Australia
Employee monitoring in Australia is regulated at both federal and state level.

Federal level. Although it is not always clear, employee monitoring is permitted by the ?employee records exemption?, which was introduced to the federal Privacy Act 1988 when it became applicable to the private sector. The exemption applies to data collection practices that relate directly to a current or former employment relationship and employment records (section 7B(3), Privacy Act). Monitoring techniques that are not proportionate to the risk addressed cannot be ?directly related? to the employment relationship and are not covered by the exemption.

However, the exact scope of the exemption is unclear. For example, in a recent case in an organisation involving the disclosure by a manager of personal information about an employee?s HIV/AIDS status to co-workers, the Privacy Commissioner decided that although the employer?s (and the co-workers?) interest was unlikely to outweigh the infringement of privacy suffered by the person in question, the disclosure was found to fall within the exemption.

In April 2004, the Privacy Commissioner advocated the repeal of the employee records exemption, mainly on the grounds that it would ensure (see www.privacy.gov.au/publications/empsub.pdf):

* Consistency across all states and territories.
* That privacy issues are not left to employment agreements, which reflect unequal bargaining positions.
* That private-sector employees enjoy substantially the same rights to privacy protection as their public-sector counterparts.

Nothing further has come of this proposal for reform to date.

Although intended for public-sector use, in response to demand for guidance on privacy best practice, the Privacy Commissioner has recommended that private-sector businesses use the Guidelines on Workplace E-mail, Web Browsing and Privacy (March 2000) (see http://www.privacy.gov.au/internet/e...dex_print.html).

State level. Two relevant acts on workplace monitoring and surveillance have recently been adopted at state level:

* The Workplace Surveillance Act 2005 (NSW) in New South Wales. This is available at www.legislation.nsw.gov.au.
* The Surveillance Devices (Workplace Privacy) Act 2006 (VIC) in Victoria. This is available at www.dms.dpc.vic.gov.au.

The main features of the New South Wales legislation are:

* Employers can monitor employees in two circumstances. These are either:
o overtly, provided a 14-day (written or e-mailed) notice has been given to them before conducting the monitoring activities (or, in the case of a new employee, before starting work);
o covertly, if approved by a court.
* Employers can prevent delivery of e-mails received or sent by employees provided that:
o an e-mail or internet monitoring policy has been notified in advance to employees;
o employees are fully aware of such policy (for example, by obtaining written acknowledgement from each employee or by introducing training courses).
* Employers cannot monitor employees when ?not at work? except for those cases where the employee uses equipment or resources provided by or at the employer?s expense.
* Employers should implement measures to protect those records collected by means of non-covert monitoring activities and to avoid their unauthorised use or disclosure.

The most relevant features of the Victorian legislation are:

* Employers cannot use surveillance systems (such as listening devices or video cameras) in workplace toilets, washrooms, change rooms or nursing rooms.
* Employers must seek employees? consent for optical surveillance of ?non-private? activities and for tracking surveillance.
* Employers cannot communicate or publish material obtained through surveillance.

Employers in Victoria can disregard these prohibitions in one of the following cases:

* They have been granted a warrant or emergency authorisation.
* It is required by a federal law.
* It is required as a condition of a liquor licence.

Breaches of these prohibitions can lead to fines of up to AUS$132,144 (about US$109,045) or imprisonment of up to two years.