Western Australia Recording Laws: Consent and the Lawful-Interests Exception

Western Australia requires consent before any private conversation is recorded, including your own. Section 5 of the Surveillance Devices Act 1998 (WA) has no personal-use exception; only the consent of every party, or a narrow lawful-interests test, excuses a participant's recording.

Does Western Australia Require Consent to Record a Conversation?

Western Australia requires the consent of every party to a private conversation before any participant, including someone taking part in the conversation, may record it. Section 5(1) of the Surveillance Devices Act 1998 (WA) prohibits recording both a conversation you are not part of and a conversation you are part of. The only ways around the prohibition are consent, express or implied, from each principal party, or the narrow lawful-interests exception in s.5(3)(d).

Western Australia has no personal-use exception of the kind that applies in New South Wales, Tasmania and the Australian Capital Territory, where a recording made purely for the recorder's own reference, and never intended for anyone outside the conversation, is excused even without consent. In Western Australia, that same recording, made with no consent and no lawful-interest justification, remains an offence. The same framework applies to video of a private activity under s.6 of the Act.

Information last verified on 2026-07-21. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article addresses audio and video recording law in Western Australia under the Surveillance Devices Act 1998 (WA), the federal Telecommunications (Interception and Access) Act 1979 (Cth), and the federal Criminal Code as amended to 2024. It does not address the law of other Australian states or territories in detail; for a national comparison, see the Australia recording laws hub. Recording rules differ significantly between Australian jurisdictions, and a rule that applies in Western Australia should never be assumed to apply elsewhere.

Quick Answer: What Are the Rules for Recording in Western Australia?

A participant may not record their own private conversation in Western Australia unless every principal party consents or the recording is reasonably necessary to protect that participant's own lawful interests. Section 5(1) of the Surveillance Devices Act 1998 (WA) prohibits installing, using or maintaining a listening device to record a private conversation, whether or not the recorder is a party to it, unless a s.5(2) or s.5(3) exception applies.

This distinguishes Western Australia from Victoria, Queensland and the Northern Territory, where the offence is written so that it never reaches a participant's own conversation in the first place, and from New South Wales, Tasmania and the ACT, where a participant is covered by the offence but a broad personal-use exception usually excuses ordinary private recording. Western Australia sits with South Australia as the two Australian jurisdictions with the narrowest exception structure: consent, or a genuine lawful interest, and nothing else.

The Act defines "private conversation" as any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties desires it to be listened to only by themselves, but the definition excludes a conversation carried on in circumstances where the parties ought reasonably to expect it may be overheard. Conversations in genuinely public settings, where participants reasonably expect to be overheard, fall outside the definition entirely and may be recorded without engaging the Act.

Surveillance Devices Act 1998 (WA): Section 5 (Listening Devices)

Section 5 of the Surveillance Devices Act 1998 (WA) is the primary provision governing audio recording in Western Australia. It provides:

A person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device: (a) to record, monitor, or listen to a private conversation to which that person is not a party; or (b) to record a private conversation to which that person is a party.

Surveillance Devices Act 1998 (WA), s.5(1)

The second limb, paragraph (b), is what separates Western Australia from Victoria, Queensland and the Northern Territory. In those three jurisdictions the offence is defined so that it excludes a conversation the recorder is part of, meaning a participant never needs an exception. In Western Australia, paragraph (b) brings a participant's own conversation inside the offence, and the only way out is s.5(2) (a listening device warrant, an emergency authorisation, a law of the Commonwealth, use under Part 5, or unintentional hearing) or s.5(3) (each principal party consents expressly or impliedly, or one principal party consents and the recording is reasonably necessary to protect that party's lawful interests, or the recording is carried out in the course of a law enforcement officer's duty).

The Act defines "listening device" broadly: any instrument, apparatus, equipment, or other device capable of being used to record, monitor, or listen to a private conversation. This covers smartphones, voice recorders, smart watches, smart speakers set to record, and any other technology with audio capture capability.

