March 2017

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 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 arise with GPS tracking when the topics of employee privacy and surveillance are discussed. 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 the surveillance laws. They just don’t seem to be on the same page.

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.

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 express or implied.

Express consent can be obtained where the employee is notified about the use of a tracking device and they accept the decision and its implications. This could be in an employee 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 which has a label explaining that it is being tracked may satisfy the requirements of implied consent if the employee then uses the vehicle.

In WA, the Surveillance Devices Act 1998 (WA) lays the ground rules for the use tracking devices. Per the legislation, any type of equipment, instrument, apparatus, or device that can determine 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 in 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).

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 who conduct covert surveillance unlawfully may face fines of up to $5,500* per offence. Directors and others involved in the management of the company may receive convictions for breaches.

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 of 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 $186,000*. Just as important, each person who is a director of the company or who is concerned in 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 $37,000* or 2 years’ imprisonment or both. (Sections 8 and 32).

While SA does have the Listening and Surveillance Devices Act 1972 (SA) and the term “tracking device” is defined, there is no language in the Act prohibiting or regulating their use either privately or commercially.

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 is essentially the same as NSW.

Essentially, the definitions and the descriptions of offences related to GPS tracking in the NT follow the same as NSW. Although this Surveillance Devices Act was only introduced in 2007, it follows the same principles we have seen throughout and highlights the importance of consent among others things.

Queensland has no regulations or legislation in place for the use of GPS tracking devices.

Tasmania has no regulations or legislation in place for the use of GPS tracking devices.
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Since GPS involves monitoring company vehicles or equipment, it is important that the employer should have good policies to govern the way GPS is used, and make sure the driver is fully aware both that the vehicle has GPS and what the policies are around it.

This is best achieved by having clear work policy documents. For example, what happens out of work hours? Any information relating to that non-work time will need to be handled very differently from the information gathered while an employee is on the job.

The Privacy Act regulates the collection, use, and storage of personal information, as well as access to that information. GPS data about work vehicles can be personal information about employees.

A company should ensure employees are aware of why information is being collected, and how it will be used (as well as their right under the Privacy Act to request access to information about themselves).

NZ Information https://privacy.org.nz/further-resources/knowledge-base/view/276
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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.

This post contains general information about GPS vehicle tracking laws in Australia. and New Zealand. 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.