OVERVIEW
10.1 There are currently very few regimes, either at common law or in statute law, proscribing behaviour related to, and arising out of, surveillance, or remedies or channels of complaint available for those adversely affected by surveillance activities. Except as noted below, neither is there a legislated framework for reviewing surveillance systems and operation.
10.2 The Surveillance Devices Act 2000 (NT) proscribes the attachment, installation, use, maintenance or retrieval of a “surveillance device”1 unless authorisation is given under the Act.2 However, the Act then provides for exceptions to this blanket prohibition.3 Criminal penalties are imposed for offences against the Surveillance Devices Act 2000 (NT).4 The Act does not make provision for a complaints mechanism, nor remedies, for persons adversely affected by surveillance activities.
10.3 The Listening Devices Act 1984 (NSW) (“LDA”) contains provisions governing offences against the LDA or its regulations, and prescribes penalties for convictions.5 Offences under the LDA arise out of the use of “listening devices” to listen to private conversations. The only other legislation determining offences arising out of aural surveillance is Commonwealth legislation applying to Commonwealth bodies,6 although one of these statutes also covers New South Wales agencies using telephone interception devices to investigate offences under New South Wales law.7 In each case, breach of the legislation is a criminal offence attracting criminal penalties. In addition, the Telecommunications (Interception) Act 1979 (Cth) (“Interception Act”) makes provision for an “aggrieved person” to apply for civil remedies.8 The LDA contains no such provision for civil remedies.
10.4 There is presently no legislation in New South Wales regulating other types of surveillance, except for covert use within the workplace.9 At common law, remedies are available in certain circumstances for conduct which may be connected with the surveillance, including trespass, nuisance, defamation and breach of confidence. These remedies will be inapplicable in the majority of cases and, for the reasons outlined at paragraphs 1.50-1.56 may provide unsatisfactory sanctions and relief in other cases. More importantly, there is no general law directly and specifically regulating the use of surveillance devices and providing redress for persons affected by the misuse of such devices.10
10.5 This chapter considers the consequences of infringing provisions of the proposed surveillance legislation, recommends avenues of complaint and review of alleged breaches and appropriate remedies where a breach is established. As explained in Chapter 2, the Commission makes a distinction between overt and covert surveillance for the purposes of devising a regulatory framework. It follows from this approach that offences and sanctions should be related to whether the surveillance in question was overt or covert and should not depend on the type of surveillance device which was in use.
10.6 In summary, the Commission recommends a three-fold approach:
- Where surveillance is overt, a breach of the applicable sections of the proposed Surveillance Act would give rise to civil liability; a complaint in respect of the surveillance would first be conciliated by the Privacy Commissioner and then heard by a specialist division of the Administrative Decisions Tribunal (“ADT”), which would have the power to order a range of remedies, not limited to compensation.
- Where surveillance is covert, breaches should be dealt with by criminal proceedings and criminal sanctions should apply; in addition, a person aggrieved would have access to the remedies and review mechanisms available in the case of overt surveillance.
- Where the surveillance has taken place in the context of employment, a person who suffers damage as a result of the surveillance can elect to seek redress in either the Industrial Relations Commission (“IRC”) or through the Privacy Commissioner and the ADT.11
10.7 Instigating action for relief under the proposed Surveillance Act would not preclude litigating a common law action in respect of the surveillance.
Codes of practice
10.8 The Commission is of the view, outlined at paragraphs 2.86 and Chapters 3 and 4, that regulation of surveillance should be, primarily, by legislation, supplemented by voluntary codes of practice. Breaches, or threatened breaches, of the legislation would be litigated, or prosecuted, in accordance with the mechanisms provided for in the legislation and give rise to the prescribed penalties and remedies. Under the proposed Surveillance Act, a voluntary code setting out standards of practice for an industry, or a section of an industry, would not be enforceable. Relief under the legislation for breaches of codes not amounting to breaches of surveillance legislation could not be sought, nor could sanctions be imposed. However, assuming a code of practice is drafted so as to accord with the legislation, it is probable that conduct breaching the code would likewise breach the legislation. Furthermore, it is difficult to envisage a case where a breach of a code resulted in damage of some kind, or interference with privacy, and did not also amount to a breach of the legislation.
10.9 That is not to say that a code of practice could not itself stipulate that disputes arising under the code are to be resolved by the application of the statutory complaints and review processes, or that the statutory remedies are to be available for breaches of the code. Similarly, a code of practice could formulate its own dispute resolution mechanisms for breaches of the code, including providing for access to Alternative Dispute Resolution schemes.
CRIMINAL OFFENCES AND CIVIL BREACHES
Overt surveillance
10.10 Pursuant to the Commission’s proposed regulatory framework, breaches of the provisions governing overt surveillance, together with breaches of the principles enunciated in the proposed legislation,12 will give rise to civil liability and will bring into operation the complaints and review mechanisms discussed in paragraphs 10.25-10.35 below. A person aggrieved by a breach, or a threatened breach, will have recourse to the civil and equitable remedies outlined in paragraphs 10.52-10.63.
Covert surveillance
10.11 In the Commission’s view, breaches of the provisions regulating covert surveillance should constitute criminal offences for the reason that covert surveillance is potentially more intrusive than surveillance carried out overtly. One of the principles which the Commission recommends should be contained in surveillance legislation is that a person has a reasonable expectation of privacy.13 When surveillance is covert, the breach of this reasonable expectation is so much greater; if the breach of privacy has come about because of illegally conducted covert surveillance, the offender should be punished more severely than if the surveillance had been overt.
10.12 The Commission has recommended in Chapter 5 substantially adopting the provisions of the LDA to regulate covert surveillance generally, irrespective of the type of device in use. In following this approach, covert surveillance could only be carried out with authorisation, either pursuant to a warrant, or authority granted by or under the Interception Act or any other Commonwealth law, or granted by a panel established under the ADT or granted by the IRC.
10.13 It follows that any covert surveillance carried out without such authorisation would constitute an offence. Furthermore, if the terms of the authorisation are breached, including terms governing the release of information obtained, this would also give rise to an offence. Exceptions to this general position would arise in the circumstances set out in Chapter 9. The Commission has also recommended that the proposed legislation contain provisions requiring reporting of the results of covert surveillance.14 Breaches of these provisions would attract criminal sanctions.
10.14 Chapter 5 recommends that the eligible judge should have the power to authorise the warrant-holder to employ all reasonable means necessary in order to gain entry to premises where the surveillance devices are to be installed, retrieved, repaired, tested, moved, maintained or replaced, as well as other premises where the warrant-holder has been authorised to enter for those purposes, whether or not the means employed would otherwise amount to damage to property or trespass.15 The Commission recommends that the legislation create an offence of “unreasonable force” where the means employed in the execution of the warrant are found to be unreasonable. It should also be an offence for a person unreasonably to obstruct a warrant-holder from exercising the authority given to him or her by the warrant.