What Is a "Private Conversation" in Western Australia?

Under section 3 of the Surveillance Devices Act 1998 (WA), a private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties desires it to be listened to only by themselves, but the Act excludes a conversation carried on in circumstances in which the parties ought reasonably to expect that it may be overheard.

Conversations held inside a home, a closed office, a parked car, a private meeting room, or during a one-to-one phone call are typically private. Conversations at a crowded restaurant, in an open-plan public space, or at a public event, where participants reasonably expect bystanders may hear, typically do not meet the definition. The Supreme Court of Western Australia has held that if any one or more parties desired the conversation to be heard only by the parties to it, the first limb of the definition is satisfied.

Section 6: Video Recording (Optical Surveillance Devices)

Section 6 of the Surveillance Devices Act 1998 (WA) extends the identical consent and lawful-interests framework to video recording of private activities. It prohibits installing, using, or maintaining an optical surveillance device to record visually or observe a private activity, whether the recorder is a participant or not, unless a s.6(2) or s.6(3) exception applies.

"Optical surveillance device" is defined to include any device capable of recording visually or observing a private activity: smartphones, CCTV cameras, dashcams, nanny cams, body-worn cameras, and similar equipment. A "private activity" is any activity carried on in circumstances that may reasonably be taken to indicate that a party desires it to be observed only by those present. Activities in bathrooms, bedrooms, changing rooms, or inside a private residence are the clearest examples. An activity carried on where observation by others is reasonably expected falls outside the definition.

Exceptions Under Section 6

Video recording of a private activity is excused where:

• Each principal party to the private activity consents expressly or impliedly to the recording.
• A principal party consents and the recording is carried out in the course of a law enforcement officer's duty, or as instructed or authorised by a law enforcement officer investigating a suspected offence.
• A principal party consents and the recording is reasonably necessary to protect that party's lawful interests (the s.5(3)(d) equivalent applied to optical devices).
• The recording is made under a warrant or emergency authorisation issued under Part 4 of the Act, or in accordance with a law of the Commonwealth.
• The recording results from the unintentional recording or observation of a private activity.

The Lawful-Interests Exception: Section 5(3)(d)

The lawful-interests exception is the only route, other than consent, for a Western Australian participant to record their own private conversation. Section 5(3)(d) permits a participant to record without the consent of all other parties where a principal party consents, expressly or impliedly, to the recording and it is reasonably necessary for the protection of that party's lawful interests.

In AW v Rayney [No 4] [2012] WASCA 117, the Western Australia Court of Appeal set out the operative principles for this exception:

• "Necessary" means appropriate or adapted to the purpose, rather than essential or indispensable.
• "Reasonably" imposes an objective test: the recording must be objectively appropriate or adapted in the circumstances, not merely something the recorder subjectively believed was justified.
• Whether the recording is reasonably necessary is assessed by reference to the facts and circumstances existing at the time of the recording, not with the benefit of hindsight.
• "Protection" means defending, preserving, or safeguarding the party's lawful interests.
• "Lawful interests" are interests not contrary to statute or general law; their specific content depends on the facts of the case.

These principles have been applied in family law proceedings in Western Australia, where courts have considered whether recordings made by parties to custody or domestic violence disputes fall within the exception. The critical question is whether the recording was objectively necessary to protect a genuine interest, not merely convenient or precautionary. There is no separate limb, as there is in New South Wales, Tasmania and the ACT, for a recording that was never intended to be shared with anyone outside the conversation. In Western Australia, that intention is irrelevant if no lawful interest and no consent exists.

Watch out: The lawful-interests exception is narrow and courts apply an objective standard. Believing subjectively that a recording was necessary to protect your interests is not enough if a reasonable person in your position would not have found it necessary. Recording "just in case," or as general insurance against a future dispute, is unlikely to satisfy s.5(3)(d).

