KEY TAKEAWAYS

It is illegal to record someone without consent in New South Wales unless one of the lawful exceptions to this apply under the Surveillance Devices Act. You can secretly record a private conversation if the secret recording is 'reasonably necessary' to protect your 'lawful interests'. If you illegally secretly record someone, you can face criminal prosecution including a term of up to 5 years imprisonment.

This article, written by our criminal lawyers Sydney team, is a guide only. For specific legal advice, our CDLA Sydney office is available to take your call to arrange a consult.

SURVEILLANCE DEVICES ACT

A surveillance device includes a listening device, an optical surveillance device, a data surveillance device, or a tracking device.

All sections and provisions are in reference to the Surveillance Devices Act 2007 (NSW) ("SDA") unless stated otherwise.

The SDA provides the legislative framework for the use of surveillance devices in criminal investigations and allows law enforcement agencies such as NSW police officer(s) to covertly obtain evidence for criminal prosecutions. It is also the framework that provides safeguards for individual privacy according to section 2A.

Section 10(1) says that unless subsection (2) applies, a person must not knowingly install, use or maintain a data surveillance device on or in premises to record or monitor the input of information into, or the output of information from, a computer on the premises if the installation, use or maintenance of the device involves:

  • Entry onto or into the premises without the express/implies consent of the owner/occupier of the premises, or
  • Interfere with the computer or a computer network on the premises without the express/implied consent of the person having lawful possession or lawful control of the computer or computer network.

Subsection (2) applies in any one of the following circumstances

  • The installation, use or maintenance of a data surveillance device is in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, or
  • The installation use or maintenance of a data surveillance device is in accordance with a law of the Commonwealth

LISTENING DEVICES | LISTENING DEVICES FOR SPYING

Definition of "listening device"? A listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. It does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

A thing is not precluded from being a listening device merely because it's also capable of recording or transmitting visual images (i.e. video camera) or recording or transmitting its own position (s4(3)).

Is it Illegal to Record a Conversation Without Consent In Australia?

Can you record someone without permission or is it a breach of confidentiallity? Section 7(1) says that unless subsection (2) applies, a person must not knowingly install, use or cause to be used or maintain a listening device:

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party (s7(3)), or

(b) to record a private conversation to which the person is a party (unless all of the principal parties to the conversation consent expressly or impliedly to the listening device being so used; or a principal party to the conversation consents to the listening device being so used and the recording of the conversation (s7(3)):

  • Is reasonably necessary for the protection of the lawful interest of that principal party, or
  • Is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation)

Subsection (2) applies in any of the following situations

  • Unintentional hearing of a private conversation by means of a listening device,
  • The use of a body-worn video by a police officer, in accordance with section 50A (use of body-word video by a police officer acting in the execution of his/her duty, and the use of body-worn video is overt, and if the police officer is recording a private conversation, the officer is in police uniform or has provided evidence that he/she is a police officer to each party to the private conversation per s50A(1)); OR use of body-worn video by a police officer if it is inadvertent or unexpected or it's incidental to the use of body-worn video by the police officer in the circumstances set out in the circumstances set out in section 50A(1),
  • The use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,
  • The use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,
  • The use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,
  • The installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,
  • The installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law, of the Commonwealth.

Other exceptions to section 7(1) apply if the listening device is to record, monitor or listen to a private conversation where (s7(4)):

  • A party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and
  • The person using the listening device is that participant or another participant in that authorised operation.

What is a "private conversation"? A private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and by some other persons who has the express or implied consent of all of those persons to do so.

What Does 'Reasonably Necessary' For 'Protection' Mean?

Whether a recording is considered 'reasonably necessary' or not will depend on the circumstances of each case.

For example, the case of Sepulveda v R [2006] NSWCCA 379 was a case where the complainant in a historical sexual assault case had made a secret recording of a conversation with the alleged offender in order to bring the alleged offender to justice for criminal acts committed against the complainant and his brothers.

In that case, the complainant tried to obtain money from the alleged offender in exchange for the recording.

The court said that the recording was illegal because it was not 'reasonably necessary' to make the recording as the complainant could have sought help from police, where police could have applied for a warrant under the law. This would've allowed the conversation to be recorded under a warrant, which would otherwise have been lawful.

In Sepulveda's case, Justice Johnson said, that "necessary" meant appropriate but not essential, and "reasonably" is an objective test which is to be assessed based on the circumstances of the recording.

"protection" means defence from danger, harm and evil.

What Does 'Lawful Interests' Mean?

'Lawful interests' has been explained in the case of DW v R [2014] 28, which was a case of a 14-year old girl who made a secret recording of a conversation with her dad. Her dad was later found guilty of indecent assault and child pornography charges.

