Australian Capital Territory Recording Laws

The Australian Capital Territory (ACT) is classified as an all party consent jurisdiction with several important exceptions. The territory’s Listening Devices Act 1992 establishes that it is generally illegal to record a private conversation unless you have the consent of all parties involved.

Unlike Queensland, Victoria, and the Northern Territory, which allow one party consent recording, the ACT requires you to obtain permission from everyone in the conversation before recording. However, the law includes significant exceptions that allow recording in certain circumstances without universal consent.

When Can You Record in the ACT?

Under Section 4 of the Listening Devices Act 1992, you may record a private conversation without all party consent if:

• Unintentional recording: The recording of the private conversation is unintentional. For example, if you are filming birds in a park and accidentally capture audio of two people talking on a nearby bench, you have not committed an offence.
• Party to the conversation: The recording is done by or on behalf of a party to the conversation.
• Principal party consent with lawful interests: A principal party to the conversation consents to the recording, and the recording is considered by that party, on reasonable grounds, to be necessary for the protection of their lawful interests.
• Not for dissemination: A party consents to the recording, and it is not made for the purpose of communicating or publishing the conversation to someone who is not a party to the conversation.

Understanding the “Lawful Interests” Exception

The “lawful interests” exception is one of the most important aspects of ACT recording law. Courts have interpreted this to mean situations where recording is genuinely necessary to protect your legal rights or interests. Simply recording “just in case” something useful is said does not qualify.

To successfully rely on this exception, you must demonstrate that:

• You had a genuine belief that recording was necessary to protect a legitimate interest
• There were reasonable grounds for that belief
• Other legal avenues (such as obtaining a warrant) were not reasonably available
• The purpose was protective rather than invasive

Australian Capital Territory Publishing Laws

Publishing or communicating recorded conversations is separately regulated under the Listening Devices Act. 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
• The communication is made with the consent of all parties to the private conversation
• The communication is made for legal proceedings or other lawful purposes

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 ACT’s Listening Devices Act 1992 specifically regulates audio recording devices only. Unlike some other Australian jurisdictions such as New South Wales and Victoria, the ACT has not enacted comprehensive surveillance devices legislation that covers optical surveillance, tracking devices, or data surveillance.

However, this does not mean video recording is unregulated. If your video recording device captures audio (as most modern devices do), the audio component falls under the Listening Devices Act. This means:

• Silent video recording in public places is generally permitted
• Video recording with audio in private settings requires consent under the same rules as audio-only recording
• Video recording without audio in places where there is no reasonable expectation of privacy (such as public parks, streets, or buildings) is generally allowed

Notable ACT Court Cases

Several important court cases have shaped how recording laws are interpreted and applied in the Australian Capital Territory:

Dong v Song [2018] ACTSC 82

This landmark ACT Supreme Court case provides important guidance on when secret recordings may be admissible. Ms Dong recorded a conversation with Mr Song regarding a property sale dispute. At the time of the recording, Ms Dong felt cheated by Mr Song and mistrustful of him. Mr Song had failed to provide written confirmation of an oral agreement regarding the sale.

Justice Verity McWilliam ruled that the recording was admissible because:

• The recording was made to confirm the content of previous discussions immediately before civil proceedings commenced
• It was reasonably necessary to protect the plaintiff’s lawful interests
• There were no circumstances that would have permitted the plaintiff to obtain a warrant
• The purpose was to obtain admissions and protect against future disputes about what was said

This case established that recordings made to protect legitimate legal interests in anticipation of proceedings can fall within the lawful interests exception.

Recordings in Family Law Proceedings

The Family Court (which has jurisdiction over ACT family matters) has considered recordings made under ACT law in various cases. While the Family Court is governed by Commonwealth law (the Evidence Act 1995 Cth), it considers whether recordings were lawfully obtained under state and territory legislation.

In cases like Gawley and Bass [2016] FCCA, recordings made by a parent to document abuse of their children have been admitted as evidence, even when made without the other party’s consent, on the basis of protecting lawful interests.

Workplace Recording in the ACT

Recording conversations in the workplace raises additional legal and practical considerations beyond the Listening Devices Act:

Employer Policies

Many employers in the ACT have policies that expressly prohibit recording workplace conversations without consent. Breaching such policies may result in disciplinary action or termination, even if the recording itself was technically lawful under the Listening Devices Act.