Section 9: Publication and Communication Restrictions

Section 9 of the Surveillance Devices Act 1998 (WA) creates an offence separate from the recording offence in s.5. Even where a recording is lawfully made, for example with the consent of all parties, section 9 prohibits publishing or communicating the recorded conversation or activity without the consent of all parties, unless an exception applies.

The main exceptions to the s.9 publication prohibition permit publication or communication:

• To a party to the private conversation or activity, or with the express or implied consent of each principal party.
• To police, the Corruption and Crime Commission, or another authorised law enforcement body, or by a law enforcement officer to the Director of Public Prosecutions.
• In the course of the duty of the person making the publication or communication.
• For the protection of the lawful interests of the person making the publication or communication, or, where the underlying recording relied on the s.5(3)(d) or s.6(3)(b)(iii) lawful-interests exception, in the course of reasonable action to protect the lawful interests of the principal party who consented to the recording.
• In accordance with Part 5, or in the course of legal proceedings.

The practical implication is significant: recording a conversation lawfully with everyone's consent does not automatically authorise sharing that recording with third parties, posting it online, or using it in a media report. Each act of publication or communication requires its own basis under s.9. The criminal penalty for contravening s.9 is the same as for contravening s.5: a fine of $5,000 or imprisonment for 12 months, or both, for an individual, and $50,000 for a body corporate.

Children and Protected Persons

A person with care of a child or a protected person who is a party to a conversation or activity may record that conversation or activity, and may communicate the recording, where they hold a reasonable belief that using the recording device will contribute to the protection of the best interests of the child or protected person, and that recording is in the public interest. This exception recognises the need for carers to gather evidence of potential abuse, neglect, or other harmful conduct affecting vulnerable individuals.

Penalties for Recording Offences

The Surveillance Devices Act 1998 (WA) uses fixed dollar penalties rather than the penalty-unit system most other Australian jurisdictions use. Never convert a Western Australian penalty using a penalty-unit multiplier from another state.

The Criminal Code (WA) s.221BD separately provides for imprisonment of up to 3 years for distributing intimate images without consent (see below). The federal deepfake offences carry up to 7 years imprisonment (see below).

Civil liability can also arise where a recording or publication causes loss or damage. The Act does not codify a specific civil damages regime, but the common law tort of invasion of privacy and the new federal statutory tort under the Privacy Act 1988 (Cth) may be available depending on the circumstances.

Phone Call Recording in Western Australia

Recording a phone call in Western Australia involves two concurrent legal frameworks: the state Surveillance Devices Act 1998 (WA) and the federal Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

Section 7 of the TIA Act prohibits intercepting a communication passing over a telecommunications system without the knowledge of the person making the communication. A party to a call has knowledge of their own communication, and recording at the point of receipt is generally not "interception" for the purposes of the TIA Act. That makes the state Act, not the federal interception offence, the operative framework for the question of whether you can record your own phone call. Law enforcement interceptions under the TIA Act separately require a warrant.

The practical rule for phone recording in WA is straightforward: obtain the express consent of every party before recording a phone call, unless you have a genuine, objectively assessable lawful interest that justifies recording without it.

Recording Police Officers in Western Australia

Recording a police officer or other public official performing their duties in a genuinely public setting does not ordinarily contravene section 5 of the Surveillance Devices Act 1998 (WA). The reason is definitional: an officer conducting official duties in a public place, making an arrest, directing traffic, addressing a crowd, cannot reasonably be taken to desire those communications to be heard only by the parties to them. A conversation carried on openly in public by an officer exercising public powers is not a "private conversation" under s.3.

The analysis changes where the interaction occurs in a setting where both the officer and other participants have a reasonable expectation of privacy. An interview inside a private home, a conversation in a police interview room, or a discussion in a private space accompanying the officer may attract the private conversation definition, in which case the consent-or-lawful-interests rule applies.