10.15 The Irish Law Reform Commission in its Report on Privacy recommended creating three new criminal offences targeting “invasions of privacy in well-defined circumstances where the expectation of privacy is at its highest (ie, on a private dwelling) or where the activity in question (ie, conversations) is inherently private”.16 The recommended offences are: installing a surveillance device in a private dwelling or engaging in surveillance of a private dwelling; trespass done for the purpose of surveillance; and using devices to spy on private conversations.17
10.16 These offences all impliedly relate to covert surveillance. In our recommended framework, if for all covert surveillance authorisation is required, a threshold test must be satisfied that the surveillance, as well as any attendant entry onto property, is necessary or justified according to the provisions of the legislation regulating the granting of authorisation. This approach makes it unnecessary to imitate the Irish Law Reform Commission model and identify situations of particular vulnerability or sensitivity for the imposition of prohibitions on covert surveillance.
Workplace surveillance
10.17 The Commission proposes that the framework applying to overt and covert surveillance would essentially apply to surveillance in the workplace, including the provisions governing breaches and offences, but with some extensions and modifications. The reasons for distinguishing workplace surveillance are set out at paragraph 2.108.
10.18 There are two main areas where it is proposed that regulation of surveillance in the workplace will differ from regulation of surveillance generally. First, if it is intended that the surveillance be overt, the Commission recommends that employees must have “actual knowledge” of the surveillance.18 The reasons for imposing this additional requirement are set out at paragraph 2.80. Just as anyone carrying out overt surveillance must do so in accordance with the eight principles contained in the legislation,19 or incur civil liability for breaches, employers will be liable for breaches of these principles.
10.19 If an employee does not have “actual knowledge”, the surveillance will be deemed covert and consequently regulated by the covert surveillance provisions. The second main area where the regulation of workplace surveillance will be distinguished from regulation of surveillance generally is in relation to authorisations. Although employers will need to obtain authorisation to carry out covert surveillance in the workplace, in the same way as all covert surveillance must be authorised, it is proposed that an authorisation will only be granted if the surveillance is for one of three specified purposes. That is, the Commission recommends that an employer will only be entitled to obtain a covert surveillance authorisation if:
- unlawful activity on work premises is reasonably suspected;
- employment-related unlawful activity is reasonably suspected; or
- serious misconduct justifying summary dismissal is reasonably suspected.20
10.20 Covert surveillance carried out without authorisation, or for a purpose different from one of the above three purposes, would constitute a criminal offence. In this regard, the Commission proposes that regulation of covert workplace surveillance be modelled on the Workplace Video Surveillance Act 1998 (NSW) (“Workplace Video Surveillance Act”) and that similar offence provisions be adopted in the new surveillance legislation.
10.21 There are three main offence provisions in the Workplace Video Surveillance Act which could guide the drafting of offences in the proposed Surveillance Act. Subject to a number of exceptions,21 section 7 prohibits covert video surveillance of an employee unless it is carried out solely for the purpose of establishing whether or not the employee is involved in any unlawful activity in the workplace.
10.22 Section 8 makes it a criminal offence to use a recording obtained by covert video surveillance for an irrelevant purpose. An “irrelevant purpose” is defined by the Workplace Video Surveillance Act to include a purpose not directly or indirectly related to:
- establishing whether or not an employee is involved in unlawful activity in the workplace;
- taking disciplinary action or legal proceedings against an employee as a consequence of the established unlawful activity; or
- establishing security arrangements or taking other measures to prevent or minimise the opportunity for the unlawful activity identified by the surveillance.22
10.23 The use by an officer of a law enforcement agency of a recording for any purpose relating to the detection or investigation of an unlawful activity of a person other than an employee in the workplace is excepted from the general prohibition.
10.24 Section 9 makes it clear that an employer cannot obtain authorisation to carry out covert video surveillance for the purpose of monitoring an employee’s work performance or to carry out surveillance of an employee in any toilet facility or shower or other bathing facility, and that any such surveillance is a criminal offence. The Commission has recommended that there should continue to be an express prohibition of the use of covert surveillance for the purpose of monitoring performance23 and in toilets, showers and change rooms.24
Recommendation 90
A breach of a provision of the proposed Surveillance Act in the workplace should constitute either a civil breach, if the surveillance was overt, or a criminal offence, if the surveillance was covert.
COMPLAINTS AND REVIEW PROCEDURES
Overt surveillance
10.25 There are two pieces of legislation in New South Wales which have enacted effective complaints and review processes, and which, in the Commission’s view, provide ideal blueprints for dealing with alleged breaches, or threatened breaches, of the proposed Surveillance Act in relation to overt surveillance. The Anti-Discrimination Act 1977 (NSW) (“Anti-Discrimination Act”) and the Privacy and Personal Information Protection Act 1998 (NSW) (“Privacy and Personal Information Protection Act”) have established procedures to prevent or remedy, in the case of the former, unlawful discrimination, and, in the case of the latter, interference with the privacy of individuals in public sector agencies. The Privacy and Personal Information Protection Act is of particular interest both because of its subject matter and because it provides for the appointment of a Privacy Commissioner. These frameworks are described in the following paragraphs 10.26-10.28.
Anti-Discrimination Act 1977 (NSW)
10.26 Pursuant to the Anti-Discrimination Act, a person complaining of discrimination can lodge a complaint with the President of the Anti-Discrimination Board, who is then obliged to investigate that complaint. The primary role of the President is to conciliate the matter. If conciliation fails, the complaint is referred to the Equal Opportunity Division of the ADT. The functions of the ADT are to hear, and make findings in relation to, disputed claims about alleged unlawful discrimination and, where a complaint of unlawful conduct is upheld, to order remedies.
Privacy and Personal Information Protection Act 1998 (NSW)
10.27 The Privacy and Personal Information Protection Act regulates the protection of personal information and privacy of individuals within public sector agencies. The Act also provides for the appointment of a Privacy Commissioner 25 who has a number of functions,26 including receiving, investigating and conciliating complaints about privacy related matters,27 and conducting inquiries and making investigations into privacy related matters.28 The Privacy Commissioner may also refer a complaint to any person or body considered by the Privacy Commissioner to be appropriate in the circumstances for the purposes of investigation or other action.29 In dealing with a complaint, the Privacy Commissioner must endeavour to resolve the matter by conciliation.30
10.28 Where a person is aggrieved by a contravention of the Privacy and Personal Information Protection Act, the first step in the complaints process is for the public sector agency concerned to carry out an internal review of the contravention.31 The Privacy Commissioner may play a role in this process, including actually conducting the review, or at the very least must be kept informed.32 If the complainant is not satisfied with the outcome of the internal review, he or she can then apply to the ADT for a review of the offending conduct.33 An order or decision of the ADT at first instance can be appealed to an Appeal Panel of the ADT.34
Advantages of the Anti-Discrimination Act and the Privacy and Personal Information Protection Act models
10.29 The equivalent framework in the proposed Surveillance Act would provide for conciliation by the Privacy Commissioner and hearings of unresolved complaints by a specialist division of the ADT. The benefits of providing access to conciliation in the first instance, and determination by a division of the ADT in the second instance, are several. The conciliation process is:
- readily accessible by complainants;
- relatively inexpensive;
- not intimidating; and
- can bring flexibility and informality to bear on the resolution of complaints.35
10.30 Furthermore, a Privacy Commissioner would obviously develop specialist skill and expertise in conciliating breaches of the proposed Surveillance Act. The Commission recommends that the Privacy Commissioner should also have the power to conduct inquiries and initiate investigations into surveillance related matters, including breaches, or threatened breaches, of the proposed Surveillance Act.