Fair Work Commission Position

The Fair Work Commission has consistently expressed disapproval of employees making secret recordings at work. Key principles from FWC decisions include:

• Breach of trust: In Schwenke v Silcar Pty Ltd [2013] FWC 4513, a Full Bench held that secretly recording conversations breaches the duty of good faith an employee owes to their employer and can justify summary dismissal.
• Inherently unfair conduct: In Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4839, Deputy President Coleman held that secretly recording workplace conversations is “highly inappropriate, irrespective of whether it constitutes a criminal offence” because it is inherently unfair to those being secretly recorded.
• Alternative options: In Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531, it was noted that employees have alternative ways to keep records of meetings, such as taking notes, having a support person take notes, or making contemporaneous notes afterward.

When Workplace Recordings May Be Permitted

Despite the general disapproval, workplace recordings may be admissible in some circumstances:

• When recording is genuinely necessary to protect the employee’s lawful interests (such as documenting harassment or discrimination)
• When there are significant inconsistencies in witness accounts and the recording is central to determining what occurred
• When the Fair Work Commission exercises its discretion to admit the evidence despite its improper obtaining

How ACT Recording Laws Compare to Other States

Australia does not have uniform recording laws. Each state and territory has its own legislation, creating a patchwork of different requirements:

Table of Contents

📑 Table of Contents (click to expand)

• When Can You Record in the ACT?
• Understanding the “Lawful Interests” Exception
• Australian Capital Territory Publishing Laws
• Australian Capital Video Recording Laws
• Notable ACT Court Cases
• Workplace Recording in the ACT
• How ACT Recording Laws Compare to Other States
• Australian Capital Territory Recording Laws Penalties
• Phone Recording Laws in the ACT
• Admissibility of Recordings as Evidence
• Practical Tips for Recording in the ACT
• Other Australian Recording Laws
• Share this:
• Share this:

Key Differences Explained

One Party vs All Party Consent: In Queensland, Victoria, and the Northern Territory, if you are a party to the conversation, you can legally record it without telling the other participants. In the ACT and most other jurisdictions, you generally need everyone’s consent unless an exception applies.

Scope of Legislation: The ACT’s Listening Devices Act 1992 only covers audio recording devices. Other jurisdictions like NSW and Victoria have more comprehensive surveillance legislation that also regulates video surveillance, tracking devices, and data surveillance.

Public Interest Exemptions: Some jurisdictions (SA, WA, NT) include explicit public interest exemptions that allow recording without consent when it serves the public interest. The ACT does not have such an explicit exemption.

Australian Capital Territory Recording Laws Penalties

The Listening Devices Act 1992 prescribes significant penalties for violations. In the ACT, one penalty unit currently equals $160 for an individual and $810 for a corporation.

Note: Penalty unit values are indexed and may change. The imprisonment penalty can be imposed in addition to, or instead of, the fine.

Phone Recording Laws in the ACT

Recording phone calls in the ACT involves both the Listening Devices Act 1992 and the federal Telecommunications (Interception and Access) Act 1979 (Cth).

The federal Act prohibits intercepting communications passing over a telecommunications system. However, courts have distinguished between:

• Integrated recording: Using equipment integrated into the phone system (such as a device installed in the phone itself) is considered interception and is more strictly regulated.
• External recording: Using an external recording device (such as a separate recorder or the phone’s own recording app) while you are a party to the call is generally treated under state/territory listening device laws.

For ACT residents, this means you can generally record a phone call you are participating in if you meet the exceptions under the Listening Devices Act (such as protecting your lawful interests). However, you should not record calls you are not a party to.

Admissibility of Recordings as Evidence

Even if a recording was made in violation of the Listening Devices Act, it may still be admissible as evidence in court proceedings. Section 138 of the Evidence Act 1995 (ACT) gives courts discretion to admit improperly obtained evidence if the desirability of admitting it outweighs the undesirability.

Factors courts consider include:

• The probative value of the evidence
• The importance of the evidence to the proceedings
• The gravity of the impropriety in obtaining the evidence
• Whether the impropriety was deliberate or reckless
• Whether other evidence of the same matter is available

In Dong v Song, Justice McWilliam indicated that even if the recordings had been found unlawful, she would have exercised discretion to admit them given their probative value.

Practical Tips for Recording in the ACT

If you need to record a conversation in the Australian Capital Territory:

1. Get consent first: The safest approach is always to obtain consent from all parties before recording. This can be verbal, but written consent provides better evidence.
2. Document your reasoning: If you believe you need to record to protect your lawful interests, document your reasons at the time. This will help if the recording’s legality is later questioned.
3. Consider alternatives: Before secretly recording, consider whether there are other ways to protect your interests, such as having a witness present, taking contemporaneous notes, or seeking legal advice.
4. Do not publish without consent: Even if you lawfully record a conversation, publishing or sharing it with third parties may still be illegal without consent.
5. Seek legal advice: If you are uncertain about whether recording is lawful in your situation, consult a lawyer before proceeding.

Other Australian Recording Laws