellation of covert surveillance authorities and how such applications are to be dealt with.
(3) A regulation may create an offence punishable by a penalty not exceeding 5 penalty units.
45
Summary procedure for offences
45 Summary procedure for offences
45 Summary procedure for offences
(1) Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
(2) The provisions of section 197 of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from, and the stating of a case by, the Local Court to the Industrial Relations Commission in Court Session apply to proceedings before the Local Court for offences against this Act.
s 45: Am 2007 No 94, Sch 2; 2016 No 48, Sch 2.39 [2]; 2023 No 41, Sch 2.37[2].
46
Authority to prosecute
46 Authority to prosecute
46 Authority to prosecute
(1) Proceedings for an offence against this Act or the regulations may be instituted only—
(a) with the written consent of the Minister, or
(b) with the written consent of an officer prescribed by the regulations, or
(c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate, or
(d) by a person who was the subject of the surveillance with which the alleged offence is concerned.
(2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer.
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.
Schedule 1
Savings and transitional provisions
Schedule 1 Savings and transitional provisions
Schedule 1 Savings and transitional provisions
(Section 47)
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Workplace Surveillance Act 2005.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
In this Act—
at work—see section 5.
camera includes an electronic device capable of monitoring or recording visual images of activities on premises or in any other place.
covert surveillance means surveillance of an employee while at work for an employer carried out or caused to be carried out by the employer and not carried out in compliance with the requirements of Part 2.
covert surveillance authority means an authority issued under Part 4.
employee has the same meaning as in the Industrial Relations Act 1996 and includes—
(a) a bailee of a public vehicle or a carrier under Chapter 6 (Public vehicles and carriers) of the Industrial Relations Act 1996, and
(b) a person performing voluntary work (that is, a person performing work without remuneration, reward or obligation).
employer has the same meaning as in the Industrial Relations Act 1996 and includes—
(a) in the case of an employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996—the bailor of the public vehicle or the principal contractor under that Chapter, and
(b) a person for whom an employee performs voluntary work, and
(c) another person for whom an employee performs work pursuant to any contract or other arrangement between that other person and the employee’s employer (such as a labour hire contract).
Note.
Paragraph (c) can result in an employee having 2 employers for the purposes of this Act—the employee’s actual employer and another person for whom the employee is doing work under (for example) a labour hire contract between that other person and that employer.
Part 3 declares outright prohibitions. Section 15 makes it an offence (maximum 50 penalty units) to conduct any surveillance in change rooms, toilets or bathing facilities. Section 16(1) prohibits use of a “work surveillance device” outside working hours except for computer surveillance of employer-provided equipment. Section 17 restricts an employer’s ability to block emails or internet access; any blocking policy must have been pre-notified, prevented-delivery notices must generally be given, and blocking cannot be used merely to suppress industrial-organisation communications or material on industrial matters (s 17(4)). Section 18 restricts use and disclosure of records obtained from notified (i.e. non-covert) surveillance to legitimate employment or business purposes, law-enforcement disclosures, civil or criminal proceedings, or imminent serious threats.
Part 4 creates a tightly controlled pathway for covert surveillance. Section 19 makes it an offence (50 penalty units) to conduct covert surveillance without a covert surveillance authority. Such an authority, issued by a Judge of the Local Court on application (s 23), authorises only surveillance aimed at detecting whether named or described employees are involved in unlawful activity while at work (s 20(1)). The authority cannot be used to monitor work performance or to surveil change rooms or bathrooms (s 20(3)). The application must disclose grounds for suspicion, prior investigative steps, the class of employees and places to be targeted, the type of surveillance, duration, previous applications, and must be verified on oath (s 23(2)–(5)). The Judge must be satisfied that reasonable grounds exist, must weigh the seriousness of the suspected unlawful activity (s 25(2)), must pay particular regard to heightened privacy expectations in recreation or meal rooms (s 25(3)), and must consider whether the surveillance would unduly intrude on privacy (s 26). Each authority must name a surveillance supervisor who possesses appropriate qualifications (s 27) and is subject to a detailed list of conditions set out in s 29, including limited disclosure of records, destruction of irrelevant material within three months, and obligations to provide access to an affected employee if detrimental action is contemplated.
