New South Wales Recording Laws: All-Party Consent Rules (2026)

New South Wales requires the consent of all parties before a private conversation may be recorded. Section 7(1) of the Surveillance Devices Act 2007 (NSW) prohibits installing, using, or maintaining a listening device to record a private conversation without that consent, with limited exceptions for participants protecting their own lawful interests.

Information last verified on 2026-05-15. This article has not yet been reviewed by a licensed lawyer.

Jurisdiction scope: This article addresses the recording and surveillance laws of New South Wales, Australia, under the Surveillance Devices Act 2007 (NSW), the Workplace Surveillance Act 2005 (NSW), the Privacy and Personal Information Protection Act 1998 (NSW), the federal Telecommunications (Interception and Access) Act 1979 (Cth), the federal Privacy Act 1988 (Cth), and related criminal provisions. It does not address the laws of other Australian states and territories in depth; for those, see the Australia recording laws hub.

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Quick Answer: Is NSW an All-Party Consent State?

Yes. New South Wales applies an all-party consent rule to the recording of private conversations. Under section 7(1) of the Surveillance Devices Act 2007 (NSW), a person must not knowingly install, use, or maintain a listening device to overhear, record, monitor, or listen to a private conversation. The prohibition applies whether or not the person is a party to that conversation. Section 4(1) of the Act defines a "private conversation" as a conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties wishes it to be heard only by the parties to the conversation. This definition draws a meaningful line: not every spoken exchange is a private conversation, but once circumstances indicate a reasonable expectation of privacy, the all-party rule applies. The Act covers audio recordings; optical (video) surveillance is separately governed by section 8. Violations carry penalties of up to $33,000 or 5 years imprisonment for individuals, and up to $165,000 for corporations, based on current penalty unit values effective 7 November 2024.

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The Surveillance Devices Act 2007: Key Prohibitions

The Surveillance Devices Act 2007 (NSW) (the "SDA 2007") is the primary statute governing recording in NSW. It replaced the Listening Devices Act 1984 (NSW) and expanded coverage beyond audio to include optical and tracking devices.

Section 7: Listening Devices and Private Conversations

Section 7(1) states the core prohibition:

"A person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party."

Section 7(2) extends the prohibition to parties themselves:

"A person who is a party to a private conversation must not knowingly use a listening device to record the conversation."

Section 4(3) clarifies that a device capable of both transmitting or recording visual images and recording audio may qualify as a listening device. Video cameras with audio recording capability can therefore fall under the section 7 regime as well as section 8.

The maximum penalty for contravening section 7 is 100 penalty units or imprisonment for 5 years, or both, for an individual. For a corporation, the maximum is 500 penalty units. At the current NSW rate of $330 per penalty unit (effective 7 November 2024), those figures translate to $33,000 or 5 years for individuals and $165,000 for corporations.

Section 8: Optical Surveillance Devices

Section 8(1) prohibits knowingly installing, using, or maintaining an optical surveillance device on or within premises, a vehicle, or any other object to record visually or observe an activity where that installation, use, or maintenance:

• involves entry onto premises or into a vehicle without the consent of the owner or occupier; or
• involves interference with the premises or vehicle without such consent.

The key limitation is trespass. Section 8 does not prohibit filming from a lawful position. A person standing in a public street, or on their own property, and filming activities visible from that position does not breach section 8. There is no general prohibition in NSW on filming in public spaces from a lawful location. The same individual penalties apply: up to 100 penalty units ($33,000) or 5 years imprisonment.

Section 11: Publication and Communication

Section 11(1) makes it an offence to publish or communicate to any person a private conversation or a record of a private activity that came to the person's knowledge as a direct or indirect result of using a listening or optical surveillance device. Publication to a party to the original conversation, or with the express or implied consent of all parties, is excepted. The penalty mirrors the main recording prohibition: 100 penalty units or 5 years for individuals; 500 penalty units for corporations.

Section 12: Possession of Unlawfully Obtained Recordings

Section 12 creates a separate possession offence. A person must not possess a record of a private conversation or private activity obtained in contravention of the Act. This means that receiving and keeping a recording made by someone else in breach of the SDA 2007 is itself a criminal offence, even if the recipient played no role in making the recording. The same penalties apply.

