Australia Audio and Video Recording Laws

Table Of Contents
  1. What are the recording Laws in Australia?
  2. New South Wales Recording Laws
  3. Victoria Recording Laws
  4. Western Australia Recording Laws
  5. Queensland Recording Laws
  6. Northern Territory Recording Laws
  7. Australian Capital Territory Recording Laws
  8. South Australia Recording Laws
  9. Tasmania Recording Laws
  10. Can you Record Workplace Conversations in Australia?

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 recording of private conversations without the consent of the participants. Although the legislations may slightly vary, as a general rule, always seek consent from the participants of private conversations or private activities before recording.

New South Wales Recording Laws

According to section 7(1) of the Surveillance Devices Act 2007 (NSW), 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.

However exceptions to New South Wales recording law applies if:

  • A party to the private conversation receives consent, express or implied from all the parties to the private conversation. 
  • A principal party to the private conversation consents to the recording activity if:
  • The recording is reasonably necessary for the protection of the lawful interests of that principal party.
  • The recording 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.

Under section 11(1) of the Act, it is illegal to publish or in any way disseminate (including by word of mouth) any recorded private conversation or content of the conversation without the consent, express or implied, of all the parties to the private conversation.

New South Wales Video Recording Laws

According to section 8 of the Surveillance Devices Act 2007, it is illegal to knowingly install, use, or maintain an optical surveillance device (video cameras) on a vehicle or premises by trespassing into the property or vehicle or interfering with the property or vehicle without the consent, express or implied, of the owner or occupier of the premises or vehicle.

New South Wales Publishing Laws

It is illegal to publish or communicate a private conversation or a record of a private activity unless the communication or publication is made:

  • To a party to the private conversation or activity.
  • With express or implied consent of all parties to the private conversation or activity.

 New South Wales Recording Laws Penalties

  • In the case of a corporation, the maximum penalty is 500 penalty units.
  • In any other case the penalty is 100 penalty units or 5 years imprisonment, or both.

Victoria Recording Laws

In Victoria, it is against the law to knowingly install, use or maintain a listening deviceto listen or record a private conversation to which you’re not a party to without the consent, express or implied, of all parties to the conversation. This means 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.

Listening devices in this case refers to devices such as phones, voice recorders, video cameras that can record audio, etc.

Victoria Video Recording Laws

Section 7 of the Surveillance Devices Act 1999 stipulates that it is against the law to install, use or maintain an optical surveillance device to record or observe a private activity to which the person is not a party. To record such private activity, the law requires the consent, express or implied, of all parties to the private activity be obtained.

Private activity in this case refers to activities that the parties to the activity expect a reasonable expectation of privacy and desire it to be observed by themselves only. This does not include:

  • An activity carried outside a building.
  • Activities carried out in circumstances in which the parties to the activity should reasonably expect it to be observed by other persons.

Victoria Workplace Recording Laws

Employers in Victoria are not allowed to install audio or video recording devices to monitor the conversations or activities of workers in toilets, washrooms, changerooms, or lactation rooms in the workplace.

Victoria Publishing Laws

It is illegal to publish or communicate a record or report of a private conversation or activity unless the communication or publication is made:

  • With the express or implied consent of all parties to the private conversation or activity.
  • Is reasonably necessary in the public interest or for the protection of the lawful interests of the person making it.

Victoria Recording Laws Penalties

  • In the case of a corporation, 1200 penalty units.
  • In any other case, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.

Western Australia Recording Laws

According to Section 5 of Western Australia’s Surveillance Devices Act 1999, 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 or to which that person is 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.

However, the law allows you or somebody on your behalf to record a private conversation to which you are a participant under the following conditions:

  • All parties to the conversation give express or implied consent to the installation, use or maintenance of the recording device.
  • A party to the conversation gives express or implied consent to the recording and the recording is necessary for the protection of the lawful interests of that party.
  • The recording is done as instructed or authorized by a law enforcement officer in the course of an investigation into a suspected criminal offence.
  • The recording is done in the course of your duty as a law enforcement officer.

Western Australia Video Recording Laws

Western Australia makes it illegal to install, use or maintain an optical surveillance device to record or observe a private activity regardless of whether or not you are a party to the private activity.

