Surveillance Laws in South Australia - What’s new?
Posted on August 23, 2018
New video and other surveillance laws are now in force in South Australia (since December 2017).
The Surveillance Devices Act 2016 (SA) regulates the use of any device (including mobile devices) to listen, record, monitor or video anyone engaged in ‘private activities’ without their consent.
Previously, the legislation applied to the capture of audio recordings of conversations (including the audio part of a video and audio recording).
Now the definition of ‘surveillance device’ is expanded to include optical surveillance devices (CCTV), tracking devices (for tracking the location of a person, vehicle, or thing), and data surveillance devices (to access, track, monitor or record the flow of information to or from a computer or similar device).
It is now unlawful to install, use or maintain an optical surveillance device to record visually or observe a private activity without the express or complied consent of all parties to the activity; and where entry onto, or interference with, premises or a vehicle or thing is involved, the person with lawful possession or control must also consent.
A private activity is an activity or conversation where at least one participant does not want anyone else to see or hear it, and does not believe or expect that anyone else can do so.
If all the parties involved consent, or if the activity or conversation is in public, the surveillance will be lawful. Hence, surveillance in a shop, café, or office reception area is lawful; but surveillance in a private workplace, office, or private meeting room is probably not lawful.
An employer must be overt in their surveillance or monitoring of employees. Good practice is to install signs alerting people to the device and its intended purpose. Toilets, bathrooms or changing rooms should clearly not be monitored.
Policies and procedures should also be updated to ensure compliance with the new laws, clearly detailing the how, why and where of all workplace surveillance, and these should be understood and acknowledged by all employees (including new employees).
Unchanged is the principle that an employer can only collect and use an employee’s personal information if it is directly related to their employment relationship, as mandated by the Australian Privacy Principles under the Privacy Act.
If you would like advice or help on this complex area, please don’t hesitate to contact Sonia Bolzon at Lynch Meyer.
