Electronic workplace surveillance and employee privacy : a comparative analysis of privacy protection in Australia and the United States

More than a century ago in their definitive work “The Right to Privacy” Samuel D. Warren and Louis D. Brandeis highlighted the challenges posed to individual privacy by advancing technology. Today’s workplace is characterised by its reliance on computer technology, particularly the use of email and the Internet to perform critical business functions. Increasingly these and other workplace activities are the focus of monitoring by employers. There is little formal regulation of electronic monitoring in Australian or United States workplaces. Without reasonable limits or controls, this has the potential to adversely affect employees’ privacy rights. Australia has a history of legislating to protect privacy rights, whereas the United States has relied on a combination of constitutional guarantees, federal and state statutes, and the common law. This thesis examines a number of existing and proposed statutory and other workplace privacy laws in Australia and the United States. The analysis demonstrates that existing measures fail to adequately regulate monitoring or provide employees with suitable remedies where unjustifiable intrusions occur. The thesis ultimately supports the view that enacting uniform legislation at the national level provides a more effective and comprehensive solution for both employers and employees. Chapter One provides a general introduction and briefly discusses issues relevant to electronic monitoring in the workplace. Chapter Two contains an overview of privacy law as it relates to electronic monitoring in Australian and United States workplaces. In Chapter Three there is an examination of the complaint process and remedies available to a hypothetical employee (Mary) who is concerned about protecting her privacy rights at work. Chapter Four provides an analysis of the major themes emerging from the research, and also discusses the draft national uniform legislation. Chapter Five details the proposed legislation in the form of the Workplace Surveillance and Monitoring Act, and Chapter Six contains the conclusion.

Evaluating equal employment opportunity and its impact on the increased participation of men and women in the transport industry

This paper seeks to identify the approaches undertaken in implementing equal employment opportunity in the transport industry in Australia and the links between these approaches and indicators of increased participation of women. This male dominated industry employs limited numbers of women with fewer numbers of women in management. The study analyses data from a unique set of equal opportunity progress reports from all organisations in the transport industry that are required to provide public reports under Australian legislation. The findings indicate a correlation between some approaches to equal opportunity and increased numbers of women in some areas. The study is equally remarkable for what it does not find. Despite widespread equal opportunity implementation across a broad number of employment measures there are limited measures that predict increases in the numbers of women in management or in non-traditional roles. This study differs from others in that it identifies issues specific to one industry and links organisational approach to equal opportunity with the employment status of both women and men.

Harmonisation of OH&S regulations

Policy instruments of education, regulation, fines and inspection have all been utilised by Australian jurisdictions as they attempt to improve the poor performance of occupational health and safety (OH&S) in the construction industry. However, such policy frameworks have been largely uncoordinated across Australia, resulting in differing policy systems, with differing requirements and compliance systems. Such complexity, particularly for construction firms operating across jurisdictional borders, led to various attempts to improve the consistency of OH&S regulation across Australia, four of which will be reviewed in this report. 1. The first is the Occupational Health and Safety Act 1991 (Commonwealth) which enabled certain organisations to opt out of state based regulatory regimes. 2. The second is the development of national standards, codes of practice and guidance documents by the National Occupational Health and Safety Council (NOHSC). The intent was that the OHS requirements, principles and practices contained in these documents would be adopted by state and territory governments into their legislation and policy, thereby promoting regulatory consistency across Australia. 3. The third is the attachment of conditions to special purpose payments from the Commonwealth to the States, in the form of OH&S accreditation with the Office of the Federal Safety Commissioner. 4. The fourth is the development of national voluntary codes of OHS practice for the construction industry. It is interesting to note that the tempo of change has increased significantly since 2003, with the release of the findings of the Cole Royal Commission. This paper examines and evaluates each of these attempts to promote consistency across Australia. It concludes that while there is a high level of information sharing between jurisdictions, particularly from the NOSHC standards, a fragmented OH&S policy framework still remains in place across Australia. The utility of emergent industry initiatives such as voluntary codes and guidelines for safer construction practices to enhance consistency are discussed.

A comparative study – regulatory requirements on subdivisions for increasing passive cooling

This is the third in a series of reports planned for this project. The aim of this research is to conduct a comparative study of current legislation or guidelines at the federal, state and local government levels to confirm if any natural ventilation criteria are required at the subdivision development stage of planning. It also seeks to discover if there are any other incentives, statutory planning or development principles that encourage developers to orient subdivision lots to maximize natural ventilation for the dwellings. Findings from the research in this report are intended to contribute to the discussion on the development of an enhanced lot rating methodology for sustainable subdivisions as documented in other reports in this series.

