This is the Issued [printed] version of

WORKPLACE VIDEO SURVEILLANCE
Section 24.01C

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The Act regulates covert video surveillance of staff in the workplace. It does not regulate overt video surveillance.

Overt Video Surveillance

Video surveillance is overt and not subject to the provisions of the Act if:

staff are given at least 14 days notice in writing (or a lesser period if agreed by the staff) of the intended video surveillance, AND

the cameras used for the video surveillance (or casing) are clearly visible; AND

there are clearly visible signs at each entrance to any part of a workplace where the surveillance is taking place, informing people that they may be under surveillance.

Video surveillance is also covert if staff have agreed to the use of video surveillance for a purpose other than observing the activities of staff and the surveillance is carried out in accordance with that agreement.

Covert Video Surveillance

Covert video surveillance of staff in the workplace is an offence unless:

it is carried out solely to establish whether a staff member is involved in any unlawful activity in the workplace; AND

the video surveillance is authorised by a covert surveillance authority.

It is a defence if the covert surveillance is carried out solely to ensure the security of the workplace or people in that workplace. The University must give the staff written notice of any intended surveillance, and must be able to show a real and significant threat to the security of the workplace if the surveillance is not undertaken.

Application for Covert Video Surveillance

An application must be made to a Magistrate of the Local Court or the Chief Industrial Magistrate's Court and must include the following:

the grounds the University has for suspecting that particular employees are involved in unlawful activity;

whether the University has made other attempts to detect the unlawful activity and any outcome of those attempts;

who and what will regularly or ordinarily be in view of the cameras;

the dates and times during which the covert surveillance is proposed to be carried out;

acceptable verification of the University's authority if application is made by a representative;

each licensed security operator who will oversee the conduct of the covert video surveillance;

the Magistrate must be satisfied reasonable grounds exist to grant the application and must consider privacy issues and be satisfied of the suitability of the licensed operators.

How is Covert Video Surveillance Carried Out?

A covert surveillance authority will only be issued to establish whether one or more particular staff are involved in any unlawful activity in the workplace. It is an offence to carry out covert surveillance without any authority.

Covert video surveillance can only be carried out by a nominated licensed security operator who must oversee the operation.

The operator must not give any other person access to any recordings made.

The operator may only supply the University with the portions of the video recording which are relevant to the involvement of any staff member in unlawful activity in the workplace.

The operator must erase or destroy all parts of the video recordings not required for evidentiary purposes within three months of the expirations of the authority.

If the University proposes to take any action against a staff member, the employee or the legal representative must have access to the video recordings within a reasonable time of a request.

Both the operator and the University must ensure that any portion of a video recording is protected against loss or unauthorised access or use.

Duration of Authority

A cover surveillance authority remains in force for the period specified, which must not exceed 30 days, however, a Magistrate may at any time vary or cancel a covert surveillance authority, whether issued by the Magistrate or another Magistrate, either on the Magistrate's own initiative or an application by any staff member, the University or other person affected by the authority.

Right of Appeal

A right of appeal exists to a judicial member of the Industrial Relations Commission of New South Wales in respect of the refusal by a Magistrate to issue a covert surveillance authority or refusal of a Magistrate to vary or cancel an authority.

Offences under the Act

It is an offence to carry out unauthorised covert video surveillance. The maximum penalty is $20,000.

It is an offence (carrying a maximum penalty of $2,000) to use footage for an irrelevant purpose, i.e. one that is not direct or indirectly related to:

establishing whether a staff member was involved in unlawful activity in the workplace;

taking disciplinary or legal proceedings against a staff member as a result of any alleged unlawful activity;

establishing security arrangements or taking other measures to prevent or minimise the opportunity for unlawful activity;

taking any other action authorised or required by or under the Act.

It is an offence to knowingly give false or misleading information to a Magistrate in an application for a covert surveillance authority. The maximum penalty is $10,000.

It is an offence if a licensed security operator does not take reasonable safeguards to protect against loss or unauthorised access or use of video footage. The maximum penalty is $500.

It is an offence if any staff member does not ensure that video recordings are protected against loss or unauthorised access or use. The maximum penalty is $500.

It is an offence for a licensed security operator to contravene a condition of a covert surveillance authority. The maximum penalty is $5,000.

If the University breaches the Act or Regulation, each person who is concerned in the management of the University, is taken to have contravened the Act or Regulation if the person knowingly authorised or permitted the contravention. That person may be proceeded against and convicted whether or not the University has been proceeded against or convicted.