Privacy concerns The use of neurotechnology allows access to not just conscious but subconscious thoughts, meaning that employers will have access to thought patterns of employees which the employees themselves do not have control over. It is also considered that brain scans fall into the category of biometric data as they can be comparable to an individual’s unique fingerprints.267 Such intrusive monitoring may also reveal sensitive information such as an employee’s underlying mental health conditions.268 This is a significant intrusion of an employee’s right to mental privacy where employees will not have discretion to choose what information would be disclosed to their employer within their professional workplace relationship.269 At the international level, the Code on Protection of Workers’ Data provides that if employees are to be monitored, they should be advised of such monitoring in advance as well as the nature of the data collected and the techniques used.270 One of the pressing issues, however, is that even if the details of such neurotechnology are disclosed to an employee, consent to such monitoring may not be ‘full and informed’ due to fear of losing their job or missing out on an opportunity for future employment.271 Australia’s approach to workplace surveillance laws When looking at the current laws in Australia regarding workplace privacy and surveillance it is clear that issues arising from neurotechnology were not within the contemplation of the drafters. Currently, New South Wales (NSW), Victoria and the Australian Capital Territory (ACT) have all enacted legislation in relation to workplace privacy and surveillance.272 It is of note that all three jurisdictions also have human rights charters which may be of relevance. 36 The use of neurotechnology in the surveillance of employees appears to be outside the ambit of the Surveillance Devices (Workplace Privacy) Act 2006 (Vic), as these amendments to the Surveillance Devices Act 1999 (Vic) were primarily aimed to address workplace monitoring in private areas.273 It is unclear if neurotechnologies would fall within the ambit of the Surveillance Devices Act 1999 (Vic).274 The Workplace Surveillance Act 2005 (NSW) appears to have a wide ambit as to what could constitute ‘computer surveillance’. The definition includes examples such as ‘the sending … of emails and the accessing of Internet websites’ which indicates that surveillance is directed to an employee’s actions rather than their thoughts as accessed by neurotechnology.275 The Workplace Privacy Act 2011 (ACT), mirroring the NSW Act, also adopts a broad definition of what a ‘data surveillance device’ consists of.276 Again, considering the examples listed in its explanatory statement, it is likely that surveillance under ACT legislation is limited to activities such as the monitoring of email content and internet usage. The Australian Law Reform Commission has previously recommended that Australia should move towards having a harmonised approach regarding surveillance legislation, which it considered would be best achieved by enacting Commonwealth legislation to replace existing state and territory laws.277 Further, to avoid the chances of technology falling outside of the ambit of such legislation, surveillance device laws should be ‘technology neutral’ to apply to neurotechnology and any other advancements which will inevitably arise in the rapidly developing world of technology.278 Protecting Cognition: Background Paper on Human Rights and Neurotechnology