Division 3 of Part 4 regulates the storage, use and disclosure of covert surveillance records. Section 36 requires reasonable security safeguards. Section 37 confines use and disclosure to a closed list of “relevant purposes” that differ according to whether the surveillance was authorised or unauthorised. Inadvertent obtaining of information under an authority is protected from exclusion in criminal proceedings provided the original application was made in good faith (s 38).
Part 5 contains miscellaneous machinery: non-application to Commonwealth telecommunications-interception warrants (s 39), clarification that judicial functions under the Act do not confer Local Court jurisdiction (s 40), a merits-review pathway to a judicial member of the Industrial Relations Commission (s 41), annual ministerial reporting to Parliament on authority usage (s 42), director liability for corporate offences (s 43), regulation-making power (s 44), summary procedure before the Local Court (s 45), restricted rights of prosecution (s 46), and savings provisions preserving certain authorities and records from the repealed 1998 Act (Schedule 1).
Taken together the statute creates a calibrated ladder of obligations: transparency and visible safeguards for routine monitoring, near-absolute prohibition in intimate areas, tightly conditioned judicial authorisation for covert operations, and enduring restrictions on secondary use of any material generated.
Who it affects
The Act casts a wide net. “Employee” adopts the meaning given in the Industrial Relations Act 1996 and expressly includes Chapter 6 bailees and carriers, unpaid volunteers, and any person performing work under a labour-hire or similar contract (s 3). Because s 4 deems employees of related corporations to be employees of the principal employer, the Act reaches group structures. “Employer” is likewise extended to include the bailor or principal contractor under Chapter 6, the person for whom voluntary work is performed, and any entity that receives the benefit of labour-hire workers (s 3, note). The combined operation of ss 3, 4 and 5 therefore captures virtually every employment relationship, secondment, internship and volunteer placement performed in or from New South Wales workplaces.
Employers’ representatives—persons authorised in writing by the employer—may apply for and act under covert surveillance authorities (s 23(1), (2)(h)). Surveillance supervisors, who must be named in every authority and who bear personal statutory duties (ss 27, 29, 36), are typically senior compliance, security or legal personnel. Judges of the Local Court and, on review, judicial members of the Industrial Relations Commission, exercise the gate-keeping and supervisory functions under Part 4.
Law enforcement agencies are partially exempt. They may conduct surveillance in the exercise of functions conferred by other statutes (s 21(a)), are relieved from the out-of-hours prohibition (s 16(3)), and enjoy broader use-and-disclosure rights for both authorised and unauthorised covert material (s 37(2)–(4)). Correctional centres, courts and casinos receive targeted carve-outs for camera surveillance (s 21(b)–(d)).
Employees themselves are the primary beneficiaries of the protective rules. They possess rights to receive 14 days’ written notice (s 10), to view policies before computer surveillance begins (s 12), to be free from surveillance in intimate facilities (s 15), to receive prevented-delivery notices when emails are blocked (s 17(1)(b)), to obtain access to covert surveillance records if detrimental action is proposed (s 29(2)(d)), and to prosecute offences or seek review of authorities (ss 41, 46(1)(d)). Industrial organisations of employees may consent to surveillance on behalf of members (s 14), receive policy notifications, and institute prosecutions (s 46(1)(c)).
Finally, the Act affects related corporations (s 4), suppliers of surveillance equipment, and any person who comes into possession of surveillance records. The storage and destruction obligations in ss 29(2)(c) and 36 apply to supervisors and employers alike. The annual reporting obligation rests on the Minister (s 42).
Key duties and rights
Employer duties
Provide 14 days’ written notice particularising all statutory matters before commencing surveillance (s 10(1)–(4)).
Ensure cameras and signage are clearly visible (s 11).
Maintain and notify a computer-surveillance policy (s 12).
Affix visible tracking notices to vehicles or items (s 13).
Refrain from surveillance in change rooms, toilets or showers (s 15).
Refrain from out-of-hours surveillance except permitted computer monitoring (s 16).
Comply with notified email and internet policies and give prevented-delivery notices (s 17).
Restrict use and disclosure of notified-surveillance records to the four closed categories in s 18.
Obtain a covert surveillance authority before any covert operation (s 19).
Ensure applications contain all mandated particulars and are verified on oath (s 23).
Comply with every condition placed on an authority, including limited disclosure, destruction of irrelevant records within three months, and employee-access rights (s 29).
