Is Covert Stalking Legal In New South Wales? Know Your Rights

New South Wales is preparing to significantly expand its stalking laws, with proposed legislation introducing a new criminal offence of “covert stalking” that could expose private investigators, former partners, and even third parties acting on instructions to criminal prosecution.

The proposed reforms to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘DV Act’) are being framed as a stronger response to modern stalking behaviour, particularly conduct facilitated through technology and surveillance. But legal observers say the amendments may also dramatically widen the scope of criminal liability in ways that could affect ordinary citizens and professional investigators alike.

Stalking Penalties and Law

Under the current law, stalking is already a criminal offence carrying penalties of up to five years imprisonment and/or a $5,500 fine.

Section 13 of the DV Act makes it illegal to stalk another person with the intention of causing that person to fear physical or mental harm. Importantly, the law states that a person can still be taken to have intended to cause fear if they knew their conduct was likely to create that fear.

At present, the legislation defines stalking broadly. It includes following a person, watching places they frequent, monitoring their movements or communications through technology, and contacting them online or through other electronic means. This includes tracking devices and surveillance technology such as AirTags and GPS trackers, spyware on phones or computers, hidden cameras in homes and social media monitoring software.

Courts are also permitted to consider patterns of past violent behaviour — especially domestic violence — when deciding whether conduct amounts to stalking.

But despite the wide definition, prosecutors still face a major hurdle: proving intent.

In many cases, it is difficult — and sometimes nearly impossible — to establish beyond reasonable doubt that the accused intended to cause fear of physical or mental harm. Unless that intent can be proven, stalking behaviour itself may not amount to a criminal offence unless it breaches the conditions of an Apprehended Violence Order (AVO) (AVO breaches).  Breaches of AVO are prescribed in section 14(1) of the DV Act which carries a penalty of up to 2 years imprisonment and/or $5,500 fine.

That legal gap is precisely what the NSW Government now appears determined to close.

What is Covert Stalking ?

The proposed amendments would introduce an entirely new offence: covert stalking. Under the draft laws, covert stalking would occur where a person intentionally stalks another person without their knowledge in circumstances where a reasonable person would believe that, if the victim became aware of the conduct, they would fear physical or mental harm.

In other words, the alleged victim does not actually need to know they are being stalked at the time.

That marks a major shift in the law.

Criminal Penalties for Covert Stalking in NSW

The offence would still carry the same maximum penalties as ordinary stalking — up to five years imprisonment and/or a $5,500 fine — but would remove one of the biggest practical barriers to prosecution: proving that the accused intended to instil fear in the victim at the time of the conduct.

Instead, courts would apply an objective test based on what a “reasonable person” would think the victim’s reaction would be if they later discovered the conduct.

The amendments would also criminalise attempted covert stalking, exposing people to prosecution even where the alleged conduct was never completed.

Evidence Required to Prove Covert Stalking

To prove covert stalking, the police will need enough evidence for the court to be able to conclude beyond reasonable doubt that the offence occurred. This requires proving each element of the offence, namely, that the accused person intentionally stalked another person without their knowledge; and did so in circumstances where a reasonable person would believe that, if the victim became aware of it, they would fear harm. Typical evidence to proving  this will include video footage or witness accounts especially if the witness accounts are from independent witnesses. Inherent in the conduct of the covert stalking will be the evidence for the court to conclude as to whether it amounts to the kind of conduct that a reasonable person would form the view that the victim would fear harm if the victim became aware. This objective test is drawn by the court to determine based on the findings of fact after all evidence is given in court.

Private Investigators Could Face Criminal Exposure

One of the most controversial aspects of the proposed laws is their potential impact on private investigators.

The amendments seek to expand the legal definition of stalking to include directing another person to engage in stalking conduct.

That means a person who hires someone else — including a private investigator — to follow, monitor or track another individual could potentially fall within the scope of the offence.

For example, employing a private investigator to discreetly observe a former spouse, partner or associate may now carry significant criminal risks depending on the circumstances.

Legal analysts warn that the reforms may create uncertainty for an entire industry built around covert surveillance and information gathering.

While legitimate investigative work often involves discreet observation, the proposed laws raise questions about where lawful investigation ends and criminal conduct begins.

A private investigator conducting surveillance could theoretically face criminal charges if a court later determines that a reasonable person in the alleged victim’s position would fear physical or mental harm upon learning of the surveillance.

Critics argue that this introduces a highly subjective standard into criminal law.

A Growing Focus on Coercive and Controlling Behaviour

The proposed reforms also reflect a broader trend in NSW toward expanding laws targeting coercive control, technology-facilitated abuse, and non-physical forms of intimidation.

In recent years, lawmakers have increasingly focused on patterns of behaviour that may psychologically terrorise victims even without direct threats or physical violence.

Supporters of the reforms argue that modern stalking is often hidden, technologically sophisticated, and psychologically damaging long before a victim becomes aware of it.

Tracking devices, online monitoring, fake social media accounts, surveillance applications, and coordinated monitoring through third parties have become increasingly common features in domestic violence investigations.

From that perspective, the proposed covert stalking offence is designed to intervene earlier — before conduct escalates into physical harm.

But opponents say the breadth of the legislation risks criminalising conduct that may not involve any genuine threat at all.

Concerns Over Broad Criminal Liability

The reforms may ultimately leave courts to determine difficult questions about what level of surveillance or monitoring crosses the line into criminality.

Would photographing someone in public repeatedly amount to covert stalking?

Could monitoring social media activity become evidence of an offence?

What about investigators gathering evidence for family law disputes, workplace investigations, or insurance claims?

The legislation does not yet provide definitive answers.

What is clear, however, is that the proposed changes would substantially increase police powers to investigate stalking-related conduct and may expose more individuals to criminal charges even where no direct communication, threat or confrontation occurred.

For professionals operating in surveillance industries, the stakes are particularly high.

Even where charges are ultimately dismissed, being accused of covert stalking could involve arrest, costly legal proceedings, reputational damage, and the possibility of imprisonment.

Getting an AVO for Covert Staking Protection

Here is a guide on how to get an AVO. An AVO can be obtained through the police or privately through filling and filing an AVO application at the court registry. Once the AVO is approved, it turns into a provisional AVO and expires after 28 days. The AVO will normally be listed before the local court within that timeframe. If an AVO is granted by the court, then this will protect a person in need of protection (PINOP) from covert stalking. Any breach of the AVO conditions, including covert stalking conduct, will result in criminal prosecution carrying heavy criminal penalties.

A Significant Expansion of NSW Stalking Laws

If passed, the new laws would represent one of the most substantial expansions of stalking offences in New South Wales in recent years.

By focusing on hidden conduct and introducing an objective “reasonable person” test, the reforms shift the legal emphasis away from proving the accused’s subjective intent and toward the broader impact the conduct could have on victims.

Whether the changes improve community safety or create new legal uncertainty remains likely to be fiercely debated.

What is certain is that the days of assuming covert surveillance falls into a legal grey area may soon be over in New South Wales.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.