10.31 The Anti-Discrimination Act provides that the President of the Anti-Discrimination Board has the power to refer a complaint to the ADT at any time if satisfied that “the nature of a complaint is such that it should be referred”.36 In its Review of the Anti-Discrimination Act 1977 (NSW) (“Report 92”), the Commission reasoned that the inference to be drawn from the structure of the Anti-Discrimination Act as a whole is that a referral can be made without attempting conciliation.37 The Commission recommended that this inference be made explicit and that it should further be made clear that the President of the Anti-Discrimination Board has power to refer whether or not an investigation into the complaint has been undertaken or completed. As well, the Commission recommended that the President should not refer a complaint without the consent of the complainant unless there are exceptional circumstances.38 The Commission considered that although a respondent should have the opportunity of being heard on why a complaint should not be referred, the respondent should only be able to resist the referral where he or she asserts that the claim has been settled by agreement and the respondent remains ready, willing and able to abide by the terms. The Commission is of the view that it is equally appropriate for the proposed Surveillance Act to empower the Privacy Commissioner to refer a complaint to the ADT, whether or not the matter has been investigated or conciliated. The ancillary recommendations made in Report 92 with respect to the conditions governing the exercise of the power, referred to above, are correspondingly appropriate.
10.32 It is intended that the jurisdiction of the ADT will be expanded in the near future to accommodate the review functions given to it by the Privacy and Personal Information Act. It is anticipated that amendments to the Administrative Decisions Tribunal Act 1997 (NSW) will establish either a Human Rights Division of the ADT which would encompass privacy, or a specialist Privacy Division. In either event, it would seem that the ADT is an ideal forum for a complaints and review mechanism for surveillance disputes given the link with privacy. The Commission proposes that the ADT will perform any function given to it under the proposed Surveillance Act.
10.33 The litigation of breaches of the proposed Surveillance Act in a specialist division of the ADT, rather than in a civil court, is likely to be more expeditious, less expensive and would, once it was up and running, capitalise on the specialist division’s accumulated expertise in privacy matters.
10.34 The Commission recommends that the proposed Surveillance Act should give standing to bring a complaint to the Privacy Commissioner and proceedings in the ADT to the following:
- a person affected to some degree by the conduct of the surveillance;39 and
- where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.40
The Privacy Commissioner should also have standing, including in a representative capacity, to bring proceedings in the ADT.41 In this Chapter, where references are made to “a person aggrieved, the term is used in the sense of those who will have standing under the proposed Surveillance Act.
10.35 In relation to the details of procedural requirements, such as the form that a complaint should take, rules governing lodgment and acceptance of a complaint, time constraints, and the practices and procedures governing the conduct of proceedings, it is envisaged that the proposed Surveillance Act would largely follow the Anti-Discrimination Act in this regard.42
Recommendation 91
A complaint relating to a breach of an overt surveillance provision of the proposed Surveillance Act should be made to the Privacy Commissioner.
Recommendation 92
The proposed Surveillance Act should give standing to make a complaint to the Privacy Commissioner to the following:
- a person affected to some degree by the conduct of the surveillance; and
- where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.
Recommendation 93
Where the Privacy Commissioner dismisses or declines to entertain a complaint for any reason, the complainant should be able to require the Privacy Commissioner to refer the complaint to a specialist division of the Administrative Decisions Tribunal.
Recommendation 94
The Privacy Commissioner should, in the first instance, conciliate a complaint. Where a complaint remains unresolved 12 months after the date of lodgement of the complaint:
- either party to the complaint should be able to make a request in writing to the Privacy Commissioner to refer the matter to a specialist division of the Administrative Decisions Tribunal for hearing;
- the Privacy Commissioner should be required to refer the complaint within 28 days of such a request, unless the Privacy Commissioner believes the complaint can be conciliated;
- where the complainant objects to the referral of the complaint and the Privacy Commissioner is satisfied that the complaint cannot be conciliated, the complaint should lapse.
Recommendation 95
The Privacy Commissioner should have the power, of his or her own motion, to conduct inquiries and initiate investigations into surveillance related matters, including breaches, or threatened breaches, of the proposed Surveillance Act.
Recommendation 96
An agreement reached pursuant to conciliation should be enforceable by the Privacy Commissioner.
Recommendation 97
The Privacy Commissioner should have the power to decide not to proceed with a complaint where:
- the dispute has been settled or resolved by agreement between the parties;
- the complainant, or person on whose behalf the complaint was made, does not wish to proceed with the complaint; or
- the complainant has allowed the complaint to remain inactive for an extended period of time or abandoned the complaint.
Recommendation 98
The Privacy Commissioner should have the power to refer a complaint to the Administrative Decisions Tribunal at any time if he or she is satisfied that the nature of a complaint is such that it should be referred. The Privacy Commissioner should be able to exercise this power whether or not an investigation into the complaint has been undertaken or completed. The Privacy Commissioner should not refer a complaint without the consent of the complainant unless there are exceptional circumstances. The respondent should be given the opportunity to be heard on why a complaint should not be referred, but should only be able to resist referral on the grounds that the complaint has been settled by agreement and the respondent remains ready, willing and able to abide by the terms.
Recommendation 99
The proposed Surveillance Act should give standing to bring proceedings in the Administrative Decisions Tribunal to the following:
- a person affected to some degree by the conduct of the surveillance;
- the Privacy Commissioner, including in a representative capacity; and
- where the surveillance has taken place in the workplace, an industrial organisation on behalf of the employee(s) who have been affected by the conduct of surveillance.
Recommendation 100
The Administrative Decisions Tribunal should have the power to grant the Privacy Commissioner leave to intervene on behalf of a complainant, where considered appropriate, in proceedings before it.
Recommendation 101
The Administrative Decisions Tribunal Act 1997 (NSW) should adopt a comprehensive set of procedural and machinery provisions, similar to the provisions contained in the Federal Court of Australia Act 1976 (Cth), to deal with the conduct of representative complaints under the proposed Surveillance Act.
Recommendation 102
The proposed Surveillance Act should contain provisions similar to the Anti-Discrimination Act regulating procedural requirements in relation to complaints and the practices and procedures governing the conduct of proceedings.