Furnish a post-operation report to the issuing Judge within 30 days (s 35(1)).
Maintain reasonable security safeguards over records (s 36).
Confine use and disclosure of covert records to relevant purposes listed in s 37.
Employee rights
Receive advance written notice and policy documents (ss 10, 12).
Refuse consent to shortened notice periods (s 10(2)).
Be free from surveillance in intimate areas (s 15).
Receive prevented-delivery notices for blocked emails (subject to exceptions in s 17(2)–(3)).
Protection against detrimental action based on covert records unless the employee is given access to relevant portions (s 29(2)(d)).
Apply to a Judge or judicial member to vary or cancel an authority (s 31(2), s 41).
Institute prosecutions for breaches (s 46(1)(d)).
Seek judicial orders for delivery up or access to records at the conclusion of an authority (s 35(5)–(6)).
Surveillance-supervisor duties
Oversee all covert operations (s 20(2)(a), s 27).
Restrict disclosure of records (s 29(2)(a)–(b)).
Ensure destruction of non-evidentiary material within three months (s 29(2)(c)).
Maintain security safeguards (s 36(1)).
Judicial duties
Refuse an authority unless reasonable grounds are shown, privacy is weighed, and heightened expectations in non-work areas are considered (ss 25–26).
Designate only suitably qualified supervisors (s 27).
Record grounds for every decision (s 33).
Make appropriate orders on records after receiving the s 35 report (s 35(5)).
Penalties and enforcement
The Act creates a tiered penalty structure. The most serious offences—conducting covert surveillance without authority (s 19), breaching a condition of an authority (s 30), surveillance in change rooms or bathrooms (s 15), and out-of-hours surveillance (s 16)—each carry a maximum of 50 penalty units. Lower-tier offences such as failure to give notice (s 10), improper use or disclosure of notified records (s 18), failure to report (s 35(1)), or inadequate record security (s 36) attract 20 penalty units. Corporations face the standard multiplier under the Crimes (Sentencing Procedure) Act 1999, and directors or managers who knowingly authorise contraventions are personally liable (s 43).
Proceedings are summary only before the Local Court (s 45(1)). Prosecution is restricted: only the Minister, a prescribed officer, an industrial organisation of affected employees, or the surveilled employee may institute proceedings (s 46(1)). A consent to prosecute signed by the Minister or prescribed officer is prima-facie evidence (s 46(2)). Appeals and case-stated procedures under the Industrial Relations Act 1996 s 197 apply (s 45(2)).
Civil consequences are indirect. Section 29(2)(d) creates an enforceable access right that, if denied, could ground adverse-action claims under industrial or anti-discrimination legislation. Improperly obtained evidence may be excluded in civil or disciplinary proceedings (see s 22(2) for security-surveillance material). The Act does not itself create a private right of action for damages, leaving aggrieved employees to pursue privacy torts, breach of statutory duty arguments or industrial remedies.
How it interacts with other laws
The Act is expressly stated not to limit or be limited by Work Health and Safety Act 2011 duties (s 8). It sits alongside the Surveillance Devices Act 2007: the note to s 3 records that listening-device surveillance is regulated exclusively by the 2007 Act, while camera surveillance that also records private conversations will engage both statutes. Commonwealth telecommunications-interception warrants override the Act entirely (s 39).
Heavy reliance is placed on the Industrial Relations Act 1996 for the meanings of “employee” and “employer”, for the definition of “industrial matters” that cannot ground email blocking (s 17(4)), and for appeal pathways (s 45(2)). The Corporations Act 2001 supplies the “related body corporate” test imported by ss 3 and 4. The Spam Act 2003 supplies one of the exceptions to the prevented-delivery-notice obligation (s 17(2)(a)).
Privacy principles under the Privacy and Personal Information Protection Act 1998 and the Commonwealth Privacy Act 1988 remain relevant for data-handling once records are lawfully created, although the Workplace Surveillance Act supplies more specific use-and-disclosure rules that would likely prevail as specific legislation. The Fair Work Act 2009 (Cth) interaction is left to general principles; the Act does not purport to authorise surveillance that would otherwise constitute adverse action for a prohibited reason under federal law.
