Surveillance Devices Act
It’s generally assumed by many people, that electronic tracking (often referred to as “GPS Tracking”) is unlawful in Australia. As is so often the case, there is a lot more to it than that.
Surveillance Devices Act 1999 (Vic)
Under the Surveillance Devices Act (Vic) a tracking device is an electronic device, the primary purpose of which is to determine the geographical location of a person or an object.
You can’t knowingly install, use or maintain a tracking device;
- To locate a person without their consent
- To locate an object without the consent of the person having (lawful) possession of that object.
Consent to be tracked, or for an object to be tracked, can be either express or implied. Express consent is where you are asked and accept being tracked. You might also sign a contract which includes the ability to track you.
For example, if your contract of employment includes a term which binds you to the acceptable use policies of your organisation’s technology or vehicles, and that policy includes a clause which allows the location of company property to be identified and/or recorded, then you’ve probably consented to your company phone, laptop and car being fitted with a tracking device without your further consent. Similar clauses are often found in modern rental car agreements, allowing them to track the car at will.
A sealed package which has a label explaining that it may be being tracked may satisfy the requirements of implied consent if you accept possession of it.
The Primary Purpose of the device must be to determine location. In Victoria, a mobile phone which also transmits location information is arguably 1) for making calls 2) for sending and receiving email 3) for browsing the web 4) for running other software or playing games … and somewhere down the list, it may also be for determining location. It is therefore arguable that software on a phone which transmits location information does not make that phone a tracking device, and is therefore not regulated.
The illegal act is using the device to locate someone or something. The tense is the present; ie. where someone or something currently is. There are data logging devices available which record their position to a file within the device, which is later downloaded. Under the wording of the Victorian statute, retrieving the location history of a person or object may not constitute an offence, as it is technically not ‘locating’ the object (present tense) in anything close to real-time, and the recording of location information is not expressly forbidden.
Radio tracking collars for dogs, wildlife, etc, also fall into the definition of tracking devices. If you’re tracking your dog, the dog must be in your possession.
If your dog, car, etc is stolen, the possession of that object is not lawful, so no consent is required to use a tracking device to locate it in Victoria (this is not the case in all states). Commercial services exist which rely on this principle to recover stolen cars.
Surveillance Devices Act 2005 (NSW)
The difference between Victorian and NSW law on this subject is subtle but important.
In NSW, a tracking device is one which is capable of being used to determine or monitor the geographical location of a person or an object. Being capable is very different to something the primary purpose of which is to determine location. In NSW, a mobile phone with a built-in GPS is quite capable of determining location, even if that’s not it’s primary purpose, which clearly makes it a tracking device.
The rest of effective law in NSW is the same as in Victoria (see above).
Surveillance Devices Act 1998 (WA)
The definition of a tracking device is much the same as NSW, and includes any device capable of being used for tracking. In WA, however, they have gone a lot further.
Not only is a person using/installing/maintaining an unlawful tracking device breaking the law, but so is the causing it to be attached/used/installed, etc. In this way, a client asking for their car to be tracked so they can find out where their spouse is going is in breach as much as the person installing the device.
Another important difference in WA is what I can only assume was an error in drafting where no exception is made for unlawful possession of an object. In all other Australian jurisdictions, consent is required from the person in lawful possession of the object to be tracked. In WA, consent is required from that person even if their possession is unlawful. In WA, therefore, tracking a stolen car to aid in its recovery would be unlawful, with both tracking company and the car owner (who is causing it to be tracked) both in breach of the legislation.
Tracking devices are defined, but nothing in the legislation prohibits or even regulates their private or commercial use.
No regulation or prohibition exists.
No regulation or prohibition exists.
The definition and description of the offence is essentially the same as NSW.
Source: Tom Hodgson, March 2011