New South Wales

The Privacy and Personal Information Protection Act 1998 No. 133 (NSW) PPIP Act) deals with how all New South Wales’ public sector agencies manage personal information. The Act sets out the role of the Office of the New South Wales Privacy Commissioner

While the PPIP applies primarily to the New South Wales public sector, it also gives the New South Wales Privacy Commissioner the power to investigate and conciliate privacy breaches by organizations and individuals who are not public sector agencies.

The Workplace Surveillance Act 2005 No. 47 became effective in the State of New South Wales, Australia on February 1, 2007. This legislation permits an employer to monitor employees’ activities overtly, where the employees are given written notice of the manner, nature and duration of the surveillance. Covert surveillance may also take place where the employer has first obtained the necessary legal approval to do so. Surveillance will lawful and overt where an employer gives employees at least 14 days written notice of the surveillance before it begins. The notice must specify the following: (a) the type of surveillance that will be carried out (e.g., computer, camera, etc.); (b) how the surveillance will be carried out; (c) when the surveillance will start; (d) whether the surveillance will be continuous or intermittent, and (e) whether the surveillance will be for a specified limit period or ongoing.

Notice to New Employees: Section 10 of the Workplace Surveillance Act states that notice must be given at least 14 days before the surveillance commences, unless an employee agrees to a lesser period of notice. Section 10 also sets out the requirements for providing notice to new employees. Section 10 (3) provides: “If surveillance of employees at work for an employer has already commenced when an employee is first employed, the notice to that employee must be given before the employee starts work.

Computer Surveillance: Section 12 of the Workplace Surveillance Act states that computer surveillance must not be carried out unless: (a) the surveillance is carried out in accordance with a policy of the employer on computer surveillance of employees at work, and (b) the employee has been notified in advance of that policy in such a way that it is reasonable to assume that the employee is aware of and understands the policy.

Blocking Emails or Internet Access: Section 17 provides that an employer “must not prevent, or cause to be prevented, delivery of an email sent to or by, or access to an Internet website by, an employee of the employer, unless: (a) the employer is acting in accordance with a policy on email and Internet access that has been notified in advance to the employee in such a way that it is reasonable to assume that the employee is aware of and understands the policy; and (b) in addition, in the case of preventing of delivery of an email, the employee is given notice (a prevented delivery notice) as soon as practicable by the employer, by email or otherwise, that delivery of the email has been prevented, unless this section provides a prevented delivery notice is not required.” The Act provides several practical exceptions to the requirements for the prevented delivery notice.

Use Limitations: The information captured as a result of surveillance can only be used or disclosed if: (a) the use of disclosure is for a legitimate purpose related to the employment of employees of the employer or the legitimate business activities or functions of the employer; (b) disclosure is to a member or officer of a law enforcement agency for use in connection with the detection, investigation or prosecution of a offense; (c) the use of disclosure is for a purpose that is directly or indirectly related to the taking of civil or criminal proceedings; (d) the use or disclosure is reasonably believed to be necessary to avert imminent threat of serious violence to persons or of substantial damage to property.

Overt Video Surveillance: In New South Wales, overt video surveillance is regulated by the Code of Practice for the use of Overt Video Surveillance in the Workplace, issued by the New South Wales Department of Industrial Relations.” Surveillance is “overt” if it is clearly visible to a person in the surveillance area.

PPIP allows transfer if there is a reasonable belief that the data will be subject to a “law, binding scheme or contract” that “effectively” imposes fair processing obligations similar to those in the Australian Act.

Section 5B of the Federal Privacy Act sets the standard for the extra-territorial reach of Australian privacy law.

National Privacy Principle 9 applies to transfers of information outside of Australia and ensures that any information transferred will not be held, used or disclosed inconsistently with the NPPs.

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