The Most Common Tracking Scenarios
The majority of phone tracking and GPS surveillance claims arise in two contexts: domestic disputes and workplace monitoring.
In relationship and family contexts, a former partner may install spyware (sometimes called "stalkerware") on a phone during the relationship, and the software remains active after separation. They may attach a GPS tracker to a vehicle. They may retain access to shared cloud accounts, location-sharing features, or phone carrier portals that display real-time location data. In some cases, a current or former partner monitors movements to exert control. In others, tracking is used to gather evidence for family law proceedings. Neither motive justifies covert surveillance, and information obtained through covert tracking is often inadmissible in family law proceedings in any event.
In workplace contexts, employers sometimes install monitoring software on company devices that tracks employee location outside working hours, or deploy GPS tracking in fleet vehicles without adequate notice. The statutory tort applies to the handling of employee records (unlike the Australian Privacy Principles, which contain an employee records exemption). However, workplace monitoring that is disclosed, proportionate, and conducted for a legitimate business purpose may attract defences of implied consent or lawful authority. The critical question is whether the employee had a reasonable expectation of privacy in the circumstances.
Preserving Evidence
Evidence is everything. If you have discovered spyware, a GPS tracker, or unauthorised location sharing, take steps to preserve the evidence before doing anything else. Photograph the device in situ. Take screenshots of the spyware application, its settings, and any data it has collected. Do not factory-reset the phone or remove the tracker without first securing the evidence. If the software is transmitting your location in real time, there may be urgency in seeking an injunction before the other party knows you have discovered it.
A forensic examination of the device by a qualified digital forensics provider can identify the software, determine when it was installed, and establish what data was accessed. This evidence is critical for court proceedings.
State Surveillance Laws and Their Limits
Each state has its own surveillance devices legislation, but none provides a civil remedy you can enforce in court. In Victoria, the Surveillance Devices Act 1999 requires consent for the use of tracking devices, and using one without consent is a criminal offence. In New South Wales, the Surveillance Devices Act 2007 similarly prohibits the use of tracking devices without consent, with penalties of up to five years imprisonment. In Queensland, the Invasion of Privacy Act 1971 covers only listening devices. There is no Queensland legislation regulating GPS trackers, phone spyware, or location monitoring at all. The Commonwealth statutory tort fills this gap by providing a civil remedy across all jurisdictions.
A breach of state surveillance legislation may strengthen a tort claim by demonstrating that the defendant's conduct was unlawful. But the tort claim itself is brought under federal law.
Defendants: If You Are Accused of Tracking
If you are facing a claim or an injunction application alleging that you tracked another person's phone or vehicle, the statutory tort provides several defences. Consent is a complete defence. If the other person consented to location sharing (for example, through a shared family account), and that consent was not withdrawn, the claim may fail. Lawful authority may apply if the tracking was authorised by a court order or conducted by a law enforcement body. The seriousness threshold also operates as a filter: not every instance of location monitoring will meet the standard required. The court must weigh the gravity of the alleged intrusion against any countervailing interest.
If there is an overlap between the privacy claim and a defamation claim (for example, where the person making the accusation has publicly stated that you tracked them), the interaction between the two causes of action may be relevant. See Invasion of Privacy vs Defamation for more detail, or visit defamationlawyer.au for defamation-related matters.
Overseas Authority
There is no Australian case law on the statutory tort as at the date of this page. Australian courts are likely to consider persuasive authority from comparable jurisdictions. In the United Kingdom, the tort of misuse of private information (established in Campbell v MGN Ltd [2004] UKHL 22) has been applied to covert surveillance and tracking. In New Zealand, the tort of intrusion upon seclusion (recognised in C v Holland [2012] NZHC 2155) was developed partly in response to covert recording and monitoring. Canadian courts have similarly recognised intrusion upon seclusion as an actionable tort (Jones v Tsige [2012] ONCA 32). These decisions provide a framework for how Australian courts may approach tracking and surveillance claims.