The 14-year old girl made the secret recording in the following circumstances:

  • The secret recording was made before police were approached and involved
  • She believed that her step-mum wouldn't believe her, so she didn't approach her for help
  • She was scared of her dad, who convinced his wife that she was lying.
  • After making the recording, she didn't approach police, instead hid it to ensure her dad doesn't get it.

In that case, the court said that she did the secret recording for the 'protection of her lawful interests', namely, the recording was made to protect her herself from further abuse and exploitation, and it wasn't practical in the circumstances for her to have approached police to obtain a warrant to be able to secretly record the conversation because:

  • She was 14-years old
  • She had her own mobile phone, but she couldn't be expected to understand the legal avenues available to have her complaints investigated

In another example of a 'lawful interest to make a secret recording, is the case of R v EP [2019] ACTSC 89, where a woman complained to police that the alleged offender threatened to disseminate sexually explicit images of her. She later found an intimate image of herself on her home driveway, which she took to police. She later made a secret recording of a conversation with her and the alleged offender. The recording revealed the alleged offender's admissions of him telling her that she had to have sex with him for 3 months, otherwise he would disseminate the intimate images of her.

The court in that case said that they considered it necessary to make the recordings to protect her lawful interests.

Can You Record Phone Calls | Is It Illegal to Record a Phone Call?

Family law disputes often involve children and property. Things can and sometimes do get nasty. Secret recordings here can be very useful evidence if done lawfully.

An example is the case of Latham v Latham [2008] FamCA 877. This case involved a father who made secret recordings of his children and wife. The recordings revealed abusive comments made by his wife towards the children which supported his concerns that she was a child abuser.

The secret recordings were accepted as lawful by the court because they were considered reasonably necessary to protect his lawful interests, namely, the probability that the wife would deny the conversations; that he needed to protect himself from risk of being accused of fabricating the conversations and avoid being labelled a liar.

What Does the Court Consider When Determining Whether a Secret Recording is Lawful?

Is the secret recording of a private conversation lawful or illegal? It will be considered lawful if the law considers if "reasonably necessary for the protection of the lawful interests of the person making the recording.

The following are factors to consider:

  • Was the recording made in anticipation of a possible dispute arising or for the sake of making an accurate record of what was said or done. If so, this is not enough of a reason.
  • Was there a recording made in context of a serious dispute between the parties. This may include where the dispute essentially depends on oral evidence i.e. one person's word against another person's word. In this case, the secret recording is more likely to be lawful.
  • Was there an alternative practical approach to making a secret recording, such as by means of approaching police who can obtain a warrant to do this properly? If there was, then the recording will more likely be considered illegal.
  • Was that conversation the only practical evidence to be able to prove that you did not fabricate the conversation? If so, it will more likely be considered important to protect yourself by secretly recording it, in order to be able to refute accusations of fabricating the conversation. This will more likely be considered a lawful secret recording. i.e. where the conversation is about a serious criminal matter or there's a genuine child safety concern.

It will more likely be considered a lawful recording where the subject matter is contentious and the conversation or characteristics of the person being recorded indicate that it's necessary to make the recording to secure an admission in respect of a conversation to support a legitimate purpose.

IS IT ILLEGAL TO FILM OR TAKE PHOTOS OF SOMEONE WITHOUT THEIR PERMISSION IN AUSTRALIA?

Definition of an "optical surveillance device"? An "optical surveillance device" is defined as a device capable of being used to visually record or observe an activity. This does not include spectacles or contact lenses used by a person with impaired sight to overcome the impairment.

Is it illegal to video record someone without consent in NSW?

Section 8(1) says that unless subsection (2) applies, a person must not knowingly install, use or maintain an optical surveillance device on or within premises (or a vehicle or any other object) to record visually or observe the carrying on of an activity if the installation, use or maintenance of the device involves:

  • Entry onto/into the premises/vehicle without express/implied consent of the owner/occupier of the premises/vehicle, or
  • Interference with the vehicle/other object without express/implied consent of the person having lawful possession or lawful control of the vehicle/object.

Subsection (2) applies in any one of the following circumstances:

  • The use, of body-worn video by a police officer, in accordance with section 50A.
  • The use of the device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,
  • The use of the device and any enhancement equipment in relation to the device is solely for the purpose of the location and retrieval of the device/equipment, or
  • The installation, use or maintenance of the device is in accordance with a law of the Commonwealth, or
  • The installation, use or maintenance of the device is in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, or
  • The installation, use or maintenance of the device is by a law enforcement officer in the execution of a search warrant or crime scene warrant (including the use of an optical surveillance device to record any activity in connection with the execution of the warrant), or
  • The use of the device by a law enforcement officer in the conduct of a search or inspection (including the use of an optical surveillance device to record any activity in connection with the search or inspection) that is permitted without a warrant under The Firearms Act 1996, Terrorism (Police Powers) Act 2002, Restricted Premises Act 1943, Drug Supply Prohibition Order Pilot Scheme Act 2020, or Child Protection (Offenders Registration) Act 2000.

