Tasmania Recording Laws

Tasmania Recording Laws

Tasmania’s Listening Devices Act 1991 regulates the use of listening devices to record or listen to private conversations. Tasmania has some of the strictest recording laws in Australia, making it illegal to record a private conversation even if you are a party to that conversation, unless specific exceptions apply.

Under Section 5 of the Act, it is illegal to use a listening device (such as a voice recorder, smartphone, or any device capable of recording audio) to record or listen to a private conversation, regardless of whether or not you are taking part in the conversation, unless:

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

Understanding Key Definitions

The Listening Devices Act 1991 provides important definitions that determine how the law applies:

Listening Device: Any instrument, apparatus, equipment, or device capable of being used to record or listen to a private conversation simultaneously with its taking place. This excludes hearing aids or similar devices used by people with impaired hearing.

Private Conversation: Any words spoken by one person to another in circumstances that may reasonably indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and some other person who has consent to listen.

Principal Party: A person by whom, or to whom, words are spoken in the course of the conversation.

Party: Includes a principal party, as well as any person who, with consent of any principal party, records or listens to the conversation.

The “Lawful Interests” Exception Explained

Tasmania allows recording without all-party consent when it is “reasonably necessary for the protection of the lawful interests” of the recording party. However, courts interpret this exception narrowly. Key considerations include:

• Reasonable Necessity: The recording must be genuinely necessary, not merely convenient. Courts have held that if other options exist (such as contacting police or seeking a warrant), the recording may not be considered reasonably necessary.
• Protection: Legal interpretation defines “protection” as defence from danger, harm, or evil, rather than simply gathering evidence for later use.
• Lawful Interests: These may include protecting oneself from threats, violence, or harassment, documenting evidence of abuse, or protecting financial or legal rights, but the determination depends on the specific circumstances of each case.

If you rely on this exception, you still cannot make the recording for the purpose of communicating or publishing it to persons who are not parties to the conversation, unless further exceptions apply.

Tasmania Video Recording Laws

The Listening Devices Act 1991 does not directly address video surveillance or optical recording devices. Tasmania has not enacted comprehensive surveillance device legislation covering video, tracking devices, or data surveillance like some other Australian states have.

However, the absence of specific video recording laws does not mean video recording is unregulated:

• Video with Audio: If your video recording device captures audio, it falls under the Listening Devices Act. A smartphone video or a security camera with audio enabled must comply with the audio recording rules.
• Video Only: Pure video recording (without audio) in public places where there is no expectation of privacy is generally permitted.
• Private Areas: Recording video in places where people have a reasonable expectation of privacy (such as bathrooms, bedrooms, or changing rooms) may constitute an offence under other criminal laws, including voyeurism offences under the Criminal Code Act 1924 (Tas).

For security cameras and CCTV systems in Tasmania, it is advisable to disable audio recording unless you have obtained consent from all parties who may be recorded. Video-only recordings that capture public areas or your own property are generally acceptable.

Security Cameras and CCTV in Tasmania

When installing security cameras in Tasmania, consider the following guidelines:

• Disable Audio: Since Tasmania’s audio recording laws are strict, disabling audio on security cameras helps avoid potential legal issues.
• Point Cameras at Your Property: Aim cameras at your own property and common areas rather than neighbours’ private spaces.
• Strata and Body Corporate Rules: If you live in a strata-controlled property, check the by-laws for any restrictions on camera placement.
• Notify Where Appropriate: Consider placing signage indicating that surveillance is in operation.

Dashcam Recording in Tasmania

Dashcams are popular in Tasmania for recording road incidents. The same principles apply:

• Video Only: A dashcam that records video without audio is generally permissible.
• Audio Recording: If your dashcam records audio of conversations inside the vehicle, you should obtain consent from all passengers or disable the audio function.
• Evidence in Accidents: Dashcam footage can be valuable evidence in insurance claims and court proceedings, provided it was lawfully obtained.

Tasmania Publishing Laws

Under Sections 9 and 10 of the Listening Devices Act 1991, it is illegal to publish, communicate, or submit a report of a private conversation that was obtained through unlawful use of a listening device. These restrictions are highly detailed and include specific exceptions.

