States win rights over workplace snooping

IT managers sweating over where the buck stops on contentious workplace surveillance laws can sleep a little easier: the federal government has finally declared a legal truce with the states.

According to federal Attorney General Philip Ruddock the federal government will not attempt to usurp new state laws dealing with workplace surveillance as part of its current campaign to impose commonwealth rule over industrial relations.

The matter had threatened to become a quagmire for any business with IT operations across Australia by creating nine, potentially conflicting sets of laws governing workplace surveillance.

Addressing the Surveillance and Workplace Privacy Forum in Sydney yesterday, Ruddock said it was not his intention to create a lawyer's picnic by challenging surveillance regulations being enacted or considered by the states.

Ruddock's preference is to see "harmonization" between Australia's one federal and eight state and territory jurisdictions along uniform guidelines and principles.

"The [legal] drafting of the proposed workplace changes does not include [workplace surveillance]. Instructions to parliamentary counsel does not include this area. We'd prefer the states and territories to develop a harmonious approach," Ruddock said.

This approach, he said, could deprive lawyers of revenue generated from interpreting legal "nuances", but without action and cooperation between jurisdictions "employers operating nationally will face a divergence of laws."

Ruddock qualified his concession by saying if the states produced "a system that is the proverbial dog's breakfast...then the commonwealth may have to take another look at it."

NSW passed the Workplace Surveillance Act (2005) in June imposing criminal sanctions on employers who electronically bug their employees without prior disclosure or consent.

NSW Attorney General Bob Debus said the laws struck a necessary balance between employers and employees - but that much of the common sense of the laws had been lost in the "colour and movement and many colourful claims" of the accompanying debate from interest groups.

Debus said some employer interests characterized the NSW laws as allowing "terrorists and pornographers to run riot on workplace computers."

Meanwhile, left-leaning groups claimed the laws gave a "free kick" to police and bosses, he said.

Professor Michael Tilbury of the NSW Law Reform Commission, the organization which provided the NSW government advice on the new snooping laws, warned weaknesses and anomalies still existed in the Act.

Tilbury said if commonwealth telecommunications interception laws were changed to cover the contents of hard disks for the purpose of including e-mail or other Web-related content, federal and state boundaries could became blurred.

Secretary of the Victorian Department of Justice, Penny Armytage, said the state is examining ways to regulate surveillance as a result of new technologies including e-mail, global positioning and tracking systems as well as RFID and various biometric applications.

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