NSW’s Proposed Covert Stalking Laws: What the New Offence Could Mean for Private Investigators, Former Partners and Everyday Australians

The New South Wales Government is preparing to significantly expand stalking laws through proposed amendments to the Crimes (Domestic and Personal Violence) Act 2007 (NSW) (‘DV Act’), including the introduction of a new criminal offence known as “covert stalking”.

If passed, the reforms could dramatically widen the scope of criminal liability for surveillance-related conduct, potentially exposing private investigators, former partners, employers, and even third parties acting on instructions to criminal prosecution.

The proposed changes reflect a growing focus on coercive control, technology-facilitated abuse, and hidden surveillance behaviour. However, critics argue the reforms may create uncertainty around where legitimate investigation or observation ends and criminal conduct begins.

Current NSW Stalking Laws

Under section 13 of the DV Act, stalking is already a criminal offence in New South Wales carrying a maximum penalty of:

• 5 years imprisonment; and/or
• A fine of $5,500.

To establish the offence, the prosecution must currently prove that a person stalked another with the intention of causing the victim to fear physical or mental harm.

Importantly, the legislation also states that intent may still be established where the accused knew their conduct was likely to cause fear.

What Conduct Amounts to Stalking?

The current definition of stalking is already broad and can include:

• Following another person;
• Watching or frequenting places the person attends;
• Monitoring movements or communications through technology;
• Repeated unwanted contact online or electronically;
• GPS tracking;
• Hidden surveillance devices;
• Spyware on phones or computers;
• AirTags or other tracking devices;
• Fake social media accounts; and
• Other forms of covert monitoring.

Courts are also permitted to consider patterns of domestic violence or prior violent behaviour when determining whether conduct amounts to stalking.

The Difficulty Prosecutors Currently Face

Despite the broad definition, one of the biggest practical barriers for police and prosecutors has been proving intent beyond reasonable doubt.

In many cases, a person may engage in surveillance or monitoring behaviour, but prosecutors may struggle to prove that the accused intended to cause fear of physical or mental harm.

Without proof of that intent, the conduct may not amount to criminal stalking unless it breaches an Apprehended Violence Order (AVO).

Under section 14 of the DV Act, breaching an AVO carries penalties of up to:

• 2 years imprisonment; and/or
• A fine of $5,500.

The NSW Government’s proposed reforms appear designed to close that evidentiary gap.

What Is “Covert Stalking”?

The proposed amendments would create a new standalone offence of covert stalking.

Under the draft reforms, covert stalking would occur where a person:

• Intentionally stalks another person;
• Without that person’s knowledge; and
• In circumstances where a reasonable person would believe that, if the victim became aware of the conduct, they would fear physical or mental harm.

This represents a major shift in the law.

Under the proposed offence, the alleged victim does not need to know they are being stalked at the time the conduct occurs.

The New Objective Test

One of the most significant aspects of the reforms is the move away from proving the accused’s subjective intention to instil fear.

Instead, courts would apply an objective “reasonable person” test.

The issue would become whether a reasonable person would believe the alleged victim would fear physical or mental harm if they later discovered the conduct.

This may substantially lower the practical threshold for prosecution.

The amendments would also criminalise attempted covert stalking, potentially exposing individuals to prosecution even where the alleged conduct was never fully carried out.

Penalties for Covert Stalking

The proposed offence would carry the same maximum penalties as ordinary stalking:

• Up to 5 years imprisonment; and/or
• A fine of $5,500.

Given the seriousness of the offence, allegations of covert stalking may also result in:

• Arrest;
• Bail applications;
• AVO proceedings;
• Searches and seizure of electronic devices;
• Significant reputational damage; and
• Ongoing restrictions on contact or movement.

Evidence Police May Use to Prove Covert Stalking

To secure a conviction, police would still need to prove each element of the offence beyond reasonable doubt.

Evidence may include:

• CCTV footage;
• Mobile phone records;
• GPS data;
• Tracking device evidence;
• Social media activity;
• Witness accounts;
• Surveillance material;
• Electronic communications; and
• Expert forensic evidence from devices or software.

Courts would then determine whether the conduct objectively amounts to behaviour that would cause a reasonable person to fear harm if discovered.

Potential Criminal Exposure for Private Investigators

One of the most controversial aspects of the proposed reforms is their potential impact on private investigators and surveillance professionals.

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

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

Examples that may raise legal concerns include:

• Surveillance of former spouses or partners;
• Monitoring individuals during family law disputes;
• Workplace investigations;
• Insurance investigations;
• Covert photography;
• GPS tracking; and
• Ongoing observation of a person’s movements or activities.

While legitimate investigative work has traditionally relied upon discreet observation, the proposed laws may create uncertainty about what conduct remains lawful.

Critics argue the reforms introduce a highly subjective standard into criminal law, particularly where professional surveillance activities are involved.

A Growing Focus on Coercive Control and Technology-Facilitated Abuse

The proposed reforms reflect a broader trend in NSW criminal law toward targeting coercive control, psychological intimidation, and technology-facilitated abuse.

Supporters of the legislation argue that modern stalking often occurs covertly and may psychologically terrorise victims long before they become aware of the conduct.

Common examples include:

• Hidden tracking devices;
• Fake online identities;
• Remote monitoring applications;
• Surveillance software;
• Coordinated monitoring through third parties; and
• Ongoing digital observation.

From that perspective, the proposed offence is designed to allow earlier intervention before behaviour escalates into physical violence.

Concerns About Overly Broad Criminal Liability

Opponents of the reforms argue the legislation may criminalise conduct that does not involve any genuine threat of violence.

A number of legal questions remain unclear, including:

• Could repeated photography in public amount to covert stalking?
• Could social media monitoring become criminal conduct?
• What about private investigators gathering evidence lawfully?
• Could workplace or insurance investigations expose individuals to prosecution?
• Where is the line between observation and intimidation?

Ultimately, courts may be left to determine how broadly the new laws should operate.

AVOs and Protection Orders

Individuals concerned about stalking or covert surveillance may also seek protection through an Apprehended Violence Order (AVO).

An AVO application can be made:

• Through NSW Police; or
• Privately through the Local Court registry.

If an interim or final AVO is granted, any breach — including covert stalking conduct — may result in separate criminal prosecution carrying significant penalties.

A Significant Expansion of NSW Criminal Law

If enacted, the proposed covert stalking offence would represent one of the most substantial expansions of stalking laws in New South Wales in recent years.

By focusing on hidden conduct and applying an objective “reasonable person” test, the reforms significantly shift the legal landscape surrounding surveillance, monitoring and stalking-related behaviour.

Whether the changes improve community safety or create legal uncertainty will likely remain the subject of significant debate.

What is clear, however, is that covert surveillance and monitoring conduct may no longer be viewed as operating within a legal grey area in New South Wales.

Contact Criminal Lawyers Group

If you have been accused of stalking, covert surveillance conduct, breaching an AVO, or are under police investigation for domestic violence related allegations, obtaining early legal advice is critical.

Criminal Lawyers Group advises and represents clients across New South Wales in relation to:

• Stalking allegations;
• Proposed covert stalking investigations;
• AVO proceedings;
• Domestic violence offences;
• Technology-facilitated abuse allegations;
• Bail applications; and
• Criminal defence matters.

The firm regularly appears in Local Courts, District Courts and Supreme Courts throughout NSW and provides strategic advice in complex criminal law matters.

To speak with an experienced criminal defence lawyer, contact Steven Mercael, Principal Lawyer at Criminal Lawyers Group today for confidential legal advice.