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Civil Liberties Australia – FAQs

 

Hi Kathryn: Thank you for your email to Civil Liberties Australia.

We're aware of the recent changes to these laws - previously (i.e. under the Howard and Keating Governments) the Government could raid your inoperative accounts after 7 years. They've reduced to timeframes for their own interests. As they say, never stand between a politician and a bucket of money. However, you can get your money back.

Crikey recent wrote a nice little snippet on these laws and how to get your money back. They said it best, so I'm just going to copy their advice:

The new laws, passed late last year, mean the government can raid your account if it’s not used for three years (it used to be seven). To avoid this happening, you need to make a withdrawal or a deposit — just receiving interest or viewing your account does not count. Make sure your bank has your current contact details (a pain if you’re a nomadic renter). If the government takes your money, go to ASIC. You have the right to get it back — and there is no time limit to claim it — and you have a right to your interest foregone. http://www.crikey.com.au/2013/07/18/tips-and-rumours-924/

There is also a neat search engine you can use to find any other idle bank accounts: https://www.moneysmart.gov.au/tools-and-resources/find-unclaimed-money/unclaimed-money-search

As far as challenging these laws go, you're best bet is to write to your local member and the Federal Finance Minister expressing your concern. The Minister's contact details are here: http://www.aph.gov.au/Senators_and_Members/Parliamentarian?MPID=00AOU

Kind regards,
The CLA team…August 2013

Dear Stephen: Thank you for your email to Civil Liberties Australia.

Religious exemptions from wearing a helmet are likely made under anti-discrimination legislation. There is also national anti-discrimination legislation that applies specifically in the case of disability-discrimination: http://www.austlii.edu.au/au/legis/cth/consol_act/dda1992264/

If you have first written to DTEI and remain unsatisfied with the response then you could approach the SA Equal Opportunities Commission for advice or to lodge a complaint: http://www.eoc.sa.gov.au/contact-us

There is also a Federal Disability Discrimination Commissioner who might also be able to offer advice: http://www.humanrights.gov.au/complaints-information

These agencies are the best placed to help you initially, and they are usually free services. If you want to take things further then you may need to engage a lawyer to challenge the rules in the SA Administrative and Disciplinary Division of the District Court. CLA is not a legal firm and so can not assist you in any legal challenge.

All the best and let us know if you have any success.

Kind regards…the CLA team, August 2013

QUESTION: I wrote to the Queensland police regarding a movie theatre in my town, stating that the movie theatre has in the toilet a sign that the toilet is monitored, and there appears to be a camera installed. The QPS wrote me a reply stating go and ask the movie theatre if it is an actual CCTV. As a civilian, this is ridiculous, the QPS should have acted as it has the power of search, etc. Why my concern? Children and women could be filmed. This is a poor response from the QPS. Monitoring inside a toilet? Is this not a breach of privacy?

ANSWER: Dear Glenn: Thank you for your email to Civil Liberties Australia (CLA).

There are not many rules about where a private organisation, such as a movie theatre, can put CCTV cameras. But placing such devices in toilets and bathrooms is definitely a no-no.

CLA is not a law firm, and so doesn't provide legal advice, but you could ask the theatre how recording people in the bathroom or toilet is not in breach of section 227A of the Criminal Code Act (http://www.austlii.edu.au/au/legis/qld/consol_act/cc189994/s227a.html). This is a criminal provision and carries a jail sentence.

More likely, however, the theatre is engaging in a breach of the National Privacy Principles under the Privacy Act 1988. This applies to private organisations.

We suggest that you first raise the issue with the theatre. They are best placed to address your concerns and, as you have already seen with the police, many government agencies (including the police and Ombudsman) want people to first attempt to sort out their own problems, if it is safe to do so.

