Australia does not have uniform laws governing surveillance in the workplace by private sector employers. As a consequence, the rules that apply to email surveillance in the workplace depend upon the jurisdiction in which an employer is operating.

Computer Surveillance

The privacy of email and internet communications at work is only directly protected by legislation in New South Wales and the Australian Capital Territory.

 

The Workplace Surveillance Act 2005 (NSW) for example defines computer surveillance in particular, as surveillance by means of software or other equipment that monitors or records the information or input or output, or other use, of a computer (including the sending and receipt of emails and accessing of internet websites).

 

Pursuant to this legislation, computer surveillance must be carried out in accordance with a policy of the employer on computer surveillance of employees at work, and the employee must have been notified in advance of that policy in such a way that it is reasonable to assume the employee is aware of and understands the policy. (other than in circumstances where a magistrate has issued a covert surveillance authority).

 

In the Australian Capital Territory the applicable legislation is the Workplace Privacy Act 2011 (ACT) which operates in a similar manner to the NSW regime.

 

The objective of these Acts being to ensure that employers inform and consult with employees on any surveillance that takes place in the workplace, specifically any optical, data and tracking surveillance.

 

Other Australian Jurisdictions

Workplace surveillance in other jurisdictions is regulated by more general surveillance statutes that prohibit the use of listening, optical or tracking devices except in specified and limited circumstances, but they do not expressly apply to email monitoring.

 

For example; the Listening and Surveillance Devices Act 1972 [SA], the Surveillance Devices Act 1998 [WA], and the Surveillance Devices Act 2007 [NT] are all examples of legislation that deals with the legality of surveillance without consent, so although this legislation is not workplace-specific, it would apply to many workplaces.

 

Workplace surveillance in Victoria is subject to the Surveillance Devices (Workplace Privacy) Act 2006 [Vic].

 

Conclusion

As an employer it is highly recommended that a consistent company policy be put in place that makes it clear that a condition of the provision of internet access to employees is the right of the employer to conduct reasonable email surveillance.

 

In practical terms this should involve a review of your organisation’s email and internet policy to ensure it is up to date and compliant with all the relevant legislative and statutory requirements governing your workplace surveillance obligations. This will be especially pertinent should you be seeking to rely on information obtained from an employee’s email system for performance management or disciplinary purposes.

Should you need to have your internet and email policy reviewed, please don’t hesitate to contact us.

Bruce Havilah

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