The Tracker Under the Wheel Arch: NSW Criminalises Covert Surveillance

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A matchbox-sized GPS tracker, magnetised under a wheel arch, can transmit a victim's every move to an abuser, from reporting to the refuge, to seeing a lawyer to moving home, without the victim ever being aware of its presence. The scale of its use is evidenced by the NSW Crime Commission's Project Hakea, which found that one in four people who purchased a tracking device had a criminal history involving domestic and family violence.[i] The Commission found that these same devices are used to facilitate both domestic violence and organised crime.[ii] NSW's Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2026 (NSW), introduced on 5 May 2026 and passed the same month, will, once commenced, criminalise covert electronic stalking for the first time in NSW.[iii]

The Victim Who Cannot Fear

The existing law is inadequate in one respect; technology-assisted monitoring of a person's whereabouts already falls within the offence of stalking under s 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).[iv] But that offence requires the victim to know: the person must be aware of the conduct and fear it. The most dangerous surveillance is precisely that which goes undetected, and a victim cannot fear what they cannot know. The Bill's answer, a new offence to be inserted at s 13(3), asks whether the conduct would reasonably be expected to cause the person to fear if they were aware of it.[v] It would be a serious indictable offence carrying a maximum penalty of five years' imprisonment.[vi] The fear is hypothetical; the harm lies in being watched.

Aiming at the sellers, not just the stalkers

The Bill is also aimed at stalkers' suppliers. Project Hakea found investigators and “spy stores” openly promoting the use of illegal location devices, and in response the Bill would make it an offence to promote the use of geolocation devices for stalking.[vii] It targets the market that equips both abusive partners and crime syndicates, the cross-section the Government used to justify the laws as protecting domestic violence victims while combating organised crime. Other reforms reflect the same approach: separate 2026 amendments would give the NSW Crime Commission the power to require suspects to hand over their devices immediately, confronting the same technology from the organised crime perspective.[viii]

A sharp tool, bluntly drawn?

The Bill is sharp. Covert tracking is an evidenced precursor to violence, and the “if aware” test is a neat doctrinal solution to a real evidentiary gap. Three concerns remain, however.

First, tracking devices already fall partly within the Surveillance Devices Act 2007 (NSW), so care will be required to distinguish between the two regimes.[ix]

Second, enforcement: victims are unlikely to detect a covert device, and the offence's practical effect may depend more on police capacity than on the provision's wording.

Third, covert monitoring can be innocent, for example a location app for a child or a fleet tracker at work. An offence based on a fear the victim never had could be overly broad, relying heavily on the fault element and prosecutorial discretion.

Once it comes into effect, whether s 13(3) proves a precision tool to curb spying or an all-encompassing trap will depend on how the courts apply it.

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References

[i] NSW Crime Commission, Project Hakea (Report, 2024). The finding that one in four purchasers of GPS tracking devices had a domestic violence criminal history is reported in NSW Government, 'Minns Labor Government Cracking Down on Domestic Violence Offenders and Organised Criminals' (Media Release, 5 May 2026).

[ii] NSW Government (n 1) (tracking and surveillance devices increasingly facilitating both domestic and family violence and organised crime).

[iii] Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2026 (NSW); New South Wales, Parliamentary Debates, Legislative Assembly, 5 May 2026 (Michael Daley, Attorney-General). The Bill passed the NSW Parliament in May 2026; as at the date of writing, its amendments had not commenced.

[iv] Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 8 (meaning of 'stalking'). The Bill (n 3) would also insert a new s 8(d), extending the definition to directing another person to engage in the listed conduct.

[v] Ibid s 13(3), as proposed to be inserted by the Bill (n 3).

[vi] Crimes Act 1900 (NSW) s 4 (definition of 'serious indictable offence'); Parliamentary Debates (n 3).

[vii] Bill (n 3); NSW Crime Commission (n 1) (some private investigators and 'spy stores' promoting the illegal use of surveillance devices).

[viii] NSW Government (n 1); see also Crimes and Other Legislation Amendment (Further Organised Crime Reforms) Bill 2026 (NSW) (empowering the NSW Crime Commission to compel the immediate production of digital devices).

[ix] Surveillance Devices Act 2007 (NSW) s 9 (installation, use and maintenance of tracking devices).