If, after you talk to the theatre, you are still unhappy, then you can lodge a complaint with the Australian Privacy Commissioner: http://www.oaic.gov.au/privacy/making-a-privacy-complaint

Note than the Privacy Commissioner's website states: "Before you can lodge a complaint with the OAIC [Office of the Australia Information Commissioner], you will generally need to complain directly to the agency or organisation you are complaining about and allow 30 days for it to respond. If you do not receive a response (after 30 days), or you are dissatisfied with the response, you may then complain to the OAIC."

After all this, you may still want to contact the police if you believe a crime is being committed. But be prepared for the police to investigate and then not pursue the matter further (to prove it is 'criminal' behaviour is much harder than to show that the theatre has just breached your privacy).

QUESTION: My senior Legal Studies class has to do a major research assessment, and I have chosen the topic of Saturday detention in Queensland. It is proposed there is a new Queensland law implemented in state schools to improve their disciplinary system. What are your views and opinions on this impending legislation, the expected outcome it will have on students, and how it will affect the liability of teachers and schools. Also, would this legislation infringe on the rights of students and parents? Interview: Education Minister for Queensland, John Paul Langbroek with Greg Cary on 4BC. Mr Langbroek explains the reasons for Saturday detention and what it would involve. (http://www.4bc.com.au/blogs/2013-4bc-mornings-audio-blog/saturday-detention-the-answer/20130429-2io42.html#.UcLnBvnLqSo )

ANSWER: Dear Emma: Thank you for your email to Civil Liberties Australia (CLA).

The starting point for any discussion about rights is equality, that people should be treated equally before the law. Sometimes the law does treat certain groups differently, such as the disadvantaged, young people and minority groups – but these laws should be for the benefit of those groups, and to recognise their special status or vulnerability. For example, laws preventing people under 18 from drinking can be justified on the basis that the detrimental impacts of alcohol on young people, especially those aged under 16, is far greater than for adults. The law should not impose an additional burden or punishment on an individual simply because they are young, at school, or living under their parents’ roof.

So with Saturday detention, our first point would be: why should only school kids have their Saturday’s taken away as a form of punishment? Why don’t misbehaving workers or adults (of which there are many) lose their weekends as punishment? Why should young people suffer punishment without being able to appeal? If your boss fines you for missing work you can usually appeal to a tribunal, but with detention who can you appeal to? It might be different if the school had activities occurring on Saturday, such as sport or an excursion, in which case the detention would occur within ‘school time’.

Secondly, under the International Convention on the Rights of the Child, people with responsibility for a child must make decisions in the child’s “best interests”. In the case of Saturday detention, that means that the onus is on the State or School to demonstrate that Saturday detention is an effective measure. Because most schools don’t have classes on the weekends, schools can’t argue that they are acting in the best interests of the other students. It is the individual student’s interests that are of concern. We haven’t seen any research showing that Saturday detention is effective at addressing behavioural issues. If there is no evidence then it is an unjustified punishment that undermines the rights of young people to be treated equally and to be free from ‘arbitrary’ detention (arbitrary meaning based on random choice or personal whim, rather than any reason or system). It is certainly not in their best interests.

Finally, and this is not a civil liberties issue so much as a practical matter, what is the impact of these reforms on schools and their staff? Will teachers be paid overtime, and what about parents who ? Will there be a cost for schools to open on the weekend just so a few young people can sit in a room writing lines?

Our usual suggestion for ideas like this is for it to apply to politicians for 12 months to see how effective it is. If it works with MPs, then maybe it would be worth extending it to more people.

Question: My son was arrested on a Friday night for refusing to give police officers his address. He was sitting on his fence watching them arresting neighbours when a police officer asked his address, he refused to give it and was then told “stay there, you’re under arrest for hindering police”. He was then locked up and released on bail a few hours later...he has appeared in court and has had it adjourned for a month, when he is to reappear and face the charge....

We feel he has done nothing wrong, he wasn’t involved with the arrests that were happening, merely watching and – as he was not an interest to the police – they had no reason to need his address. Is there any help available to him...

Answer Dear Celia, Thank you for your email to Civil Liberties Australia.

