Invisible Eyes
 
Executive Summary

1. Video Surveillance in the Workplace

1.1 The purpose of the Privacy Committee's Inquiry into Video Surveillance in the Workplace was to examine the justification, nature, extent, and purposes of video surveillance in workplaces in New South Wales; whether video surveillance of particular areas in the workplace should be restricted or prohibited; any adverse impact of video surveillance on personal privacy, and whether any changes are required to laws, policies and administrative procedures.

1.2 The interests of employees and employers need to be balanced in the use of video surveillance in the workplace. Employers use video surveillance to protect property, staff and business interests. Video surveillance is one of several monitoring and surveillance technologies used in modern workplaces. Employees are concerned that the use of video surveillance raises issues of privacy, dignity, working conditions, discrimination, and control over employees.

1.3 The Inquiry examined the use of video surveillance in employers' work premises and locations associated with workplaces, including lifts, car parks, lobby areas, and employee recreation rooms.

1.4 The national market for video surveillance equipment is growing rapidly, most recently by 24% in 1994/5 to an estimated $50m. This is a result of lower costs, increased technical capacities, competitive pressures on business, increased security risks and the natural tendency for surveillance systems to expand over time. Compared to other industrialised nations, Australia appears to spend substantially more money per capita on video surveillance equipment.

1.5 Video surveillance is substantially different from human visual surveillance and makes possible a wide range of applications which would not be feasible simply with human surveillance. Recent advances in video surveillance technologies include zooming, miniaturisation, night vision, improved picture quality, and digitisation.

2. The Uses of Video Surveillance

2.1 Video surveillance is one of many new technologies being introduced into workplaces.

2.2 It serves a wide range of uses in different industries. In recent years, video surveillance has become a standard feature of large security systems.

2.3 Employers use video surveillance for several reasons:

* to minimise the risk of theft, especially in the retail industry for purposes of deterring and detecting crime;

* to protect premises from threats to property such as sabotage, arson and vandalism;

* to monitor individual employee work performance;

* to improve customer service by observing peak periods and planning the allocation of staff throughout the day;

* to assist in staff training;

* to enhance health and safety standards;

* to ensure that employees comply with legal obligations;

* to protect employers from liability claims;

* to monitor production processes; and

* for a range of other purposes.

3. Privacy Issues in Video Surveillance

3.1 Individuals have different expectations of privacy protection in their public and private worlds. The routine use of video surveillance has the potential to undermine employees' sense of privacy and dignity in the workplace.

3.2 The impact of video surveillance can be assessed through examining its relationship to the Privacy Committee's recommended Data Protection Principles. This raises issues relating to:

* whether its use is lawful and fair;

* the extent to which employees are consulted in relation to the conduct of surveillance, its purposes and uses;

* whether the manner in which information is collected and the extent of its use is relevant and not unreasonably intrusive;

* security of tape storage and the length of time for which recordings are retained;

* the openness of employers about practices relating to surveillance and the use of tape recordings;

* whether employees may have access to any retained recordings relating to them;

* the rights of an employee to explain conduct recorded by a surveillance camera;

* whether using only a part of the recording may create a misleading impression;

* ensuring that employers do not use video surveillance for purposes beyond the original reasons of installation without the consent of employees; and

* under what circumstances video recordings may be disclosed to any third parties.

3.3 The Privacy Committee has noted an increasing number of complaints relating to workplace privacy, and in particular video surveillance. These complaints highlighted privacy invasion through covert surveillance, the use of surveillance for purposes beyond those for which it was originally installed, for monitoring employee work performance, and to harass an individual within an organisation.

3.4 Video surveillance may affect the work environment by increasing stress, undermining morale and creating distrust and suspicion between employees and management.

3.5 Particular concerns have been raised relating to the use of surveillance in areas where employees have a higher expectation of privacy, such as in toilets, showers, areas where employees change clothing, locker rooms and recreation areas such as meal rooms. Proposals for a ban on surveillance in these areas have been put forward.

4. Covert Video Surveillance

4.1 Some employers have argued that covert surveillance is justified because:

* employers have a right to protect their business interests;

* covert surveillance may affect fewer employees than overt surveillance;

* if employees are unaware of surveillance there is less risk of industrial disputation;

* covert surveillance is often the most effective means of detecting unlawful activity.

4.2 Unions and civil liberties groups have argued that covert surveillance is a gross invasion of privacy and should be prohibited, while employer groups believe that any controls on covert surveillance should be implemented through self-regulation. The Privacy Committee believes that any policy on covert surveillance must make it a last resort for exceptional problems when other security methods have been ineffective. It should be used only for a specific, identified risk, in a limited area for a specific time period, under strict controls.

4.3 Covert surveillance involves an extremely serious breach of employee privacy. A prohibition on covert surveillance other than by law enforcement officers would be the most effective means by which to protect employee privacy, but it would make it more difficult for employers to detect unlawful conduct. If its use can be strictly controlled, covert video surveillance may be an effective means of detecting unlawful conduct.

5. Regulation

5.1.1 Video surveillance in the workplace in Australia is currently unregulated. As the federal Privacy Commissioner does not have jurisdiction over the State public sector or over the private sector, most workplace video surveillance is outside of the Commissioner's jurisdiction.

5.1.2 The New South Wales Privacy Committee does not have regulatory powers and therefore cannot enforce controls over the use of video surveillance. While there are no direct controls on video surveillance in New South Wales, there are precedents in the regulation of audio surveillance under the Listening Devices Act 1984, and in voluntary guidelines relating to security procedures issued by the Industrial Commission in 1979. More recently when the issue has come before the Industrial Relations Commission, no guidelines for video surveillance have been established. The main constraint on its use relates to whether courts will accept video tape recordings as evidence.