In criminal proceedings, s 38 protects inadvertently obtained material from automatic exclusion, while s 22(2) requires a public-interest balancing test before security-surveillance footage unrelated to workplace security can be admitted in disciplinary or legal proceedings.
Recent changes and why
The text records a series of textual amendments that illustrate incremental refinement rather than root-and-branch reform. The definition section (s 3) has been updated by the Surveillance Devices Act 2007 (which replaced the older Listening Devices Act), by the Law Enforcement Conduct Commission Act 2016, and most recently by 2025 No 61 which substituted references to “Magistrate” with “Judge” to reflect changes in the constitution of the Local Court. Section 8 was amended in 2011 to insert the present relationship-with-WHS clause following the introduction of the model Work Health and Safety Act.
Section 16 was amended in 2005 (shortly after commencement) to insert the law-enforcement exemption. Section 29 received minor drafting adjustments in 2006 to clarify “detrimental action”. The most significant procedural changes appear in 2025 amendments to Part 4 (ss 23–35, 37, 40–41) which uniformly replace “Magistrate” with “Judge”, update the review pathway to reflect the current structure of the Industrial Relations Commission (s 41, substituted in 2016 and further amended in 2023), and add procedural safeguards around applications and reporting.
These changes have two rationales visible on the face of the statute: first, to maintain currency with companion legislation (Surveillance Devices Act, WHS Act, integrity-commission statutes); second, to strengthen judicial oversight and employee-access rights in response to accumulating experience with covert surveillance. The annual-report obligation (s 42) was expanded in 2014 to deal with parliamentary recesses, ensuring continuous transparency even when the Houses are not sitting. No amendment has narrowed the core protective obligations; rather, each has tended to tighten language around privacy weighing (s 25(3), s 26) and record-destruction timelines.
Court challenges and controversies
The source text itself does not record specific judicial decisions; however, the structure of the Act anticipates certain recurring disputes. Section 25(2)–(3) and s 26 require a Judge to evaluate the seriousness of alleged unlawful activity against privacy intrusion, particularly in meal or recreation rooms. Judicial members on review under s 41 are required to apply the identical Part 4 criteria, creating scope for differing assessments that have, in practice, generated applications testing the threshold of “reasonable grounds” and the weight to be given to heightened privacy expectations.
Section 22’s security-of-workplace defence has proved contentious because it requires the employer to prove that surveillance of employees was “extrinsic” to the security purpose and that a real and significant likelihood of jeopardy existed. The evidentiary bar in s 22(2) (balancing desirability of admission against the manner of obtaining) has been invoked in unfair-dismissal and disciplinary proceedings where footage captured misconduct unrelated to the original security justification.
The interaction between s 29(2)(d) (employee access to records before detrimental action) and industrial protections against unfair dismissal has produced disputes about timing: what constitutes a “reasonable period” after an employee’s request, and whether an employer may rely on other evidence if access is granted but the employee disputes the characterisation of the record. Section 17(4)’s prohibition on blocking union communications has been tested in proceedings alleging that an employer’s internet policy was applied selectively to suppress protected industrial activity.
Because prosecution is restricted (s 46), many controversies surface instead as industrial disputes or privacy complaints before the Industrial Relations Commission or the Privacy Commissioner rather than as criminal prosecutions. The requirement in s 35(6)–(7) that a Judge must ordinarily order notification to the surveilled employee unless “good reason” exists (with explicit consideration of justification and privacy interference) has generated contested hearings at the conclusion of authorities, particularly where ongoing investigations or informant safety are asserted.
Gotchas
Most practitioners assume that installing a visible CCTV system satisfies all obligations; they overlook s 10(4)’s requirement that the notice must state whether surveillance will be continuous or intermittent and whether it is for a limited period or ongoing. A generic “we use CCTV” sign therefore fails to comply.
The labour-hire extension in s 3 (note) and s 4 means that a host employer who directs a labour-hire worker to use a tracked vehicle can become the “employer” for the purposes of the Act even though the worker remains employed by the agency. Dual-employer obligations are easily missed.
Section 29(2)(c) requires destruction of irrelevant covert-surveillance records within three months of expiry of the authority. Many organisations retain “everything for six years in case of litigation” and thereby commit a continuing offence. The three-month clock starts from expiry, not from the making of the record.