Another exception to section 8(1) applies if the use of the optical surveillance device to visually record or observe the carrying on of an activity where a party to the activity is a participant in an authorised operation and, if the participant is a law enforcement officer, the participant is using an assumed name or assumed identity, and the person using the optical surveillance device is that participant or another participant in that authorised operation.

TRACKING DEVICES | IS GPS TRACKING LEGAL?

Definition of a "tracking device"? A tracking device means any electronic device capable of being use to determine or monitor the geographical location of a person or object.

Section 9(1) says that unless subsection (2) applies, a person must not knowing install, use or maintain a tracking device to determine the geographical location of:

  • A person without the express/implied consent of that person, or
  • An object without the express/implied consent of a person in lawful possession or having lawful control of that object.

Subsection (2) applies if any of the following circumstances apply

  • The installation, use or maintenance of a tracking device is in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation, or
  • The installation, use or maintenance of a tracking device is in accordance with the law of the Commonwealth, or
  • The installation, use or maintenance of a tracking device is for a lawful purpose.

COMMUNICATING OR PUBLICATION OF PRIVATE CONVERSATIONS OR RECORDING OF ACTIVITIES

Section 11(1) says that unless subsection (2) applies, a person must not publish or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person's knowledge as a direct/indirect result of the use of a listening device, an optical surveillance device or a tracking device in contravention of a provision of this Part (Part 2).

This carries up to 5 years imprisonment and/or $11,000 to an individual. For a corporation this carries up to $55,000 fine.

Subsection (2) applies in any one of the following circumstances:

  • If the communication/publication: is made to a party to the private conversation/activity; or with the consent of all the principal parties to the private conversation/activity; or for purpose of investigating or prosecuting an offence against this section; or in the course of proceedings for an offence against this Act of the regulations.
  • If the communication/publication is no more than is reasonably necessary in connection with an imminent threat of either serious violence to persons/of substantial damage to property; or commission of a serious narcotics offence.

POSSESSING A RECORD OF PRIVATE A CONVERSATION OR ACTIVITY

Section 12(1) says that unless subsection (2) applies, a person must not possess a record of a private conversation or the carrying on of an activity knowing that it's been obtained (directly/indirectly), by the use of a listening device, optical surveillance device or tracking device in breach of the above outlined provisions.

This carries a maximum penalty of up to 11,000 fine and/or 5 years imprisonment. For a corporation this carries up to $55,000 fine.

Subsection (2) applies if the record is in the possession of the person:

  • In a connection with proceedings for an offence against this legislation, or
  • With consent (express/implied) of all the principal parties to the private conversation or persons who took part in the activity, or
  • As a consequence of a communication or publication of that record to that person in circumstances that do no constitute a contravention of this Part.

POSSESSING OR SUPPLYING OR MANUFACTURING A LISTENING OR OTHER DEVICE FOR UNLAWFUL USE

Section 13(1) says that a person must not manufacture, or supply or offer to supply, or possess a data surveillance device, listening device, optical surveillance device or tracking device with the intention of using it, or it being used, in breach of this Part (as outlined above).

This carries a maximum penalty of up to 11,000 fine and/or 5 years imprisonment. For a corporation this carries up to $55,000 fine.

COMMUNICATING OR PUBLICATION OF INFORMATION FROM USE OF DATA SURVEILLANCE DEVICE

  • Section 14(1) says that unless subsection (2) applies, a person must publish, or communicate to any person, any information regarding the input of information into, or the output of information from, a computer obtained as a direct or indirect result of the use of a data surveillance device in breach of this Part.

This carries a maximum penalty of up to 11,000 fine and/or 5 years imprisonment. For a corporation this carries up to $55,000 fine.

Subsection (2) applies in any of the following circumstances

  • To a communication or publication made to the person having lawful possession/control of the computer; or with the consent (express/implied) of the person having lawful possession/lawful control of the computer; or for the purpose of investigating or prosecuting an offence against this section; or in the course of proceedings for an offence against this Act; or
  • If the communication or publication is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons or substantial damage to property; or the commission of a serious narcotics offence.

If you are interested in cyber crime offences relating to this topic. Here is more on cyber crime in Australia.