Australia Audio and Video Recording Laws

Australian flag representing Australia recording laws

What are the Recording Laws in Australia?

In Australia, recording laws are primarily governed at the state and territory level, with each jurisdiction having its own surveillance devices legislation. However, there is also important federal legislation that applies to telecommunications interception across the country.

The key principle shared across all Australian states and territories is that recording laws protect people’s private conversations and activities. At minimum, you need the consent of at least one participant to legally record a conversation. However, in most Australian states and territories, you actually need the consent of all parties to make a lawful recording.

Federal Recording Laws: The Telecommunications (Interception and Access) Act 1979

At the federal level, the Telecommunications (Interception and Access) Act 1979 (TIA Act) governs the interception of communications passing over telecommunications systems. This includes phone calls, emails, and other electronic communications.

Under Section 7 of the TIA Act, it is a criminal offence to intercept a communication passing over a telecommunications system without proper authorisation. The penalties for unlawful interception can be severe, with maximum penalties of up to 2 years imprisonment for individuals.

The TIA Act provides exceptions for:

  • Interception with a warrant issued to law enforcement agencies
  • Interception by the Australian Security Intelligence Organisation (ASIO) under warrant
  • Interception by employees of telecommunications carriers for network protection purposes
  • Emergency interception in certain circumstances

It is important to note that the federal TIA Act works alongside state surveillance devices legislation. While the TIA Act covers telecommunications interception, state laws cover the use of listening devices, optical surveillance devices, and tracking devices.

State and Territory Recording Laws Overview

Each Australian state and territory has enacted its own surveillance devices legislation. The main distinction between jurisdictions is whether they follow a “one party consent” or “all party consent” model:

  • One Party Consent: You can record a conversation if you are a participant, without needing to inform the other parties. Victoria and Queensland follow this model.
  • All Party Consent: You need the consent of everyone involved in the conversation before recording. New South Wales, Western Australia, Northern Territory, Australian Capital Territory, South Australia, and Tasmania follow this stricter model.

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 1998
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. Surveillance 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. 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 you have consent from all parties. Listening Devices Act 1991

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Penalties for Illegal Recording in Australia

The penalties for unlawfully recording conversations vary by state and territory, but they can be substantial:

Jurisdiction Maximum Penalty (Individual) Legislation
New South Wales 5 years imprisonment and/or $55,000 fine Surveillance Devices Act 2007
Victoria 2 years imprisonment and/or $43,560 fine (240 penalty units) Surveillance Devices Act 1999
Queensland 2 years imprisonment or 40 penalty units Invasion of Privacy Act 1971
Western Australia $5,000 fine or 12 months imprisonment Surveillance Devices Act 1998
South Australia $75,000 fine or 3 years imprisonment Surveillance Devices Act 2016
Tasmania $10,000 fine or 2 years imprisonment Listening Devices Act 1991
Northern Territory $22,700 fine or 2 years imprisonment Surveillance Devices Act 2007
Australian Capital Territory 500 penalty units or 5 years imprisonment Listening Devices Act 1992
Federal (telecommunications) 2 years imprisonment Telecommunications (Interception and Access) Act 1979

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 serious repercussions including receiving a dismissal or suspension, even if the recording itself was technically legal under state surveillance laws.

The Schwenke v Silcar Case: A Landmark Decision

The Fair Work Commission (FWC) has consistently held that secret workplace recordings can justify dismissal. The leading case on this issue is Schwenke v Silcar Pty Ltd T/A Silcar Energy Solutions [2013] FWC 4513.

In this case, Mr. Schwenke was employed as a Trades Assistant and was summarily dismissed on 7 December 2012 after he revealed that he had secretly recorded a prior disciplinary meeting on 27 November 2012. He filed an unfair dismissal claim with the Fair Work Commission.