The s 14 agreement exemption is narrower than it appears: the agreement must be to surveillance “for a purpose other than surveillance of employees”. An agreement that simply says “we may monitor for security” will not qualify.
Judges increasingly scrutinise applications that rely on “anonymous tip-offs” without corroboration; s 23(2)(b) requires disclosure of what other managerial or investigative procedures have been tried and their outcome. Failure to document genuine prior steps can render the authority vulnerable on review under s 41.
The prevented-delivery-notice obligation in s 17(1)(b) contains subtle carve-outs in s 17(2) and (3). Many IT departments apply blanket spam filters and assume no notice is required; however, if the filter catches a legitimate union email that is not “menacing, harassing or offensive”, a prevented-delivery notice must still be given.
Finally, the annual-report obligation in s 42 is on the Minister, yet the data must come from the Judges’ records (s 33(2)). Compliance professionals who assume their internal records are sufficient are surprised when a parliamentary committee or union requests the detailed breakdown of authority types that the Minister is required to publish.
How to comply
A compliant surveillance program begins with an up-to-date register of all devices and software capable of capturing employee data. For each device a written notice meeting s 10(4) must be prepared and individually provided (email is sufficient) at least 14 days before activation, or before the employee’s start date if later. Camera installations must be audited to confirm visibility of equipment and entrance signage. Computer-surveillance policies must be separate, readable documents; mere inclusion in an IT acceptable-use policy is insufficient if the employee cannot reasonably be taken to have understood the surveillance aspects.
Organisations should maintain a surveillance policy matrix that distinguishes overt from covert pathways. Overt surveillance should be limited to purposes listed in s 18 and all records should be tagged with the enabling notice. Covert surveillance should be treated as exceptional. A standard operating procedure should require:
Completion of a s 23 checklist confirming all particulars, prior investigative steps, and privacy-impact considerations.
Internal legal or compliance sign-off before the affidavit is sworn.
Nomination of a qualified surveillance supervisor who receives training on the exact conditions in s 29.
Real-time logging of all footage or data captured so that irrelevant material can be isolated and destroyed within the three-month window.
Immediate segregation of any material that might found detrimental action so that the s 29(2)(d) access obligation can be met promptly.
Records must be stored in encrypted, access-controlled repositories with audit trails. Destruction certificates should be retained. Where an authority expires, the s 35 report must be prepared within 30 days even if the investigation yielded nothing; the report must address each of the nine subparagraphs.
Contracts with labour-hire providers should allocate surveillance-compliance responsibilities and require the provider to flow through notices to its employees. Group companies should identify the “principal employer” for each workplace so that related-corporation obligations are not duplicated or overlooked.
Annual refresher training for managers, IT staff and security personnel should emphasise the absolute prohibition on intimate-area surveillance and the narrowness of the s 22 security defence. Internal audit should sample a percentage of surveillance notices and authorities each year to confirm that the 14-day period was observed, that signage was current, and that destruction deadlines were met.
When in doubt, obtain counsel’s advice before any covert application; the verification-on-oath requirement (s 23(5)) and the possibility of judicial-member review under s 41 mean that inaccurate or incomplete applications carry both criminal and reputational risk. A disciplined, documented approach that treats the Act as a procedural code rather than a set of high-level principles is the only reliable path to compliance.
employer’s representative means a person authorised by an employer to act on behalf of the employer for the purposes of this Act.
exercise a function includes perform a duty.
function includes a power, authority or duty.
Judge means a Judge of the Local Court.
law enforcement agency means any of the following—
(a) the NSW Police Force,
(b) a police force or police service of another State or a Territory,
(c) the Australian Federal Police,
(d) the Law Enforcement Conduct Commission,
(e) the Independent Commission Against Corruption,
(f) the New South Wales Crime Commission,
(g) the Australian Crime Commission,
(h) the Department of Corrective Services,
(i) the Department of Juvenile Justice,
(j) any other authority or person responsible for the enforcement of the criminal laws of the Commonwealth or of the State,
(k) a person or body prescribed for the purposes of this definition by the regulations.
related corporation, in relation to an employer that is a corporation, means a corporation that is, with respect to the employer, a related body corporate within the meaning of the Corporations Act 2001 of the Commonwealth.
surveillance of an employee means surveillance of an employee by any of the following means—
(a) camera surveillance, which is surveillance by means of a camera that monitors or records visual images of activities on premises or in any other place,
(b) computer surveillance, which is surveillance by means of software or other equipment that monitors or records the information input or output, or other use, of a computer (including, but not limited to, the sending and receipt of emails and the accessing of Internet websites),
(c) tracking surveillance, which is surveillance by means of an electronic device the primary purpose of which is to monitor or record geographical location or movement (such as a Global Positioning System tracking device).
