Is it illegal to record a conversation without consent in NSW?
The Surveillance Devices Act 2007 (NSW) governs the rules around when you can and can’t install, use or record someone with a listening device in NSW. This means that it outlines the law on when you can and can’t secretly record a person’s conversation.
Mobile phones usually have the capability to take audio and visual recordings with ease. As such, a mobile phone is also considered to be a type of listening device.
In fact, the law defines a ‘listening device’ as “any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation”.
A ‘listening device’ does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.
What is the purpose of this law? Creating a law that governs the use of listening devices to record conversations and the like is primarily to protect our privacy. It does this by establishing safeguards against unjustified invasion of privacy. It allows a number of ways to legally record conversations, actions etc with or without consent. One of the ways includes, obtaining a warrant.
This law is important because it seeks to protect an individual freedom of right of people to enjoy their private lives free from interference. The Attorney-General of NSW has said, that “People should not be expected to live in the fear that every word that they speak may be transmitted or recorded and later repeated to the entire world.”
Specifically, section 7 prohibits a person from installing, using or maintaining a listening device to record a private conversation to which the person’s a party.
It also prohibits a person from using a listening device in that way to overhear, record, monitor or listen to a private conversation to which the person isn’t a party.
In a nutshell, this law basically prescribes up to 5 years imprisonment or $11,000 fine, or both for an individual. However, if a corporation is guilty of this, the maximum penalty is a fine of up to $55,000.
As criminal lawyers in Sydney, we often get asked questions on this topic. Here is a complete guide to the law on recording a conversation without consent.
While the law prohibits a person from knowingly use a mobile phone to secretly record a private conversation, the law provides an exception to this, which allows you to secretly record a private conversation without consent, in any one or more of the following circumstances:
- The recording of the conversation is reasonably necessary for the protection of the lawful interests of the person; or
- The recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation; or
- The recording occurred in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation; or
- It was an unintentional hearing of a private conversation by means of a listening device; or
- Use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence; or
- The use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment; or
- The use of a listening device, being a device integrated into a taser issued to a member of the NSW Police force, to record the operation of the Taser and the circumstances surrounding its operation; or
- The use of a body-worn video by a police officer in accordance with section 50A; or
- The recording, monitoring or listening of a private conversation occurred in circumstances:
- Where a party to the conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity; and
- The person using the listening device is that participant or another participant in that authorised operation.
The more common argument used for a person who secretly records a private conversation without consent is to prove that:
- The person recording the conversation (person A) consented to using the mobile phone and the recording of the conversation; and
- It was reasonably necessary for the protection of his/her lawful interests.
What does ‘reasonably necessary’ for his/her ‘protection’ mean?
Whether a recording is considered ‘reasonably necessary’ or not will depend on the circumstances of each case.
For example, the case of Sepulveda v R  NSWCCA 379 was a case where the complainant in a historical sexual assault case had made a secret recording of a conversation with the alleged offender in order to bring the alleged offender to justice for criminal acts committed against the complainant and his brothers.
In that case, the complainant tried to obtain money from the alleged offender in exchange for the recording.
The court said that the recording was illegal because it was not ‘reasonably necessary’ to make the recording as the complainant could have sought help from police, where police could have applied for a warrant under the law. This would’ve allowed the conversation to be recorded under a warrant, which would otherwise have been lawful.
In Sepulveda’s case, Justice Johnson said, that “necessary” meant appropriate but not essential, and “reasonably” is an objective test which is to be assessed based on the circumstances of the recording.
“protection” means defence from danger, harm and evil.
What does ‘lawful interests’ mean?
‘Lawful interests’ has been explained in the case of DW v R  28, which was a case of a 14-year old girl who made a secret recording of a conversation with her dad. Her dad was later found guilty of indecent assault and child pornography charges.
The 14-year old girl made the secret recording in the following circumstances:
- The secret recording was made before police were approached and involved
- She believed that her step-mum wouldn’t believe her, so she didn’t approach her for help
- She was scared of her dad, who convinced his wife that she was lying.
- After making the recording, she didn’t approach police, instead hid it to ensure her dad doesn’t get it.
In that case, the court said that she did the secret recording for the ‘protection of her lawful interests’, namely, the recording was made to protect her herself from further abuse and exploitation, and it wasn’t practical in the circumstances for her to have approached police to obtain a warrant to be able to secretly record the conversation because:
- She was 14-years old
- She had her own mobile phone, but she couldn’t be expected to understand the legal avenues available to have her complaints investigated
In another example of a ‘lawful interest to make a secret recording, is the case of R v EP  ACTSC 89, where a woman complained to police that the alleged offender threatened to disseminate sexually explicit images of her. She later found an intimate image of herself on her home driveway, which she took to police. She later made a secret recording of a conversation with her and the alleged offender. The recording revealed the alleged offender’s admissions of him telling her that she had to have sex with him for 3 months, otherwise he would disseminate the intimate images of her.
The court in that case said that they considered it necessary to make the recordings to protect her lawful interests.
Family Law Cases and Secret Recordings
Family law disputes often involve children and property. Things can and sometimes do get nasty. Secret recordings here can be very useful evidence if done lawfully.
An example is the case of Latham v Latham  FamCA 877. This case involved a father who made secret recordings of his children and wife. The recordings revealed abusive comments made by his wife towards the children which supported his concerns that she was a child abuser.
The secret recordings were accepted as lawful by the court because they were considered reasonably necessary to protect his lawful interests, namely, the probability that the wife would deny the conversations; that he needed to protect himself from risk of being accused of fabricating the conversations and avoid being labelled a liar.
Factors the Court Considers in Determining Whether a Secret Recording is Lawful
Is the secret recording of a private conversation lawful or illegal? It will be considered lawful if the law considers if “reasonably necessary for the protection of the lawful interests of the person making the recording.
The following are factors to consider:
- Was the recording made in anticipation of a possible dispute arising or for the sake of making an accurate record of what was said or done. If so, this is not enough of a reason.
- Was there a recording made in context of a serious dispute between the parties. This may include where the dispute essentially depends on oral evidence i.e. one person’s word against another person’s word. In this case, the secret recording is more likely to be lawful.
- Was there an alternative practical approach to making a secret recording, such as by means of approaching police who can obtain a warrant to do this properly? If there was, then the recording will more likely be considered illegal.
- Was that conversation the only practical evidence to be able to prove that you did not fabricate the conversation? If so, it will more likely be considered important to protect yourself by secretly recording it, in order to be able to refute accusations of fabricating the conversation. This will more likely be considered a lawful secret recording. i.e. where the conversation is about a serious criminal matter or there’s a genuine child safety concern.
It will more likely be considered a lawful recording where the subject matter is contentious and the conversation or characteristics of the person being recorded indicate that it’s necessary to make the recording to secure an admission in respect of a conversation to support a legitimate purpose.