However, you or someone on your behalf can record a private activity to which you are a party to if:

  • All parties to the private activity give implied or express consent to the recording.
  • A party to the private activity gives implied or express consent to the recording and the recording:
    • Is carried as part of your duty as a law enforcement officer.
    • The recording is done as instructed or authorized by a law enforcement officer in the course of an investigation into a suspected criminal offence.
    • The recording is reasonably necessary for the protection of the lawful interests of that party.

Western Australia Publishing Laws

It is against the law to publish or communicate a private conversation obtained through a listening or optical surveillance device without the consent of all parties to the conversation.

Western Australia Public Interest Caveat

Western Australia’s law allows audio or video recording of private conversations and activities if a party to the conversation or activity gives express or implied consent to the recording and there is reasonable belief that the use of the recording device is in the public interest.

Western Australia Children and Protected Persons Recording Laws

Persons with a child or a protected person under their care who is a party to a conversation or activity are allowed to record to record the conversation or activity if they have reasonable belief that:

  • The use of the recording device will contribute towards the protection of the best interests of the child or protected person.
  • The use of the recording device is in the public interest.

Western Australia Recording Laws Penalties

  • A penalty of $50 000 in the case of a body corporate.
  • In the case of an individual, $5 000 or imprisonment for 12 months, or both.

Queensland Recording Laws

In Queensland, it is against the law to record a private conversation in which you are not a participant. The law allows any party to a private conversation to record the conversation without seeking consent from other parties to the conversation.

Invasion of Privacy Act 1971

Queensland Publishing Laws

In Queensland, it is illegal to publish or disclose a recording or the contents of a private conversation regardless of whether or not you are a party to the conversation. However, exceptions apply when:

  • The publication or disclosure is made to a party to the conversation or with the express or implied content of all parties to the conversation.
  • The publication or disclosure of the conversation is made during court proceedings.
  • The publication or disclosure is reasonably necessary:
  • In the public interest.
  • in the performance of a duty of the person making the communication or publication.
  • for the protection of the lawful interests of the person who is a party to the conversation.

Can illegally obtained Recordings of Private Conversations be used in Court?

The law in Queensland prohibits persons who have directly or indirectly obtained knowledge about an illegally recorded private conversation from using that knowledge in any civil or criminal proceedings.

Exceptions to these apply when:

  • A party to the conversation consents to the conversation being used as evidence.
  • The evidence is given in any proceedings for an offence against the Invasion of Privacy Act 1971.

Queensland Video Recording Laws

In Queensland, the Criminal Code Act 1899 addresses video recording laws. According to Section 227A of the act, it is illegal to observe or visually record another person in circumstances where they would expect a reasonable expectation of privacy without that person’s consent and when the person:

  • Is in a private place, e.g. bedroom, toilet, bathroom, changing room
  • Is engaging in intimate activity and the recording is made for the purpose of observing or recording such intimate activity.

Queensland Recording Laws Penalties

  • Violating Queensland’s audio recording and publishing laws is punishable by a maximum penalty of 40 penalty units or imprisonment for 2 years.
  • Violating Queensland’s video recording laws is a misdemeanor punishable by a maximum penalty of 3 years imprisonment.

Northern Territory Recording Laws

In Australia’s Northern Territory, 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 Devices Act 2007 (NT).

Northern Territory Video Recording Laws

It is illegal to observe or visually record a private activity to which you’re not a party to and without the express or implied consent of all parties to the activity.

Laws Concerning Use of body-worn video by police in the Northern Territory

Police officers wearing body cams are required to:

  • To use them only when executing their duties.
  • The body-cams are obviously visible.
  • To be in police uniform or provide evidence the officer is a police officer to all parties to the private activity or private conversation that is to be recorded.

Northern Territory Publishing Laws

It is illegal to communicate or publish a record or report of a recorded private conversation or activity unless:

  • The communication or publication is made with implied or express content of all parties to the conversation or activity.
  • The communication or publication is in the public interest or in the lawful interest of the publisher.

Northern Territory Recording Laws Penalties

Violating the territory’s recording laws may be punishable by a maximum penalty of 250 penalty units or imprisonment for 2 years.

Australian Capital Territory Recording Laws

The territory’s Listening Devices Act 1992 states that it is illegal to record a private conversation with a listening device regardless of whether or not you’re a party to the conversation unless:

  • The recording of the private conversation is unintentional.
  • The recording is done by or on behalf of a party to the conversation and all parties to the conversation consent to the recording.
  • A party to the conversation contents to the recording and:
  • The recording is reasonably thought to be for the purposes of protecting that party’s lawful interests.
  • The recording is not made for the purposes of disseminating a report or contents of the conversation to a person who is not party to the conversation.     

