INTHEBLACK February / March 2026 - Magazine - Page 26
F E AT U R E
“While remote and hybrid work arrangements have
empowered many employees, they have also triggered
a wave of digital surveillance by employers trying to regain
a sense of control. We are seeing employers turning to
monitoring software, keystroke tracking, webcam checks
and even productivity scoring tools.”
STEFANIE COSTI, STEFANIE COSTI & ASSOCIATES
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PRODUCTIVITY VS PRIVACY
“The tension between flexibility and
surveillance is very real,” says principal
lawyer at Stefanie Costi & Associates,
Stefanie Costi. “While remote and hybrid
work arrangements have empowered many
employees, they have also triggered a wave
of digital surveillance by employers trying
to regain a sense of control. We are seeing
employers turning to monitoring software,
keystroke tracking, webcam checks and
even productivity scoring tools.”
The irony, Costi says, is that while workers
are being trusted to do their jobs from
anywhere, they are also being watched
more than ever.
In some cases, this has positive outcomes
for both employees and employers. She notes
that in transport and logistics “surveillance
technology has undoubtedly saved lives”,
and the monitoring of access to sensitive
financial, legal or otherwise personal
information to stop inappropriate conduct
has a net positive outcome.
“But poorly implemented surveillance can
backfire in spectacular ways,” Costi says.
“It can damage morale, erode trust and cause
employees to become disengaged and cynical.
“It also creates a culture of fear. It stifles
creativity, risk-taking and innovation,
and undermines the psychological
safety that is essential for a thriving,
high-performing team. It can also have
huge mental health implications.”
Blackham agrees, saying research shows
that individuals who already experience
exclusion or discrimination in the workplace
will feel the force of surveillance more
keenly. “There are also cases where
a worker’s data has been misused
by their manager,” Blackham says.
“So, for example, people are being
stalked by their boss because
the boss has access to their
personal information.”
26 INTHEBLACK February/March 2026
Surveillance can come with a reputational
cost, Costi says, particularly among younger
generations for whom there is a “growing
expectation that work is built on mutual
respect — not surveillance”. The concept of
surveillance can result in talented candidates
actively rejecting employers who use such
tools, she adds.
LEGALITIES IN AUSTRALIA
Globally, policymakers look to the
European Union for examples of best
practice around privacy and workplace
surveillance, Blackham says.
In Australia, workplace privacy is governed
by a patchwork of local and state laws. “It is
mainly state legislation that governs the use
of surveillance devices,” says Charles Power,
managing partner at Holding Redlich.
“But there is some scope for the federal
Privacy Act 1988 as well. And of course,
the Privacy Act is replicated in many
jurisdictions by state legislation that applies
to the public sector.”
New South Wales and the Australian
Capital Territory have specific workplace
surveillance laws. In the Northern Territory,
the issue is governed mainly by the Surveillance
Devices Act 2007, which covers the types of
devices allowed to be used and the types of
information to be collected. However, this is
mainly focused on law enforcement.
In other Australian states, there are various
iterations of the federal Privacy Act. No state
or territory is currently doing a convincing
job of protecting the rights and privacy
of employees, Blackham says, particularly
when small business exemptions release
over 90 per cent of businesses from most
federal responsibilities.
Recently, a Parliament of Victoria inquiry
reviewed the impact and effectiveness
of current surveillance laws. The final
report contains 18 recommendations on
how workplace surveillance in Victoria
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