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The "Protection of Lawful Interests" Exception (s.7(3)(b))

The most frequently litigated exception is found in section 7(3)(b). A principal party to a private conversation may record it without the consent of other parties if two conditions are both satisfied:

1. The recording is reasonably necessary for the protection of the lawful interests of that principal party.
2. 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.

"Principal party" means a person who actively participates in the conversation, as opposed to an eavesdropper or bystander. Section 7(3)(a) also permits recording where all parties expressly or impliedly consent.

What "Lawful Interests" Means

Courts have explained that "lawful interests" are interests that are not unlawful; the phrase is similar to "legitimate interests" or "interests conforming to law." The exception cannot be used to record conversations speculatively or "just in case" something useful emerges. There must be a genuine, existing threat, dispute, or situation requiring protection at the time of recording.

The test is objective. In Sepulveda v R [2006] NSWCCA 379, Johnson J (with whom McClellan CJ at CL and Hislop J agreed) held that "reasonably necessary" means appropriate but not essential, assessed objectively on the circumstances existing at the time of recording. The court in that case held the recording was NOT reasonably necessary because the complainant could have contacted police, who could then have applied for a warrant. The availability of lawful alternatives weighs against the exception.

In Rathswohl v Court [2020] NSWSC 1490, Justice Rees admitted a recording made by Mrs Davies of her elderly father (without his knowledge) in a family provision and will dispute. Justice Rees found that Mrs Davies had a lawful interest in protecting her credibility in circumstances where: there was a serious dispute between siblings over a will and care arrangements; notifying the father of the recording would likely have stifled honest answers on sensitive matters; and there was no practical avenue for a warrant in a civil estate dispute.

Courts consider these factors when evaluating the exception:

• Whether the recording was made to obtain evidence of wrongdoing or to protect against false allegations.
• Whether other lawful avenues were overlooked or unavailable.
• Whether the dispute or threat was serious enough to warrant covert recording.
• Whether notifying the other party would have defeated the purpose.
• Whether publication to third parties was the purpose or merely an incidental outcome.

The Second Limb: No Publication Purpose

Even where a genuine lawful interest exists, the exception fails if the recording was made for the purpose of publishing or communicating the conversation to persons who are not parties to it. A person recording evidence of harassment to show a future employer, or recording a conversation to post on social media, would not satisfy this second limb even if the first limb (lawful interest) could be argued.

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Recording Phone Calls in NSW

Phone call recording in NSW is governed by two concurrent legal regimes: the federal Telecommunications (Interception and Access) Act 1979 (Cth) (the "TIA Act") and the state-level Surveillance Devices Act 2007 (NSW).

Federal Layer: The TIA Act

The TIA Act prohibits the interception of communications passing through a telecommunications system. "Interception" under the TIA Act means listening to or recording a communication while it is being transmitted, without the knowledge of either party. The TIA Act primarily targets third-party interception at the network level rather than a participant recording their own call on their own device.

State Layer: The SDA 2007

Where a party to a phone call uses their own device to record the call, the SDA 2007 governs. Because NSW is an all-party consent jurisdiction, recording a phone call without the consent of all parties to the call is a criminal offence under section 7(2) of the SDA 2007. This applies to mobile phones, landlines, and internet-based voice calls.

Which Law Prevails?

The TIA Act expressly provides that it is not intended to exclude or limit the operation of state and territory laws. The two regimes operate concurrently. Where there is any conflict, the stricter law prevails. In NSW, the SDA 2007's all-party consent requirement is stricter than the TIA Act's one-party-consent baseline for participant recording. A NSW resident recording a phone call must therefore obtain the consent of all parties, regardless of whether the federal baseline might theoretically permit otherwise.

Watch out: If you are in NSW and the other party to the phone call is in Queensland (a one-party consent state), the NSW SDA 2007 all-party consent rule still applies to your conduct in NSW. Both statutes can apply simultaneously. The safest approach is to obtain consent from all parties.

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Recording In-Person Conversations

For in-person conversations, the SDA 2007 is the sole relevant state-level statute. Recording a private in-person conversation without the consent of all parties breaches section 7(2) unless the lawful interests exception in section 7(3)(b) applies.