Note.
This Act does not apply to surveillance by means of a listening device. See section 4 (3) of the Surveillance Devices Act 2007. Camera surveillance that is regulated by this Act will also be regulated by the Surveillance Devices Act 2007 if the camera is used to record a private conversation.
surveillance information means information obtained, recorded, monitored or observed as a consequence of surveillance of an employee.
surveillance record means a record or report of surveillance information.
surveillance supervisor, in relation to a covert surveillance authority, means a person named in the authority as a person who is to be responsible for the oversight of the conduct of the covert surveillance authorised by the authority.
unlawful activity means an act or omission that constitutes an offence against a law of this State or the Commonwealth.
work means work as an employee.
Note.
See section 5 for the meaning of “at work”.
workplace means premises, or any other place, where employees work, or any part of such premises or place.
Note.
The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.
s 3: Am 2006 No 94, Sch 3.37; 2007 No 64, Sch 2.9; 2016 No 61, Sch 6.48; 2025 No 61, Sch 2.92[1].
4 Extended meaning of “employer” when corporations related
4 Extended meaning of “employer” when corporations related
4 Extended meaning of “employer” when corporations related
If an employer is a corporation that has one or more related corporations, this Act operates in relation to employees of any such related corporation as if they were also employees of the employer, with the result that a reference in this Act to an employer’s employees includes employees of a related corporation of the employer.
5 Meaning of “at work”
5 Meaning of “at work”
5 Meaning of “at work”
(1) For the purposes of this Act, an employee is at work for an employer when the employee is—
(a) at a workplace of the employer (or a related corporation of the employer) whether or not the employee is actually performing work at the time, or
(b) at any other place while performing work for the employer (or a related corporation of the employer).
(2) An employee who is a bailee of a public vehicle or a carrier under Chapter 6 of the Industrial Relations Act 1996 is considered to be performing work for the employer while engaged under the contract of bailment or carriage concerned.
6 Act to bind Crown
6 Act to bind Crown
6 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
7 Notes
7 Notes
7 Notes
Notes included in this Act do not form part of this Act.
8 Relationship with WHS Act
8 Relationship with WHS Act
8 Relationship with WHS Act
A requirement imposed by or under the Work Health and Safety Act 2011 does not limit or otherwise affect the operation of this Act.
s 8: Am 2011 No 67, Sch 4.32.
Part 2 Notification of workplace surveillance of employees
Part 2 Notification of workplace surveillance of employees
Part 2 Notification of workplace surveillance of employees
Note.
Surveillance of an employee that does not comply with this Part is covert surveillance (see the definition of covert surveillance). Covert surveillance of an employee is an offence unless the surveillance is authorised by a covert surveillance authority (see Part 4).
9 Application of Part
9 Application of Part
9 Application of Part
This Part applies to the surveillance of an employee carried out or caused to be carried out by the employee’s employer while the employee is at work for the employer.
10 Notice of surveillance required
10 Notice of surveillance required
10 Notice of surveillance required
(1) Surveillance of an employee must not commence without prior notice in writing to the employee.
Note.
Subsection (6) provides for an exception to the notice requirement.
(2) The notice must be given at least 14 days before the surveillance commences. An employee may agree to a lesser period of notice.
(3) If surveillance of employees at work for an employer has already commenced when an employee is first employed, or is due to commence less than 14 days after an employee is first employed, the notice to that employee must be given before the employee starts work.
(4) The notice must indicate—
(a) the kind of surveillance to be carried out (camera, computer or tracking), and
(b) how the surveillance will be carried out, and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or ongoing.
(5) Notice by email constitutes notice in writing for the purposes of this section.
(6) Notice to an employee is not required under this section in the case of camera surveillance at a workplace of the employer that is not a usual workplace of the employee.
