Today’s question is:

A question regarding surveillance. Many emergency services monitor the location of their vehicles and this monitoring often includes speed monitoring. In WA, can an organisation (emergency service or otherwise) monitor a vehicle’s location and speed using GPS monitoring without informing the drivers (using a sticker, notification or policy) and then use that monitoring, including speeds and locations for the purposes of disciplinary action or other action on behalf of the PCBU?

I have touched on these matters in an earlier post dealing with the law in NSW – see Dash cams and NSW SES (February 25, 2018).

WA does not have an equivalent to the Workplace Surveillance Act 2005 (NSW).  The relevant legislation in WA is the Surveillance Devices Act 1998 (WA).  For the purpose of that Act, a surveillance device is (s 3) ‘a listening device, an optical surveillance device or a tracking device’. For this question, we’re talking about a ‘tracking device’ that is (s 3) ‘any instrument, apparatus, equipment, or other device capable of being used to determine the geographical location of a person or object’. 

Section 7 says:

… person shall not attach, install, use, or maintain, or cause to be attached, installed, used, or maintained, a tracking device to determine the geographical location of … [an] object … without the express or implied consent of the person in possession or having control of that object.

Let us assume the emergency service in question takes their vehicle to the workshop to get a tracking device fitted.  Section 7 says that the technician must not attach or install the device without the permission of ‘person in possession or having control of that object’ and at that moment the person in possession and control of the object (the vehicle) is the service or the person asking for the device to be fitted. The technician commits no offence by installing the device.  By the same argument the technician commits no offence if he or she maintains the device.

If we assume the person who takes the vehicle to the technician is acting on the direction of the agency based on its policies, then that person who ‘causes’ the device to be attached or maintained also commits no offence.

The issue is the ‘use’ of the device. The agency, acting through its officers, causes the device to be ‘used’ if it is used to track the vehicle.    It is an offence to ‘use’ the device without the ‘consent of the person in possession or having control of that object’.  That begs the question, ‘who is the ‘person in possession or having control of’ the vehicle?  The service or the driver?’

The emergency services, whether they exist as a separate legal entity or as part of the Crown in Right of Western Australia cannot physically possess anything as they do not physically exist. They act through their staff and volunteers.  The driver represents the emergency service and is acting under their direction and authority.  It is not like a hire car where the car company hands the car to the renter, but it is up to the renter to decide where to go and when.  Whenever the driver of an emergency vehicle is driving that vehicle, he or she is doing it as part of and representing the service. Where an emergency service vehicle is being driven by a member of the emergency services in accordance with his or her duties and authority (ie driving it when they are allowed to drive it) then I think the vehicle remains in the possession of the relevant service as the driver is the embodiment of the service.

The individual driver, on the other hand, has to be the person in control of the vehicle.  It is the driver who determines how the vehicle is driven and where. It is the driver who must drive safely and will be responsible for the vehicle and who will be liable for any penalty for any traffic infringement.   One might argue the vehicle is under the control of the emergency service as they can direct its use, but the reality is that they cannot direct the driver how to drive. The driver is in control even if he or she is driving where they have been directed to.   As we’ve noted in discussions on emergency driving, the service can ‘authorise’ the driver to use lights and sirens but cannot compel them to do so; the driver has to decide what is safe in the circumstances as she or he sees them.

I would therefore argue that an emergency service vehicle being driven by an emergency services member is in the possession of the service, but under the control of the driver. But the section has an ‘or’ – the consent of the person in possession (the agency) OR the person in control (the driver) is required before the tracking device can be used.

One situation where it is ok to use a tracking device is where the item, in our context, a vehicle (Surveillance Devices Regulations 1999 (WA) r 6):

(a)            was in the person’s possession or under the person’s control when the device was attached or installed; and

(b)           is no longer in the person’s possession or under the person’s control; and

(c)           the person reasonably believes to have been stolen.

The emergency service has a tracker fitted to their vehicle and the vehicle is stolen then they can use the tracking device even though they are no longer in possession of the vehicle nor is it under their control.

An alternative argument is that the reference to the ‘person in possession or having control of that object’ is meant to reflect two different scenarios, that is one needs the consent of the person in possession but if the person in possession is not the person in control then you need the consent of the person in control.  But if that were correct there would be no need to refer to the person ‘in possession’.  Simply requiring the consent of the person ‘having control’ of the object would cover the situation where the person in possession and the person in control are the same person.  The legislation says the consent of the person in possession or the person in control is required so it must be the case that they need not be the same person.  As I have argued, I think where an emergency services vehicle is being driven by a member as part of her or his duties as a member of the emergency service, the emergency service is in possession of the vehicle, but the driver is the person ‘having control’ of that vehicle; so the consent of either is sufficient.

What I infer from all of that is:

1. An emergency service can install a tracking device on its own vehicles.
2. If someone is driving an emergency service vehicle on behalf of that service, then the vehicle remains in the possession of the emergency service and the service can authorise the use of the tracking device. The driver’s consent, or even knowledge, is not required.
3. If the car is stolen, then it is no longer in the emergency service’s possession, but they can still use the tracking device to find it even without the consent of the driver/thief.

What follows is that I think the agency can install and use a tracking device on their vehicles but that doesn’t answer the question of whether that should be communicated to the drivers. The legislation doesn’t say anything about the need to give notice nor to obtain consent for the installation of a tracking device (and compare that to ss 5(3)(c) and 6(3) which, amongst other things, provide for consent as a defence to the use of a listening or optical surveillance device). 

If the driver has not been informed that the vehicle is being tracked, can the data be used in disciplinary action?  In proceedings where the Evidence Act 1906 (WA) applies, s 79C would allow the admission of information taken from ‘devices designed for, and used for the purpose of, recording, measuring, counting or identifying information’ so that would include a GPS tracking device.   There is no requirement that the driver be given prior information that the tracking is occurring. 

One could try and make the argument that the use of the data is unfair if the driver was not aware of it, but if the data shows that the vehicle was being driven too fast, dangerously or was being used inappropriately then the overriding public interest in dealing with the matter would likely outweigh any objection.  That argument becomes more compelling the more serious the breach or alleged misbehaviour.   

A driver is expected to operate a vehicle according to law and according to policy (eg not for private purposes if that is not allowed).  The argument that ‘but I didn’t know you could track it, I wouldn’t have done it if I’d known you could prove it so that’s unfair’ is not an argument that is going to win much sympathy.  A driver is involved in a collision and says ‘I was doing 50km/h’ is not going to get much sympathy if the GPS tracker shows they were doing 80km/h and their argument is ‘you cannot use that data because I didn’t know you were able to prove my speed’.

Conclusion

I cannot see that WA law stops an agency putting a tracking device on their vehicles and then using the data from that device in disciplinary or even criminal proceedings if it shows that the vehicle was being driven in an illegal or improper way in the same way that phone records or data stored on computers identifying who logged on and when, access to webpages and internal systems etc could all be used without prior explanation to a person what can and cannot be tracked.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.