Looking through the haze of discontent : smokers as a data source

In the case of industrial relations research, particularly that which sets out to examine practices within workplaces, the best way to study this real-life context is to work for the organisation. Studies conducted by researchers working within the organisation comprise some of the (broad) field’s classic research (cf. Roy, 1954; Burawoy, 1979). Participant and non-participant ethnographic research provides an opportunity to investigate workplace behaviour beyond the scope of questionnaires and interviews. However, we suggest that the data collected outside a workplace can be just as important as the data collected inside the organisation’s walls. In recent years the introduction of anti-smoking legislation in Australia has meant that people who smoke cigarettes are no longer allowed to do so inside buildings. Not only are smokers forced outside to engage in their habit, but they have to smoke prescribed distances from doorways, or in some workplaces outside the property line. This chapter considers the importance of cigarette-smoking employees in ethnographic research. Through data collected across three separate research projects, the chapter argues that smokers, as social outcasts in the workplace, can provide a wealth of important research data. We suggest that smokers also appear more likely to provide stories that contradict the ‘management’ or ‘organisational’ position. Thus, within the haze of smoke, researchers can uncover a level of discontent with the ‘corporate line’ presented inside the workplace. There are several aspects to the increased propensity of smokers to provide a contradictory or discontented story. It may be that the researcher is better able to establish a rapport with smokers, as there is a removal of the artificial wall a researcher presents as an outsider. It may also be that a research location physically outside the boundaries of the organisation provides workers with the freedom to express their discontent. The authors offer no definitive answers; rather, this chapter is intended to extend our knowledge of workplace research through highlighting the methodological value in using smokers as research subjects. We present the experience of three separate case studies where interactions with cigarette smokers have provided either important organisational data or alternatively a means of entering what Cunnison (1966) referred to as the ‘gossip circle’. The final section of the chapter draws on the evidence to demonstrate how the community of smokers, as social outcasts, are valuable in investigating workplace issues. For researchers and practitioners, these social outcasts may very well prove to be an important barometer of employee attitudes; attitudes that perhaps cannot be measured through traditional staff surveys.

Stem cell technologies : regulation, patents and problems

Human embryonic stem cell research promises to deliver in the future a whole range of therapeutic treatments, but currently governments in different jurisdictions must try to regulate this burgeoning area. Part of the problem has been, and continues to be, polarised community opinion on the use of human embryonic stem cells for research. This article compares the approaches of the Australian, United Kingdom and United States governments in regulating human embryonic stem cell research. To date, these governments have approached the issue through implementing legislation or policy to control research. Similarly, the three jurisdictions have viewed the patentability of human embryonic stem cell technologies in their own ways with different policies being adopted by the three patent offices. This article examines these different approaches and discusses the inevitable concerns that have been raised due to the lack of a universal approach in relation to the regulation of research; the patenting of stem cell technologies; and the effects patents granted are having on further human embryonic stem cell research.

Performance Benchmarking of Australian Business Regulation : Submission to the Productivity Commission

The need to “reduce red tape” and regulatory inconsistencies is a desirable outcome (OECD 1997) for developed countries. The costs normally associated with regulatory regimes are compliance costs and direct charges. Geiger and Hoffman (1998) have noted that the extent of regulation in an industry tends to be negatively associated with firm performance. Typically, approaches to estimation of the cost of regulations examine direct costs, such as fees and charges, together with indirect costs, such as compliance costs. However, in a fragmented system, such as Australia, costs can also be incurred due to procedural delays, either by government, or by industry having to adapt documentation for different spheres of government; lack of predictable outcomes, with variations occurring between spheres of government and sometimes within the same government agency; and lost business opportunities, with delays and red tape preventing realisation of business opportunities (OECD 1997). In this submission these costs are termed adaptation costs. The adaptation costs of complying with variations in regulations between the states has been estimated by the Building Product Innovation Council (2003) as being up to $600 million per annum for building product manufacturers alone. Productivity gains from increased harmonisation of the regulatory system have been estimated in the hundreds of millions of dollars (ABCB 2003). This argument is supported by international research which found that increasing the harmonisation of legislation in a federal system of government reduces what we have termed adaptation costs (OECD 2001). Research reports into the construction industry in Australia have likewise argued that improved consistency in the regulatory environment could lead to improvements in innovation (PriceWaterhouseCoopers 2002), and that research into this area should be given high priority (Hampson & Brandon 2004). The opinion of industry in Australia has consistently held that the current regulatory environment inhibits innovation (Manley 2004). As a first step in advancing improvements to the current situation, a summary of the current costs experienced by industry needs to be articulated. This executive summary seeks to outline these costs in the hope that the Productivity Commission would be able to identify the best tools to quantify the actual costs to industry.