Section 9 prohibits the communication or publication of a private conversation that came to a person’s knowledge through unlawful recording or unintentional hearing via a listening device. Exceptions include:

• Communication to a party to the private conversation.
• Communication with express or implied consent of all principal parties.
• Communication in the course of proceedings for an offence against the Act.
• Communication reasonably necessary due to an imminent threat of serious violence, substantial property damage, or a serious narcotics offence.

Section 10 applies to parties who lawfully recorded a conversation but restricts subsequent communication or publication of that recording. Exceptions allow communication:

• To another party to the conversation or with consent of all principal parties.
• In the course of legal proceedings.
• That is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication.
• To a person reasonably believed to have an interest in the conversation that makes the communication reasonable.

Possession of Recordings

Section 11 of the Act makes it an offence to possess a record of a private conversation knowing that it was obtained through unlawful use of a listening device or through unintentional hearing. This applies to audio recordings, transcripts, and any other form of record.

Exceptions include possession in connection with proceedings for an offence against the Act, possession with consent of all principal parties, or possession as a consequence of lawful communication.

Are Unlawfully Recorded Conversations Inadmissible in Court in Tasmania?

Section 14 of the Listening Devices Act 1991 addresses the admissibility of evidence obtained through recording devices. Generally, evidence obtained from illegally recorded private conversations cannot be given in any court proceedings unless:

• All principal parties to the conversation consent to the evidence being given in court.
• The evidence is given in proceedings concerning offences against the Listening Devices Act.
• The person also obtained knowledge of the conversation through lawful means.
• For serious offences (punishable by life imprisonment, 21 years imprisonment, or serious narcotics offences), the court may exercise discretion to admit the evidence if it considers it appropriate.

When determining whether to admit evidence of an unlawfully recorded conversation in serious cases, the court must consider:

• The public interest, including upholding the law, protecting people from illegal or unfair treatment, and punishing offenders.
• The seriousness of the offence for which the evidence is sought.
• The nature of the contravention of Section 5 (the recording offence).

Tasmania Recording Laws Penalties

Violating the Listening Devices Act 1991 is punishable under Section 12 by:

• For individuals: A fine not exceeding 40 penalty units or imprisonment for a term not exceeding 2 years, or both.
• For corporations: A fine not exceeding 500 penalty units.

Penalty units in Tasmania are indexed annually based on the Consumer Price Index. As of the 2024-25 financial year, one penalty unit in Tasmania is approximately $195. This means maximum fines are approximately:

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• Tasmania Recording Laws

In addition to fines, individuals may face imprisonment for up to 2 years. Some specific violations carry lower penalties: for example, failing to comply with a direction from the Chief Magistrate under Section 6 is punishable by a fine not exceeding 20 penalty units or imprisonment for up to 12 months, or both.

Workplace Recording in Tasmania

Recording conversations in the workplace without consent is particularly risky in Tasmania due to the strict all-party consent requirements. Key considerations for employees and employers include:

For Employees:

• Secretly recording workplace meetings, conversations with supervisors, or disciplinary hearings without consent may violate the Listening Devices Act.
• Even if you believe you are protecting your lawful interests (such as documenting workplace harassment), courts and tribunals take a conservative approach to this exception.
• The Fair Work Commission has repeatedly stated that it disapproves of employees making secret recordings at work and considers such conduct a potential breach of the duty of good faith owed to employers.
• In Schwenke v Silcar Pty Ltd [2013] FWC 4513, the Fair Work Commission held that secretly recording conversations breached the employee’s duty of good faith and justified summary dismissal.
• Better alternatives include taking notes during meetings, having a support person take notes, or making contemporaneous notes afterward.

For Employers:

• Employers may implement policies that expressly prohibit secret recording of workplace conversations.
• Breaching such policies may constitute grounds for disciplinary action or termination.
• If employers use surveillance in the workplace, they should provide clear notification and obtain consent from employees.