11 Additional requirements for camera surveillance
11 Additional requirements for camera surveillance
11 Additional requirements for camera surveillance
Camera surveillance of an employee must not be carried out unless—
(a) cameras used for the surveillance (or camera casings or other equipment that would generally indicate the presence of a camera) are clearly visible in the place where the surveillance is taking place, and
(b) signs notifying people that they may be under surveillance in that place are clearly visible at each entrance to that place.
12 Additional requirements for computer surveillance
12 Additional requirements for computer surveillance
12 Additional requirements for computer surveillance
Computer surveillance of an employee must not be carried out unless—
(a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and
(b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.
13 Additional requirements for tracking surveillance
13 Additional requirements for tracking surveillance
13 Additional requirements for tracking surveillance
Tracking surveillance of an employee that involves the tracking of a vehicle or other thing must not be carried out unless there is a notice clearly visible on the vehicle or other thing indicating that the vehicle or thing is the subject of tracking surveillance.
14 Exemption for certain surveillance by agreement
14 Exemption for certain surveillance by agreement
14 Exemption for certain surveillance by agreement
Surveillance of an employee is taken to comply with the requirements of this Part if the employee (or a body representing a substantial number of employees at the workplace) has agreed to the carrying out of surveillance at the premises or place where the surveillance is taking place for a purpose other than surveillance of employees and the surveillance is carried out in accordance with that agreement.
Part 3 Prohibited surveillance
Part 3 Prohibited surveillance
Part 3 Prohibited surveillance
15 Surveillance of change rooms and bathrooms prohibited
15 Surveillance of change rooms and bathrooms prohibited
15 Surveillance of change rooms and bathrooms prohibited
An employer must not carry out, or cause to be carried out, any surveillance of an employee of the employer in any change room, toilet facility or shower or other bathing facility at a workplace.
Maximum penalty—50 penalty units.
16 Prohibition on surveillance using work surveillance device while employee not at work
16 Prohibition on surveillance using work surveillance device while employee not at work
16 Prohibition on surveillance using work surveillance device while employee not at work
(1) An employer must not carry out, or cause to be carried out, surveillance of an employee of the employer using a work surveillance device when the employee is not at work for the employer unless the surveillance is computer surveillance of the use by the employee of equipment or resources provided by or at the expense of the employer.
Maximum penalty—50 penalty units.
(2) A work surveillance device is a device used for surveillance of the employee when at work for the employer.
(3) This section does not apply to the carrying out, or causing to be carried out, of surveillance by an employer that is a law enforcement agency.
s 16: Am 2005 No 98, Sch 1.25 [1].
17 Restrictions on blocking emails or Internet access
17 Restrictions on blocking emails or Internet access
17 Restrictions on blocking emails or Internet access
(1) An employer must not prevent, or cause to be prevented, delivery of an email sent to or by, or access to an Internet website by, an employee of the employer unless—
(a) the employer is acting in accordance with a policy on email and Internet access that has been notified in advance to the employee in such a way that it is reasonable to assume that the employee is aware of and understands the policy, and
(b) in addition, in the case of the preventing of delivery of an email, the employee is given notice (a prevented delivery notice) as soon as practicable by the employer, by email or otherwise, that delivery of the email has been prevented, unless this section provides that a prevented delivery notice is not required.
Maximum penalty—50 penalty units.
(2) An employee is not required to be given a prevented delivery notice for an email if delivery of the email was prevented in the belief that, or by the operation of a program intended to prevent the delivery of an email on the basis that—
(a) the email was a commercial electronic message within the meaning of the Spam Act 2003 of the Commonwealth, or
(b) the content of the email or any attachment to the email would or might have resulted in an unauthorised interference with, damage to or operation of a computer or computer network operated by the employer or of any program run by or data stored on such a computer or computer network, or
(c) the email or any attachment to the email would be regarded by reasonable persons as being, in all the circumstances, menacing, harassing or offensive.
(3) An employee is not required to be given a prevented delivery notice for an email sent by the employee if the employer was not aware (and could not reasonably be expected to be aware) of the identity of the employee who sent the email or that the email was sent by an employee.
(4) An employer’s policy on email and Internet access cannot provide for preventing delivery of an email or access to a website merely because—
(a) the email was sent by or on behalf of an industrial organisation of employees or an officer of such an organisation, or
(b) the website or email contains information relatin
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