Covert surveillance
10.36 As the Commission has formed the view that a breach of the provisions regulating covert surveillance should constitute a criminal offence, prosecution for such offence should take place within the criminal courts system. Both the Workplace Video Surveillance Act43 and the Privacy and Personal Information Protection Act44 provide that proceedings for offences against those Acts are to be dealt with summarily before a Local Court constituted by a Magistrate sitting alone. The LDA also provides that offences against the Act generally may be prosecuted summarily, before a Local Court constituted by a Magistrate sitting alone, or before the Supreme Court in its summary jurisdiction.45 However, offences against Part 2 of the LDA46 may be prosecuted either summarily or on indictment.47 Where an offence against Part 2 of the LDA is prosecuted summarily, if the court decides that the offence should be dealt with as an indictable offence, and no evidence has been led by the defendant, the court may order that the proceedings are to become committal proceedings.48
10.37 The Commission agrees with the approach taken under the LDA and recommends that it be adopted in the proposed Surveillance Act.
10.38 Since surveillance is an area where both public and private rights may be infringed, it should be possible for a private action to lie concurrently with a prosecution for a criminal offence.49 Hence, a person aggrieved by conduct infringing covert surveillance legislation should have access to the complaints and review processes available in relation to breaches of overt surveillance provisions, both generally and in the workplace.
Recommendation 103
Prosecution for a breach of a covert surveillance provision of the proposed Surveillance Act, or for breach of a provision which the proposed Surveillance Act specifies will give rise to a criminal offence, should be through the criminal justice system.
Recommendation 104
Offences against the proposed Surveillance Act generally should be prosecuted summarily, before a Local Court constituted by a Magistrate sitting alone, or before the Supreme Court in its summary jurisdiction. There should be provision within the proposed Surveillance Act for prescribed offences to be able to be prosecuted either summarily or on indictment. There should also be provision in the proposed Surveillance Act for summary proceedings to become committal proceedings if the court decides that the offence should be dealt with as an indictable offence, and no evidence has been led by the defendant.
Recommendation 105
A person aggrieved by the conduct of covert surveillance, or a breach of a provision giving rise to a criminal offence, should have access to the complaints and review processes available in relation to breaches of overt surveillance provisions, both generally and in the workplace.
Workplace surveillance
10.39 The Commission is of the view that there is no reason why a person aggrieved by surveillance in the workplace should not have recourse to the complaints and review procedures available to persons aggrieved by surveillance generally, or, if he or she so chooses, should be able to pursue the matter through the IRC. The latter course may in some instances be preferred because of the availability of employment-specific remedies, such as reinstatement.
10.40 A precedent for this approach exists in relation to the Anti-Discrimination Act whereby people complaining of discrimination in relation to employment may elect to process the complaint in the Equal Opportunity Division of the ADT or in the IRC. Furthermore, a nexus between the Industrial Relations Act 1996 (NSW) (“Industrial Relations Act”) and surveillance already exists as surveillance is listed as an example of an industrial matter.50 One of the functions of the IRC is to hear and determine industrial matters.51
10.41 Although “industrial dispute” is defined in the Industrial Relations Act as a dispute about an “industrial matter”, this does not furnish an existing, satisfactory, mechanism for the hearing of workplace surveillance complaints. There are several reasons for this. First, pursuant to section 130, the persons or bodies who may notify the IRC of an industrial dispute do not include an individual employee. An employee aggrieved by surveillance would have to persuade his or her representative union to lodge a notice of dispute on his or her behalf. Unless it was an issue affecting a number of employees, an aggrieved person would have no certainty that the union would take up the complaint. While the IRC can act on its own initiative to resolve an industrial dispute,52 query whether an employee could approach the IRC to take action against the employer. The IRC may also on its own initiative inquire into any industrial matter53 but an “industrial matter” is not an “industrial dispute” giving rise to the power to make “dispute orders”.54
10.42 Secondly, the “dispute orders” which the IRC may make would not always provide sufficient remedy for breaches of the proposed Surveillance Act. Pursuant to Part 2, “Dispute Orders”, the IRC has the power to order reinstatement or re-employment55 but may not order payment of compensation, lost remuneration or any other amount.56 If the surveillance of the employee resulted in his or her dismissal, then that employee may have grounds for arguing that the dismissal was unfair and may apply to have the matter conciliated, or arbitrated if conciliation is unsuccessful, by the IRC.57 The orders which can be made in respect of an unfair dismissal include reinstatement, re-employment, remuneration and compensation.58 However, these unfair dismissal provisions of the Industrial Relations Act would be relevant to breaches of surveillance legislation only incidentally and in limited circumstances.
10.43 To provide a satisfactory complaints and review process, as well as satisfactory remedies, for a person aggrieved by surveillance in the workplace, the Industrial Relations Act would need to be amended to bring the provisions of the proposed Surveillance Act directly within its ambit.
10.44 The Commission envisages that an employee could elect to have the complaint dealt with in one of two ways:
- the complaint would be referred to the Privacy Commissioner for conciliation, and if unresolved, heard by a specialist division of the ADT; alternatively
- the complaint would be conciliated by the IRC, and if unresolved, would proceed to arbitration.
10.45 A question arises as to whether an election to have the matter determined in the ADT should preclude the matter being dealt with in the IRC. Section 90 of the Industrial Relations Act provides that the IRC is precluded from determining an application in relation to an unfair dismissal if the applicant is entitled to obtain redress under another Act or statutory instrument and the applicant has commenced proceedings under that Act or instrument, or has not given an undertaking not to do so. However, section 169(2) of the Industrial Relations Act provides that an issue that is the subject of proceedings before the Equal Opportunity Division of the ADT may not be the subject of proceedings before the IRC without the leave of the IRC, implying, obviously, that it is possible for proceedings to be on foot in both jurisdictions, although not, presumably, if the complaint is one of unfair dismissal.
10.46 In relation to the regulation of anti-discrimination, the Anti-Discrimination Act does not specifically prohibit a person who has been compensated under the Industrial Relations Act from lodging a complaint with the ADB, nor is the ADB prohibited from accepting a complaint after the matter has been heard by the IRC. These facts may arguably be taken into account by the President of the ADB in considering whether to decline a complaint,59 and by the Equal Opportunity Division of the ADT in deciding whether to dismiss a complaint.60 Pursuant to section 95A of the Anti-Discrimination Act, the Equal Opportunity Division of the ADT must give leave for an employee to commence proceedings in that tribunal on an issue that is currently the subject of proceedings before the IRC or Industrial Court.61
10.47 The Commission considered, in Report 92, whether it would be preferable to provide expressly in the Anti-Discrimination Act that an employee who elects to pursue redress in one jurisdiction should forgo the right to process the complaint in another jurisdiction.62 The Commission concluded that where the rights to take action and the redress are not identical in the available jurisdictions, complainants could be allowed to take advantage of the remedies offered by each jurisdiction, so long as the relief obtained in each is not identical (and that there is not, therefore, “double dipping”) and the granting of different relief does not cause undue prejudice to the respondent. The Commission recommended that section 95A be amended to provide expressly that it be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent.63
10.48 By the same reasoning, an employee who is adversely affected by workplace surveillance could pursue different remedies in the IRC and the ADT, with the same provisos as recommended in relation to section 95A.
