UPDATED: 20th February 2023
You may know the benefits of a GPS tracking system but are you across the GPS vehicle tracking laws in Australia?
With advancements in GPS tracking technology and a reduction in costs, companies are increasingly looking to track vehicle and employee movements. This is not only for productivity gains but for employee safety, asset security and improved customer service
Problems can arise with GPS tracking when the topic of employee privacy and surveillance is discussed, such as using a fleet dash cam with your trucks. Australia’s patchy surveillance legislation is leaving many employers scratching their heads on the legality of using GPS vehicle tracking. Confusion also abounds when employers compare their obligations for occupational/workplace safety (specifically the duty of care requirements) with surveillance laws. They just don’t seem to be on the same page.
Understand Your Legal Obligations
Did you know that surveillance laws in Australia are state-based, not federal? This lack of uniformity across the states in relation to GPS vehicle tracking laws allows for many inconsistencies. For example, the types of surveillance devices regulated, the offences, exceptions and possible legal ramifications.
This leads to the assumption by many people that GPS tracking is unlawful. As you will see, this is not the case if you implement GPS tracking correctly.
Consent – The Key to GPS Vehicle Tracking Laws
The overarching theme with all the surveillance acts in play is to obtain consent from all parties involved prior to using tracking devices to record employee activity. Such employee consent can be expressed or implied.
Express consent can be obtained when the employee is notified about the use of a tracking device and accept the decision and its implications. This could be in an employment contract or via a new policy implementation.
Implied consent can include passive acceptance. The employee is notified about the use of a tracking device but may not specifically provide acceptance. A vehicle that has a label explaining that it is being tracked may satisfy the requirements of implied consent if the employee then uses the vehicle.
GPS Tracking Laws by State
In Australia, various surveillance laws exist depending on which state you’re in. The following is a list of states and relevant legislation about the use of GPS trackers. This is only a reference, and it’s your responsibility to be aware of the legislation governing your state.
Western Australia
In WA, the Surveillance Devices Act 1998 (WA) lays the ground rules for the use of tracking devices. Per the legislation, any type of equipment, instrument, apparatus, or device that can determine the geographical location of a person or object at any given time qualifies as a tracking device.
For the most part, GPS tracking is not prohibited in WA. Although, it is illegal to install such a device to determine an employee’s geographical location without their consent.
As a company, if you have contravened any provision of the Act, you could face a fine of up to $50,000*. Just as important, each person who is a director of the company or who is concerned with the management of the company is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention. Individuals may face fines up to $5,000* or 12 months imprisonment or both. (Sections 7 and 39).
New South Wales
For NSW, the Workplace Surveillance Act 2005 (NSW) is the ruling legislation. Tracking of an employee must not commence without prior notice in writing to the employee. The notice must be given at least 14 days before the surveillance commences. Although, an employee may agree to a lesser period of notice.
In NSW, the law looks to encourage open communication between both parties so businesses will need to discuss with their employees; when it will start, how it works, what type of surveillance is being introduced, and how long it will continue.
Once the GPS tracking is in place, the vehicle itself must also display a notice to show that it is under surveillance.
Companies, as well as directors and others involved in the management of the company may receive convictions and fines for breaches if conducting unlawful surveillance.
Victoria
Just like WA and NSW, VIC uses their own regulations in the form of the Surveillance Devices Act 1999 (VIC). Once again, a tracking device is described as anything that offers the purpose of determining the geographical location of either an object, in this case, a vehicle, or a person.
A company must obtain express or implied consent from an employee before knowingly installing, using or maintaining a tracking device in a company vehicle or asset.
As a company, if you have contravened any provision of the Act, you could face a fine of up to $330,000*. Just as important, each person who is a director of the company or who is concerned with the management of the company is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention. Individuals may face fines up to $66,000* or 2 years’ imprisonment or both. (Sections 8 and 32).
South Australia
SA has recently implemented new legislation under the Surveillance Devices Act 2016 (SA) and the term “tracking device” is now defined. However, there are no laws regulating the use of GPS tracking in the state.
Australian Capital Territory
The Australian Capital Territory has the Workplace Privacy Act 2011 (ACT) in place to govern the use of GPS tracking. The definition and description of the offence are essentially the same as in NSW.
Northern Territory
Essentially, the definitions and descriptions of offences related to GPS tracking in the NT follow the same as in NSW. Although the Surveillance Devices Act 2007 was only introduced in 2007, it follows the same principles we have seen throughout and highlights the importance of consent among others things.
The conviction in the NT for conducting surveillance unlawfully includes fines up to $68,750* or 2 years’ imprisonment.
Queensland
Queensland has no regulations or legislation in place for the use of GPS tracking devices. Invasion of Privacy Act 1971. However, it is important to note Section 48 which prohibits the advertisement of listening devices.
Tasmania
Tasmania has no regulations or legislation in place for the use of GPS tracking devices. Listening Devices Act 1991 21.
Checklist for the Implementation of GPS Vehicle Tracking
To assist with the implementation of a GPS tracking system in your business we recommend that you follow this checklist. This is best practice even if you are not required to carry out each step under your state-based legislation.
- Develop and document clear objectives for the use of GPS tracking within the organisation. E.g. workplace safety, not surveillance or recording of authorised private travel.
- Review and document the perceived risks including business, safety and privacy, and detail how concerns will be dealt with.
- Conduct consultation with all affected workers and keep records in the case challenged later. Have employees sign their acknowledgement of the program if requiring express consent.
- Provide training on the implementation and operation of GPS vehicle tracking systems. Detail what information is being reported and how it is used in the business.
- Provide the necessary notice period, if required in your state, prior to the installation and activation of a vehicle tracking system.
- Display GPS tracking labels on vehicles and equipment. This ensures the monitoring is made known to all vehicle operators i.e. not covert.
Conclusion
Providing employees with proper education on how GPS tracking can benefit both your business and their safety, and asking for their consent to install the device should not be a hurdle. If you do have operations in multiple states, ensure that you understand the requirements of the legislation governing each state.
If you’d like to discuss GPS tracking and the aspects of surveillance laws in your jurisdiction, please contact Fleetware today.
Advice
This post contains general information about GPS vehicle tracking laws in Australia. The information is not advice, and should not be treated as such. You must not rely on the information in this post as an alternative to legal advice from your attorney or other professional legal services provider.
* Fines and offences valid as of 20th February 2023
