In Australia, it is against the law to record a private conversation without the consent of the other person.
The Telecommunications Interception and Access Act 1979 makes it an offence to listen to a live phone call or call recording without the permission of one or both of the parties involved.
It does not matter how you record the conversation. This includes tapping a phone line, using an app to record phone calls on a mobile phone, or using a call recorder device.
Depending on the specific jurisdiction, there are exceptions to this general rule. There are also different pieces of legislation that apply in different states and territories.
However, generally speaking, if you covertly use a listening device (such as a mobile phone) and publish or distribute that material, you can be committing a criminal offence.
Is it Legal to Record a Phone Call in NSW?
In NSW, it is against the law to record a private conversation without consent. Section 7 of the Surveillance Devices Act 2007 (NSW) sets out that if a person knowingly installs, maintains or uses a listening device to overhear, record, monitor, or listen to a private conversation, they are guilty of an offence.
There are some exceptions to this rule, being:
- If recording the conversation protects the lawful interests of the person;
- If the recording is not made to communicate or publish the conversation, or a report of the conversation, to persons who are not parties to the conversation;
- The recording occurred in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
- It was an unintentional hearing of a private conversation by means of a listening device; or
- 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; or
- 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; or
- 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; or
- The use of a body-worn video by a police officer in accordance with section 50A; or
- The recording, monitoring or listening of a private
conversation occurred in circumstances:
- Where a party to the 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.
The maximum penalty for recording a phone call in NSW is up to 5 years' imprisonment and/or a fine of up to 100 penalty units.
What is a Listening Device?
A listening device is 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. This definition is contained in Section 4 of the Surveillance Devices Act 2007.
However, 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.
Mobile phones are commonly used to record audio and visual recordings. They fall under the definition of a listening device.
Why Do People Record Private Conversations?
Criminal lawyers in Sydney explain that there are a multitude of reasons why a person would record a phone call. Often it may be to protect a lawful interest or to obtain incriminating evidence against another person.
Defences to Recording a Private Conversation
The most common defences to recording a private conversation without consent are:
- That all parties consented to the recording of the conversation;
- That it was reasonably necessary to record the conversation to protect your lawful interests.
What does 'reasonably necessary' to 'protect lawful interest' mean?
'Necessary' means appropriate but not essential, while what is 'reasonable' is an objective test which is to be assessed based on the circumstances of the recording.
This was explained in the decision of Sepulveda v R  NSWCCA 379. In that case, an alleged victim of historical sexual assault secretly recorded a conversation with the alleged offender. The motivation for the recording was to obtain evidence against the alleged offender and to obtain money from the alleged offender in exchange for the recording.
The court held that it was not 'reasonably necessary' to make the recording as the complainant could have contacted police who could have applied for a lawful warrant for the recording.
'Protection' was defined as defence from danger, harm and evil.
What does 'lawful interests' mean?
'Lawful interests' depends on the circumstances of each particular case. While there is not a general rule, there are some examples that provide guidance.
The decision of DW v R  involved a 14-year old girl recording a private conversation with her father, who was found guilty of indecent assault and child pornography charges.
The recording was made prior to police involvement. The child said she did not think that her step-mother would believe her, and she was afraid of her father, who convinced his wife that she was lying.
Even after the recording was made, she did not contact police, but rather hid it.
In that case, the court found that the recording was for the 'protection of her lawful interests' based on the recording being made to protect her from further abuse. The court found that due to her age, she couldn't be expected to understand that police could have obtained a lawful warrant.
A further example was the decision of R v EP  ACTSC 89. In that case, a woman complained to police that the Accused had threatened to distribute explicit images of her.
Following this, she found an intimate image of herself on her home driveway. She also took this to police. She later recorded a conversation between herself and the alleged offender where he told her he would disseminate the intimate images of her unless she had sex with him for 3 months.
The court held that it was necessary to make the recording to protect her lawful interests.
Recording Private Conversations
The law in Australia makes it clear that the bar on recording only applies to 'private conversations'.
A 'private conversation' is one where the parties may reasonably assume that they will not be overheard by others.
One notable exception to the ban on recording, publishing or distributing recordings of private conversations is where police officers apply for and are granted a 'surveillance device warrant'. This is more commonly known as a 'wire tap' or a 'phone tap'.
Once the private conversations are recorded, they can be used for the purpose of investigating criminal activity. The recordings may also be tendered in court as evidence if they are relevant to an offence.
