Is It Illegal to Record a Conversation in Australia?

Key Takeaways

• It Depends on Your State: There is no single Australian law for recording conversations. The rules are governed by state and territory legislation and differ significantly.

• Audio is Highly Protected: In most states (including NSW, VIC, SA, WA), it is a criminal offence to secretly record a private conversation that you are a part of without the consent of all parties.

• Video in Public is Different: Generally, it is legal to film or photograph in a public place where there is no reasonable expectation of privacy. However, this does not extend to recording their private conversations.

• Inadmissible Evidence: An illegally obtained recording may be ruled inadmissible in court, meaning the "evidence" you gathered could be useless and you could be charged with a crime for making it.

Introduction

In the age of the smartphone, everyone has a powerful recording device in their pocket. When a dispute arises—whether with a boss, a neighbour, or a company over the phone—the first instinct for many is to press "record" to capture evidence. It feels like a smart, proactive way to protect yourself.

However, in Australia, this instinct can land you in serious legal trouble. What many people don't realise is that secretly recording a private conversation, even if you are part of it, is a criminal offence in most parts of the country.

This guide will explain the complex surveillance laws in Australia, using five common scenarios to illustrate the legal traps you need to avoid.

Learn more about privacy laws in Australia at Office of the Australian Information Commissioner.

Before we go any further, it is crucial to understand that there is no single national law for recording conversations. Each state and territory has its own Surveillance Devices Act (or equivalent). The rules can be completely different depending on where you are.

• Strict States (e.g., NSW, VIC, SA, WA, TAS): Generally, you cannot record a private conversation without the consent of all parties involved. It is illegal for a participant to secretly record the conversation.

• More Lenient States (e.g., QLD, NT): Generally, a participant in a private conversation can legally record it without the other parties' consent.

This article will primarily use the stricter laws of New South Wales (NSW) as a guiding example, as it represents the legal position in most of Australia.

Learn more about the Surveillance Devices Act in NSW at NSW Legislation.

Let's explore five everyday situations where someone might be tempted to press record.

1. Recording a Meeting with Your Boss

Scenario: You feel you are being bullied or treated unfairly at work. You decide to secretly record a meeting with your manager to use as evidence for a future claim.

Verdict (in NSW): Illegal. A meeting in a private office is clearly a "private conversation." Recording it without your manager's consent is a breach of the Surveillance Devices Act 2007 (NSW). Furthermore, a court or tribunal may refuse to admit the illegally obtained recording as evidence, making your efforts counter-productive.

2. Recording a Phone Call with a Company

Scenario: You're on the phone with your insurance company or utility provider, and they've made a promise you want to lock in. You turn on your phone's recording app.

Verdict (in NSW): Illegal. A phone call is considered a private conversation. You'll notice that companies who record calls always state, "This call may be recorded for quality and training purposes." This is their way of obtaining your implied consent. You are required to do the same; you must inform the other party at the start of the call that you wish to record it and get their agreement.

3. Filming or Photographing in a Public Place

Scenario: You are in a public park or at a shopping centre and see an interesting event or a public argument unfold. You take out your phone and start filming.

Verdict: Generally Legal (with a major exception). You are usually free to film or take photos in a public place, as there is no reasonable expectation of privacy. However, this right does not extend to recording their private conversations. If your camera's microphone picks up a conversation that the parties would expect to be private, you could still be in breach of surveillance laws. The video might be legal, but the audio could be illegal.

4. Recording a Dispute with Your Neighbour

Scenario: Your neighbour is aggressively yelling at you over the back fence about a tree or a pet. To capture their behaviour, you secretly record the conversation on your phone.

Verdict (in NSW): Likely Illegal. Even though it's happening on your property, a conversation between two people where the topic is personal is a private conversation. Your neighbour has a reasonable expectation that you are not secretly recording their words. This is a common trap people fall into during neighbourhood disputes.

5. Using Your Dash Cam

Scenario: Your dash cam is always running while you drive. It captures video outside the car and audio inside the car.

Verdict: A legal grey area.

• Video: The external video recording the road is legal, as it's capturing events in a public place.

• Audio: This is the problem. Your dash cam is also recording the private conversations of any passengers in your car. In states like NSW, secretly recording a private conversation with a passenger without their consent is technically illegal. It is always best practice to inform anyone getting into your car that audio is being recorded.

Many people record conversations because they believe it will be their "smoking gun" in court. However, under Australian evidence law, a judge has the discretion to exclude evidence that was obtained illegally or improperly.

A court will have to weigh the value of the evidence against the illegality of how it was obtained. There is a very real risk that the secret recording you made will be thrown out of court, leaving you with nothing to show for it but a potential criminal charge for breaching surveillance laws.

In an era where every smartphone is a recording studio, it is tempting to use that power to protect yourself. However, Australian surveillance laws are strict and prioritise the privacy of private conversations above all else.

Before you press record, you must understand the law in your state. Secretly recording a private audio conversation is a criminal offence in most of Australia, and the "evidence" you gather may be inadmissible in court. When facing a serious dispute, your best course of action is not to make a secret recording, but to take detailed notes and seek professional legal advice.

AHL Legal: Your Partner in Navigating Surveillance Laws

Facing legal issues related to recording conversations or need guidance on Australian surveillance laws? At AHL Legal, we provide expert legal advice and representation to protect your rights and ensure compliance with privacy regulations.