Our understanding is that police have a general power to request someone's name and address if they believe the person is involved in the commission of a crime or if they can help to identify someone who committed a crime. Presumably the police thought your son could help with their investigations. However, there are several steps a police officer should take before demanding someone's name (such as providing their own identification and telling the person why they need to know their name and address). If they follow these steps then you are generally obliged to give police your details.

Civil Liberties Australia does not provide legal advice so we cannot help run your son's case. If you are concerned about your son's upcoming court appearance, you are entitled to seek legal advice (and your son may be eligible for legal aid). A lawyer might be able to challenge the police case in court, or recommend that the charge be dismissed or that a conviction not be recorded. A lawyer might be able to argue, for example, that – even if your son broke the law – he should not have been arrested and locked up (instead he could have been issued with a 'summons' or 'court appearance notice' requiring him to go to court on a set date). Arresting someone for a minor offence, where it is unlikely that they will flee the state or destroy evidence, is generally considered pretty much over-the-top behaviour.

We hope that provides some help to you and your son.
Kind regards,
Civil Liberties Australia

Dear XXXXXX (name withheld for protection from possible retaliation)

Thank you for your email to Civil Liberties Australia.

It can be very difficult when someone within a Government organisation, especially one that can so easily cloak their unreasonable actions with reasonable sounding excuses, takes a disliking to you.

Unless you or the person you are inquiring about feels that they will be intimidated or punished, the first thing to do is to lodge a formal complaint with Customs. I see that Customs has an online complaints form - http://www.customs.gov.au/site/page4235.asp This might help get the ball rolling.

The behaviour of the officer in question could be a breach of the Australian Public Service Code of Conduct. The Code is legally binding and applies to all public servants. Customs officers can be demoted, fined or sacked if they fail to adhere to the Code.

Unfortunately, it is the employee's own agency (i.e. Customs) that must first investigate whether a Breach of the Code has occurred (not an independent body, as Civil Liberties Australia believes it should be). So you would first need to write to Customs if you feel that the officer is abusing their position of trust. If you do this, then remember that an agency can and probably will dismiss a complaint if it sounds vindictive, personal or abusive.

If you remain unhappy with the way Customs has handled your complaint (and remember, Government agencies move slowly, so you'll need to give them a month to respond) then you can go to the Australian Ombudsman. They also have an online complaint form: http://www.ombudsman.gov.au/

It will help if you have records of when your friend was harassed, what happened and who was involved. These don't need to be long notes, just dates and short dot points.

Finally, if the problem persists then you may need to consider legal action against the customs officer. We cannot advise you on this as Civil Liberties Australia is not a law firm, but if someone spreads malicious rumours or gossip about a person at work then that can constitute defamation. Hopefully it won't come to this, however, as the legal costs can be quite high.

We are expected to put up with a lot in airports, here and abroad. In probably no other location are we so beholden to the whims of officious individuals, including Customs officers. If we're going to have our shoes removed, our bodies scanned and our bags prodded then at least we should all be treated equally and not subject to extra humiliation in the name of getting square.

Good luck with your matter.

Kind regards...the CLA team, August 2013

Civil Liberties Australia is frequently asked whether this or that issue is “an infringement of civil liberties”. Examples are vaccination, smart meters for electricity, bike helmets, and random breath testing.

All are basically issues of democracy, even though there are civil liberties aspects to them: that is, a parliament or a properly established regulatory body has made a decision for what it perceives is the greater good of the community.

If you want to change the decision, you can work through the democratic system to do so: propose new laws/rules and lobby for them, or stand for parliament yourself on a platform of changing whatever it is you don’t like.

Civil Liberties Australia supports your right to freedom of speech and freedom of association in campaigning for the change and the type of society you want your community and/or Australia to be.

Dear Tim: You asked us: 'Do you support a petition urging the Australian Government to bring in an ISP level ban over all pornographic material on the internet, following the UK's decision to do so?' and 'Do you feel that online sexual content is damaging to society for adults and young people?' We believe that governments have no place trying to pry into people's private space. Porn is legitimate for adults, so governments should not even consider a restriction on ISPs which would result in a ban on accessing porn for adults.