Evidence in Fair Work Proceedings:

The Fair Work Commission has discretion to admit covertly obtained recordings into evidence, even if unlawfully obtained. In Lipari v Transit Systems West Services Pty Ltd [2025] FWC 1430, the Commission considered whether the desirability of admitting the evidence outweighed the undesirability of how it was obtained. Factors considered include the probative value of the evidence, its importance to the proceedings, and the gravity of any impropriety. However, relying on this discretion is risky, and covert recordings may still result in adverse findings against the employee.

Recording in Tasmanian Courts

The use of recording devices in Tasmanian courts is strictly regulated under the Court Security Act 2017 and court etiquette rules:

• Taking photographs, making sound or video recordings, and broadcasting court proceedings is prohibited without specific approval.
• Mobile phones, tablets, laptops, and recording devices must be switched off in court.
• Lawyers may use electronic devices only to assist with trial or communication.
• Accredited journalists may use electronic devices for note-taking and filing stories while wearing a court-issued ID badge and sitting in the media box, but cannot make audio or visual recordings without the presiding judge’s express permission.
• Blogging on platforms that allow public comment is not permitted during proceedings.

How Tasmania Compares to Other Australian States

Recording laws vary significantly across Australian states and territories. Tasmania is among the stricter jurisdictions:

Key Differences:

• One-Party Consent States (QLD, VIC, NT): If you are a party to the conversation, you can legally record it without the other parties’ consent.
• All-Party Consent States (TAS, NSW, ACT, SA, WA): All parties must consent to the recording, though exceptions exist for protecting lawful interests or in emergencies.
• Video and Tracking: Victoria, NSW, and SA have comprehensive surveillance device legislation covering video, tracking, and data surveillance. Tasmania’s legislation only covers listening devices.

If you are recording a phone call or conversation that crosses state lines, the stricter law typically applies. When in doubt, obtain consent from all parties.

Police Recording Powers in Tasmania

The Police Powers (Surveillance Devices) Act 2006 provides Tasmania Police with specific powers to use surveillance devices, including listening devices, under certain circumstances:

• Police may apply for warrants to use listening devices for investigating prescribed offences (indictable offences).
• Warrants specify the offence being investigated, persons whose conversations may be recorded, the period of validity (up to 60 days), and conditions of use.
• In urgent situations, telephone warrants may be granted for up to 24 hours.
• Section 5(2)(e) of the Listening Devices Act allows police to record interviews with suspects without the normal consent requirements.
• Personal cameras (body-worn cameras) used by police are regulated under Section 44A of the Police Powers (Surveillance Devices) Act 2006.

Practical Tips for Recording Legally in Tasmania

To stay on the right side of Tasmania’s recording laws:

• Get Consent: The safest approach is to obtain express consent from all parties before recording any conversation.
• Document Consent: If consent is given verbally, record it at the beginning of the conversation (“Do you consent to this conversation being recorded?”).
• Disable Audio on Security Cameras: Use video-only mode for CCTV and dashcams unless you have obtained consent.
• Understand the Exceptions: If you believe recording is reasonably necessary to protect your lawful interests, seek legal advice first. Courts interpret this exception narrowly.
• Do Not Publish: Even if a recording was made lawfully, publishing or sharing it without consent or outside the permitted exceptions can create separate liability.
• Workplace Recordings: Check your employer’s policies. Consider alternatives like taking notes or having a support person present.
• Seek Legal Advice: If you need to record conversations for legal protection or evidence, consult a lawyer before doing so.

Frequently Asked Questions

Can I record a phone call in Tasmania?

Generally, no, unless all parties to the call consent or one of the specific exceptions applies (such as protecting your lawful interests or documenting an imminent threat).

Can I use a recording as evidence in family court?

Courts have discretion to admit unlawfully obtained recordings if the desirability of admitting the evidence outweighs the undesirability. This has occurred in cases involving family violence, but it is risky to rely on this. Seek legal advice.

Is it legal to record my landlord or neighbour?

Only with their consent, or if recording is reasonably necessary to protect your lawful interests (interpreted strictly by courts).

What if someone records me without my consent in Tasmania?

They may be committing an offence under the Listening Devices Act 1991. You can report the matter to Tasmania Police. The recording may also be inadmissible in court proceedings.

Other Australian Laws

• Australian Capital Territory Recording Laws
• 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