5.2 While video surveillance is not addressed directly in international law, the right to privacy is an internationally recognised human right which in some countries acts as a direct source for the rights of employees.

5.3 The issue of video surveillance is current being addressed in context of the International Labour Organisation's Draft Code of Practice on the Protection of Workers' Personal Data. In addition, organisations such as the OECD have made useful statements of principle on privacy issues which may assist in developing guidelines for the use of video surveillance.

5.4 A variety of controls exist in other national and state jurisdictions to regulate the conduct of video surveillance in the workplace, including:

* specific statutory controls, such as in Sweden, Italy, and Norway;

* enforcement of constitutional protections against privacy invasion, eg. The Netherlands and Germany;

* general privacy and data protection legislation, eg. New Zealand, Ontario, and Quebec;

* industrial relations laws, eg. Switzerland, France, and Belgium;

* protections under common law; and

* a combination of the above, eg the United States of America.

5.5 By international standards, employees in New South Wales have very little privacy protection.

6. Future Options

The four main options for regulation of overt surveillance are:

* no changes to existing non-regulatory situation;

* self-regulation;

* co-regulation, combining elements of self-regulation with some limited legislative controls; and

* legislative control.

6.1 The Privacy Committee believes that measures should be taken to protect employee privacy from the unrestricted use of video surveillance. Employees are otherwise likely to suffer an ongoing erosion of their privacy as the use of video surveillance becomes more widespread. Employers also face continued uncertainty in relation to how they may conduct surveillance legitimately without the risk either of industrial action, or that unions or employees may challenge the admissibility of video surveillance evidence in court.

6.2 The Committee does not believe that self-regulation through a Code or Codes of Conduct will be effective in protecting employees' right to privacy. The main weaknesses with self-regulation are that:

* the process of developing Codes will be difficult in the absence of an independent arbiter;

* the structure of the employment market will make the development, implementation and observance of Codes difficult;

* self-regulation is likely to lead to inconsistent standards of privacy protection; and

* it would be difficult to ensure compliance with Codes without a body to oversee their observance.

6.3 The Privacy Committee believes that co-regulatory options will not provide consistent and enforceable privacy protection. Guidelines issued under current privacy legislation would have inadequate enforcement powers. Workplace codes developed within the industrial relations system would be characterised by similar problems to Codes developed under self-regulation.

6.4 The Privacy Committee believes that legislative controls would establish the most effective privacy protection for employees. Legislative controls could be implemented in five ways. Under amended privacy legislation, an enforceable Code of Conduct could be developed in consultation with interest groups and issued by a Privacy Commissioner. Secondly, a Code could be enforced through an amendment to industrial relations legislation. Thirdly, specific amendments could be made to industrial relations legislation prohibiting:

* video surveillance for monitoring individual work performance;

* monitoring in certain locations within the workplace; and

* covert surveillance except with a specific permit.

Fourthly, specific legislation for video surveillance could be developed along similar lines to the Listening Devices Act 1984 relating to audio surveillance. Finally, controls could be established through the existing licence requirements for security equipment suppliers and installers.

6.5 The Privacy Committee believes that a Code developed under privacy legislation would be more effective because:

* privacy is essentially a human right issue and is best protected by an independent agency than through a bargaining process;

* it would be consistent with a Privacy Commissioner's role;

* privacy protections within individual workplaces are more likely to be consistent within this framework;

* the process for resolving complaints is likely to be easier and more accessible; and

* a precedent for the use of other surveillance technologies in the workplace would be established.

6.6 The Privacy Committee believes that the most effective form of regulation of video surveillance in the workplace would be through the following measures:

1. The amendment of industrial relations legislation to:

(a) prohibit video surveillance for monitoring employee work performance;

(b) prohibit the use of video surveillance in certain areas such as toilets, showers and change rooms;

(c) require a permit from the Industrial Relations Court for:

* the use of surveillance in locker rooms and employee recreation rooms; and

* any use of covert surveillance in the workplace, including a requirement of compliance with strict guidelines relating to its operation.

The Industrial Relations Court would have the authority to enforce these provisions, including the power to make orders to require employers to remove cameras, and to impose penalties for breaches of provisions referred to in 1(b) and 1(c).

The Privacy Committee would be willing to work in consultation with the Department of Industrial Relations in making the necessary changes to industrial relations legislation to implement these recommendations.

The restrictions on covert video surveillance would not apply to surveillance conducted by law enforcement agencies. It would be more appropriate to develop privacy protections relating to the conduct of covert video surveillance by law enforcement agencies through legislation similar to the Listening Devices Act 1984. This Act promotes accountability by requiring the Police to obtain warrants and to report on certain matters. The Committee believes the Listening Devices Act should be reviewed in light of the growth in the number of warrants granted for audio surveillance and the need for consistency in legislation covering audio and video surveillance in matters such as police warrants.

2. Privacy legislation should be enacted to establish the Office of Privacy Commissioner of New South Wales, to oversee the application of the Data Protection Principles to the public and private sectors. The legislation would include provisions for the Commissioner to develop Codes of Conduct in consultation with industry. The Commissioner would have powers to receive complaints, and to investigate and report on breaches of the Data Protection Principles or Codes of Conduct. A Code of Conduct on video surveillance could be developed, perhaps based on the attached Guidelines, and after any necessary modifications the Privacy Commissioner could enact the Code, making it enforceable. On application, the Commissioner could grant exceptions from the Code for particular activities or workplaces.

3. Until such time as the Office of the Privacy Commissioner is established, the Committee recommends adoption of the attached Guidelines by employers. The Committee will investigate and act upon complaints relating to acts and practices which breach the Guidelines.

 
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