For children, the best way is to make parents responsible for what their children access. If private organisations, like churches, or governments are worried about children and porn, they should subsidise parent buying of software, of which there is plenty, to restrict access in the individual home where precise and fine control can be exercised. Different families will rightly want different levels of restriction, depending for example on age. A family restricting a 6yo child's internet access would likely need a different level to a family restricting a 15yo child whose school asks him/her to do an essay on human reproduction.

Civil Liberties Australia does not, in principle, support bans...except on governments becoming the 'nanny state'.

We do not support such a ban, because it represents parents trying to abdicate their personal responsibility for the education of their children on the one hand, and trying to force the rest of society to adopt their preferences and prejudices on the other. Parents should educate their children about porn gradually as they grow older, because every child will run into porn somewhere: online, at school, with mates, starting after-school work, etc.

Online sexual content is like football: some people like it, some don't. Kids have to learn about sex at some stage, so some online sexual content is probably necessary for education purposes.

Note: if porn shown online breaks the law – images of young children in sexual poses, for example – that should be treated by governments as the crime that it is, and people should be prosecuted. International police action is being continuously successful in charging such people. Note 2: We don't support "such a petition"...but we do support people's rights to petition.

– Thanks for your question: the CLA team…August 2013

QUESTION: We recently interviewed CLA for a harm minimisation article we're running on drugs, sniffer dogs and people's liberties, rights and safety: http://tinyurl.com/pllxfyy A person commented that one, at least in NSW, should not consent to search by a sniffer dog and ensure the police record that, as not consenting may mean the search is unlawful and any evidence found could be thrown out.

ANSWER: Dear Nick: Thanks for your email. Civil Liberties Australia isn’t a law firm so I am afraid we can’t provide iron-clad advice. And differences between the States and Territories are such that it is hard to keep abreast of how sniffer dogs can be deployed – just look at how NSW changed its law around sniffer dogs after Thomas Kelly’s death near Kings Cross. They can now sniff on stations almost anywhere!

It is much easier to argue about how bad sniffer dogs are at their job! One of the best reports on Drug Sniffer Dogs was completed by the NSW Ombudsman (http://www.ombo.nsw.gov.au/__data/assets/pdf_file/0020/4457/Review-of-the-Police-Powers-Drug-Detection-Dogs-Part-1_October-2006.pdf). He found that:

  1. "Almost all persons indicated by a drug detection dog were subsequently searched by police. This is in accordance with police policy which states that an indication by a drug detection dog gives police reasonable suspicion to search a person. Prohibited drugs were only located in 26% of the searches following an indication. That is, almost three-quarters of all indications did not result in the location of prohibited drugs.

The forward to the Report had this conclusion: 

  1. Despite the best efforts of police officers, the use of drug detection dogs has proven to be an ineffective tool for detecting drug dealers. Overwhelmingly, the use of drug detection dogs has led to public searches of individuals in which no drugs were found, or to the detection of (mostly young) adults in possession of very small amounts of cannabis for personal use.
  2. These findings have led us to question whether the Drug Dogs Act will ever provide a fair, efficacious and cost-effective tool to target drug supply. Given this, we have recommended that the starting point, when considering this report, is to review whether the Drug Dogs Act should be retained at all. 

The report does include a summary of sniffer dog provisions in other states and territories (from p17). The information may now be out of date, but it provides a good starting point for readers wanting to find out more. Essentially though, in all States and Territories using sniffer dogs, the animal serves to create ‘reasonable suspicion’ which justifies a police search. This reasonable suspicion then allows the police to conduct a search without a warrant. 

Whether the poor rate of detection by dogs (see above) means that a dog can’t provide legally sufficient ‘reasonable suspicion’ is a question the courts will need to deal with. The fact that some States (WA, Victoria and SA for example) were willing – in 2005 at least – to not authorise sniffer dogs in legislation suggests they are confident the searches would stand up in court. 