Australian Capital Territory Publishing Laws

It is against the law for a party to a conversation or someone with unlawfully recorded private conversations to divulge or communicate a record of a private conversation unless the communication is made to another party to the conversation or is made with the consent of all parties to the private conversation.

It is also illegal to be in possession of unlawfully recorded conversations without the consent of all parties to the conversation.

Australian Capital Video Recording Laws

The territory’s laws do not directly address video recording laws, however, the listening devices mentioned under the recording of private conversations may include video cameras with capabilities to record audio. So to be safe, make sure to seek consent or consult a lawyer before making visual recordings.

Australian Capital Territory Recording Laws Penalties

  • Unlawfully recording private conversations carries a maximum penalty of 50 penalty units.
  • A party who unlawfully divulges private communications may be punished by 50 penalty units, imprisonment for 6 months or both.
  • Divulging unlawfully recorded conversations carries a punishment of 50 penalty units, imprisonment for 6 months or both
  • Possessing unlawfully recorded conversations carries a punishment of 50 penalty units, imprisonment for 6 months or both.

South Australia Recording Laws

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.

Exceptions apply if:

  • A party to the conversation seeks express or implied consent from all parties to the conversation before recording.
  • A party to the conversation makes the recording and the recording is reasonably necessary for the protection of lawful interests of that person.
  • An owner or occupier of a premises or owner of a vehicle agrees to the use of a recording device in the premises.
  • The use of the recording in a premises or a vehicle is reasonably necessary for the protection of the lawful interests of the owner or occupier of the premises or vehicle or another person.

South Australia Video Recording Laws

It is illegal to install or use an optical surveillance device (video recording device) in or on a premises, vehicle or any other thing (regardless of whether or not you legally own the premises, vehicle or thing) to record or observe a private activity without the express or implied consent of all parties to the activity.

South Australia Public Interest Caveat

South Australia has a caveat that allows the installation and use of a listening device or video recording device to record private conversations and activities if the recording is in the public interest.

South Australia Publishing Laws

It is illegal to communicate or publish information or material obtained through the use of listening devices or video recording devices unless the communication or publication is made:

  • to a person who was party to the private conversation or activity which was recorded.
  • with the consent of all parties to the conversation or activity.
  • for the purposes of a relevant investigation or a relevant proceeding relating to violation of South Australia recording laws.

South Australia Recording Laws Penalties

The penalties for violating South Australia recording laws are:

  • $75 000 in the case of a body corporate.
  • $15 000 or imprisonment for 3 years in the case of a natural person.

Tasmania Recording Laws

Tasmania’s Listening Devices Act 1991 states that 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:

  • A party to the conversation receives express or implied consent to record from all parties to the conversation.
  • A party to the conversation consents to the recording and the recording:
    • Is reasonably necessary for the protection of the lawful interests of that party.
    • Is not made for the purpose of communicating or publishing the conversation, or contents of the conversation to persons who are not parties to the conversation.
  • The recording is done to obtain evidence or information concerning an imminent threat of serious violence to persons or of substantial damage to property; or a serious narcotics offence.

Tasmania Publishing Laws

In Tasmania it is illegal to publish, communicate or submit a report of an unlawfully recorded conversation unless the communication or publication:

  • Is made to a party to the private conversation.
  • Is made with express or implied consent of all parties to the conversation.
  • Is made in the course of proceedings for an offence against the state’s recording laws.
  • Is reasonably necessary because the conversation relates to an imminent threat of serious violence to persons or of substantial damage to property; or a serious narcotics offence.

Keep in mind that recording conversations with video recording devices that can record audio may be considered illegal since they are capable of capturing private conversations.

Are Unlawfully Recorded Conversations Inadmissible in Court in Tasmania?

Evidence obtained from illegally recorded private conversations cannot be given in any court proceedings unless:

  • All the parties to the conversation consent to the evidence being given in court.
  • The evidence is given in proceedings concerning Tasmania recording laws.

Tasmania Recording Laws Penalties

Violating Tasmania recording laws is punishable by:

  • A fine not exceeding 40 penalty units or imprisonment for a term not exceeding 2 years, or both.
  • In the case of a corporation, a fine not exceeding 500 penalty units.

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.