What are the Recording Laws in Australia?
In Australia, each state and territory has its own recording laws enacted to protect people’s private conversations and activities. One common legislation shared by all states and territories regards the use of listening devices (phones, voice recorders, etc.) in private conversations. The legislation prohibits the recording of private conversations without the consent of at least one participant.
This means that at the minimum in Australia you need the consent of at least one person in the conversation to make a recording, however, in some states you may need to gather the consent of all parties to make a recording.
You can use the table below to see which areas in Australia are considered one party consent, and which require the consent of all parties:
| State or Territory | Simple Terms | Law |
|---|---|---|
| New South Wales Recording Laws | All Party Consent - It is against the law to install, use or maintain listening devices that record private conversations regardless of whether or not you’re a party to the conversation. Section 4(3) of the Act clarifies that any device that can transmit or record visual images (video cameras) and also record audio may be considered as listening devices. This means that New South Wales can be considered an all party consent state. | Section 7(1) of the Surveillance Devices Act 2007 (NSW) |
| Victoria Recording Laws | One Party Consent - If you are taking part in a private conversation, you are within the law to record the conversation. However, if you are not an active party to the conversation, you can record the private conversation provided you obtain consent from at least one party to the conversation. | Section 6 Surveillance Devices Act 1999 |
| Western Australia Recording Laws | All Party Consent - This means it is against the law to use, install or maintain a listening device to record or listen to a private conversation to which that person is not a party. This means in Western Australia, you are not allowed to record a private conversation regardless of whether or not you are a participant in that conversation unless you have the consent of everyone involved in the recording. | Section 5 of Western Australia’s Surveillance Devices Act 199 |
| Queensland Recording Laws | One Party Consent - It is against the law to record a private conversation in which you are not a participant. The law allows any person who is involved in a private conversation to record the conversation without seeking consent from other parties to the conversation. | Invasion of Privacy Act 1971 |
| Northern Territory Recording Laws | All Party Consent - it is against the law to record a private conversation when you are not a party to the conversation and without the express or implied consent of all parties to the conversation. This is according to the | Surveillance Surveillance Devices Act 2007 (NT)Devices Act 2007 (NT) |
| Australian Capital Territory Recording Laws | All Party Consent - It is illegal to record a private conversation with a listening device regardless of whether or not you’re a party to the conversation without first gaining consent from everyone involved. | Listening Devices Act 1992 |
| South Australia Recording Laws | All Party Consent - In South Australia, it is illegal to use any listening device to record or listen to a private conversation regardless of whether or not you are a party to the conversation without the express or implied consent of all the parties to the conversation, according to Surveillance Devices Act 2016. | Surveillance Devices Act 2016 |
| Tasmania Recording Laws | All Party Consent - It is illegal to use a listening device (e.g. voice recorder) to record or listen to a private conversation regardless of whether or not you're taking part in the conversation, unless: | Listening Devices Act 1991 |
Can you Record Workplace Conversations in Australia?
In a workplace environment, sometimes you may feel like you need to record conversations either when you’re talking with your colleagues or during a meeting with your employer. If you’re taking part in a private conversation in the workplace, you may need to consult your state’s or territory’s recording laws, which are covered above.
When it comes to recording meetings with your employer, depending on the state, you may be within your right, however, secretly recording such conversations may lead to some repercussions including receiving a dismissal or suspension.
The Fair Work Commission (FWC) supports the dismissal of employees who make secret recordings this is evidence according to a decision made in 2013 in the Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513 case. Schwenke filed an unfair dismissal claim after he was relieved of his duties for making secret recordings during conversations with management.
Commissioner Cloghan was not in support of Schwenke’s unfair dismissal claim and he made this evident by stating that Schwenke’s secret recordings were contrary to his duty of good faith or fidelity to the employer, and undermined the mutual trust and confidence required in the employment relationship. However, he also noted that in cases where issues such as discrimination, harassment and bullying is involved, secret recordings may be permissible although the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer and work colleagues.