Key points for in-person scenarios:

• Public places: A conversation held in a genuinely public setting, where the speakers have no reasonable expectation that their words are private, may not constitute a "private conversation" under section 4(1) of the SDA 2007. If there is no reasonable expectation of privacy, the prohibition does not apply. Whether a conversation in a public place is "private" depends on the specific circumstances and what the parties' conduct indicated.
• Meetings and negotiations: Business meetings, mediations, and negotiations conducted with an expectation of confidentiality are likely to qualify as private conversations. Recording them without consent breaches section 7 absent the lawful interests exception.
• Family and domestic settings: Courts have consistently applied the SDA 2007 to domestic and family settings. Secret recordings in the home or during family conversations require either consent or a genuine lawful interest.

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Recording Police in NSW

Members of the public have the right to photograph and film police officers and police operations that are observable from a public space, or from a privately owned place with the consent of the owner or occupier. This follows from the absence of any prohibition in section 8 of the SDA 2007 on filming from a lawful position, and from NSW Police Force policy.

NSW Police do not have the power to:

• Prevent a person from taking photographs or filming from a public space.
• Confiscate photographic or filming equipment.
• Delete images or recordings.
• Order a person to delete images or recordings.

The audio component of a video recording of a police interaction in a public space raises a separate question. If the police officer's words in the course of their duties in public do not constitute a "private conversation," the section 7 prohibition does not apply. Courts have not definitively resolved every scenario, but the general principle is that conduct carried out in public by a public official acting in an official capacity carries a reduced expectation of privacy.

Watch out: While filming police in public is generally lawful, obstructing police in the execution of their duty (including by impeding their physical movement) is a separate offence under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.58. Stand back from the scene to avoid this issue.

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NSW Workplace Surveillance Laws

New South Wales is unique among Australian states in having dedicated legislation specifically governing surveillance in the workplace. The Workplace Surveillance Act 2005 (NSW) (the "WSA 2005") supplements the SDA 2007 for employment settings and creates a comprehensive framework for employer monitoring of employees.

Types of Surveillance Covered

The WSA 2005 regulates:

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

Overt Surveillance Requirements

Overt surveillance occurs when employees know that surveillance is taking place. Before commencing overt surveillance, employers must:

1. Give at least 14 days written notice to each affected employee (employees can agree to a shorter notice period).
2. Notify new employees before they begin work.
3. Ensure all surveillance equipment is clearly visible.
4. Post clearly visible signage at each entrance to surveilled areas.

The written notice must specify: the type of surveillance; the date and time it will commence; whether surveillance will be continuous or intermittent; and whether it is for a specific period or ongoing.

Covert Surveillance Restrictions

Covert workplace surveillance (conducted without the employee's knowledge) is prohibited unless the employer obtains a "covert surveillance authority" from a Magistrate. A Magistrate will only grant such authority to investigate whether employees are engaged in unlawful activity at work. The Magistrate will consider the seriousness of the alleged unlawful activity, the potential effect on the privacy of other employees, and whether reasonable grounds exist.

Covert surveillance for other purposes, including performance management or general monitoring, is not permitted.

Prohibited Surveillance Areas

The WSA 2005 prohibits surveillance in certain areas regardless of notice requirements:

• Toilets.
• Change rooms.
• Shower and bathing facilities.

Computer and Email Monitoring

Employers may monitor computer use only where a written policy on computer surveillance is in place and employees have been given advance notice and understand the policy. Employers may not block employee emails unless the email contains a virus, is spam, or can reasonably be regarded as menacing, harassing, or offensive, or unless blocking complies with the written workplace computer policy.

Tracking Surveillance

For GPS or tracking surveillance of vehicles, employers must display a clearly visible notice on the vehicle or object being tracked before surveillance begins.

Illegally Obtained Workplace Recordings as Evidence

In Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2014] FWCFB 263, the Full Bench of the Fair Work Commission held that it was not bound by the strict rules of evidence and could inform itself using whatever evidence it deemed appropriate, including recordings made in contravention of workplace surveillance laws. Illegally obtained recordings may therefore still be used in employment tribunals, even if obtained in breach of the WSA 2005 or SDA 2007.

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Federal Privacy Laws and the NSW Overlay

Two federal privacy regimes interact with NSW recording laws.

Privacy Act 1988 (Cth) and Australian Privacy Principles

The federal Privacy Act 1988 (Cth) and its 13 Australian Privacy Principles (APPs) apply to private sector organisations with annual turnover over $3 million, and to certain categories of smaller organisations. Where an employer records audio or video of employees as part of workplace surveillance, the recordings constitute "personal information" under the Privacy Act.