10.49 If proceedings concerning unlawful discrimination under the Anti-Discrimination Act are commenced in the IRC, the President of the ADB may intervene in these proceedings.64 It would similarly be feasible to provide that the Privacy Commissioner could intervene in proceedings before the IRC concerning unlawful surveillance. However, as the IRC is a determinative body and there is no office of “Industrial Relations Commissioner” corresponding to that of Privacy Commissioner, the proposed Surveillance Act could not make provision for a member of the IRC to intervene in proceedings before the ADT.
10.50 As set out in paragraph 10.34 above, the Commission recommends that the proposed Surveillance Act give standing to an industrial organisation to bring a complaint in the ADT on behalf of employees who have been affected by the conduct of surveillance in the workplace.65
10.51 As with general covert surveillance, an action through the IRC could lie concurrently with a prosecution for a criminal offence.
Recommendation 106
A person aggrieved by a breach of the provisions of the proposed Surveillance Act in the workplace should have access to the complaints and review processes available for surveillance generally, or, if the person so chooses, should be able to pursue the complaint in the Industrial Relations Commission.
Recommendation 107
The Industrial Relations Act 1996 (NSW) should be amended to enable the Industrial Relations Commission to hear complaints under the proposed Surveillance Act.
Recommendation 108
The Industrial Relations Act 1996 (NSW) should be amended to provide that an issue that is the subject of proceedings under the proposed Surveillance Act before the Administrative Decisions Tribunal may, with the Commission’s leave, be the subject of proceedings before the Industrial Relations Commission. It should be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent
Recommendation 109
The proposed Surveillance Act should provide that an issue that is the subject of proceedings under that Act before the Industrial Relations Commission may, with the leave of the Administrative Decisions Tribunal, be the subject of proceedings before the Tribunal. The proposed Surveillance Act should provide expressly that it be a condition of granting leave that any relief received previously is not duplicated and that granting the relief sought would not cause undue prejudice to the respondent.
Recommendation 110
The Administrative Decisions Tribunal should have the power to transfer proceedings brought under that Act to the Industrial Relations Commission on the application of the complainant or in any such circumstances as to the Tribunal seems just.
Recommendation 111
The Industrial Relations Commission should have the power to transfer proceedings brought under the proposed Surveillance Act to the Administrative Decisions Tribunal on the application of the complainant or in any such circumstances as to the Commission seems just.
SANCTIONS AND REMEDIES
Overt surveillance
10.52 Just as the Anti-Discrimination Act and the Privacy and Personal Information Protection Act provide exemplars for a complaints and review framework for surveillance legislation, the remedies available in those Acts would also translate well to the surveillance context. As those Acts already confer power on the ADT to make a range of orders for anti-discrimination and privacy breaches respectively, there would be no obstacle to conferring similar powers in respect of surveillance breaches under the proposed Surveillance Act.
Anti-Discrimination Act
10.53 Damages. Under the Anti-Discrimination Act, where the ADT finds an individual complaint substantiated, the orders it may make include: an award of damages not exceeding $40,000; an injunction to stop the respondent repeating or continuing the unlawful act; and/or an order that the respondent “perform any reasonable act or course of conduct” to redress any loss or damage suffered by the complainant.66 However, orders for damages and orders requiring the respondent to redress loss or damage are expressly excluded from orders which can be made in representative proceedings.67 In the case of vilification complaints, the ADT has the power to order the respondent to: publish an apology or a retraction; and/or develop and implement a program or policy aimed at eliminating unlawful discrimination.68
10.54 In Report 92, the Commission examined criticisms of the remedies available under the Act and recommended a number of reforms.69 In relation to the ceiling of $40,000 on an award of damages, the Commission concluded that the amount was inadequate, but that it was appropriate nonetheless to cap damages in certain circumstances, depending on the constitution of the panel hearing the matter. Under the Administrative Decisions Tribunal Act, the President of the ADT, or the Head of a Division, has the power to constitute panels for the purposes of particular cases.70 The Commission concluded that, where a case in the ADT was presided over by a District Court judge, it was appropriate that the jurisdiction of the ADT reflect that of the District Court. In that case, the ADT’s powers to make orders would be those available under the District Court Act 1973 (NSW) and the jurisdictional limit current at the time of making an order in a case would be that of the District Court. In other cases, where the ADT was constituted by a non-judicial panel, the Commission recommended that there be a statutory ceiling on the amount of damages recoverable. Acknowledging that setting a limit was a somewhat arbitrary exercise, the Commission recommended that the limit be increased from $40,000 to $150,000. The Commission is of the view that these recommendations should be applied to the proposed Surveillance Act.
10.55 Nature of damages. Case law has considered the nature of damages recoverable under the Anti-Discrimination Act, generally finding that they should be treated as analogous to those recoverable in an action in tort, rather than as an action in contract.71 It has also been held that a court is not bound to principles of tort, and should be open to the possibility of taking a different approach to the assessment of damages where a case may require it.72 Damages that the ADT has the power to award include amounts to cover disbursements, loss of wages, future loss of earnings, general damages for pain and suffering (including for embarrassment, humiliation and injury to feelings) and aggravated damages. Under the Anti-Discrimination Act, there is no power to order exemplary damages. This form of damages is “intended to punish the defendant, and, presumably, to serve one or more of the objects of punishment – moral retribution or deterrence”.73 In the case of the Anti-Discrimination Act, exemplary damages have been held not to be available because the power to award damages is limited to providing compensation for loss.74 The Commission, in Report 92, noted that the availability of exemplary damages in civil actions generally has been criticised:
primarily on the ground that it is inappropriate and unjust to dispense punishment to offenders on the balance of probabilities, which is a lower standard of proof than that required by the criminal law. Punishment, it is argued, is more appropriately left to the criminal justice system, which contains appropriate safeguards for defendants. Opponents of exemplary damages also consider them an unfair windfall to plaintiffs.75
10.56 The Commission also observed that the availability of exemplary damages under statute is diminishing in New South Wales76 and concluded that they should not be available under the Anti-Discrimination Act.77 Likewise, the Commission does not support the availability of such damages under surveillance legislation.
