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Surveillance and Australia Part 2

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Tracking Devices

Another area where people are getting themselves into trouble these days is in the use of tracking devices. A lot of people want to covertly track their partner’s whereabouts or the location of their employees. In NSW for example, it is lawful to track the location of employees provided you comply with the Workplace Surveillance Act and properly advise them that they will be under this kind of surveillance. Outside of the workplace, it is also possible to track a relative, partner or other person provided you have that person’s consent. You generally cannot however track the geographic location of a person without consent. To illustrate this law, contrary to the understanding of many people, it does not matter if you are the owner of a vehicle or not – under pieces of legislation like the Surveillance Devices Act you cannot track the whereabouts of a person in control of a vehicle without that person’s consent.

Once again, these prohibitions have application to the use of spyware of mobile phones and portable devices. In most cases, you can’t install spyware on someone else’s phone that allows you to track that person’s movements unless he or she knows the tracking is occurring. There are serious penalties including jail time for breaches of these laws.

Data Surveillance

Perhaps the most confusing area of investigation is the world of data surveillance, specifically the monitoring of computer use. The definitions in this area are not entirely clear-cut and there are a number of grey areas and loopholes. The government in Australia is trying to regulate a very complicated area so there will always be a lag between the law and technology. In NSW, as with GPS tracking, it is permissible in the workplace for an employer to monitor an employee’s computer usage provided the company has advised staff members in accordance with the Workplace Surveillance Act. Outside of the workplace (under the Surveillance Devices Act) many questions can arise as to what constitutes data surveillance, which is prohibited in certain circumstances. For example, is spyware and keystroke logging software captured by this definition? Most likely.

There are also important important provisions in the Commonwealth Criminal Code, which relate to unauthorized access to information held on a computer. Perhaps the most interesting is section 478.1 which makes it a crime for a person to access restricted data held in a computer without authorisation. It appears that restricted data is any data protected by a password so, as an everyday example, it is unlawful for you to install keystroke logging software on your computer to get your spouse’s email password and then log in to that email account to look at the emails contained within. The installation of the keystroke logging software is arguably an offence under the Surveillance Devices Act provisions mentioned above but the second step, the unauthorised access to the actual emails would seem to be a more clear-cut case of a breach of the Criminal Code, a federal criminal offence.

It should be noted that it is actually possible for an employer to get a workplace surveillance authorisation from a magistrate, which allows the employer to monitor staff without their consent. This is carefully regulated and has use in situations where employees are suspected of theft or similar behaviour.

The big picture

With the proliferation of spyware, tracking devices and recording equipment in today’s society, staying on the right side of the law is increasingly difficult. It is important for citizens, lawyers and the police to pay close heed to surveillance laws because they are growing more and more a part of our lives as video cameras become smaller and smartphones become handheld computers with inbuilt GPS devices. Everyone is vulnerable, not just to being the victim of unlawful surveillance but also to being an unwitting perpetrator.

And that’s it. Far from the explosive world of Hollywood private investigation, the reality of obtaining surveillance information in Australia is ethical, legal and effective. Even without the smoky venetian blinds!

For more information regarding this topic or if you want to learn more about private investigation, please click the following link: What It’s Like for Sydney’s Private Investigators’


Lachlan Jarvis

1300 438 776