The best answer to your reader’s comment is, if searched by police, politely ask why they believe it is necessary to search you (and what grounds/law they are relying on). If something is later found on the person, they do not need to answer any questions (other than their name and address) and should speak to a lawyer as soon as possible if they are charged with an offence.  – TM

Dear Campbell, thank you for your email to Civil Liberties Australia.

In general an employer is able to make any ‘reasonable’ request of an employee in the course of their employment (this is a hang-over from the medieval notion of ‘master-servant’!). Legislation, an industrial award or your contract with your employer might give you more rights, or specify what they can and cannot ask you but, if you don’t have anything like that in place, then generally a request to undertake a medical assessment is reasonable.

In particular, if you are working in a dangerous field, or where the employer is concerned that the work might make you ill, then they may have a stronger right (or even a legal duty) to monitor and test the health of their employees.

But I understand your concern. Medical assessments are some of the most invasive and privacy-breaching actions our bosses can take. They should have a very good reason to ask you for one. My first suggestion would be to ask your boss why you need to undergo the assessment. If they can’t come up with a good reason (or any reason), then their request might not be ‘reasonable’ and you would be within your rights to refuse. If you have a religious objection to having your blood taken, then mention that to your boss. Action which discriminates against a person on the grounds of their religion is unlawful under Australia’s anti-discrimination laws.

If you feel that your workplace rights are being violated then you should approach the Fair Work Ombudsman (www.fairwork.gov.au). They have information on your rights at work. If you feel you are being discriminated against because of your religion, sex or age, then you can approach the Australian Human Rights Commission (www.humanrights.gov.au). Both organisations provide advice and you can lodge a formal complaint with them if necessary.

If your employment is terminated because you refuse to undergo an unreasonable medical assessment, you might have grounds to argue that your dismissal was ‘harsh, unfair or unlawful’ under the Fair Work Act. Hopefully it will not come to this, but if it does, you will want to approach Fair Work Commission quickly (there are strict time limits) - http://www.fwc.gov.au/

If you are a member of a union then you can also speak to them. In fact, they should be the first place you go if you are a member.

I hope this is of some use to you. All the best with your work. Kind regards.


15 March 2014

Question: My son was question by a police officer while walking the 400m home after finished his uni lectures. Police asked his birthday, and name and address. Can police question him like this without giving any reason?

Answer: Police powers vary from state to state and are different in different circumstances, so we can only provide broad information. As a general principle, the police cannot just demand someone provide their name, date of birth, or show their proof of ID (e.g. driver’s licence or proof of age card). This is because we all have a common law right to freedom of movement and a right to silence.

Lots of laws, however, have limited these rights and there are circumstances where the police can demand your name and address. Failure to provide ID or answer truthfully in those circumstances can be a criminal offence.

In NSW, for example, the Law Enforcement (Police Powers and Responsibilities) Act sets out many – but not all – of the circumstances where the police can ask a person for their name and address. For example, it is common for police to be able to ask for your name and date of birth where:

  1. They find you committing a crime;
  2. They ‘reasonably believe’ that you have been involved in a crime;
  3. They have ‘reasonable grounds to believe’ that you may be able to assist in the investigation of a crime because of where you were and when (this can also extend to seizing your phone as evidence);
  4. You – or your passenger – are in a car and the police reasonably believe that you or the vehicle has been involved in a crime;
  5. You are in a ‘designated area’ where the police have special ‘emergency’ powers. These areas are often invoked around meetings of foreign leaders (for example the CBD of Brisbane during G20 meeting) or during riots.

In Queensland, police have even greater powers to ask for your name and address, as set out in the Police Powers and Responsibilities Act (especially sections 40 and 41).

