New South Wales Recording Laws: Consent Rules, Exceptions and Penalties (2026)

New South Wales prohibits recording a private conversation, including your own, without consent. But section 7(3)(b) of the Surveillance Devices Act 2007 (NSW) creates a broad exception: a participant may record without telling anyone else if the recording protects their lawful interests, or simply is not made to be shared with outsiders. That second limb covers most private, personal recording.

Information last verified on 2026-07-21 against the consolidated Surveillance Devices Act 2007 (NSW) text on legislation.nsw.gov.au. 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: Can I Record My Own Conversation in NSW?

Usually yes, but the statute does not say so directly, and getting the structure wrong matters. Section 7(1) of the Surveillance Devices Act 2007 (NSW) prohibits recording a private conversation you are not part of. Section 7(2) goes further and also prohibits a participant from recording a conversation they ARE part of. Read alone, section 7(2) would make almost all covert personal recording illegal.

Section 7(3) then softens that prohibition with an exception that applies if:

• (a) all of the principal parties to the conversation consent, expressly or impliedly; or
• (b) a principal party consents, and the recording either (i) is reasonably necessary to protect that party's lawful interests, or (ii) is simply not made for the purpose of communicating or publishing the conversation to people who were not parties to it.

Limbs (i) and (ii) are alternatives, not a two-part test you must satisfy together. A recording that has nothing to do with protecting a "lawful interest," made purely to keep your own private record of a conversation and never shown to anyone outside it, is excused by limb (ii) alone. That is why most everyday personal recording in NSW is lawful in practice even though the headline rule looks like a blanket prohibition.

This prohibition-plus-exception structure, with its specific personal-use limb, does not reduce to a simple headcount of how many parties must agree (see the FAQ below for why the common US "one-party/all-party consent" labels do not fit).

The Act covers audio recordings; optical (video) surveillance is separately governed by section 8, which works on an entirely different test (explained below). Violations of section 7 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. To check whether a specific recording situation is likely lawful in NSW or another state or territory, use the Australia recording consent checker.

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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 on recording a conversation you are not part of:

"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 a version of the prohibition to participants 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 Use a Different Test Entirely

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, but only 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.

This is a trespass test, not a private-activity test, and it is a structurally different mechanism from section 7's private-conversation test. Section 8 does not ask whether the activity being filmed was private. It asks whether installing, using or maintaining the camera itself involved entering someone else's land or interfering with their property or vehicle without consent. A camera mounted on your own property, pointed across a boundary line, that never requires you to set foot on the neighbour's land or interfere with their property, generally falls outside section 8 entirely, regardless of what it captures. This trespass-gated approach is unique to NSW among the Australian jurisdictions that regulate optical surveillance; other states (Victoria, Western Australia, South Australia, Northern Territory) instead ask whether the footage captures a "private activity," a different and broader test. Do not assume the NSW analysis transfers to those states, or vice versa.

The same individual penalties apply to section 8: 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, along with narrower exceptions for investigating or prosecuting an offence against section 11 and for court proceedings under the Act. 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 Personal-Use and Lawful-Interests Exception (s.7(3)(b))

Section 7(3)(b) is the single most important provision for anyone assessing whether a specific recording is lawful in NSW. It is not a two-part test. It offers two independent bases, either of which is enough on its own once a principal party has consented to the recording:

Basis (i): the recording is reasonably necessary for the protection of the lawful interests of that principal party.

Basis (ii): the recording is simply not made for the purpose of communicating or publishing the conversation, or a report of it, 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) separately permits recording where all parties expressly or impliedly consent, which is a distinct, third path to a lawful recording.

What "Lawful Interests" Means (Basis (i))

Courts have explained that "lawful interests" are interests that are not unlawful; the phrase is similar to "legitimate interests" or "interests conforming to law." Basis (i) 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 basis (i).

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 basis (i):

• 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.

The Personal-Use Basis: No Intention to Share (Basis (ii))

Basis (ii) does not require any threat, dispute, or "lawful interest" at all. It only asks whether the recording was made for the purpose of communicating or publishing the conversation to people who were not parties to it. A recording made purely to help you remember what was discussed, kept privately and never shown to anyone outside the conversation, satisfies basis (ii) regardless of why you wanted a record of it.

This is the limb that puts NSW's practical effect closer to permissive than the headline prohibition in section 7(2) suggests. It is also the limb most often overlooked, including in secondary summaries of the Act that describe the exception as requiring both a lawful interest and no publication intent, when the statute in fact offers them as alternatives.

Where basis (ii) fails is exactly where most disputes arise: a person recording evidence of harassment specifically in order to show a future employer, or recording a conversation with the plan of posting it on social media, has a publication purpose from the outset and cannot rely on basis (ii). If they also lack a genuine lawful interest, neither basis of section 7(3)(b) applies, and the recording is not excused. A recording that starts as private (basis (ii)) can also lose that protection if it is later published to a non-party without a separate exception under section 11(2) applying to that publication.

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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, since a party to the call has knowledge of their own communication and a recording made at the handset is not made "in its passage" over the network.

State Layer: The SDA 2007

Where a party to a phone call uses their own device to record the call, the SDA 2007 governs, following the same section 7(3) structure described above. Recording a phone call without meeting one of the section 7(3) bases is an offence under section 7(2). 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, and the state law is the one that actually governs whether a participant may record their own call.

