Western Australia Recording Laws

Western Australia Recording Laws

Western Australia Recording Laws

According to Section 5 of Western Australia’s Surveillance Devices Act 1998, Western Australia is considered an All Party Consent State. This means it is against the law to use, install, or maintain a listening device to record or listen to a private conversation to which that person is not a party. In Western Australia, you are not allowed to record a private conversation regardless of whether or not you are a participant in that conversation unless you have the consent of everyone involved.

The law takes a broad approach to defining what constitutes a “listening device,” including any instrument, apparatus, equipment, or other device capable of being used to record, monitor, or listen to a private conversation or words spoken to or by any person in private conversation. This definition encompasses smartphones, voice recorders, smart watches, and any other recording technology.

However, the law allows you or somebody on your behalf to record a private conversation to which you are a participant under the following conditions:

  • All parties to the conversation give express or implied consent to the installation, use, or maintenance of the recording device.
  • A party to the conversation gives express or implied consent to the recording and the recording is necessary for the protection of the lawful interests of that party.
  • The recording is done as instructed or authorized by a law enforcement officer in the course of an investigation into a suspected criminal offence.
  • The recording is done in the course of your duty as a law enforcement officer.

What is a “Private Conversation” in Western Australia?

Under the Surveillance Devices Act 1998, a “private conversation” is defined as any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves. However, it does not include a conversation carried on in any circumstances in which the parties ought reasonably to expect that the conversation may be overheard.

For example, a discussion in someone’s home, a car, a closed office, or a private meeting room would typically be considered private. Conversations in public places where others can reasonably overhear, such as a busy cafe or public street, may not be considered private conversations under the Act.

The Supreme Court of Western Australia has held that if any one or more of the parties desired the conversation be heard only by the parties to that conversation, then the first element of the definition is satisfied.

Western Australia Video Recording Laws

Section 6 of the Surveillance Devices Act 1998 makes it illegal to install, use, or maintain an optical surveillance device to record or observe a private activity regardless of whether or not you are a party to the private activity.

The term “optical surveillance device” is defined broadly to include any instrument, apparatus, equipment, or other device capable of being used to record visually or observe a private activity. This includes smartphones, security cameras, dashcams, nanny cams, and any other video recording equipment.

However, you or someone on your behalf can record a private activity to which you are a party if:

  • All parties to the private activity give implied or express consent to the recording.
  • A party to the private activity gives implied or express consent to the recording and the recording:
    • Is carried out as part of your duty as a law enforcement officer.
    • Is done as instructed or authorized by a law enforcement officer in the course of an investigation into a suspected criminal offence.
    • Is reasonably necessary for the protection of the lawful interests of that party.
  • The video recording is done in public where there is no expectation of privacy.

What Constitutes “Private Activity”?

“Private activity” under the Act means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves. This includes activities conducted in bathrooms, bedrooms, change rooms, or inside someone’s home. However, it does not include an activity carried on in any circumstances in which the parties ought reasonably to expect that the activity may be observed.

The “Lawful Interests” Exception

One of the most important exceptions in Western Australia’s recording laws is the “lawful interests” provision. A recording may be permitted where a principal party to the private conversation or activity consents either expressly or impliedly, and the recording is “reasonably necessary for the protection of the lawful interests of that principal party.”

The courts have provided guidance on interpreting this exception. In the landmark Western Australian case of AW v Rayney, the courts established several key principles:

  • The word “necessary” connotes appropriate or adapted rather than essential or indispensable.
  • The word “reasonably” imports an objective test, meaning the use of the recording device must objectively be reasonably appropriate or adapted.
  • The determination of whether the use is reasonably necessary is made by reference to the facts and circumstances existing at the time of the recording.
  • The word “protection” connotes defending, preserving, or safeguarding the lawful interests of the party in question.
  • What constitutes “lawful interests” must be ascertained from the facts and circumstances of the particular case, but generally “lawful” connotes a right or interest which is not contrary to statute or general law.

These principles were later applied in the Family Court of Western Australia case of Williams and Oamra, where Justice O’Brien relied on the AW v Rayney reasoning to consider what is reasonably necessary to protect lawful interests in family law matters.

Understanding Consent Under WA Law

Consent to recording can be either express or implied:

  • Express Consent: This is when a person explicitly agrees to being recorded, such as saying “yes” when asked if a conversation can be recorded.
  • Implied Consent: This arises from the context. For example, if someone is aware that a recording is being made and continues to engage in the conversation without objecting, a court might find that consent was implied.

Justice O’Brien in Williams and Oamra provided guidance on implied consent, stating that consent may potentially be implied where the evidence establishes that the party whose consent is in question is clearly aware that a recording is being made and raises no objection. However, awareness alone is not enough. It might be established that the party was not aware of any right to object, or that their will was overborne.

For example, if a person joins a video conference where it is announced at the start that the meeting is being recorded and they stay in the meeting, this could constitute implied consent.