A separate, independent restriction applies to recordings made inside a courtroom or court precinct under the Evidence Act 1906 (WA) and associated court rules, which may require judicial authorisation. Those rules operate independently of the Surveillance Devices Act.

In-Person Conversations: When Is Recording Lawful?

For face-to-face conversations in Western Australia, the key question is whether the setting makes the conversation private under s.3 of the Surveillance Devices Act 1998 (WA). If it does, recording requires consent from every party or a lawful-interest justification. If it does not, the Act does not apply.

Settings where conversations are typically private:

• Inside any private dwelling (home, unit, caravan).
• In a closed office or meeting room.
• In a parked vehicle away from public thoroughfares.
• In a medical or legal consultation room.
• In a restaurant booth or quiet corner where participants are not overheard.

Settings where conversations are typically not private:

• On a public street or footpath.
• In an open public park.
• In a genuinely noisy public venue where conversation is audible to passers-by.
• At a public rally, hearing, or community meeting.

In ambiguous settings, the safe course is to obtain express consent from all participants before recording.

Workplace Recording Laws in Western Australia

Recording workplace conversations in Western Australia without the consent of everyone present is a criminal offence under s.5 of the Surveillance Devices Act 1998 (WA), subject only to the lawful-interests exception. The Fair Work Commission has repeatedly characterised covert workplace recording as conduct that "strikes at the heart of the employment relationship" and has treated it as a valid reason for dismissal in unfair dismissal proceedings.

In Chandler v Bed Bath N' Table [2014] FWC 3706, the Fair Work Commission found that the employee's covert recording of workplace conversations was itself a valid reason for dismissal, even though the overall dismissal was found procedurally unfair on other grounds. The Commission held that the recording was conduct contrary to general community expectations and incompatible with the trust and confidence the employment relationship requires.

In Ogbonna v CTI Logistics Ltd (No.2) [2016] FCCA 2318, a Western Australian court refused to admit an unlawfully recorded conversation as evidence, finding that the desirability of admitting it did not outweigh the undesirability, having regard to the deliberate nature of the breach and the availability of alternative evidence.

When Workplace Recording May Be Justified

The lawful-interests exception in s.5(3)(d) may apply in workplace settings where an employee faces a genuine and credible threat to their legal interests: documented harassment, bullying, or discrimination, credible threats of physical harm, or circumstances where alternative evidence collection is not reasonably available. Even where recording falls within the exception, employees should be aware that the recording may still damage the employment relationship, and that courts and the Fair Work Commission may take covert recording into account as a factor against reinstatement, even where the recording itself was lawful.

Home Security Cameras in Western Australia

Installing security cameras on private property for security purposes is generally lawful in Western Australia, subject to important limitations:

• Video recording: CCTV cameras monitoring your own property, including entrances, driveways, and backyards, are generally lawful. Cameras should be positioned to capture primarily your own premises.
• Audio recording: recording audio through a home security system requires the consent of everyone whose conversations may be captured. If your security system includes microphones, either disable the audio feature or ensure clear notice is given and consent obtained from anyone who may be recorded.
• Neighbour privacy: positioning cameras to deliberately capture images within a neighbouring property, into windows, or into private outdoor areas beyond your own boundary may contravene s.6 of the Surveillance Devices Act 1998 (WA).

The Act does not impose a consent requirement for capturing footage of genuinely public spaces, footpaths, public roads, or open public areas visible from your property, because persons in those settings have no reasonable expectation of privacy.

Surveillance Warrants in Western Australia

Part 4 of the Surveillance Devices Act 1998 (WA) authorises courts to issue surveillance device warrants to law enforcement officers. A warrant permits recording that would otherwise be unlawful under ss.5 and 6.

To issue a warrant, the court must be satisfied that there are reasonable grounds to believe an offence has been, is being, is about to be, or is likely to be committed, and that use of the device would assist the investigation. The court must also consider the nature and severity of the offence, the extent of intrusion on privacy, whether alternative evidence-gathering means are available, the probative value of the expected evidence, whether other warrants are in force for the same matter, and the public interest. Evidence obtained outside the scope of a warrant may be inadmissible.

