2.8.3 Surveillance guidelines for Agents

These guidelines are for use by Agents in claims for compensation under workers’ compensation legislation involving surveillance.

They are based on the Federal Privacy Commissioner’s Optical Surveillance in Commonwealth Administration Guidelines, February 1992.

2.8.3.1 Determine need to conduct surveillance

Prior to commissioning surveillance the Agent should assess the need to use surveillance.

When to use surveillance

Surveillance can be used:

when other less intrusive methods of investigation have been considered and have been assessed to be ineffective and inadequate or have been tried and the outcome found to be inconclusive
when the claim is of such a nature as to warrant the use of surveillance and when there is adequate evidence to suggest that the worker may be:
misrepresenting their injury
exaggerating their injury or
receiving workers' compensation payments to which they may not be entitled (i.e. because it is alleged that the worker is engaging in work)
where the benefits arising from obtaining relevant information by surveillance are considered to outweigh to a substantial degree the intrusion on the privacy of the worker.

2.8.3.2 Application to conduct surveillance

Make an application in writing to conduct surveillance and include a clear statement on the following, in line with the Surveillance Form for PI Private Investigator.

Purpose and worker details

Provide a clear statement of the purpose for the surveillance and details of the worker including:

name, address and other relevant details of the worker
personal characteristics of the worker to minimise the risk The probability of the worker not returning to work is known as the risk or risk factor. For example: if a worker is likely to return to work, the claim is categorised as low risk. of misidentification
a description of the worker's premises (e.g. a particular office location or building).

Claim details

Provide the nature and details of the claim (e.g. muscular-skeletal injuries) and the kind of information to be collected. This could include the performance of physical activities that may indicate that the worker is making a false claim (e.g. ability to lift objects known to be very heavy).

Alternative investigative methods

Provide details of alternative investigative methods that have been considered or undertaken to obtain the information required and the results of these investigations.

Alternative methods may include:

interview workers
interview witnesses
review agency records
review worker's records.

Investigation details

Record details of the investigator and whether the procedure has been recommended by Compensation Investigations.

Record how information is to be collected, for example:

photography
video recordings
recording of observations in a log
combinations of the above.

Period and scope

The period and scope of the surveillance may include:

surveillance period (e.g. daily)
surveillance dates
activities to be observed (e.g. gardening, lifting, shopping)
whether the surveillance is to be confined to the domestic environment or extended beyond the worker's premises.

2.8.3.3 Approval to conduct surveillance

Approve for limited time

Approval is to be issued for a limited time only, as follows:

The period of surveillance should be appropriate to the circumstances of each case but should not extend beyond 15 hours, without further approval. This period may be extended when there is difficulty locating the worker.

Extend or recommence

A new application should be made to extend or recommence surveillance after the expiry of the initial approval.

2.8.3.4 The collection process

Surveillance is undertaken by licensed and trained investigators/surveillance officers registered with WorkSafe.

Surveillance activity

All surveillance activity must comply with all applicable laws, rules and regulations (including the Private Security Act 2004 (Vic), the Surveillance Devices Act 1999 (Vic), the Privacy Act 1988 (Cth), the Information Privacy Act 2000 (Vic)) and such policies and directions notified by WorkSafe Victoria from time to time.

Video surveillance activities as part of an occupational rehabilitation program should not occur.

Strict instructions on the conduct of surveillance should be issued to the surveillance officers, in line with the Surveillance guidelines for PI and Surveillance Form for PI.

In performing all surveillance activity in connection with the performance of these instructions, the investigator agrees to be bound by the Information Privacy Principles set out in Schedule 1 to the Information Privacy Act 2000 (Vic) in the same manner and to the same extent at WorkSafe would be bound by those principles if the surveillance was engaged in by WorkSafe.

Privacy

Avoidance of any actions which may unreasonably impinge on the privacy and rights of other people. For example, when using photography, avoid, where practicable, including other individuals such as relatives and friends, who may be in contact with the worker during the surveillance period, in the photograph.

Collect relevant material

Only material relevant to the purpose of conducting the surveillance should be collected. There should be a clear separation of facts from opinions and only relevant personal information is to be included in surveillance records.

Instructions on the manner of collection of personal information include:

the collection should not involve the commission of a criminal offence or give rise to a civil action, for example, trespass to land or goods
the collection should not involve entrapment of the worker. Hence, passive observation is permissible, however, any attempts to actively induce the worker into a situation in which that person would not ordinarily and voluntarily enter, thereby creating a false or misleading impression of the person's disabilities, should not be permitted.

2.8.3.5 Use & disclosure

Material collected by surveillance is to be only used for the purpose for which the approval is given.

Accurate information

Agents should use reasonable endeavours to be sure that the information is accurate, up to date and complete before the information being used. Material collected by surveillance is not used in isolation and needs to be corroborated by other information to ensure accuracy.

Tests for accuracy

Tests for accuracy may include:

identity check (i.e. name and address of surveillance subject)
checking timing of the surveillance procedure
verifying that material collected is consistent with the nature of the claim
checking that there is no other reasonable explanation for the particular information collected such as:
injured worker able to lift box because they were wearing a splint
box lifted by injured worker was empty
activity performed by worker did not involve using injured muscles.

Disclosure of surveillance material

Material collected by surveillance is not to be disclosed to persons other than WorkSafe or relevant Agent without WorkSafe approval or unless required by law.

If material is disclosed to another person, body or agency, the Agent should check that the recipient has policies and procedures in place to safeguard the information and treat it in line with Privacy Principles.

Seeking a medical opinion based on surveillance

Where an Agent is considering relying on surveillance material for the purposes of making a decision, the Agent should assess the appropriateness of obtaining an opinion in relation to the surveillance from:

an IME Independent Medical Examiner / Independent Medical Examination
an opinion from the workers treating health practitioner(s).

The full footage and report should be provided and this information should be accurately described in the correspondence. For example, “There were 22 hours of surveillance conducted. 2 minutes of film was obtained which is enclosed for your viewing”.

Storage and security

Agents need to ensure that private investigators are aware of the need for appropriate measures to protect the material against loss, unauthorised access, use, modification or disclosure. It is important to:

restrict access of material to relevant personnel on a 'need to know' basis.
store the material in a secure area (e.g. a locked file).
store material separately to other routine administrative information about the worker.
maintain a log of all personnel accessing, using or removing the material, in order to establish an audit trail. Information to be recorded includes the:
reason/s for disclosure
recipient of the information
officer authorising disclosure.

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