GPS Legislation

NSW – GPS Tracking Sydney

Surveillance Devices Act 2005 (For GPS Tracking Sydney and across NSW)
The legislation for GPS Tracking Sydney and across NSW is slightly different to the Victorian Legislation. The difference on this subject is subtle but important.

For GPS tracking in Sydney and across NSW, a tracking device is one that is capable of being used to determine or monitor the geographical location of a person or an object. Being capable is very different from something whose primary purpose is to determine location. In NSW, a mobile phone with built-in GPS is quite capable of determining location, even if that’s not its primary purpose, which clearly makes it a tracking device.

The rest of effective law in NSW is the same as in Victoria (see below). Or Contact Netcorp for more information on GPS Tracking Sydney and Australia wide

Victoria

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 for tracking, whether for an individual or an object, can be given either explicitly or implicitly. Explicit consent entails being requested and agreeing to be tracked. Additionally, you may provide consent by signing a contract that includes provisions for tracking your location.

For instance, if your employment contract entails adherence to the acceptable use policies governing your organization’s technology or vehicles, and such policies incorporate provisions permitting the identification and recording of company property locations, it is likely that you have granted consent for the installation of tracking devices on your company-issued phone, laptop, and car without requiring additional authorization. Comparable clauses can frequently be found in contemporary rental car agreements, authorizing unrestricted tracking of the vehicle.

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 emails
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 unlawful action involves using the device to track an individual or item. The tense utilized is present, indicating the current whereabouts of someone or something. Data logging devices are accessible that store their position data in a file within the device for subsequent retrieval. According to the language of the Victorian statute, accessing the historical location data of a person or object may not be considered an offense, as it does not technically involve actively tracking (present tense) the object in real-time and there is no explicit prohibition on recording location information.

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.

Western Australia

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 key distinction in Western Australia is the absence of an exception for unlawful possession of an item, which appears to be a drafting oversight. Unlike other Australian jurisdictions, consent from the individual lawfully possessing the tracked object is mandated. This means that even in cases of illegal possession, consent remains a requirement in WA. Consequently, tracking a stolen vehicle for recovery purposes would violate the law in Western Australia, with both the tracking company and the car owner (responsible for initiating tracking) being non-compliant with legislation.

South Australia

Tracking devices are defined, but nothing in the legislation prohibits or even regulates their private or commercial use.

Queensland

No regulation or prohibition exists.

Tasmania

No regulation or prohibition exists.

Northern Territory

Surveillance Devices Act 2007 (NT)

The definition and description of the offence is essentially the same as NSW.

ACT