Admissibility of Unlawfully Obtained Recordings

An unlawfully obtained recording is not automatically inadmissible in Western Australian proceedings. Under the Evidence Act 1906 (WA) and the common law discretion to exclude evidence, courts weigh the probative value of the recording against the public interest in maintaining the integrity of the judicial system and deterring unlawful conduct.

In criminal proceedings, the court applies a balancing exercise. Factors include the seriousness of the breach, whether alternative lawful means existed, the impact on the accused's rights, and the probative strength of the recording. A deliberate and planned breach of the Surveillance Devices Act weighs heavily against admission: see Ogbonna v CTI Logistics Ltd (No.2) [2016] FCCA 2318.

In civil and family law proceedings, courts have broader discretion to admit illegally obtained evidence, particularly where the best interests of a child or a party's safety are at stake. Family courts in Western Australia have admitted recordings in domestic violence and parenting capacity proceedings where the recording was the only practicable means of preserving evidence of abuse or threats. A person who tenders an unlawfully obtained recording may still face a separate criminal prosecution under the Surveillance Devices Act, and potential adverse costs orders.

No General State Privacy Statute: The Pre-2024 Gap

Until recently, Western Australia and South Australia were the only mainland Australian states without a general privacy or personal information protection statute covering the state public sector. The federal Privacy Act 1988 (Cth) covers private sector entities with annual turnover above $3 million, and certain smaller entities in prescribed categories, regulated by the Office of the Australian Information Commissioner (OAIC). The Privacy Act 1988 (Cth) does not extend to state and territory government agencies, which left WA public sector agencies outside any privacy statute regime before 2024.

Privacy and Responsible Information Sharing Act 2024 (WA)

The Privacy and Responsible Information Sharing Act 2024 (WA) (the PRIS Act) and the Information Commissioner Act 2024 (WA) received Royal Assent on 6 December 2024. The PRIS Act introduces 11 Information Privacy Principles, establishes the Office of the Information Commissioner for WA, and creates a mandatory breach notification scheme.

The PRIS Act's phased commencement schedule is:

• 6 December 2024: preliminary and amending provisions commenced; no substantive privacy obligations yet.
• 1 July 2025: the Office of the Information Commissioner and Privacy Deputy Commissioner established; administrative functions commenced.
• 1 July 2026: the main privacy obligations (the Information Privacy Principles) commence for WA public sector agencies.
• 1 January 2027: the notifiable information breach scheme commences.

The PRIS Act covers WA state government agencies only. Private sector entities in WA remain subject to the federal Privacy Act 1988 (Cth) where applicable. The PRIS Act does not amend or replace the Surveillance Devices Act 1998 (WA) recording rules.

Federal Privacy Act 1988 and WA

The Privacy Act 1988 (Cth), administered by the OAIC, applies to private sector organisations in WA with annual turnover above $3 million, and to health service providers, credit providers, and other prescribed entities regardless of turnover. The 13 Australian Privacy Principles (APPs) in Schedule 1 of the Act govern the collection, use, disclosure, and storage of personal information, including audio and video recordings that identify individuals. The Privacy Act 1988 (Cth) does not displace the Surveillance Devices Act 1998 (WA) recording rules. An entity that lawfully records a conversation under the state Act may still breach the Privacy Act if it collects, uses, or discloses the personal information in that recording in a way inconsistent with the APPs.

Voyeurism and Intimate Image Offences

Criminal Code (WA), Section 221BD

The Criminal Law Amendment (Intimate Images) Act 2019 (WA) inserted section 221BD into the Criminal Code (WA). Section 221BD makes it an offence to distribute an intimate image of another person without that person's consent. "Distribute" includes sharing via social media, messaging apps, email, or any online platform.