There are other situations where police have a general power to ask for your name and address. If they think you are a minor and you are in possession of alcohol, or in or near a licensed venue (eg, a pub) they can ask for proof of age. They can generally ask for ID and conduct a search if they have reasonable belief that you are in possession of a knife or drugs. In Victoria and some other states, the police don’t even need ‘reasonable belief’ to search you for knives.

As you can see, however, the general requirement is for the police to have a reasonable belief or suspicion. To search or question you without providing any reason is unlikely to be lawful.

Of course, you can refuse to provide your name and details if you believe the police are not within their powers. But, as you can see from the above, it’s very confusing to know when and if they police can ask for your details. And the police may not like someone refusing to comply with their request – even if they are in the wrong. You could be arrested for refusing to comply or charged with an offence.

Our advice for the future would be to ask the police politely why they need your details, on what basis (ie, under what law) they are making the request, and then provide them with your name and address. You are usually entitled to also ask the police for their names and to ask what station they work at. If they don’t provide these details then they are likely to be in breach of the law themselves. You can lodge a complaint with the police if you believe you have been treated unfairly, so knowing these details can help.

Of course, you have a general right to silence and, once you have established your ID, there is no obligation on you to answer any further questions. Remember: there is no such thing as an ‘off-the-record’ conversation with a police officer. If you are told that you must answer further questions say that you will first need to speak with a lawyer and call the Law Society/Legal Aid branch in your state or territory. In Queensland the Law Society number is: 1300 367 757: in NSW it is 1300 888 529. Do not answer any other questions until you have spoken with a lawyer.

I hope this is of some use to you and your son. Please consider joining (we have a discount rate for students and households) as it is only through the work of our unpaid volunteers that we can provide advice to members of the public and work to limit the intrusive questioning of the police and State.

17 March 2014

Question: I am a 14-year government employee. They have asked us to fill in forms describing our background for a criminal check, then they wanted more info. It included information like driving licence number and passport numbers, etc. They said to check our criminal past. I have a current official police check which they do not seem interested in. Do they have the right to collect and store this information and would my official police check not suffice? I have a very clean sheet and do not trust government agencies entering data on any system – Harry, South Australia.

Answer. Dear Harry: Thank you for your email to Civil Liberties Australia. In your situation there is good news, bad news and an ugly truth.

First the good news (such as it is), is that this is a fairly standard request by employers, especially government employers. It is unlikely to indicate that they suspect you have committed an offence. Of course, if you have a previous conviction or an outstanding warrant then it is always best to be upfront with your potential/current employer than wait for it to be ‘discovered’.

The bad news is that you cannot realistically refuse such a request from a current or potential employer. And we are not aware of any rule which would require them to accept your own copy of your record. They may have legitimate concerns that your document might be out-of-date or inaccurate. Moreover, for certain positions, especially those involving contact with children and young people, a police check may also look for things other than convictions (such as arrests and charges, even if they were dropped, dismissed or you were acquitted). Civil Liberties Australia is particularly concerned by moves to broaden what information is captured and disclosed in a police record as it can undermine the presumption of innocence and lead to discrimination.

If you do have a previous conviction, and believe you have been discriminated against on the basis of it, you can lodge a complaint with the Federal Privacy Commissioner: http://www.oaic.gov.au/privacy/making-a-privacy-complaint or the Human Rights Commission: http://www.humanrights.gov.au/complaints-information

Finally, the ugly truth: governments already hold significant amounts of data on you and have granted themselves large exemptions to their own privacy laws which allow them to share your information between agencies to check who you are and whether you have a criminal record. There is little you can do to stop the collection of this information. However, under the Privacy Act and Freedom of Information Act you may have a legal right to obtain a record of your information and to request the holder of the information correct any incorrect statement recorded.

To find out more about your privacy rights, you may wish to visit the Office of the Australian Information Commission:www.oaic.gov.au If you are a member of a Union you could raise the issue with them, as it could be an industrial matter.

