“They tracked me through my phone” – NSW’s new covert stalking offence and what it means for people accused of using tracking devices
Until very recently, stalking law in NSW contained a gap that many people did not know existed. The main stalking offence under the Crimes (Domestic and Personal Violence) Act 2007 required the victim to actually experience fear of physical or mental harm. If a perpetrator was sufficiently careful – if the victim never discovered they were being monitored – that fear threshold could not be met and no charge would follow. That gap has now been closed. If you have been contacted by police over a tracking device, a location-monitoring app, spyware installed on a phone, or any form of digital surveillance of a current or former partner, you need to understand what the law now covers and how quickly these situations can develop into serious criminal matters.
In May 2026, the Minns Government introduced the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2026, creating a specific offence of covert stalking, strengthening bail requirements for accused domestic violence offenders, and introducing Serious Domestic Abuse Prevention Orders for the highest-risk perpetrators. These are among the most significant changes to NSW domestic violence and surveillance law in years.
Why this reform happened – the tracking device problem in NSW
The catalyst for the covert stalking reform was the NSW Crime Commission’s Project Hakea report, which examined how tracking and surveillance devices were being used to facilitate both organised crime and domestic and family violence. The findings were stark. Between 2010 and 2023, 82 per cent of offenders charged by NSW Police with unlawfully using a tracking device were committing domestic violence offences. Location tracking, the Commission found, is rarely an isolated act – it is almost always part of a broader pattern of coercive control, monitoring, isolation, and psychological domination.
The statistics around technology-facilitated abuse more broadly are alarming. Legal Aid NSW warned in June 2025 of rising tech-facilitated coercive control, reporting that almost 8,000 women had reached out to its Domestic Violence Unit in a single financial year. The Australian Institute of Health and Welfare reports that one in five women and more than one in fifteen men have experienced stalking since age 15. A national survey by ANROWS found that one in two Australians had experienced technology-facilitated abuse in their lifetime. These numbers explain why Parliament decided that the existing law – requiring the victim to actually know and fear – was no longer fit for purpose.
The new covert stalking offence – what it says and who it targets
The new offence under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) covers covert stalking: conduct that would reasonably be considered to cause another person to fear physical or mental harm, even where that person is entirely unaware the conduct is occurring. The shift from subjective to objective assessment is critical. The prosecution no longer needs to find and call a witness who experienced fear. It needs to establish that the conduct, objectively assessed, would cause fear in a reasonable person in the victim’s position.
The legislation is designed to capture the full range of modern surveillance technology: GPS trackers placed on vehicles, spyware installed on phones or computers, tracking apps activated without the target’s knowledge, AirTag-style devices hidden in bags or clothing, and software that uploads location data from a person’s own device. Under the reforms, it is also an offence to direct a third party – a friend, relative, or associate – to engage in stalking on someone’s behalf. Arranging for another person to carry out the surveillance does not shield the instigator from criminal liability.
How this offence sits alongside the existing Surveillance Devices Act
The new covert stalking offence operates in addition to, not instead of, the Surveillance Devices Act 2007 (NSW). Under s 7 of that Act, it is already a criminal offence to knowingly install, use, or maintain a listening device to overhear, record, or monitor a private conversation without the consent of the parties. Under s 9, a similar prohibition applies to optical surveillance devices. Under s 11, tracking devices used to monitor a person’s location without consent are also prohibited. The maximum penalty for these offences is 100 penalty units or 5 years’ imprisonment for an individual.
What the 2026 legislation adds is a charging pathway that does not depend on the victim’s awareness or fear response. A person accused of covert surveillance of a partner can now face both a Surveillance Devices Act charge and the new stalking charge. They are separate offences, with separate elements, and police may pursue both simultaneously. In practice, this significantly expands the circumstances in which a prosecution can succeed.
Serious Domestic Abuse Prevention Orders
The 2026 Bill introduces a new category of order: Serious Domestic Abuse Prevention Orders (SDAPOs). These go beyond the standard Apprehended Domestic Violence Order framework and are designed for the highest-risk perpetrators – those whose history or conduct indicates they pose an ongoing serious threat. SDAPOs can impose intrusive conditions including electronic monitoring, movement restrictions, and mandatory reporting requirements. They are not dependent on a criminal charge being laid; they can follow from a risk assessment even where no single triggering offence has resulted in conviction.