Western Australia Publishing Laws for Recorded Conversations

Section 9 of the Surveillance Devices Act 1998 prohibits the publication or communication of a private conversation or private activity obtained through a listening or optical surveillance device without the consent of all parties to the conversation or activity.

Even if a recording was made legally, publishing or sharing it online or with others without the consent of everyone involved may still be an offence. Posting a video or audio recording that identifies someone or captures them in a private setting could lead to significant penalties.

Western Australia Recorded Conversations Public Interest Caveat

Western Australia’s law does allow audio or video recording of private conversations and activities if a party to the conversation or activity gives express or implied consent to the recording and there is reasonable belief that the use of the recording device is in the public interest.

Public interest generally includes matters affecting safety, transparency, and the welfare of vulnerable individuals. However, whether a recording meets this threshold is ultimately a matter for the courts to decide.

Western Australia Children and Protected Persons Recording Laws

Persons with a child or a protected person under their care who is a party to a conversation or activity are allowed to record the conversation or activity if they have reasonable belief that:

  • The use of the recording device will contribute towards the protection of the best interests of the child or protected person.
  • The use of the recording device is in the public interest.

This exception recognizes the need to protect vulnerable individuals and allows carers to gather evidence of potential abuse, neglect, or other harmful conduct.

Workplace Recording Laws in Western Australia

Recording conversations in the workplace without consent is a particularly complex area in Western Australia. While the Surveillance Devices Act 1998 provides some exceptions for protecting lawful interests, covertly recording workplace conversations carries significant risks.

Fair Work Commission’s View on Covert Recordings

The Fair Work Commission has repeatedly taken a dim view of employees who secretly record workplace conversations. In numerous decisions, the Commission has stated that secretly recording conversations at work “strikes at the heart of the employment relationship” and undermines “the necessity of trust and confidence in the employment relationship.”

Key Fair Work Commission decisions have established:

  • Covert recording of workplace conversations is considered an “extreme impropriety” contrary to general community expectations.
  • Such conduct can be serious misconduct and may constitute a valid reason for dismissal.
  • Even if a recording was made to protect the employee’s interests, the act of covert recording itself can justify termination.

In the case of Chandler v Bed Bath N’ Table [2020] FWC 3706, the Fair Work Commission found that while the employee’s dismissal was unfair for other reasons, her making of a covert recording was itself found to be a valid reason for dismissal and prevented her from being reinstated due to the loss of trust and confidence between the parties.

Similarly, in Ogbonna v CTI Logistics Ltd (No.2) [2015] FCCA 2318, a Western Australia case, the court refused to admit an unlawfully recorded conversation as evidence, finding that the desirability of admitting it did not outweigh the undesirability given the deliberate nature of the recording and the fact that evidence of the meeting could be obtained through other means.

When Workplace Recording May Be Justified

Despite the risks, there may be limited circumstances where workplace recording could be justified under the “lawful interests” exception:

  • Recording evidence of workplace harassment, bullying, or discrimination.
  • Documenting threats or intimidation.
  • Gathering evidence for a Fair Work Commission complaint or other legal proceedings.

However, employees should be aware that even if a recording falls within a legal exception, using it may still damage the employment relationship and could be considered as a factor against reinstatement in unfair dismissal claims.

Surveillance Warrants in Western Australia

Police and law enforcement officers can apply to the courts for surveillance device warrants under Part 4 of the Surveillance Devices Act 1998. These warrants allow lawful recording that would otherwise be prohibited.

For a court to issue a warrant, it must be satisfied that there are reasonable grounds for believing an offence has been, is being, is about to be, or is likely to be committed, and the use of the device would assist a formal police investigation of the offence.

When considering an application for a warrant, the court must consider:

  • The nature and severity of the offence.
  • The extent of intrusion on the person’s privacy.
  • Whether there are alternative means by which the evidence can be obtained.
  • The probative value of the evidence to be obtained.
  • Whether there are any other warrants issued for the same matter.
  • Whether it is in the public interest.

Warrants will specify the type of device approved, the circumstances in which it can be used, the locations where it is authorized, who can use it, and for how long. If police do not act within the parameters of the warrant, the evidence obtained may be ruled inadmissible in court.

Home Security Camera Laws in Western Australia

Installing security cameras on your own property for security purposes is generally permitted in Western Australia. However, there are important limitations:

  • Video recording: You can install CCTV cameras to monitor your own property, including entrances, driveways, and backyards. However, cameras must be positioned to primarily capture footage of your own premises.
  • Audio recording: Recording audio without consent remains illegal under the Surveillance Devices Act 1998. If your security system includes microphones, you must either disable the audio feature or clearly inform and obtain permission from anyone being recorded.
  • Neighbour privacy: It is not legal to intentionally or excessively record neighboring properties, private areas like windows or pools, or areas beyond your property boundaries.