10.57 Injunctions. In relation to the power to order injunctive relief, the Commission did not doubt that this was necessary and proper but queried whether it should be available to a particular complainant who is no longer subject to the unlawful conduct. For example, a person who loses his or her employment as a result of discriminatory conduct may not seek reinstatement but may seek an injunction to prevent the continuation, or repetition, of the discrimination. The Commission concluded that there may well be circumstances where it was appropriate for the ADT to grant, on the application of an individual complainant, an injunction in respect of conduct affecting persons other than the complainant.78 These circumstances would include: where the complaint had been lodged in a representative capacity; where the president of the Anti-Discrimination Board had been notified of the application and been given the opportunity to be heard; and in any other case where the ADT, in the exercise of its discretion, thinks fit.79
10.58 One can envisage circumstances where a person aggrieved by a breach of the proposed Surveillance Act may no longer be affected by the surveillance but would wish to seek an injunction preventing the unlawful conduct. This may occur in circumstances of general surveillance, not just in relation to workplace surveillance. The Commission is of the view that the ADT should have discretionary power to grant injunctive relief where it holds that this is warranted. It would also be appropriate for the ADT to hear submissions from the Privacy Commissioner on an application for injunctive relief.
10.59 Mandatory orders. As noted above, under the Anti-Discrimination Act, the ADT has the power to order that the respondent perform any reasonable act aimed at redressing loss or damage suffered by the complainant. The ADT can also now order the implementation of an equal opportunity plan, but only in relation to vilification complaints.80 Applying this to surveillance, conferring on the ADT the power to order the implementation of a Code of Practice to ensure compliance with the proposed Surveillance Act would be particularly useful.
10.60 The Commission, in Report 92, addressed two problems which arise in relation to mandatory orders, namely, that the cost of compliance may exceed the tribunal’s jurisdictional limit, and that the order may require on-going monitoring.81 However, the Commission was of the view that the potential for these problems to arise did not justify the exclusion of the power to make such orders. The Commission is presently of the view that, in relation to the proposed Surveillance Act, the availability of mandatory orders would have particular relevance and would offer, in many circumstances, an appropriate remedy to a complainant. For example, the ADT could order the removal of surveillance devices, alteration of surveillance practices, or destruction of surveillance material, or could order that a Code of Practice be amended to comply with the legislation, or order compliance with an authorisation. It would be proper for a respondent to have the right of appeal from a mandatory order where the cost of compliance with that order exceeded the ADT’s statutory limit. The ADT could appoint the Privacy Commissioner to monitor compliance with the order. The proposed Surveillance Act should also give the Privacy Commissioner the right to apply for a mandatory order, independently of the instigation of proceedings by a complainant.
10.61 Declarations. Under the Anti-Discrimination Act, although the ADT must find a complaint substantiated before granting relief,82 it does not presently have the express power to declare that certain conduct is unlawful. In Report 92, the Commission recommended that it would be desirable for the ADT to be given an express power to make a declaration, whether or not it proceeds to other relief.83 It would also be useful for the ADT to have declaratory powers under the proposed Surveillance Act. There may be occasions where a declaration would have the effect of bringing about a change in unlawful practice, or a change in a deficient Code of Practice, without it being necessary to commence proceedings against the surveillance user. A declaration would operate as an effective bargaining tool in negotiations for change. A declaration may also achieve a purpose comparable to an interim order, in cases where an interim injunction is not appropriate, while other steps are being taken to resolve a complaint or a prosecution. As with other orders, the Privacy Commissioner should have standing to apply for a declaration.
Privacy and Personal Information Protection Act
10.62 When an internal review is conducted under section 53 of the Privacy and Personal Information Protection Act, the public sector agency whose conduct was under review can: make a formal apology to the applicant; take such remedial action as it thinks appropriate, such as the payment of compensation; and provide undertakings, and implement administrative measures to ensure, that the conduct will not occur again. The agency must give reasons for the action which it proposes taking, and the applicant has a right to have the proposed action reviewed by the ADT.84
10.63 Where conduct alleged to be in breach of the Privacy and Personal Information Protection Act is reviewed by the ADT, the orders which the ADT can make include: an award of damages not greater than $40,000; an order restraining any conduct or action in contravention of, or an order requiring performance of, an information privacy principle or a privacy code of practice; an order requiring personal information that has been disclosed to be corrected by the agency; an order requiring the agency to take steps to remedy any loss or damage; an order requiring the agency not to disclose personal information; and such ancillary orders as the ADT thinks appropriate.85 An order for compensation is not limited to financial loss but can include damages for psychological or physical harm resulting from the agency’s conduct.86 These remedies available under the Privacy and Personal Information Protection Act give some guidance for appropriate remedies to include under the proposed Surveillance Act.
Recommendation 112
The proposed Surveillance Act should provide that in proceedings brought under that Act, the Administrative Decisions Tribunal should have the power to grant the following relief:
- an award of damages to the limit of $150,000, except in cases where the panel has a District Court judge as its presidential member where the limit should reflect the jurisdiction of the District Court;
- an injunction;
- a mandatory order;
- a declaration that certain conduct is unlawful under the Surveillance Act;
- an order that a respondent publish an apology or retraction in relation to unlawful conduct under the proposed Surveillance Act;
- an order that a respondent implement a program or policy aimed at eliminating all forms of unlawful conduct under the proposed Surveillance Act;
- an order that the respondent not disclose information obtained as a result of the surveillance; and
- such other orders as seems to the Administrative Decisions Tribunal to be just and appropriate in the circumstances.
Otherwise, the powers of the Administrative Decisions Tribunal with respect to orders should be those available under the District Court Act 1973 (NSW).
Recommendation 113
The Administrative Decisions Tribunal should have the power to make interim orders to preserve the rights of the parties, on the application of either the Privacy Commissioner or a party to the proceedings.
Recommendation 114
The Administrative Decisions Tribunal’s power to award damages should not be limited to financial loss, but should include the power to award damages for psychological or physical harm resulting from the unlawful surveillance.
Recommendation 115
The Administrative Decisions Tribunal should have the power to grant an injunction which extends to the conduct of surveillance affecting persons other than the individual complainant in the following circumstances:
- where the complaint has been lodged in a representative capacity;
- where the Privacy Commissioner has been notified and given the opportunity to make submissions; or
- in any other case, where the Tribunal believes that the particular circumstances warrant such action.
Recommendation 116
Where the Administrative Decisions Tribunal makes a mandatory order which is not by consent and the cost of compliance would exceed the statutory maximum, the respondent should have a right of appeal in relation to the appropriateness of the order.
Recommendation 117
The proposed Surveillance Act should give the Privacy Commissioner the power to monitor compliance with mandatory and injunctive orders made by the Administrative Decisions Tribunal.
Recommendation 118
The proposed Surveillance Act should give the Privacy Commissioner standing to apply for injunctive, mandatory and declaratory orders, whether or not proceedings have been instigated by a complainant.
Recommendation 119
Where proceedings have been brought by an industrial organisation or by the Privacy Commissioner in a representative capacity, the Administrative Decisions Tribunal should have the power to make similar orders for relief as is available in representative proceedings under the Federal Court of Australia Act 1976 (Cth).