Key facts of the case:

  • Schwenke attended a meeting on 27 November 2012 to discuss performance issues
  • He secretly recorded that meeting without the employer’s knowledge
  • At a subsequent meeting on 7 December 2012, when a dispute arose about what was discussed at the earlier meeting, Schwenke revealed he had made a recording
  • The employer terminated his employment that same day

Commissioner Cloghan ruled against Schwenke’s unfair dismissal claim, stating:

“The secret recording of Mr Schwenke’s performance discussion was contrary to his duty of good faith or fidelity to the employer, and undermined the mutual trust and confidence required in the employment relationship.”

Schwenke appealed this decision, but the Full Bench of the Fair Work Commission upheld the original ruling in [2013] FWCFB 9842. The Full Bench confirmed that secret workplace recordings can constitute a valid reason for dismissal because they breach the duty of good faith and undermine mutual trust.

When Might Secret Recordings Be Permissible?

While the Schwenke case established that secret recordings can justify dismissal, Commissioner Cloghan also noted an important exception. He stated that in cases involving:

  • Discrimination
  • Harassment
  • Bullying

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.”

This means that if you are experiencing serious workplace misconduct such as harassment or discrimination, a covert recording might be justified as evidence. However, this is not a guarantee of protection, and you should seek legal advice before making such recordings.

Employer Surveillance of Employees

When it comes to employers recording employees, different rules apply. In New South Wales, the Workplace Surveillance Act 2005 specifically regulates how employers can monitor workers:

  • Employers must give at least 14 days written notice before commencing surveillance
  • The notice must specify the kind of surveillance, how it will be carried out, and when it will start
  • Covert surveillance is only permitted with a covert surveillance authority from a magistrate
  • Surveillance in change rooms, toilet facilities, or other private areas is prohibited

Other states have varying requirements for workplace surveillance, so employers should check their local legislation before implementing any monitoring systems.

Recording Phone Calls in Australia

Recording phone calls in Australia is governed by both federal and state laws:

Federal Law: The Telecommunications (Interception and Access) Act 1979 prohibits the interception of telecommunications in transit. However, recording your own phone conversations (where you are a party) is generally not considered “interception” under the Act because the communication has already been received by you.

State Laws: Once a phone call reaches your device, state surveillance devices laws apply. This means:

  • In Victoria and Queensland (one party consent states), you can record your own phone calls without notifying the other party
  • In NSW, WA, SA, Tasmania, NT, and ACT (all party consent jurisdictions), you technically need consent from all parties to record a phone call

For businesses that record calls, such as customer service centres, the standard practice is to play an announcement at the beginning of the call stating that the call may be recorded. If the caller continues, this is typically considered implied consent.

Video Recording Laws in Australia

Video recording is treated differently depending on whether audio is captured:

Video without audio: Generally, there are fewer restrictions on recording video without sound. Visual surveillance is regulated primarily when it invades privacy, such as recording someone in a private place without consent.

Video with audio: If your video recording captures audio of private conversations, it becomes subject to the same listening device laws that govern audio recordings. For example, the NSW Surveillance Devices Act 2007 defines “optical surveillance device” and “listening device” separately, and a device that does both (like a smartphone) is subject to both sets of rules.

Key considerations for video recording:

  • Recording in public places is generally permitted, as there is reduced expectation of privacy
  • Recording in private places without consent may violate surveillance laws
  • Publishing recordings (especially on social media) may attract additional liability under defamation or privacy laws
  • Some states have specific laws about recording images of intimate activities without consent

Notable Court Cases Involving Recording in Australia

Beyond the workplace context, Australian courts have dealt with recording issues in various situations:

Giller v Procopets [2008] VSCA 236

In this Victorian case, the defendant had secretly recorded intimate activities with his partner without her consent. When the relationship ended, he threatened to distribute the recordings. The Victorian Court of Appeal found this conduct actionable and awarded damages for breach of confidence. This case highlighted that even in one party consent jurisdictions, recording intimate activities without all parties’ consent can lead to civil liability.

Grosse v Purvis [2003] QDC 151

A Queensland case that recognised a tort of invasion of privacy. The defendant engaged in extensive surveillance and stalking behaviour. The court’s recognition of privacy interests shows that even legal recordings can become problematic if they form part of a pattern of harassment.