APP 11.1 requires entities to take reasonable steps to protect personal information they hold from misuse, interference, and loss, and from unauthorised access, modification, or disclosure. APP 11.2 requires destruction or de-identification of personal information that is no longer needed, subject to exceptions.

The employee records exemption in section 7B(3) of the Privacy Act exempts records directly related to the employment relationship from the APPs. However, this exemption does not override state and territory surveillance laws. Employers must comply with both the SDA 2007 and WSA 2005 requirements AND the APPs for any information that falls outside the exemption.

Privacy and Personal Information Protection Act 1998 (NSW)

The Privacy and Personal Information Protection Act 1998 (NSW) (PPIP Act) governs how NSW public sector agencies, including state government departments, councils, universities, and state-owned corporations, collect and handle personal information. The 12 Information Protection Principles (IPPs) set duties on collection, storage, use, and disclosure of personal information. The PPIP Act is administered by the Information and Privacy Commission NSW (IPC).

For recordings, the PPIP Act is relevant when a NSW government agency records a person's voice or image. IPP 3 governs collection: information must be collected for a lawful purpose directly related to the agency's functions, and collection must not intrude unreasonably on personal affairs. The PPIP Act does not replace or override the SDA 2007; both apply to government agency recordings.

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Federal Telecommunications (Interception and Access) Act 1979

The Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) provides the federal framework for lawful interception of telecommunications. It prohibits any person from intercepting a communication passing over a telecommunications network, and from using or communicating information obtained by interception.

Key points for NSW residents:

• Third-party interception is a federal offence: Any person other than the parties to a communication who intercepts that communication commits an offence under the TIA Act. This applies to phone calls, SMS, emails, and internet-based voice and video calls passing over telecommunications systems.
• Lawful interception exceptions: The TIA Act creates exceptions for law enforcement agencies acting under warrants, national security agencies, and certain emergency scenarios.
• Relationship with the SDA 2007: The TIA Act does not exclude or limit NSW law. The SDA 2007 applies to the use of physical listening devices; the TIA Act applies to interception via telecommunications systems. For phone calls recorded by a party on their own device, the SDA 2007 is the governing law in NSW, applying the all-party consent requirement.
• Penalties: Contravening the TIA Act carries substantial criminal penalties under Commonwealth law, including imprisonment.

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Penalties for Illegal Recording in NSW

The penalties under the SDA 2007 are among the most significant in Australia for recording law contraventions.

Provision	Offence	Individual Maximum	Corporate Maximum
s.7(1)-(2)	Recording private conversation without consent	100 PU or 5 years or both	500 PU
s.8(1)	Installing optical device via trespass/without consent	100 PU or 5 years or both	500 PU
s.11(1)	Publishing/communicating private conversation	100 PU or 5 years or both	500 PU
s.12	Possessing unlawfully obtained recording	100 PU or 5 years or both	500 PU

At the current NSW penalty unit rate of $330 (effective for offences committed on or after 7 November 2024):

• Individual maximum fine: 100 x $330 = $33,000 (plus potential imprisonment up to 5 years).
• Corporate maximum fine: 500 x $330 = $165,000.

These figures apply to offences committed on or after 7 November 2024. For offences committed before that date, the penalty unit rate at the time of the offence applies.

Watch out: The criminal penalties above are separate from civil liability. A person who records a private conversation without consent may also face civil claims for breach of confidence, and workplace surveillance breaches may give rise to employment law claims.

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Civil Liability for Unlawful Recording

Beyond the criminal penalties under the SDA 2007, unlawful recording can give rise to civil liability in NSW.

Breach of Confidence

The equitable doctrine of breach of confidence protects confidential information, including private conversations, from unauthorised disclosure. A person who unlawfully records a private conversation and uses or discloses its contents may be restrained by injunction or ordered to pay damages. The three elements are: the information must have the quality of confidentiality; it must have been imparted in circumstances importing an obligation of confidence; and there must be an unauthorised use or disclosure.

Tort of Intimidation and Harassment

Where unlawful recordings form part of a campaign of harassment or intimidation, the conduct may support other civil claims, including under the Crimes (Domestic and Personal Violence) Act 2007 (NSW) for apprehended violence orders.

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Notable Court Cases Involving Recording in NSW

Several significant court cases have shaped how NSW recording laws are interpreted and applied.

