NSW Workplace Surveillance Act 2005

Before surveillance of an employee begins, the employer gives the employee written notice (email counts as writing). The notice goes out no later than 14 days ahead of the start, unless the employee agrees to a shorter period; where surveillance is already running when someone is hired, or will start within 14 days of their first day, the notice is given before that person starts work. The notice states: the kind of surveillance (camera, computer or tracking); how it will be carried out; when it will start; whether it will be continuous or intermittent; and whether it will run for a specified limited period or be ongoing. No notice is needed for camera surveillance at a workplace that is not one of the employee's usual workplaces. Surveillance without a compliant notice is covert surveillance (s 19).

Camera surveillance of an employee is carried out only where the cameras (or housings or other fittings that ordinarily reveal a camera) can be clearly seen in the place under surveillance and signs that can be plainly seen at every way into that place tell people they may be under surveillance there. These conditions apply in addition to the s 10 notice.

Tracking surveillance of an employee that tracks a vehicle or other thing is carried out only where a plainly visible notice on the vehicle or item shows that it is subject to tracking surveillance. This is in addition to the s 10 notice to the employee.

Computer surveillance of an employee is carried out only as the employer's written policy on monitoring staff computer use allows, and only after the employee has been told of that policy in advance in a way that makes it reasonable to assume the employee knows and understands it. Monitoring outside what the policy describes is not covered.

The employer stops an email to or from an employee getting through, or blocks access to a website, only when acting under an email and internet access policy notified to the employee in advance so that the employee can reasonably be taken to know and understand it. When an email is blocked, the employee is told as soon as practicable (a prevented delivery notice), by email or otherwise. No notice is needed where the email was blocked as spam (a commercial electronic message under the Spam Act 2003), because it or an attachment could have interfered with or damaged the employer's computers, network, programs or data, or because reasonable persons would regard it as menacing, harassing or offensive, or, for an outgoing email, where the employer did not know and could not reasonably know which employee sent it or that an employee sent it. The policy may not allow blocking merely because a message comes from an industrial organisation of employees or its officer, or because the email or website contains information about industrial matters. Maximum penalty 50 penalty units.

The employer does not conduct, or arrange, covert surveillance of staff at work unless a covert surveillance authority issued by a Magistrate authorises it. Covert surveillance is any surveillance of an employee at work that does not meet Part 2 (notice, camera visibility and signs, computer policy, tracking notice). Maximum penalty 50 penalty units. Section 21 excludes law enforcement officers acting under other laws, cameras in correctional centres or custody, casino monitoring under the Casino Control Act 1992 and cameras recording legal proceedings; s 22 gives a security defence.

Where an employer relies on the defence for covert surveillance kept for workplace security, it must be able to prove that: the surveillance was solely to protect the security of the workplace or the people in it, with any surveillance of employees incidental to that; a real and significant risk existed that security would be compromised without covert surveillance; and the workforce there, or a body representing a substantial share of it, received written notice of the planned security surveillance before it began. A record from such surveillance that is unrelated to security is admitted against an employee in disciplinary or legal proceedings only where the desirability of admitting it outweighs the undesirability of evidence obtained that way.

The employer does not carry out, or cause, any surveillance of its employees in a change room, toilet, shower or other bathing area at a workplace (up to 50 penalty units). A covert surveillance authority cannot authorise surveillance in these places either (s 20(3)).

The employer does not use a work surveillance device (a device used to watch the employee at work) to carry out surveillance of the employee at any time the employee is outside what s 5 counts as being at work (neither at a workplace of the employer nor elsewhere performing its work). The exception is computer surveillance of the employee's use of equipment or resources the employer provided or paid for. Law enforcement agencies as employers are outside the section. Up to 50 penalty units.