GPS Vehicle Tracking Laws in Australia
GPS Tracking is wonderful, it can streamline your business in a whole host of ways, but do you know the legalities of using GPS for your business?
GPS tracking can cause issues with regards to surveillance and employee privacy and it's important you are familiar with Australia's state legislation for surveillance. 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.
Surveillance legislation in Australia differentiates depending on the state you're working in, there is no national surveillance legislation. This lack of uniformity throughout the country means there are many misconceptions when it comes to the legality of implementing GPS tracking solutions in your business. I.E, the types of surveillance devices regulated, the offences, exceptions and possible legal ramifications.The legislation for each state can be found below and you will understand how to implement GPS tracking LEGALLY in your business.
Consent – The Key to GPS Vehicle Tracking Laws
Consent is crucial with surveillance, it is important to start obtaining consent from all parties involved if you are planning to use tracking devices to monitor and record employee activity..
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.
Mainly, GPS tracking is not illegal in WA. It is, however, illegal to install 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).
New South Wales
In NSW, if the surveillance of work vehicles is not compliant with the Workplace Surveillance Act ("the Act"), it is deemed to be 'covert surveillance' and illegal unless authorised by a Magistrate...and any evidence that may have been obtained using covert surveillance will not be able to be used in any subsequent proceedings (eg. to defend an unfair dismissal claim).
To be compliant with the Act, surveillance via GPS tracking must not commence without prior notice (in writing) to each of the affected employees. The notice must be given at least 14 days before the surveillance commences (unless an employee agrees to a lesser period of notice), or before an affected employee commences employment with you. Submitting the notice via email is considered a valid form of communication.
The notice must indicate:
(a) the kind of surveillance to be carried out (GPS for tracking purposes), and
(b) how the surveillance will be carried out (via the installation of a GPS tracking device), and
(c) when the surveillance will start, and
(d) whether the surveillance will be continuous or intermittent, and
(e) whether the surveillance will be for a specified limited period or ongoing.
Furthermore, there must be a notice, clearly visible on the vehicle, indicating that the vehicle is currently the subject of GPS surveillance.
Just like WA and NSW, VIC uses their own regulations in the form of the Surveillance Devices Act 1999 (VIC).
In Victoria, giving consent can be express, or it can be implied. Express consent refers to being asked the question directly and accepting, and implied means information was presented in a contract signed by the employee.
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).
SA has the Listening and Surveillance Devices Act 1972 (SA) and the term “tracking device” is defined. However, there is no language in the Act prohibiting or regulating their use either privately or commercially.
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 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.
Checklist for the Implementation of GPS Vehicle Tracking
If you are going ahead with the implementation of a GPS tracking system in your company vehicles we strongly 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 case challenged later. Have employees sign their acknowledgement of the program if requiring express consent.
Provide training on 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.
Providing employees with proper education on how GPS tracking can benefit both your business and their safety, 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 GPS Tracking Systems today.
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 1st Jan 2017