Watch out: If you are in NSW and the other party to the phone call is in Queensland (where a participant recording their own conversation is outside the offence entirely), the NSW section 7 rule still applies to your conduct in NSW. Both statutes can apply simultaneously to the same call. The safest approach where in doubt is to obtain consent from all parties, which satisfies section 7(3)(a) without needing to rely on either basis of section 7(3)(b).

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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 meeting section 7(3) breaches section 7(2).

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 at all, in which case section 7 does not engage regardless of the exceptions. 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 requires satisfying section 7(3).
• 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 consent, a genuine lawful interest, or an absence of any intention to share the recording outside the family.

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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 section 8's trespass test (filming from a lawful position, without entry onto anyone's land, does not engage section 8 at all), 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 under section 7, not section 8. If the police officer's words in the course of their duties in public do not constitute a "private conversation" under section 4(1) (because the circumstances indicate no desire for the words to be heard only by specific people), section 7 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. Where the interaction is not obviously "private," a recorder present at the scene is also a participant, and can additionally rely on section 7(3)(b)(ii) if the recording is kept for personal reference and not published to non-parties.

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" issued by a Judge under Part 4 of the WSA 2005 (confirmed against the current consolidated text; this corrects earlier secondary summaries, including a prior version of this page, that named a Magistrate). The employer or its representative applies to a Judge, verified on oath or affidavit, setting out the grounds for suspecting unlawful activity and the surveillance proposed. The Judge must not issue the authority unless satisfied reasonable grounds exist, having regard to the seriousness of the suspected unlawful activity (s.25) and to whether the surveillance would unduly intrude on privacy (s.26). An authority cannot authorise surveillance for the purpose of monitoring work performance, or in any change room, toilet facility, or shower or other bathing facility (s.20(3)).

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. Section 6(1) defines interception as "listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication."

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.
• A party recording their own call is generally not "interception": A party to the call has knowledge of their own communication, and a recording made at the point of receipt (their own handset) is not "in its passage over" the network. This is why the TIA Act is the wrong framework for the question "can I record my own phone call"; the state Act governs that question in NSW.
• 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 and its section 7(3) exceptions are the operative NSW law.
• 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.

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 meeting a section 7(3) exception 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.

Domestic and Personal Violence Orders

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

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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 under basis (i). 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 under basis (i) 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 under basis (i), 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 basis 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 on basis (i). 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 basis (i) 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 basis (i) 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, basis (i) was not satisfied. This case is often cited alongside DW v R [2014] NSWCCA 28 as illustrating the limits of the lawful-interests basis 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 11 December 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 Compare to Other Australian States

Australia does not have a single national recording law. There are, in practice, three distinct groups of jurisdictions, and NSW sits in the middle group.

NSW is also the only state whose optical-surveillance provision (section 8) uses a trespass test rather than a private-activity test; see the section above.

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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 rule under section 7 applies to the NSW resident's conduct. The Queensland resident's conduct in Queensland is separately assessed under Queensland's Invasion of Privacy Act 1971, which puts a participant outside the offence entirely.

For recordings transmitted over telecommunications networks, the federal TIA Act applies nationwide. State laws apply to the physical use of devices within the state.

Cross-border considerations are also relevant for evidence in legal proceedings. A recording lawfully made in Queensland 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, 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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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 legal practitioner admitted in New South Wales or the relevant Australian state or territory.

The information in this article reflects NSW and federal law as of 21 July 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 legal practitioner admitted in NSW.

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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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: 2026-07-21. Statutes cited reflect their in-force version as of 2026-07-21.

Frequently Asked Questions

Is NSW a one-party consent or all-party consent state?

Neither label fits well. NSW's Surveillance Devices Act 2007 prohibits recording a private conversation you are part of (section 7(2)), which sounds like an all-party rule. But section 7(3)(b) then excuses that recording if a principal party consents and either the recording protects that party's lawful interests, or the recording is simply not made to be shared with people who were not part of the conversation. That second basis covers most private, personal recording, so in practice NSW usually permits recording your own conversation, provided you do not intend to share it with outsiders.

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

Often yes, if you are keeping it for your own reference. Section 7(3)(b)(ii) of the Surveillance Devices Act 2007 (NSW) excuses a participant's recording where it is not made for the purpose of sharing it with people outside the call. If you intend to show the recording to someone who was not on the call, you instead need either the other party's consent or a genuine lawful interest under section 7(3)(b)(i), such as documenting a genuine, existing workplace dispute. 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 specific covert surveillance authority is obtained to investigate 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. Section 8 (the optical surveillance provision) is a trespass test: filming from a lawful public position, with no entry onto anyone's land, does not engage it at all. 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 section 7, but no court has definitively resolved this for all scenarios.

Does a camera pointed at my neighbour's yard breach NSW law?

Usually not under section 8, because NSW's optical surveillance offence is a trespass test rather than a private-activity test. A camera mounted on your own property that never requires entering your neighbour's land or interfering with their property generally falls outside section 8, regardless of what falls within its field of view. This is different from states like Victoria, Western Australia and South Australia, which instead ask whether the footage captures a 'private activity.' A microphone on the same camera is assessed separately under section 7's private-conversation test, which does not share this trespass-based carve-out.

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 11 December 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 combined with the other party's voluntary continuation of the call is commonly treated as implied consent under section 7(3)(a), though no NSW court decision has definitively resolved this for all scenarios.