New South Wales Recording Laws

New South Wales Recording Laws Summary

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 are 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.

However, exceptions to New South Wales recording law apply 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.

Is it Legal to Record a Conversation in New South Wales?

You may not record or share conversations that you are not a part of without the consent of all parties.

If you are a third-party and require consent from the parties taking part in the conversation you may gain consent by:

• Getting verbal or written consent prior to the recording being made.
• A verbal notification being played before the conversation begins. (For example: “This phone call is being recorded for quality control purposes…”).

The “Lawful Interests” Exception Explained

The most commonly relied upon exception in NSW is found in section 7(3)(b)(i), which permits a principal party to record a private conversation without the consent of other parties if the recording is “reasonably necessary for the protection of the lawful interests” of that principal party. This exception has been the subject of significant judicial interpretation.

“Lawful interests” are interests which are not unlawful; its meaning is similar to the expressions “legitimate interests” or “interests conforming to law.” The courts have established that this exception cannot be used to record conversations “just in case” something useful is revealed. There must be a genuine, existing threat or dispute that makes the recording necessary.

Courts will consider several factors when determining whether a recording falls within this exception:

• Whether the recording was legitimately made to obtain evidence of wrongdoing
• Whether it was necessary to protect oneself from fabrication or false allegations
• Whether other lawful avenues were overlooked or unavailable
• Whether the reasoning behind the recording was serious enough to warrant it
• Whether notifying the other party would have stifled honest 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. Typically video surveillance laws will fall under the much more stringent audio recording laws. Currently there is no law in Australia that prohibits you from filming in a public space where there is no expectation of privacy. You can film streets, buildings, and people but should be careful not to film anything that may have copyright protection.

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.

As of 2024, one penalty unit in NSW equals $110, meaning individuals face fines of up to $11,000 plus potential imprisonment, while corporations can be fined up to $55,000.

Notable Court Cases Involving Recording in NSW

Several significant court cases have shaped how NSW recording laws are interpreted and applied. These cases provide important guidance on when recordings are permissible and when they may be admitted as evidence.

DW v R [2014] NSWCCA 28: Sexual Assault Victim Recording

In this landmark case, the New South Wales Court of Criminal Appeal considered whether a 14-year-old sexual assault victim committed an offence when she secretly recorded a conversation with her perpetrator. The victim’s purpose was to convince others of the truth of her allegations against her father, who was later found guilty of indecent assault and possession of child sexual abuse materials.

The Court held that the recording did not constitute an offence because it was made to protect the victim’s lawful interests. The Court noted that while a person with a criminal complaint can theoretically seek a warrant to record someone legally, a teenage victim could hardly be expected to be aware of such legal avenues. This case established that vulnerable victims have legitimate grounds to secretly record their abusers when seeking to prove their allegations.

Rathswohl v Court [2020] NSWSC 1490: Will Dispute Recording

This Supreme Court case arose from a family dispute over an elderly father’s will. Following an argument between three siblings at their mother’s nursing home, questions emerged about whether the father’s will had been manipulated by one sibling who had moved in to “care” for him.

One sibling, Mrs Davies, secretly recorded a conversation with her father to determine whether her sister was actually providing the care she claimed. The father was unaware he was being recorded. When the recording was later tendered as evidence in estate proceedings, its admissibility was challenged.

Justice Kelly Rees admitted the recording, finding that:

• Mrs Davies had a “lawful interest” in the conversation as she was concerned about her father’s care
• Notifying the father of the recording may have stifled his willingness to provide honest answers on sensitive family matters
• There was no legal avenue to seek a warrant from police for such a civil matter
• A serious dispute existed between the siblings regarding the will and care arrangements

The case reinforced that recordings made to protect genuine lawful interests in civil disputes can be admissible, even when made without consent.

R v Le [2004] NSWCCA 82: The John Newman Murder Case

This case arose from the investigation into the 1994 murder of NSW state politician John Newman. A friend of a man charged with the murder secretly recorded a conversation with Albert Ranse, who had previously claimed responsibility for the assassination.

The Court of Criminal Appeal was divided on whether the recording fell within the lawful interests exception. Justice Giles found that protection of lawful interests does not encompass credibility generally or in the event of giving evidence. However, Justices Hulme and Adams disagreed, finding that avoiding “being labeled a liar” within a criminal investigation is an important lawful interest, and the recording was the only practicable way of preventing or refuting such an allegation.