Recommendation 120
The proposed Surveillance Act should give the Privacy Commissioner the power:
- in the case of an individual complaint, to take steps to enforce an order on behalf of a complainant with their consent; and
- in the case of a representative complaint (or in any other case where the Privacy Commissioner believes that the public interest demands), to take steps to enforce an order on his or her own motion.
Covert surveillance
10.64 For the reasons noted above, the Commission is of the view that breaches of the provisions regulating covert surveillance should carry criminal sanctions. The Commission envisages that the penalty which would be appropriate in the majority of cases would be a fine. In some cases, courts would decide that the proper sentence was the imposition of a fine on terms, including a suspension of the fine. In more serious circumstances, a custodial sentence may be appropriate.
10.65 The proposed Surveillance Act should also confer the right to apply to the ADT for an injunction to restrain conduct which will result in an offence under the Act, or for mandatory orders to compel the carrying out of particular conduct, in the absence of which an offence under the Act will be committed. The Commission is of the view that this right should be given to the Privacy Commissioner, as well as persons who may be affected by unlawful conduct.
10.66 As noted above, the LDA, covering covert aural surveillance, creates criminal offences for breaches of that Act.87 The penalties imposed by that Act for contraventions of Part 2 where the offence is summarily tried are fines not exceeding 40 penalty units and/or a custodial sentence not exceeding a term of 2 years for individuals or corporations.88 Where the offence was committed by a corporation and the proceedings are taken before the Supreme Court in its summary jurisdiction the penalties increase to a fine not exceeding 500 penalty units.89 The penalty for a conviction on indictment of an offence against Part 2 of the LDA is a fine not exceeding 100 penalty units and/or a custodial sentence not exceeding a term of 5 years. The Commission is of the view that the LDA provides a sentencing framework appropriate to surveillance offences.
10.67 Where a person has suffered harm or loss as a result of unlawful covert surveillance, the remedies available to redress the wrong should be all those available to a person aggrieved by breaches of the overt surveillance provisions. To provide otherwise would be inconsistent and may lead to unfairness. The person adversely affected by covert surveillance would, as with overt surveillance, lodge a complaint with the Privacy Commissioner for the matter to be conciliated. If no resolution of the grievance resulted, the ADT would proceed to hear the matter and could order any of the remedies within its power to order in relation to overt surveillance.
Workplace surveillance
10.68 The consequences of unlawful surveillance in the workplace will be determined by whether the surveillance was overt or covert, in the same way as it would be for surveillance carried out generally. It is not intended that there will be a separate regime unique to the context of employment.
10.69 Paragraphs 10.44-10.48 above describe the opportunity which employees, aggrieved by workplace surveillance, will have to elect whether to lodge a complaint in the IRC or, alternatively, with the Privacy Commissioner and the ADT. The redress that can be obtained depends on the path chosen, a factor which obviously will have influenced the election.
10.70 The IRC already has the power, in respect of unfair dismissals, to order reinstatement, re-employment, lost remuneration if the employee is reinstated or re-employed, or compensation if the employee is not so re-instated or re-employed.90 The only limit placed on an award of compensation is that it not exceed the amount of remuneration of the applicant during the period of six months immediately before being dismissed.91 If there is a threat of dismissal, the IRC can order the employer not to dismiss the employee in accordance with that threat.92 In relation to industrial disputes, the IRC has the power to order reinstatement or re-employment, or that a threat to dismiss not be carried out, but, as pointed out in paragraph 10.42 above, cannot order the payment of compensation, lost remuneration or any other amount.93 The full range of remedies available in the case of an unfair dismissal should be available to an employee adversely affected by surveillance.
10.71 If the employee seeks redress through the ADT, the remedies available would be those set out in paragraphs 10.53-10.63 above. Although the Equal Opportunity Division of the ADT, when hearing claims under the Anti-Discrimination Act, has the power to order reinstatement in employment related matters, it has declined to make such orders.94 The Commission is of the view that the proper forum in which to seek an order for reinstatement is in the Industrial Relations Commission as that tribunal has the expertise to decide whether it is appropriate to grant such specifically employment-related relief.
1. As defined in s 3.
2. Surveillance Devices Act 2000 (NT) s 5.
3. Surveillance Devices Act 2000 (NT) s 6, 7.
4. Surveillance Devices Act 2000 (NT) s 5, 38-41, 45.
5. LDA s 10-11, 24-26, and 29-30.
6. The use of aural surveillance devices by Commonwealth agencies in the investigation of Commonwealth drug importation offences is regulated by the Customs Act 1901 (Cth) s 219A-219K; the use of aural surveillance devices by the Australian Federal Police in the investigation of certain non-narcotics Commonwealth offences is regulated by the Australian Federal Police Act 1979 (Cth) s 12B-12L; the use of aural surveillance devices by members of the Australian Security Intelligence Organization is regulated by the Australian Security Intelligence Organisation Act 1979 (Cth) s 26.
7. Telecommunications (Interception) Act 1979 (Cth) s 105-107. The relevant agencies are the New South Wales Police Service, the New South Wales Crime Commission, the Independent Commission Against Corruption and the Royal Commission into the New South Wales Police Service.
8. Telecommunications (Interception) Act 1979 (Cth) s 107A-107F. An “aggrieved person” is a person who was a party to the communication the interception of which contravened s 7 of the Act, or the relevant communication was made on the person’s behalf.
9. See the discussion at para 1.38. See Workplace Video Surveillance Act 1998 (NSW).
10. See para 1.56.
11. See discussion at para 10.39-10.51 below. A person aggrieved by workplace surveillance could seek relief in each of the two forums, providing there is no duplication of remedies obtained.
12. See ch 4.
13. See ch 4 at para 4.41-4.43.
14. See ch 8.
15. Recommendation 33.
16. Ireland, Law Reform Commission (“ILRC”), Report on Privacy: Surveillance and the Interception of Communications (Report 57, 1998) at para 9.04.
17. ILRC at para 9.06-9.012.
18. Actual knowledge will be imparted by giving at least 14 days’ notice in writing (or a shorter period if agreed to by the employer and employee, or someone acting on behalf of an employee, namely an industrial organisation) that the surveillance will commence: see ch 2 at para 2.81.
19. See ch 4 at para 4.38-4.66.
20. Recommendation 58. These purposes are explained fully at para 7.52-7.54. See ch 7 for a full discussion of covert surveillance in the workplace.
21. These relate to surveillance by a law enforcement officer, surveillance of correctional centres or offenders in custody, surveillance under the Casino Control Act 1992 (NSW) and surveillance of legal proceedings or proceedings before a law enforcement agency.