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

The NSW Court of Criminal Appeal considered whether a 14-year-old sexual assault victim committed an offence by secretly recording a conversation with her father, who was later convicted of indecent assault. The Court examined the trial judge's ruling that the recording was reasonably necessary to protect the victim's lawful interests. The Court held that the trial judge's ruling on reasonable necessity was wrong in the ordinary case: where a complainant can approach police and police can apply for a warrant, a secret recording is not "reasonably necessary." However, the case turned significantly on the practical reality that a minor victim of sexual abuse by a family member cannot realistically be expected to navigate warrant applications or police reporting without assistance. The case establishes that the "reasonably necessary" test is context-sensitive and that the vulnerability of the recorder and the practical availability of alternatives are material.

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

This Supreme Court case arose from a family provision dispute over an elderly father's estate. Mrs Davies secretly recorded a conversation with her father to determine whether her sister (Ms Court) was genuinely providing care as claimed and whether the father's will had been altered under improper influence. Justice Kelly Rees admitted the recording as evidence, finding that Mrs Davies had a lawful interest in protecting her credibility, noting: the absence of a practical avenue for a warrant in a civil estate matter; the seriousness of the dispute between siblings; and the likelihood that disclosing the recording to the father would have suppressed honest answers on sensitive family matters. The case confirms that the lawful interests exception operates in civil and family law proceedings, not just criminal matters.

R v Le [1998] 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. Justice Giles held that protection of "credibility generally" or the ability to give evidence is not a lawful interest for the purposes of the exception. Justices Hulme and Adams disagreed, holding that avoiding being falsely identified as a liar within a criminal investigation is a lawful interest, and that recording was the only practicable means of establishing the truth. This division highlights the unsettled reach of the "lawful interests" exception in credibility-protection scenarios.

Sepulveda v R [2006] NSWCCA 379: Police Alternative Available

In Sepulveda v R (2006) 167 A Crim R 108, a complainant who had been abused as a child made a clandestine recording of the accused for the purpose of bringing him to justice. The NSW Court of Criminal Appeal held the recording was not within the lawful interests exception because the complainant could have contacted police, who could have applied for a warrant under NSW law. "Reasonably necessary" is an objective standard assessed at the time of recording; "necessary" means appropriate but not essential. Where a lawful alternative (police involvement and warrant) was available, the exception was not satisfied. This case is often cited alongside DW v R [2014] NSWCCA 28 as illustrating the limits of the exception when institutional alternatives are realistically accessible.

Evidence Admissibility: Evidence Act 1995 (NSW) s.138

Even if a recording was made illegally under the SDA 2007, it may still be admitted as evidence. Section 138 of the Evidence Act 1995 (NSW) provides that illegally or improperly obtained evidence must not be admitted unless "the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained." Courts weigh the probative value of the evidence; its importance to the proceeding; the nature of the offence or cause of action; the gravity of the impropriety; whether the impropriety was deliberate or reckless; and whether it was contrary to recognised human rights. Illegally obtained recordings are not automatically excluded, and in serious criminal and family violence proceedings, admission is common.

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Voyeurism and Intimate Image Abuse

NSW has separate criminal provisions addressing voyeurism and the non-consensual recording and distribution of intimate images, outside the SDA 2007.

Crimes Act 1900 (NSW): Intimate Image Offences

Part 3 Division 15C of the Crimes Act 1900 (NSW) creates three offences:

Section 91P: Recording an intimate image without consent. A person commits this offence by intentionally recording an intimate image of another person without that person's consent, knowing or being reckless as to the lack of consent. An "intimate image" is an image depicting a person's private parts, or a person engaged in a private act, in circumstances where a reasonable person would reasonably expect to be afforded privacy. Maximum penalty: 100 penalty units ($33,000) or 3 years imprisonment, or both.

Section 91Q: Distributing an intimate image without consent. The same elements apply to the distribution of an intimate image, with the same maximum penalty. Sharing a recording made without consent, or sharing a recording originally made with consent but later distributed without consent, both constitute this offence.

Section 91R: Threatening to record or distribute an intimate image. A person commits this offence by threatening to record or distribute an intimate image of another person without their consent, intending that the other person fears the threat will be carried out. Notably, it is not necessary to prove the threatened person actually feared the threat would be carried out, nor that the intimate image exists. Maximum penalty: 100 penalty units ($33,000) or 3 years imprisonment, or both.

Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth)

The federal Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) commenced on 3 September 2024. It creates a new offence: using a carriage service to transmit sexual material that depicts (or appears to depict) another person without their consent, where the sender knows the person does not consent or is reckless as to whether they consent.

Key features:

• Applies to unaltered images and to AI-generated or otherwise manipulated ("deepfake") material equally.
• Covers images and videos; audio-only material is not within the offence's scope.
• Primary offence maximum penalty: 6 years imprisonment.
• Aggravated offence (where the offender created or altered the material): maximum 7 years imprisonment.
• Operates concurrently with NSW's Crimes Act 1900 ss.91P-91R. Conduct may simultaneously breach both the federal and NSW provisions.

The 2024 Cth Act addresses a gap in the earlier framework: prior to its commencement, deepfake sexual material transmitted online was not explicitly captured by federal law. NSW's sections 91P-91R remained operative for recording and distributing intimate images outside a carriage service context.

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How NSW Recording Laws Differ from Other Australian States

NSW recording laws differ significantly from other Australian jurisdictions. The differences are relevant to anyone recording conversations that may cross state boundaries.

State/Territory	Consent Requirement	Key Legislation	Key Differences from NSW
New South Wales	All-party consent (with lawful interests exception)	Surveillance Devices Act 2007 (NSW)	Dedicated Workplace Surveillance Act 2005; no public interest exception until 2026 Act
Queensland	One-party consent	Invasion of Privacy Act 1971 (Qld)	Most permissive; party to conversation may record without consent of others
Victoria	One-party consent (with sharing restrictions)	Surveillance Devices Act 1999 (Vic)	Party may record own conversation; restrictions on communicating to others
Western Australia	All-party consent	Surveillance Devices Act 1998 (WA)	Has public interest exemption not present in NSW's pre-2026 SDA
South Australia	All-party consent	Listening and Surveillance Devices Act 1972 (SA)	Has public interest exception
Tasmania	All-party consent	Listening Devices Act 1991 (Tas)	Exceptions include preventing serious violence to a person
ACT	All-party consent	Listening Devices Act 1992 (ACT)	Similar to NSW approach; no dedicated workplace surveillance statute
Northern Territory	All-party consent	Surveillance Devices Act 2007 (NT)	Has public interest exception
Federal (TIA Act)	N/A (interception prohibition)	Telecommunications (Interception and Access) Act 1979 (Cth)	Applies to network interception; operates alongside state laws; stricter state law prevails

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Cross-Border Recording Considerations

When a recording involves parties in different Australian jurisdictions, complexity arises as to which law applies.

The general principle is that the law of the jurisdiction where the recording takes place governs the recorder's conduct. If a NSW resident uses a device in NSW to record a phone call with a Queensland resident, the NSW all-party consent rule applies to the NSW resident's conduct. The Queensland resident's conduct in Queensland may be separately assessed under Queensland law.

For recordings transmitted over telecommunications networks, the federal TIA Act applies nationwide. State laws apply to the physical use of devices within the state. The concurrent operation of both regimes means the stricter rule prevails for conduct in NSW.

Cross-border considerations are also relevant for evidence in legal proceedings. A recording lawfully made in Queensland (one-party consent) may be tendered in NSW proceedings. NSW courts will assess admissibility under the NSW Evidence Act 1995, section 138, weighing the circumstances under which the recording was made in Queensland, including whether Queensland law was complied with.

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Recent Developments (2023-2026)

Surveillance Devices Amendment (Public Interest Exceptions) Act 2026

The Surveillance Devices Amendment (Public Interest Exceptions) Act 2026 (NSW) passed both houses of NSW Parliament in March 2026 following passage of the Surveillance Devices and Other Legislation Amendment Bill 2025. The Act amends the SDA 2007 to introduce a public interest exception:

• Individuals or organisations who come into possession of unlawfully made surveillance recordings (but who played no role in making them) may share those recordings with law enforcement agencies without facing prosecution, provided they act promptly.
• The exception extends to the NSW Police Force, the Law Enforcement Conduct Commission (LECC), the NSW Crime Commission, and the Independent Commission Against Corruption (ICAC).
• The Act does not permit any person to make unlawful recordings. It addresses only the subsequent possession and reporting of recordings made by others.
• The Act commences on a day or days to be appointed by proclamation. A ministerial review must begin within 5 years of commencement, with a report tabled in Parliament within 6 years.