If a neighbour believes your security camera is invading their privacy, they can raise a formal complaint. The best approach is to discuss concerns directly, adjust camera positioning if needed, and seek mediation if necessary.

Admissibility of Illegally Obtained Recordings

Even if a recording was made unlawfully, it does not automatically mean it cannot be used as evidence in court. However, the courts will carefully consider whether to admit such evidence.

In Criminal Proceedings

Courts must weigh whether the probative value of the recording outweighs the prejudicial effect. Factors considered include:

  • How serious the breach of law was in making the recording.
  • Whether there were alternative legal means to obtain the evidence.
  • The impact on the accused’s rights.
  • Whether the recording provides strong evidence that could not otherwise be obtained.

In Civil and Family Law Proceedings

Courts have broader discretion to admit evidence, even if unlawfully obtained, especially where the best interests of a child or a party’s safety is at stake. In family law disputes, recordings of domestic violence, threats, or abuse may be admitted if highly relevant to parenting capacity or child welfare.

However, parties who submit illegally obtained recordings could still face separate proceedings, including criminal charges or adverse costs orders.

How WA Recording Laws Compare to Other Australian States

Western Australia’s recording laws are among the strictest in Australia. Here is how WA compares to other states and territories:

State/Territory One-Party Consent Allowed? Legislation Key Notes
Western Australia No (All-party consent) Surveillance Devices Act 1998 All parties must consent unless an exception applies. Strictly enforced.
New South Wales No (All-party consent) Surveillance Devices Act 2007 Recording requires consent from all parties. Penalties up to $11,000 and/or 5 years imprisonment.
Victoria Yes (One-party consent) Surveillance Devices Act 1999 A party to the conversation may record it, but distribution is restricted.
Queensland Yes (One-party consent) Invasion of Privacy Act 1971 One-party consent allowed. Sharing recordings may still be illegal.
South Australia No (All-party consent) Surveillance Devices Act 2016 All-party consent required unless an exemption applies.
Tasmania Yes (One-party consent) Listening Devices Act 1991 One-party consent permitted, similar to Victoria/Queensland model.
Australian Capital Territory Yes (One-party consent) Listening Devices Act 1992 One-party consent allowed, but restrictions apply on use/distribution.
Northern Territory Yes (One-party consent) Surveillance Devices Act 2007 One-party consent permitted with restrictions on sharing recordings.

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The key difference is that in “one-party consent” states like Victoria, Queensland, and Tasmania, if you are a party to a conversation, you can generally record it without the other person’s knowledge. In Western Australia, NSW, and South Australia, all parties must consent unless a specific exception applies.

This variation means that a recording made legally in Queensland could be illegal in Western Australia. Always check the laws applicable where the recording takes place, particularly when dealing with phone calls or video conferences where parties may be in different states.

Western Australia Recording Laws Penalties

The Surveillance Devices Act 1998 sets out clear penalties for unlawful use of surveillance devices:

  • A penalty of $50,000 in the case of a body corporate.
  • In the case of an individual, $5,000 or imprisonment for 12 months, or both.

Aggravating Factors

Courts may treat offences more seriously if:

  • The recording was made for exploitative, threatening, or coercive purposes (such as blackmail).
  • The recording was distributed online or to third parties without consent.
  • The subject of the recording was a vulnerable person (such as a child, elderly individual, or person with disability).

Frequently Asked Questions

Can I record a threatening person to protect myself?

Possibly. This may fall under the exception where the recording is necessary to protect your lawful interests. For example, if you are being harassed, threatened, or subjected to bullying, recording a conversation might help support a complaint or application for a restraining order. However, this exception is narrowly interpreted and should not be relied upon lightly. The recording must be directly connected to protecting your legal rights.

Can I post a recording on social media?

Even if a recording was made legally, publishing or sharing it online without the consent of everyone involved may still be an offence under Section 9 of the Surveillance Devices Act 1998. Always get legal advice before sharing or distributing any recording publicly.

Can I record conversations at work?

In Western Australia, it is generally illegal to record a private conversation without consent from all parties unless an exception applies. This includes workplace discussions or meetings. If you believe you need to record to protect yourself from bullying, harassment, or unfair treatment, seek legal advice first. Be aware that even if a recording is permitted under an exception, it may still damage your employment relationship.

What can I do if someone recorded me without permission?

If you suspect someone has recorded you without permission, preserve any evidence of the recording such as messages, emails, or online posts. You can report the matter to WA Police, especially if the recording took place in a private setting or was shared publicly. Consider consulting a lawyer to understand your rights and legal options.

Can my neighbour film my property with their security camera?

Your neighbour can install CCTV cameras on their own property for security purposes. Problems arise when a camera captures images or video from areas where you have a reasonable expectation of privacy, such as inside your home, yard, or other private spaces. If you believe your privacy is being invaded, first try speaking with your neighbour, then consider contacting WA Police or seeking legal advice.

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