Making sense of working lives and working choices : the role of satirical cartoons

This study examined the tone and content of 107 political, satirical cartoons images published in the popular culture forum of mainstream newspapers. The cartoons illustrated the reform of the industrial relations system in Australia in 2005 and 2006. The images were conveyed in a moderate tone. That is, they were more about poking fun at and questioning authority and power, rather than simply describing the issues on one hand, or demonstrating any revolutionary fervor on the other. The cartoons’ content represented many of the concerns and issues being voiced by employer groups, government, opposition, unions and the media at the time. Themes likely to evoke a strong response from the readership included the importance of a collective response in voicing opposition to the legislation and enacting change, the risks to fundamental working conditions, the stealth and dogma associated with the rollout of the changes and the increasing disparity in wealth and power between employers and workers. The images were an important part of the wider discourse and a mechanism which helped place industrial relations squarely in the minds of working Australians.

At work or play : a comparison of private property vehicle crashes with those occurring on public roads in north Queensland.

Objective: To define characteristics of vehicle crashes occurring on rural private property in north Queensland with an exploration of associated risk factors. Design: Descriptive analysis of private property crash data collected by the Rural and Remote Road Safety Study. Setting: Rural and remote north Queensland. Participants: A total of 305 vehicle controllers aged 16 years or over hospitalised at Atherton, Cairns, Mount Isa or Townsville for at least 24 hours as a result of a vehicle crash. Main outcome measure: A structured questionnaire completed by participants covering crash details, lifestyle and demographic characteristics, driving history, medical history, alcohol and drug use and attitudes to road use. Results: Overall, 27.9% of interviewees crashed on private property, with the highest proportion of private road crashes occurring in the North West Statistical Division (45%). Risk factors shown to be associated with private property crashes included male sex, riding off-road motorcycle or all-terrain vehicle, first-time driving at that site, lack of licence for vehicle type, recreational use and not wearing a helmet or seatbelt. Conclusions: Considerable trauma results from vehicle crashes on rural private property. These crashes are not included in most crash data sets, which are limited to public road crashes. Legislation and regulations applicable to private property vehicle use are largely focused on workplace health and safety, yet work-related crashes represent a minority of private property crashes in north Queensland.

All-terrain vehicle crashes and associated injuries in North Queensland : findings from the Rural and Remote Road Safety Study

Objective: To define characteristics of all-terrain vehicle (ATV) crashes occurring in north Queensland from March 2004 till June 2007 with the exploration of associated risk factors. Design: Descriptive analysis of ATV crash data collected by the Rural and Remote Road Safety Study. Setting: Rural and remote north Queensland. Participants: Forty-two ATV drivers and passengers aged 16 years or over hospitalised at Atherton, Cairns, Mount Isa or Townsville for at least 24 hours as a result of a vehicle crash. Main outcome measures: Demographics of participants, reason for travel, nature of crash, injuries sustained and risk factors associated with ATV crash. Results: The majority of casualties were men aged 16–64. Forty-one per cent of accidents occurred while performing agricultural tasks. Furthermore, 39% of casualties had less than one year’s experience riding ATVs. Over half the casualties were not wearing a helmet at the time of the crash. Common injuries were head and neck and upper limb injuries. Rollovers tended to occur while performing agricultural tasks and most commonly resulted in multiple injuries. Conclusions: Considerable trauma results from ATV crashes in rural and remote north Queensland. These crashes are not included in most general vehicle crash data sets, as they are usually limited to events occurring on public roads. Minimal legislation and regulation currently applies to ATV use in agricultural, recreational and commercial settings. Legislation on safer design of ATVs and mandatory courses for riders is an essential part of addressing the burden of ATV crashes on rural and remote communities.

