NSW's new covert stalking offence.

A new offence aimed at trackers.

The NSW Government has passed laws that, for the first time, make covert stalking a stand-alone criminal offence. The Attorney General introduced the Crimes (Domestic and Personal Violence) and Other Legislation Amendment Bill 2026 on 5 May 2026, and it passed the Parliament the same month. The driver was the NSW Crime Commission's Project Hakea report of June 2024, which found that GPS tracking devices are being used to stalk, harass and monitor victims, at times leading to violent outcomes. The Commission found that since early 2023, one in four known buyers of these devices had a history of domestic violence, and some retailers were promoting the devices for that very use.

The reform changes the Crimes (Domestic and Personal Violence) Act 2007 (NSW), the Surveillance Devices Act 2007 (NSW), and the Security Industry Regulation. The headline change is a new offence of covert stalking that captures the secret use of a tracker, a phone, or any other technology to follow a person who has no idea it is happening. This article sets out what is now an offence, the penalties, and the practical questions people ask when a tracker is found.

Is it illegal to track someone in NSW?

Yes, on two fronts. It was already an offence before this reform. Section 9 of the Surveillance Devices Act 2007 (NSW) makes it a crime to install, use, or maintain a tracking device to work out a person's location without their consent. The maximum penalty is 5 years in prison and/or a fine of $55,000. Between 2010 and 2023, 96 people were charged with that offence, and 79 of those charges were tied to domestic violence. The Crime Commission found the real figure was far higher than the charges suggest.

What the 2026 law adds is a second way to charge the same conduct, this time as stalking. Secretly fixing an AirTag to a partner's car, or loading a tracking app onto their phone, can now be charged as covert stalking under the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The two offences can overlap. Which one is laid will depend on the facts and the relationship between the people involved.

What is the new covert stalking offence?

Section 8 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) defines stalking. It covers following a person, watching or approaching the places they live, work, or visit, and monitoring their movements or communications, including by technology. The reform widens this definition and rewrites the offence in section 13.

New section 13(1) keeps the existing offence: stalking or intimidating another person with the intention of causing them to fear physical or mental harm. New section 13(3) creates the offence of covert stalking. It applies where a person covertly stalks another and, had the person stalked been aware of it, a reasonable person in their position would have feared physical or mental harm to themselves or to someone they are in a domestic relationship with. Section 13(5) spells out the key word: covert stalking means stalking a person in circumstances where they are unaware of the stalking when it occurs.

The point of the new offence is the secrecy. The old stalking offence is built around fear, and a person who does not know they are being followed cannot be in fear. The tracker victim often learns of the device long after the monitoring, sometimes only when the relationship ends. Section 13(3) closes that gap. The Crown no longer has to prove the victim was actually afraid. It has to prove the conduct, the secrecy, and that a reasonable person who knew of it would fear harm.

What is the punishment for stalking in NSW?

The maximum penalty for stalking or intimidation under section 13(1) is 5 years in prison and/or a fine of $55,000. The new covert stalking offence under section 13(3) carries the same maximum. An attempt to commit either offence is treated as the full offence and faces the same maximum, under new section 13(4).

A 5 year maximum makes covert stalking a serious indictable offence. That matters beyond the headline number. As the Attorney General set out in the second reading speech, because covert stalking is a serious indictable offence it can ground a charge of breaking and entering and committing a serious indictable offence under section 112 of the Crimes Act 1900 (NSW), or breaking and entering with intent under section 113, where someone breaks into a home to plant or retrieve a tracking device. Those offences carry much higher maximum penalties.

What is the Surveillance Devices Act in NSW?

The Surveillance Devices Act 2007 (NSW) regulates listening devices, optical devices, tracking devices, and data surveillance devices. Part 2A deals with the installation, use, and maintenance of these devices, and sets out the prohibitions on covert or non-consensual use. Section 9 is the tracking device offence described above.

The 2026 reform adds a new section 13A to that Act. It targets the supply side. It is now an offence to advertise a surveillance device for sale and promote its use in a way that is prohibited under Part 2A, for example marketing a small GPS tag for secret tracking of a partner. The offence applies to people and to companies. For a person the maximum is 5 years in prison and/or a fine of up to $11,000. For a corporation the fine runs to $55,000. The reform answers the Crime Commission's finding that some retailers were openly promoting trackers for stalking.

Can you be charged for getting someone else to stalk?

Yes. The reform inserts a new limb into the definition of stalking in section 8. Directing another person to carry out stalking is itself stalking, where that other person goes on to do it. The clearest case is hiring a private investigator to secretly watch a former partner. If the person who gave the direction knew it would likely cause the subject to fear physical or mental harm, they are responsible for the stalking, even though they never followed anyone themselves.

This is a real change for the investigation industry. A licensed inquiry agent who takes instructions to covertly monitor a person now needs to think hard about the purpose behind the brief. The person giving the instruction is exposed, and so is the agent who carries it out.

Are there exceptions for parents?

The law carries exemptions so that ordinary, protective conduct is not swept up. A parent who keeps an eye on a young child's location or social media for safety reasons is not committing covert stalking. The offence is built around the fear element and the domestic context. It is aimed at controlling and abusive monitoring, not a parent checking that a child got to school. As with any new offence, the edges will be worked out by the courts as the first matters come through.

What evidence is used in a tracking case?

A covert tracking case is built on the device and the data. The physical tracker, the account it reports to, the purchase record, and the location history are the core of the brief. Phone downloads show the apps installed and the accounts logged in. Where a tracking app was loaded onto the victim's phone, the install record and the linked account point to who set it up.

For the defence, the work is in testing each link. Who bought the device. Who had access to the car or the phone. Whether the data shows monitoring or only a single act. Whether the account belongs to the accused. A tracker found on a shared family car raises different questions to a tag hidden in a former partner's handbag. The charge has to be matched to what the evidence actually proves.

Why this matters now.

Cheap tracking tags are everywhere. Most are sold to find keys and luggage. The same device, slipped into a bag or fixed under a bumper, becomes a tool of control. NSW has now put that conduct on the same footing as the offences it treats most seriously. People who track a partner, and people asked to do the tracking for someone else, face real criminal exposure.

If you have been charged with stalking, intimidation, a tracking device offence, or breach of an AVO, the response in the first few days shapes the case. Do not take part in a police interview without advice. The conduct is often capable of an innocent explanation, and the charge laid is not always the right one on the facts.

Frequently asked.

Is it illegal to track someone in NSW?

Yes. Using a tracking device to monitor a person's location without consent is an offence under section 9 of the Surveillance Devices Act 2007 (NSW), with a maximum of 5 years. From 2026, secret tracking can also be charged as covert stalking under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW).

What is the punishment for stalking in NSW?

Up to 5 years in prison and/or a fine of $55,000 under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). The new covert stalking offence carries the same maximum.

What is covert stalking?

Stalking a person in circumstances where they are unaware of the stalking when it occurs. The offence applies where a reasonable person, if they knew of the conduct, would fear physical or mental harm. Secretly fixing a GPS tracker or AirTag to a partner's car is the clearest example.

Is a DVO worse than an AVO?

In NSW the order is an AVO. An ADVO is the domestic version, an APVO the personal version. Neither is a criminal conviction in itself. Breaching either is a criminal offence and can carry a prison term.

How do you defend an intimidation charge?

The Crown must prove the conduct and the intention to cause fear of physical or mental harm. A defence may challenge identity, whether the conduct meets the definition, or intention. Each charge turns on its evidence. Get advice before any police interview.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 29 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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