Expanded regulation of surveillance devices

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A new law that deals with surveillance devices, aimed at their expanded use in fighting crime, also has implications for businesses such as transport companies, IT firms, security services, fleet users and those that record telephone calls.

The new Surveillance Devices Act 2007 (NSW) (the Act) commenced operation on 1 August 2008 and has expanded the types of devices that are regulated to include data surveillance, optical surveillance and tracking devices in addition to the listening devices that were previously covered.

The Act has implications for organisations that record voice, visual and computer data in their business, but the Workplace Surveillance Act 2005 (NSW) continues to regulate surveillance of employees while at work.

Practical application
The overall preservation of the previous legislation as it relates to listening devices means that organisations that previously complied should already comply with the Act in relation to listening devices.

However, the legislation imposes additional obligations in relation to digital, optical and tracking devices and this legislative change may be an ideal time to review the policies and procedures in place in the organisation to ensure that such compliance is being maintained.

In relation to listening devices:

when seeking to record customer telephone calls (such as for training purposes), organisations should either inform the customer of their intention to record the call and give them the option of not being recorded or have their operators ask the specific question of the customer.

In relation to optical and tracking devices:

if an organisation seeks to install a camera or a tracking device on someone else’s property or vehicle, it should ensure that consent is first obtained from the relevant owner or occupier.

In relation to digital devices:

where electronic files are located on other premises or within another organisation’s computer system or network, consent will be required from the owner of the premises, computer or network before installation.

It is crucial that there is in place a procedure for prompt destruction of any data recorded in contravention of the Act.

For more information, please email Kells Associate Amy Harper.

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