Where police allege that surveillance or tracking has formed part of a sustained pattern of controlling behaviour, an application for a SDAPO may accompany or follow criminal charges. Breach of a SDAPO is itself a criminal offence.
Bail and electronic monitoring under the 2026 reforms
The 2026 reforms also directly affect bail for people charged with serious domestic violence offences. Under the amended framework, courts are required to consider whether electronic monitoring is necessary where the accused is charged with a serious DV matter and presents an ongoing risk. This means a person accused of covert stalking may find themselves electronically monitored while on bail – a considerable irony given that the allegation itself involves surveillance technology being used as a weapon.
The bail provisions also make it harder for those accused of serious DV offences to obtain bail at all, with the presumption shifting in serious cases to one requiring the accused to show cause why detention is not justified. National Criminal Lawyers’ practice in domestic violence defence includes navigating exactly these bail issues at the earliest stages of a charge.
How police investigate tracking device allegations
NSW Police and the NSW Crime Commission have both signalled that tracking devices and digital surveillance are now a priority enforcement area. In practice, investigations typically begin in one of several ways: the victim discovers a physical device; the victim notices unusual patterns in how the alleged perpetrator seems to know their location; police conduct a routine device examination during a domestic violence investigation and discover monitoring software; or a victim’s support service or legal representative identifies surveillance activity during a safety planning process.
Evidence gathered in these investigations typically includes the device itself, installation records, GPS data logs, associated app records, phone extraction data showing the device has been accessed, purchase records for the tracking hardware, and any communications in which the accused referenced the victim’s location in ways consistent with covert monitoring. Police do not need the victim to have known about the device to build a case – the physical evidence often speaks for itself.
The overlap with coercive control and other charges
Tracking device cases almost never exist in isolation. The conduct that gives rise to a covert stalking charge is almost always part of a broader pattern of behaviour that can support a coercive control charge under s 54D of the Crimes Act 1900 (NSW), which commenced on 1 July 2024 and criminalises sustained patterns of controlling or coercive conduct between intimate partners. Where the tracking is combined with financial control, isolation from family and friends, monitoring of communications, and psychological humiliation, the prosecution may frame the whole pattern as a coercive control offence carrying a maximum of 7 years’ imprisonment.
Commonwealth carriage service offences may also apply where monitoring software was installed through the internet or where location data was transmitted through an online platform. Intimidation charges under s 13 of the Crimes (Domestic and Personal Violence) Act, and AVO conditions prohibiting further contact and approach, almost always accompany these cases. The result is that a person accused of installing a tracking device faces not one charge but a web of overlapping charges that require careful and comprehensive legal advice from the outset.
Common misconceptions about these cases
Several misconceptions arise regularly in tracking device cases. The first is that “it is my car” or “it is my phone” provides a defence. The ownership of the item in which the device is concealed, or on which software is installed, is not the determining question. The question is whether the person being monitored consented to being monitored. The second misconception is that finding the device means the matter will resolve itself without charges – in fact, discovery of a device is what typically triggers the formal complaint and investigation. The third misconception is that deleting the app or removing the device removes the evidence. Digital forensic examination of devices can recover installation records, data transmission logs, and location histories even after deletion.
What to do if police contact you
If police contact you about a tracking device, monitoring app, or digital surveillance allegation, do not attempt to explain your actions before obtaining legal advice. The distinction between lawful parental monitoring of a child’s device, consensual location sharing between adult partners, and criminal covert surveillance of an intimate partner will be examined carefully by police and prosecutors – but that examination should occur with legal advice already in place, not during an unguarded conversation at the front door or in a police interview room.
At National Criminal Lawyers, we advise on stalking charges, coercive control allegations, Surveillance Devices Act matters, and the AVO overlap that almost always accompanies these cases. We understand that these allegations frequently arise in complex relationship contexts where the full picture matters enormously. Early advice gives us the opportunity to understand that picture before police have framed it entirely on their own terms.
Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.