Evidence Admissibility

In Australian courts, illegally obtained recordings may still be admissible as evidence. Under the Evidence Act 1995 (Cth) and equivalent state legislation, courts have discretion to admit evidence even if it was obtained improperly, weighing the desirability of admitting the evidence against the undesirability of admitting evidence obtained in the manner it was. This means an illegal recording might still be used in court proceedings, though the person who made it could face separate criminal charges.

Dashcams and Vehicle Recording

Dashcams have become increasingly popular in Australia. The legality of dashcam recordings depends on several factors:

  • Recording while driving: Generally permitted as roads are public spaces with limited privacy expectations
  • Recording audio inside the vehicle: Subject to listening device laws. In all party consent states, passengers should be notified if audio is being recorded
  • Recording on private property: May require permission from the property owner
  • Rideshare and taxi drivers: Several states have specific requirements for rideshare and taxi operators regarding passenger notification of recording

Dashcam footage is commonly used as evidence in traffic accidents and insurance claims and is generally accepted by Australian courts.

Recording in Public vs Private Places

The distinction between public and private places is crucial under Australian recording laws:

Public Places: Generally, you can photograph and record in public places where there is no reasonable expectation of privacy. This includes streets, parks, shopping centres, and other publicly accessible areas. However, even in public, recording private conversations may still violate listening device laws.

Private Places: Recording in someone’s home or other private premises without consent is likely to breach surveillance laws. The definition of “private conversation” in most state legislation focuses on whether the parties had a reasonable expectation of privacy, not just the physical location.

Practical Tips for Lawful Recording in Australia

If you need to record a conversation in Australia, consider these practical guidelines:

  1. Know your state’s laws: Check whether you’re in a one party or all party consent jurisdiction
  2. Get consent when possible: The safest approach is always to obtain explicit consent from all parties
  3. Document the consent: If recording with consent, capture the consent on the recording itself
  4. Consider the purpose: Your reason for recording may affect both legality and any subsequent admissibility
  5. Workplace recordings: Be extremely cautious, as even legal recordings can damage trust and lead to dismissal
  6. Seek legal advice: If you’re uncertain, consult a lawyer before making recordings, especially for evidence purposes

Various exceptions exist across Australian jurisdictions that may permit recording without consent:

  • Law enforcement: Police can record with proper warrants under surveillance device legislation
  • Court orders: Recordings may be authorised by court order in certain proceedings
  • Public interest: Some jurisdictions have limited exceptions for recordings made in the public interest
  • Protection from unlawful activity: In some states, recordings may be permitted if reasonably necessary to protect a person’s lawful interests where there is a threat of unlawful conduct
  • Emergency services: Triple Zero (000) calls are recorded, as are many interactions with emergency services

Recent Developments in Australian Recording Laws

Australian recording laws continue to evolve with technology:

  • Body-worn cameras: The NSW Surveillance Devices Act 2007 now includes specific definitions for “body-worn video” equipment used by police officers
  • Smart home devices: Devices like smart speakers that continuously listen raise new privacy concerns under existing surveillance frameworks
  • Workplace monitoring: COVID-19 prompted increased use of employee monitoring software, leading to ongoing debates about appropriate regulation
  • Social media sharing: The viral potential of recordings has led to increased awareness of privacy implications

For detailed information about recording laws in each Australian state and territory, visit our dedicated pages:

Conclusion

Australia’s recording laws are complex, with significant variation between states and territories. The key takeaways are:

  • Most Australian jurisdictions require all party consent for recording private conversations
  • Only Victoria and Queensland operate on a one party consent basis
  • Federal telecommunications law adds an additional layer of regulation for phone and electronic communications
  • Workplace recordings, even if technically legal, can still justify dismissal
  • Penalties for illegal recording can include substantial fines and imprisonment
  • When in doubt, seek legal advice and obtain consent before recording

Always check the specific laws in your state or territory before recording any conversation, and consider consulting a legal professional if you’re uncertain about your rights and obligations.