This reform replaced a temporary regulatory exemption granted to ICAC in August 2023 following revelations that ICAC had obtained third-party recordings of private conversations made in apparent contravention of surveillance laws.

Criminal Prosecutions for Illegal Surveillance

NSW Police continue to prosecute breaches of the SDA 2007. In 2025, detectives charged a Tamworth man with 14 offences relating to the installation of a secret recording device inside a private home. This prosecution illustrates that authorities treat illegal surveillance as a serious criminal matter warranting prosecution.

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Frequently Asked Questions

Is it legal to record a conversation in NSW without telling the other person?

Generally no. Section 7(2) of the Surveillance Devices Act 2007 (NSW) prohibits a party to a private conversation from recording it without the consent of all other parties. The only exception for a party to the conversation is if the recording is reasonably necessary to protect that party's lawful interests and is not made for the purpose of sharing with third parties (s.7(3)(b)). A person who is not a party to the conversation faces an even stricter rule under section 7(1).

Can I record a phone call with my employer in NSW?

Not without consent. Recording a phone call without the consent of all parties is an offence under section 7(2) of the SDA 2007. If you have a genuine concern about the conversation and wish to record it for your protection, you would need to satisfy the section 7(3)(b) lawful interests test (genuine existing threat or dispute; recording not made to share with third parties; no practical alternative). If in doubt, seek legal advice before recording.

Can my employer record me at work in NSW?

Yes, with proper notice. Overt workplace surveillance requires at least 14 days written advance notice to employees under the Workplace Surveillance Act 2005 (NSW). New employees must be notified before starting work. Covert surveillance (without the employee's knowledge) is prohibited except where a Magistrate grants a covert surveillance authority for the purpose of investigating unlawful activity at work.

Is a secret recording admissible in court in NSW?

Possibly. Even if a recording was made in contravention of the SDA 2007, it may be admitted into evidence under section 138 of the Evidence Act 1995 (NSW) if the court determines that the desirability of admitting it outweighs the undesirability of admitting unlawfully obtained evidence. Courts have admitted unlawful recordings in criminal proceedings, family violence matters, and civil disputes where the probative value was high. Admission is not guaranteed, but exclusion is not automatic.

What happens if I share a recording I received from someone else?

Publishing or communicating a private conversation obtained via an unlawful recording is an offence under section 11(1) of the SDA 2007. Possessing such a recording is also an offence under section 12. The fact that you did not make the recording yourself is not a defence under either provision. However, from March 2026, the Surveillance Devices Amendment (Public Interest Exceptions) Act 2026 (NSW) creates an exception: if you come into possession of such a recording and promptly report it to a relevant law enforcement agency (NSW Police, ICAC, LECC, NSW Crime Commission), that specific conduct is exempt.

Can I film police in NSW?

Yes, from a public space. Filming police officers conducting their duties from a public space is not prohibited by the SDA 2007. NSW Police do not have the power to prevent filming, confiscate recording equipment, or require deletion of footage taken from a public space. However, obstructing police in the execution of their duties is a separate offence under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.58. Audio recording a police officer in a public space where there is no reasonable expectation of privacy may not constitute recording a "private conversation" under the SDA 2007, but no court has definitively resolved this for all scenarios.

What is the difference between NSW and Queensland recording law?

Queensland is a one-party consent jurisdiction under the Invasion of Privacy Act 1971 (Qld): a party to a conversation may record it without the consent of other parties. NSW is an all-party consent jurisdiction under the SDA 2007: all parties must consent (subject to the lawful interests exception). This distinction is significant for cross-border recordings. A recording lawfully made in Queensland may still be evidence of conduct in NSW if the NSW recorder breached the SDA 2007.

What is an "intimate image" for the purposes of Crimes Act 1900 s.91P?

Under the Crimes Act 1900 (NSW), an intimate image is an image (including video) that depicts a person's private parts (genitalia, buttocks, breasts of a female person) or depicts a person engaged in a private act (such as bathing, toileting, or engaging in sexual activity), in circumstances where a reasonable person would reasonably expect to be afforded privacy. It is an offence under section 91P to intentionally record such an image without the person's consent.

Does the federal deepfake law apply in NSW?