Sepulveda v R [2006] NSWCCA 379

Decided under the earlier Listening Devices Act 1984 (NSW), this Court of Criminal Appeal case reached a similar conclusion to DW v R, establishing that recordings made by victims to prove allegations against their abusers can fall within the lawful interests exception.

Family Court Cases: Janssen & Janssen [2016]

In family law proceedings, secret recordings have been admitted where they evidence family violence. In Janssen & Janssen [2016] FamCA 345, the mother successfully had a recording admitted into evidence where it demonstrated domestic violence and supported allegations of abuse against the father. The Court found that the desirability of admitting evidence of family violence outweighed concerns about how it was obtained.

Evidence Admissibility in NSW Courts

Even if a recording was made illegally under the Surveillance Devices Act, it may still be admitted as evidence in court. Section 138 of the Evidence Act 1995 (NSW) provides that illegally obtained evidence should not be permitted in court unless “the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way in which the evidence was obtained.”

Courts will consider several factors when determining whether to admit illegally obtained recordings:

• The probative value of the evidence
• The importance of the evidence in the proceeding
• The nature of the offence or cause of action
• The gravity of the impropriety or contravention
• Whether the impropriety was deliberate or reckless
• Whether the impropriety was contrary to recognized human rights

This means that having a recording thrown out as inadmissible is not automatic. Courts retain discretion to admit important evidence even when obtained in breach of surveillance laws.

NSW Workplace Surveillance Laws

Unlike most Australian states, New South Wales has dedicated legislation specifically governing surveillance in the workplace. The Workplace Surveillance Act 2005 (NSW) is unique to NSW and provides comprehensive regulation of employer monitoring of employees.

Types of Workplace Surveillance Covered

The Act regulates the following forms of workplace surveillance:

• Camera surveillance (video and photographic recordings)
• Audio recordings
• Computer and internet monitoring
• Email surveillance
• Tracking and GPS surveillance of employees and vehicles

Overt Surveillance Requirements

Overt surveillance occurs when employees are notified that surveillance is taking place. Under the Act, employers must comply with strict notice requirements:

• 14-day advance notice: Employers must provide written notice at least 14 days before surveillance begins (employees can agree to a shorter period)
• New employee notification: New employees must be notified before they start work
• Visible equipment: All surveillance equipment must be clearly visible to employees
• Signage requirements: Signs must be clearly visible at each entrance to areas where surveillance occurs

The written notice must include:

• The type of surveillance (video, audio, tracking, computer monitoring)
• The date and time surveillance will commence
• Whether surveillance will be continuous or intermittent
• Whether surveillance is for a specific period or ongoing

Covert Surveillance Restrictions

Covert surveillance (surveillance without employee knowledge) is strictly prohibited in NSW workplaces with only one exception: employers may conduct covert surveillance only if they obtain a “covert surveillance authority” from a Magistrate.

Magistrates will only grant covert surveillance authority for the purpose of investigating whether employees are engaged in unlawful activity at work. When deciding whether to issue the authority, a Magistrate will consider:

• The seriousness of the alleged unlawful activity
• Whether surveillance will affect the privacy of other employees
• Whether reasonable grounds exist to justify surveillance

Computer and Email Surveillance

The Act specifically regulates computer and email surveillance in the workplace. Employers may only monitor employee computer use where:

• An existing written policy on computer surveillance is in place
• Advance notice has been provided to employees
• Employees are aware of and understand the policy

The Act also prohibits employers from blocking emails sent to or by employees unless:

• It complies with the workplace computer policy
• The email contains a virus
• The email is spam
• The email can reasonably be regarded as menacing, harassing, or offensive

Tracking Surveillance

For tracking surveillance (such as GPS monitoring of vehicles), employers must display a clearly visible notice on the vehicle or object being tracked. This applies to delivery vehicles, work trucks, and any company vehicle equipped with GPS tracking.

Prohibited Surveillance Areas

Regardless of notice requirements, the Act specifically prohibits surveillance in certain areas where employees have a reasonable expectation of privacy:

• Toilets
• Change rooms
• Shower and bathing facilities

Using Covert Workplace Recordings as Evidence

In Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2019] FWCFB 263, the Fair Work Commission examined whether recordings made in contravention of workplace surveillance laws could be used in unfair dismissal proceedings. The Commission found it was not bound by strict rules of evidence and could inform itself using whatever evidence it deemed appropriate, including recordings made contrary to law. This means illegally obtained workplace recordings may still be used in employment tribunals.