22. Workplace Video Surveillance Act 1998 (NSW) s 8(3).
23. Recommendation 59.
24. Recommendation 60.
25. Privacy and Personal Information Protection Act 1998 (NSW) s 34.
26. Privacy and Personal Information Protection Act 1998 (NSW) s 36.
27. Privacy and Personal Information Protection Act 1998 (NSW) s 36(2)(k).
28. Privacy and Personal Information Protection Act 1998 (NSW) s 36(2)(l).
29. Privacy and Personal Information Protection Act 1998 (NSW) s 47.
30. Privacy and Personal Information Protection Act 1998 (NSW) s 49.
31. Privacy and Personal Information Protection Act 1998 (NSW) s 52, 53.
32. Privacy and Personal Information Protection Act 1998 (NSW) s 54.
33. Privacy and Personal Information Protection Act 1998 (NSW) s 55.
34. Privacy and Personal Information Protection Act 1998 (NSW) s 56. See Administrative Decisions Tribunal Act 1997 (NSW) Ch 7, Pt 1.
35. For example, the Privacy and Personal Information Protection Act 1998 (NSW) provides that the Privacy Commissioner may determine the procedures to be followed in exercising his or her functions under the Act; is to act in an informal manner as far as possible; is not bound by rules of evidence; and is to act according to the substantial merits of the case without undue regard to technicalities: s 39.
36. Anti-Discrimination Act 1977 (NSW) s 94(1)(c).
37. New South Wales Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999) at para 8.154.
38. NSWLRC Report 92, Recommendation 121.
39. See Australian Law Reform Commission, Beyond the Door-Keeper: Standing to Sue for Public Remedies (Report 78, 1996) at para 3.8-3.12 for a discussion of the tests for determining who is a person affected. The most common tests are “person aggrieved”, “persons whose interests are affected” and “persons interested”.
40. The Anti-Discrimination Act 1977 (NSW) makes express reference to a complaint lodged “by a representative body on behalf of a named person or named persons”: s 88(1A)-(1C). A “representative body” is defined in s 87 as a body “(whether incorporated or unincorporated) which represents or purports to represent: (a) a group of people within New South Wales; …”. NSWLRC 92 notes that a trade union or industrial organisation may properly be accepted as the representative of its members, although, in the Commission’s opinion, its powers should be limited to complaints relating to employment: para 8.32.
41. See ALRC Report 78 at para 3.12: “The courts have recognised that the conduct of litigation involving a public issue ought to be entrusted to an applicant who is capable of representing the public interest …”.
42. See NSWLRC Report 92, ch 8 and Recommendations 101-110, 112-114, 119, 122 and 123; see also ch 9 and Recommendations 138, 145 and 146. NSWLRC Report 92 makes a number of recommendations for amendments to the Administrative Decisions Tribunal Act 1997 (NSW) which, although made in the context of anti-discrimination law, are appropriate recommendations to make in the context of the proposed Surveillance Act: see Recommendations 130, 132, 135, 136, 137, 139, 140, 141 and 142. The reasons for making these recommendations are set out fully in NSWLRC Report 92, ch 8 and 9.
43. Workplace Video Surveillance Act 1998 (NSW) s 29.
44. Privacy and Personal Information Protection Act 1998 (NSW) s 70.
45. LDA s 24 and 25.
46. LDA Pt 2 contains prohibitions on: the use of listening devices in certain circumstances (s 5); communication or publication of private conversations unlawfully listened to (s 6 and 7); possession of unlawful records of private conversations (s 8); and manufacture, supply or possession of a listening device for unlawful use (s 9).
47. LDA s 25.
48. LDA s 26.
49. See ch 8 at para 8.34-8.48 in relation to disclosure of covert surveillance activity to the subject of the surveillance.
50. Industrial Relations Act 1996 (NSW) s 6(2): “examples of industrial matters are as follows: … (j) the surveillance of employees in the workplace; …”. See Chapter 7.
51. Industrial Relations Act 1996 (NSW) s 146(1)(c).
52. Industrial Relations Act 1996 (NSW) s 130(2).
53. Industrial Relations Act 1996 (NSW) s 162(j).
54. See Industrial Relations Act 1996 (NSW) Pt 2.
55. Industrial Relations Act 1996 (NSW) s 137(1)(b).
56. Industrial Relations Act 1996 (NSW) s 137(3).
57. Industrial Relations Act 1996 (NSW) Pt 6.
58. Industrial Relations Act 1996 (NSW) s 89.
59. Anti-Discrimination Act 1977 (NSW) s 90(2)(a).
60. Anti-Discrimination Act 1977 (NSW) s 111(1).
61. Anti-Discrimination Act 1977 (NSW) s 95A.
62. NSWLRC 92 at para 4.83.
63. NSWLRC 92, Recommendation 11.
64. Industrial Relations Act 1996 (NSW) s 167.
65. Recommendation 99.
66. Anti-Discrimination Act 1977 (NSW) s 113(1).
67. Anti-Discrimination Act 1977 (NSW) s 113(1)(b)(i) and 113(1)(b)(iii).
68. Anti-Discrimination Act 1977 (NSW) s 113(1)(b)(iiia) and 113(1)(b)(iiib).
69. NSWLRC Report 92 at para 10.14, Recommendations 148-155.
70. Administrative Decisions Tribunal Act 1997 (NSW) s 22.
71. Allders International v Anstee [1986] EOC 92-157 at 76,556 (Lee J), cited with approval in Maloney v Golden Ponds Corporation Pty Ltd [1995] EOC 92-674.
72. Hall v Sheiban (1989) 20 FCR 217; Australian Iron and Steel Pty Ltd v Najdovska (1988) 12 NSWLR 587.
73. Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118 at 149 (Windeyer J).
74. Hall v Sheiban (1989) 20 FCR 217; Squires v Qantas Airways Ltd [1985] EOC 92-135; Spencer v Dowling [1994] EOC 92-625 (Vic) at 77,332.
75. NSWLRC Report 92 at para 10.43.
76. NSWLRC Report 92 at para 10.44.
77. NSWLRC Report 92 at para 10.45.
78. NSWLRC Report 92 at para 10.47-10.49.
79. NSWLRC Report 92, Recommendation 149.
80. Anti-Discrimination Act 1977 (NSW) s 113(1)(b)(iiib).
81. NSWLRC Report 92 at para 10.53-10.56.
82. Anti-Discrimination Act 1977 (NSW) s 113(1)(b).
83. NSWLRC Report 92, Recommendation 151.
84. Privacy and Personal Information Protection Act 1998 (NSW) s 53(8).
85. Privacy and Personal Information Protection Act 1998 (NSW) s 55(2).
86. Privacy and Personal Information Protection Act 1998 (NSW) s 55(4)(b).
87. See LDA Pt 2.
88. LDA s 11(a).
89. LDA s 11(b).
90. Industrial Relations Act 1996 (NSW) s 89.
91. Industrial Relations Act 1996 (NSW) s 89(5).
92. Industrial Relations Act 1996 (NSW) s 89(7).
93. Industrial Relations Act 1996 (NSW) s 137.
94. NSWLRC Report 92 at para 4.81.