Vision, functional and cognitive determinants of motor vehicle incidents in older drivers

Background: The proportion of older individuals in the driving population is predicted to increase in the next 50 years. This has important implications for driving safety as abilities which are important for safe driving, such as vision (which accounts for the majority of the sensory input required for driving), processing ability and cognition have been shown to decline with age. The current methods employed for screening older drivers upon re-licensure are also vision based. This study, which investigated social, behavioural and professional aspects involved with older drivers, aimed to determine: (i) if the current visual standards in place for testing upon re-licensure are effective in reducing the older driver fatality rate in Australia; (ii) if the recommended visual standards are actually implemented as part of the testing procedures by Australian optometrists; and (iii) if there are other non-standardised tests which may be better at predicting the on-road incident-risk (including near misses and minor incidents) in older drivers than those tests recommended in the standards. Methods: For the first phase of the study, state-based age- and gender-stratified numbers of older driver fatalities for 2000-2003 were obtained from the Australian Transportation Safety Bureau database. Poisson regression analyses of fatality rates were considered by renewal frequency and jurisdiction (as separate models), adjusting for possible confounding variables of age, gender and year. For the second phase, all practising optometrists in Australia were surveyed on the vision tests they conduct in consultations relating to driving and their knowledge of vision requirements for older drivers. Finally, for the third phase of the study to investigate determinants of on-road incident risk, a stratified random sample of 600 Brisbane residents aged 60 years and were selected and invited to participate using an introductory letter explaining the project requirements. In order to capture the number and type of road incidents which occurred for each participant over 12 months (including near misses and minor incidents), an important component of the prospective research study was the development and validation of a driving diary. The diary was a tool in which incidents that occurred could be logged at that time (or very close in time to which they occurred) and thus, in comparison with relying on participant memory over time, recall bias of incident occurrence was minimised. Association between all visual tests, cognition and scores obtained for non-standard functional tests with retrospective and prospective incident occurrence was investigated. Results: In the first phase,rivers aged 60-69 years had a 33% lower fatality risk (Rate Ratio [RR] = 0.75, 95% CI 0.32-1.77) in states with vision testing upon re-licensure compared with states with no vision testing upon re-licensure, however, because the CIs are wide, crossing 1.00, this result should be regarded with caution. However, overall fatality rates and fatality rates for those aged 70 years and older (RR=1.17, CI 0.64-2.13) did not differ between states with and without license renewal procedures, indicating no apparent benefit in vision testing legislation. For the second phase of the study, nearly all optometrists measured visual acuity (VA) as part of a vision assessment for re-licensing, however, 20% of optometrists did not perform any visual field (VF) testing and only 20% routinely performed automated VF on older drivers, despite the standards for licensing advocating automated VF as part of the vision standard. This demonstrates the need for more effective communication between the policy makers and those responsible for carrying out the standards. It may also indicate that the overall higher driver fatality rate in jurisdictions with vision testing requirements is resultant as the tests recommended by the standards are only partially being conducted by optometrists. Hence a standardised protocol for the screening of older drivers for re-licensure across the nation must be established. The opinions of Australian optometrists with regard to the responsibility of reporting older drivers who fail to meet the licensing standards highlighted the conflict between maintaining patient confidentiality or upholding public safety. Mandatory reporting requirements of those drivers who fail to reach the standards necessary for driving would minimise potential conflict between the patient and their practitioner, and help maintain patient trust and goodwill. The final phase of the PhD program investigated the efficacy of vision, functional and cognitive tests to discriminate between at-risk and safe older drivers. Nearly 80% of the participants experienced an incident of some form over the prospective 12 months, with the total incident rate being 4.65/10 000 km. Sixty-three percent reported having a near miss and 28% had a minor incident. The results from the prospective diary study indicate that the current vision screening tests (VA and VF) used for re-licensure do not accurately predict older drivers who are at increased odds of having an on-road incident. However, the variation in visual measurements of the cohort was narrow, also affecting the results seen with the visual functon questionnaires. Hence a larger cohort with greater variability should be considered for a future study. A slightly lower cognitive level (as measured with the Mini-Mental State Examination [MMSE]) did show an association with incident involvement as did slower reaction time (RT), however the Useful-Field-of-View (UFOV) provided the most compelling results of the study. Cut-off values of UFOV processing (>23.3ms), divided attention (>113ms), selective attention (>258ms) and overall score (moderate/ high/ very high risk) were effective in determining older drivers at increased odds of having any on-road incident and the occurrence of minor incidents. Discussion: The results have shown that for the 60-69 year age-group, there is a potential benefit in testing vision upon licence renewal. However, overall fatality rates and fatality rates for those aged 70 years and older indicated no benefit in vision testing legislation and suggests a need for inclusion of screening tests which better predict on-road incidents. Although VA is routinely performed by Australian optometrists on older drivers renewing their licence, VF is not. Therefore there is a need for a protocol to be developed and administered which would result in standardised methods conducted throughout the nation for the screening of older drivers upon re-licensure. Communication between the community, policy makers and those conducting the protocol should be maximised. By implementing a standardised screening protocol which incorporates a level of mandatory reporting by the practitioner, the ethical dilemma of breaching patient confidentiality would also be resolved. The tests which should be included in this screening protocol, however, cannot solely be ones which have been implemented in the past. In this investigation, RT, MMSE and UFOV were shown to be better determinants of on-road incidents in older drivers than VA and VF, however, as previously mentioned, there was a lack of variability in visual status within the cohort. Nevertheless, it is the recommendation from this investigation, that subject to appropriate sensitivity and specificity being demonstrated in the future using a cohort with wider variation in vision, functional performance and cognition, these tests of cognition and information processing should be added to the current protocol for the screening of older drivers which may be conducted at licensing centres across the nation.