The penalty is imprisonment for 3 years. The offence does not require proof that the offender intended to cause harm or that the victim suffered harm; non-consensual distribution of the image is sufficient.

Defences to s.221BD include distribution for a genuine scientific, educational, or medical purpose, distribution reasonably necessary for legal proceedings, and distribution for media activities where the publisher did not intend to cause harm and reasonably believed publication was in the public interest.

"Intimate image" includes images depicting a person's genital or anal area, images depicting a female person's breasts, and images depicting a person engaged in a private act. The definition extends to images captured covertly, including through devices installed unlawfully in breach of s.6 of the Surveillance Devices Act 1998 (WA).

Deepfake Sexual Material: Federal Criminal Code Overlay

The Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) amended Part 10.6 of the Criminal Code (Cth) and applies Australia-wide, including in Western Australia.

The Act inserted two new offences:

Section 474.17A, non-consensual sharing of sexually explicit material (including deepfakes): a person commits an offence if they use a carriage service (internet, phone network) to transmit, make available, publish, distribute, advertise, or promote material that is sexually explicit and non-consensual. The offence applies to real material and to material created or altered using technology, including AI-generated deepfakes. Maximum penalty: 6 years imprisonment.

Section 474.17AA, aggravated offences: an aggravated version of the s.474.17A offence arises where the offender was responsible for creating or altering the material, or the offender had three or more prior civil penalty orders under the Online Safety Act 2021 (Cth) relating to similar material. Maximum penalty: 7 years imprisonment.

These federal offences are separate from, and cumulative with, the WA Criminal Code s.221BD offence. A person who creates and distributes a deepfake intimate image of a Western Australian resident without consent may face both WA state and Commonwealth charges.

Cross-Border Recording: Which Law Applies?

When a recording spans two jurisdictions, for example a person in Western Australia records a phone call with a person in Victoria, or an interstate employer records a meeting with a WA employee, the question of which recording law applies is not fully settled by statute and requires careful analysis.

The general principles are:

• Where all parties are in WA at the time of recording: the Western Australian consent-or-lawful-interests rule applies.
• Where the recording is made in WA but a party is interstate: WA law applies to the person making the recording in WA; the interstate party's own state law applies to conduct on their end. Both sets of laws must be satisfied. Because Western Australia has no personal-use exception, recording without consent of everyone involved is likely unlawful in WA even if it would be lawful under a more permissive rule in the other state.
• Where the recorder is interstate and the conversation partner is in WA: the law of the state where the recorder is located governs the recorder's conduct, though the WA participant's rights and any potential civil claims may also involve WA law.
• Federal TIA Act: the TIA Act 1979 (Cth) applies to telephone and internet communications passing over telecommunications systems regardless of where the parties are located, in addition to any applicable state law.

For cross-border workplace or business recording, the safest approach is to apply the most restrictive law of any state where a party to the conversation is located. Given Western Australia's narrow exception structure, that generally means obtaining consent from everyone in cross-border conversations involving WA participants.

How Western Australia Compares to Other Australian States

Australia has no single national rule for recording your own conversation. There are three genuinely distinct groups, based on whether the recording offence catches a participant at all, and if so, how broad the exception is.

Disclaimer

This article presents general legal information about recording and surveillance law in Western Australia. It is not legal advice and does not create a lawyer-client relationship. The information covers the Surveillance Devices Act 1998 (WA), the Telecommunications (Interception and Access) Act 1979 (Cth), the Privacy Act 1988 (Cth), the Privacy and Responsible Information Sharing Act 2024 (WA), the Criminal Code (WA), and the Criminal Code (Cth) as those laws stood on 2026-07-21. Laws change; readers should verify currency with the relevant legislation before acting. For advice about a specific situation, consult a legal practitioner admitted in Western Australia or the relevant Australian state or territory.

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Last updated: 2026-07-21. Statutes cited reflect their in-force versions as of 2026-07-21.