Yes. The Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) applies throughout Australia, including NSW. It commenced on 3 September 2024. Using a carriage service (including the internet or mobile networks) to transmit sexual material depicting another person without their consent is a federal offence carrying up to 6 years imprisonment. This applies whether the material is genuine or AI-generated (deepfake). The federal Act operates concurrently with NSW's own intimate image offences under sections 91P-91R of the Crimes Act 1900 (NSW). Both regimes may apply to the same conduct.

How do I get consent to record a phone call in NSW?

Consent should be obtained before the recording begins. Acceptable methods include: obtaining verbal agreement from all parties at the start of the call; playing an automated notification stating the call is being recorded and continuing only if the other party does not object (implied consent); or obtaining written consent in advance. In commercial contexts, the notification at the beginning of the call ("this call is being recorded for quality assurance purposes") combined with the other party's voluntary continuation of the call is commonly treated as implied consent, though there is no NSW court decision definitively resolving this for all scenarios.

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Disclaimer

This article provides general legal information about recording and surveillance laws in New South Wales, Australia. It does not constitute legal advice and is not a substitute for advice from a lawyer licensed to practise in New South Wales or the relevant Australian jurisdiction.

The information in this article reflects NSW and federal law as of 15 May 2026. Laws are subject to change; always verify the current version of any statute before relying on it. For guidance on your specific situation, consult a lawyer qualified in NSW law.

This article does not address the laws of other Australian states or territories in detail. For those jurisdictions, see the Australia recording laws hub.

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Authorities Cited

1. Surveillance Devices Act 2007 (NSW), No 64, ss.4, 7, 8, 11, 12. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2007-064
2. Workplace Surveillance Act 2005 (NSW). https://legislation.nsw.gov.au/view/html/inforce/current/act-2005-047
3. Privacy and Personal Information Protection Act 1998 (NSW), No 133. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1998-133
4. Evidence Act 1995 (NSW), s.138. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-1995-025
5. Crimes Act 1900 (NSW), ss.91P, 91Q, 91R. https://www5.austlii.edu.au/au/legis/nsw/consol_act/ca190082/s91p.html
6. Telecommunications (Interception and Access) Act 1979 (Cth). https://www.legislation.gov.au/Details/C2020C00092
7. Privacy Act 1988 (Cth), APPs 1-13. https://www.legislation.gov.au/Details/C2014C00076
8. Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth), commenced 3 September 2024. https://www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r7205
9. Surveillance Devices Amendment (Public Interest Exceptions) Act 2026 (NSW) (passed March 2026). https://www.parliament.nsw.gov.au/bills/Pages/bill-details.aspx?pk=18821
10. DW v R [2014] NSWCCA 28. https://www.law.cornell.edu/gender-justice/resource/dw_v_r
11. Rathswohl v Court [2020] NSWSC 1490. https://fightawill.com.au/portfolio/doe-vs-sydney-residential-developers/
12. R v Le [1998] NSWCCA 82.
13. Sepulveda v R [2006] NSWCCA 379 (2006) 167 A Crim R 108. https://barnoldlaw.blogspot.com/2020/11/recordings.html
14. Krav Maga Defence Institute Pty Ltd t/a KMDI v Saar Markovitch [2014] FWCFB 263.
15. Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), s.58. https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2002-103
16. Office of the Australian Information Commissioner (OAIC), "Workplace monitoring and surveillance." https://www.oaic.gov.au/privacy/your-privacy-rights/surveillance-and-monitoring/workplace-monitoring-and-surveillance
17. Information and Privacy Commission NSW (IPC), "PPIP Act." https://www.ipc.nsw.gov.au/privacy/nsw-privacy-laws/ppip
18. NSW Government, "Crucial anti-corruption legislation passes NSW Parliament." https://dcj.nsw.gov.au/news-and-media/media-releases/2026/crucial-anti-corruption-legislation-passes-nsw-parliament.html
19. NSW penalty unit indexation: Revenue NSW, "Increase in the value of penalty units" (current rate $330, effective 7 November 2024). https://www.revenue.nsw.gov.au/help-centre/resources-library/rulings/general/taa001

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Related Articles

• Australia Recording Laws (hub)
• Queensland Recording Laws
• Victoria Recording Laws
• Western Australia Recording Laws
• South Australia Recording Laws
• Tasmania Recording Laws
• Australian Capital Territory Recording Laws
• Northern Territory Recording Laws

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Last updated: 2026-05-15. Statutes cited reflect their in-force version as of 2026-05-15.