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Australia (Victoria): AI and Surveillance Rules

By - - AI Compliance, Data Protection & Privacy, Employment Law

The AI regulatory picture across Australia is currently a patchwork of both federal and individual State rules.

Victoria State (Melbourne) has announced new rules to protect employees from inappropriate or unfair uses of AI in the workplace, including surveillance.

What is Proposed?

The State government intends to introduce the “toughest workplace protection rules”.  The detail and timing will depend on when the legislation is passed.

The proposed new rules include:

  • employers must notify and consult workers before introducing or changing surveillance;
  • surveillance will only be permitted for a legitimate purpose;
  • covert surveillance will only be permitted for suspected unlawful activity;
  • biometric data to be collected only where there is no less intrusive option available;
  • emotion recognition will be prohibited without a legitimate reason (such as fatigue monitoring for truck drivers);
  • automated decision-making based on surveillance data will require human oversite;
  • workers to have access to the surveillance data that affect their jobs;
  • strengthened protection against discrimination based on statutory protected characteristics.

What are the Current Positions?

In Victoria, the current law makes it an offence to install or use a surveillance devise to monitor the ‘private activity’ of an employee without their consent. It also prohibits absolutely any surveillance in any private areas of the workplace.

In New South Wales, (Sydney) employers must give employees at least 14 days’ written notice before starting surveillance by camera, computer or tracking devices.

Employer Actions

Given the patch work of rules and the fast-evolving regulation, the employer’s best approach will be:

  • have clear workplace policies explaining what information is recorded, which areas are monitored and why, how the information is stored and used and who has access to it;
  • have an inventory of all monitoring equipment used and its function, each of which must have a clearly defined business purpose;
  • be aware of any usages that require or may in future require employee consultations or consents and have procedures for progressing these;
  • in relation to all surveillance, compliance teams should be able to answer these questions:
    • what is monitored?
    • why is it monitored?
    • is the monitoring objectively necessary and proportionate?
    • has the monitoring been properly communicated to affected employees?
    • are any consultations or consents needed?
    • who can use the information?
    • how long is it to be retained?

This is a high-level general update only. Legal advice should be obtained on specific circumstances.
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