We are each our own person. The only thing we own, exclusively from anyone else, is our thoughts. We have a reasonable expectation that any personal expression of them not aimed at others is also our own exclusive property. Physical surveillance enables someone to capture our moments of self-expression and movements when we are alone and when we reasonably presume we are unobserved.

We often choose to share our personal realm with another (or others), usually in intimate relationships whether physical or mental. When we share in that way, we have traditionally assumed that the two-way interaction is exclusive and unobserved. In the digital world, however, others can surveil and pry without our overt knowledge, robbing our interactions of their very essence, our free choice of selective sharing.

People are afraid of physical and online surveillance because they take away the traditionally sacrosanct and fundamental freedom of choice over our lives: that of having a 'space' where you can think and act without external intrusion, and the free choice of whom you can converse with selectively, without third party observation or recording.

QUESTION: I work for a Govt. Department. Someone has recently unearthed a Health Policy for departmental employees written in 2006 which formally bans smoking during work hours. The policy does not reflect on productivity but simply bans smoking by employees as it is deemed to bad for them. I am a non-smoker but one of my staff who is has complained that it is an infringement of her rights to smoke. She is a very effective worker and in terms of productivity, I am more than happy for her to have several smoking breaks during the day. I guess my question is: Is such a policy legal and enforceable?

Civil Liberties Australia reply:

We don't approach smoking issues from the perspective that there is a 'right to smoke’.

What we assume is that employers have only a limited right, if any, to regulate the conduct of their employees outside office hours (including designated lunch hours), especially if they are not identifiable as employees of that workplace. This means a boss should have only a limited power to discipline staff for engaging in lawful activity (e.g. smoking tobacco products, drinking, commenting on political activities) outside work, as well as those engaging in illicit activity that does not impact on their work performance (e.g. smoking marijuana, accidentally driving over the speed limit, torrenting Game of Thrones etc...). If someone is breaking a law it is for the State to punish them, once the offence is proved beyond a reasonable doubt.

However, we have seen that the Federal Government believes it has an unfettered right to meddle in the private lives of its employees including sacking APS employees for their private tweets and demanding other APS officers dob in their colleagues for alleged breaches of the APS Code of Conduct, even those occurring after hours. Sadly the Courts have upheld these unjust dismissals. So, just because the Health Policy seems unreasonable, doesn't mean it's not enforceable. There are some considerations though which apply:

First, unless the policy is a 'reasonable direction' from the employer it is likely to be unenforceable. What is 'reasonable' or not depends on the circumstances of each case. If the policy hasn't been enforced for many years and only exists on 'paper' then it is likely to not be enforceable (but we are not Industrial Relations lawyers so seek your own advice if unsure). We note that the policy would prevent smoko-breaks during the work day. This may be more reasonable than a complete ban on smoking outside work hours as a smoko traditionally occurs during paid work hours. 

Second, what does your Enterprise Agreement say? Does it mention the Health Policy? If it is mentioned in the Agreement then it more likely to be enforceable, but maybe there are certain exceptions.

Third, who has to enforce the policy? You, as a manager? Or can any senior member of the Department enforce it? If you are designated as the enforcement officer for your team members then you may have some discretion in how to apply it. 

Fourth, what does your union say? Have you approached them about the policy? They would be well placed to answer your question about the legality of the policy.

Finally, we have replied to your email directly but - given our comments about - perhaps you should avoid using your work email in the future. All employers (not just the Government) assume they have total control over their networks (including their email accounts) and full rights to read any emails sent to and from those accounts. This right has largely been upheld by the Courts.

Good luck with this case. It is good to see a manager take the interests of their staff to heart.

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Please note: Civil Liberties Australia is not qualified or certificated to give legal advice, and does not do so. You have the right and the responsibility to decide how you will proceed in any matter referred to above. We hope that the option/s and choice/s CLA has explored with you will help you to decide wisely.

Think about joining, or donating: if you’re interested in people’s rights and liberties, and the work CLA does for the community without charge, you might like to join CLA, or make a donation. You can join online, or donate, at: http://www.cla.asn.au/