Teachers reporting suspected child sexual abuse : results of a three-state study

Over 3000 cases of child sexual abuse are identified every year in Australia, but the real incidence is higher still. As a strategy to identify child sexual abuse, Australian States and Territories have enacted legislation requiring members of selected professions, including teachers, to report suspected cases. In addition, policy-based reporting obligations have been developed by professions, including the teaching profession. These legislative and industry-based developments have occurred in a context of growing awareness of the incidence and consequences of child sexual abuse. Teachers have frequent contact and close relationships with children, and possess expertise in monitoring changes in children’s behaviour. Accordingly, teachers are seen as being well-placed to detect and report suspected child sexual abuse. To date, however, there has been little empirical research into the operation of these reporting duties. The extent of teachers’ awareness of their duties to report child sexual abuse is unknown. Further, there is little evidence about teachers’ past reporting practice. Teachers’ duties to report sexual abuse, especially those in legislation, differ between States, and it is not known whether or how these differences affect reporting practice. This article presents results from the first large-scale Australian survey of teachers in three States with different reporting laws: New South Wales, Queensland, and Western Australia. The results indicate levels of teacher knowledge of reporting duties, reveal evidence about past reporting practice, and provide insights into anticipated future reporting practice and legal compliance. The findings have implications for reform of legislation and policy, training of teachers about the reporting of child sexual abuse, and enhancement of child protection.

The prostitute and the client : challenging the dualisms

Certain ways of knowing the prostitute and the client predominate. He is understood through the discourse of sexology, she is understood through the discourses of psychology, psychoanalysis, economics and feminism. However, while the prostitute and the client appear to be known through unrelated and diverse discourses, such ways of knowing are organised through the dualisms of sex and gender, victim and agent, mind and body. Moreover, these ways of knowing are directly related to popular discourse, policy and legislation on the topic. This paper examines the relationship between ways of knowing the prostitute and the client, and political action in Australia. it argues that inadequate theoretical conceptualisations are often at the heart of poorly conceived praxis - in this case Australian policy and legislation. This paper will demonstrate that re-thinking the theory can lead to new ways of acting.

Applying Stafford and Warr’s Reconceptualization of Deterrence Theory to drug driving : can it predict those likely to offend?

In December 2007, random roadside drug testing commenced in Queensland, Australia. Subsequently, the aim of this study was to explore the preliminary impact of Queensland’s drug driving legislation and enforcement techniques by applying Stafford and Warr’s [Stafford, M. C., & Warr, M. (1993). A reconceptualization of general and specific deterrence. Journal of Research in Crime and Delinquency, 30, 123-135] reconceptualization of deterrence theory. Completing a comprehensive drug driving questionnaire were 899 members of the public, university students, and individuals referred to a drug diversion program. Of note was that approximately a fifth of participants reported drug driving in the past six months. Additionally, the analysis indicated that punishment avoidance and vicarious punishment avoidance were predictors of the propensity to drug drive in the future. In contrast, there were indications that knowing of others apprehended for drug driving was not a sufficient deterrent. Sustained testing and publicity of the legislation and countermeasure appears needed to increase the deterrent impact for drug driving.