How NSW Recording Laws Differ From Other Australian States

NSW recording laws differ significantly from other Australian jurisdictions. Understanding these differences is important for anyone recording conversations that may cross state boundaries.

Table of Contents

📑 Table of Contents (click to expand)

• New South Wales Recording Laws Summary
• Notable Court Cases Involving Recording in NSW
• Evidence Admissibility in NSW Courts
• NSW Workplace Surveillance Laws
• How NSW Recording Laws Differ From Other Australian States
• Recent News and Developments
• Practical Guidance for Recording in NSW

Key Differences Explained

Queensland is the most permissive state for recording conversations. Under the Invasion of Privacy Act 1971, a person who is party to a private conversation may record it without informing or obtaining consent from other parties. This is true one-party consent.

Victoria also permits participant recordings in many cases under the Surveillance Devices Act 1999. A party to a conversation may legally record it without other parties’ knowledge or consent. However, it remains an offence to share or distribute that recording without consent.

NSW takes a middle approach. While technically requiring all-party consent, the “lawful interests” exception allows one party to record without consent when reasonably necessary to protect their legitimate interests. This is more restrictive than Queensland but more permissive than states like Tasmania or the ACT.

NSW is unique in having the Workplace Surveillance Act 2005, which specifically regulates employee monitoring. No other state has equivalent dedicated workplace surveillance legislation.

Recent News and Developments

ICAC Granted Power to Use Illegally Obtained Recordings (2023-2025)

In August 2023, the NSW government granted the Independent Commission Against Corruption (ICAC) an exemption to use recordings that were obtained illegally by third parties in its corruption investigations. Chief Commissioner John Hatzistergos wrote to the Premier indicating that ICAC had obtained evidence that appeared to be recordings of private conversations made by a third party in contravention of surveillance laws.

The exemption, initially granted through regulatory change rather than legislation, was set to expire in December 2025. However, in October 2025, the government announced plans to make these powers permanent. The proposed reforms would:

• Introduce a public interest exception allowing individuals who come into possession of unlawfully made recordings (but were not involved in making them) to share them with investigative agencies without prosecution
• Allow bodies like ICAC to receive and rely on evidence that would otherwise be inadmissible
• Bring NSW into line with other states regarding investigative powers

Criminal Prosecutions for Illegal Surveillance

NSW Police continue to actively prosecute breaches of the Surveillance Devices Act. In 2025, detectives laid 14 charges against a Tamworth man accused of installing a secret recording device inside a private home. Such cases demonstrate that authorities take illegal surveillance seriously and will pursue criminal charges where appropriate.

Review of Surveillance Devices Act

The NSW government has conducted consultations on modernizing the Surveillance Devices Act 2007 to address technological developments and changing community expectations around privacy and surveillance. Key issues under consideration include balancing privacy protections with the needs of investigative agencies and clarifying the circumstances under which recordings can be shared.

Practical Guidance for Recording in NSW

When You Can Legally Record Without Consent

You may record a private conversation without the consent of other parties if:

• You are a principal party to the conversation (i.e., you are participating, not just listening in)
• The recording is reasonably necessary to protect your lawful interests
• You are not recording merely to later publish or share with third parties
• There is a genuine dispute, threat, or situation requiring protection

When Recording is Illegal

Recording is illegal when:

• You are not a party to the conversation (eavesdropping)
• You have no legitimate lawful interest to protect
• You are recording “just in case” without a genuine existing concern
• You intend to publish or share the recording with third parties

Best Practices for Legal Recording

1. Obtain consent when possible: The safest approach is always to inform parties and obtain consent before recording.
2. Document your reasons: If relying on the lawful interests exception, document why you believed recording was necessary.
3. Limit sharing: Do not publish or share recordings with third parties unless legally required.
4. Seek legal advice: If uncertain, consult a lawyer before making recordings that may be used as evidence.

Other Australian Laws

• Australian Capital Territory Recording Laws
• Can I get a passport with a criminal record in Australia?
• New South Wales Recording Laws
• Northern Territory Recording Laws
• Queensland Recording Laws
• South Australia Recording Laws
• Tasmania Recording Laws
• Victoria Recording Laws
• Western Australia Recording Laws