Surveillance device warrants can allow both undercover police officers as well as informers to lawfully record private conversations.
Is it Legal to Record a Phone Call in Victoria?
In Victoria, it is against the law to record a private conversation without the express or implied consent of each party.
Pursuant to Section 6 of the Surveillance Devices Act 1999 (Vic), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party.
In Victoria, the penalty for recording a private conversation without consent is up to 2 years' imprisonment and/or 240 penalty units.
Is it Legal to Record a Phone Call in the Northern Territory?
In the Northern Territory, it is illegal to record a private conversation without the consent of other parties to a conversation.
There are some exceptions to this general rule, which include:
- There is a police warrant.
- A law enforcement officer is doing so to protect someone's safety.
- In the case of emergencies, urgent matters, and serious circumstances where using a recording device is in the public interest BUT the person recording it must submit a written report to an NT judge within two business days
In the Northern Territory, the maximum penalty for recording a phone call without consent is 2 years' imprisonment or a fine of up to 250 penalty units.
Is it Legal to Record a Phone Call in Queensland?
Unlike other jurisdictions, in Queensland, it is lawful to record a private conversation that you are a party to. This is regardless whether the other party consents to the recording.
However, it is an offence to publish or distribute that recording unless it is used for legal proceedings or it is reasonably necessary to protect your lawful interests.
Is it Legal to Record a Phone Call in South Australia?
In South Australia, it is unlawful to record a private conversation without the express or implied consent of all parties.
However, Section 4 of the Surveillance Devices Act 2016 (SA) sets out some exceptions to this, which include:
- It was done in the course of duty, such as by a police officer.
- The private conversation was recorded by one party and is in the public interest.
- The conversation was recorded to protect the lawful interests of one party.
In South Australia, the maximum penalty for recording private conversation without consent is $15 000 or imprisonment for 3 years.
Is it Legal to Record a Phone Call in Western Australia?
In Western Australia, it is against the law to record a private conversation without the consent of all parties involved, whether or not you are a party to the conversation.
However, Section 5 of the Surveillance Devices Act 1998 (WA) sets out some exceptions to this. One of these exceptions is where one principal party to the conversation consents and the recording is reasonably necessary to protect that party's lawful interests. There is also a public interest exception.
In Western Australia, the maximum penalty for recording a private conversation is 12 months' imprisonment and/or a $5,000 fine.
Is it Legal to Record a Phone Call in Tasmania?
In Tasmania, it is against the law to record a private conversation without the consent of all parties involved.
However, Section 5 of the Surveillance Devices Act 1991 (Tas) sets out some exceptions to this. These include:
- the use of a listening device pursuant to a warrant;
- to obtain evidence or information in connection with an imminent threat of serious violence or substantial damage to property; or a serious narcotics offence if the person using the listening device believes on reasonable grounds that it was necessary to use the device immediately to obtain that evidence or information;
- the recording of an interview between a police officer and a person suspected by a police officer of having committed an offence against any Act.
In Tasmania, the maximum penalty for recording a private conversation is 2 years' imprisonment and/or a fine of 40 penalty units.
Can Recordings Be Used As Evidence?
An recording of a private conversation can be used as evidence in court if the provisions of Section 138 of the Evidence Act are satisfied.
The court has a "discretion to exclude improperly or illegally obtained evidence". Unlawfully obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
In making that assessment there are a number of criteria that the court must take into account. Some of these include the importance of the evidence in the proceedings, the gravity of the unlawful conduct, whether the illegal conduct was deliberate or reckless, whether there were alternative legal ways of obtaining the recording and the seriousness of the offence.
Can Recordings Be Used in Family Court?
A recording can be used in Family Court if it is reasonably necessary for the protection of the lawful interests of the person making the recording.
While there is no firm rule, there are cases which can provide examples. A recording made in anticipation of a possible dispute or to keep an accurate record of what was said or done will not be a sufficient reason.
However, if there is a serious dispute between the parties which will depend on one person's word against another's, then the recording is more likely to be lawful.
If there was a lawful way to make the recording, it is more likely that the recording would be found to be illegal. A common example is where police could have been contacted and obtained a warrant.
If recording the private conversation without consent was the only practical way to prove that the conversation occurred, then it is more likely the recording will be considered lawful. This may apply where there is a serious criminal matter or there is a genuine concern about a child's safety.
These principles were applied in the case of Latham v Latham  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.