The Law in NSW: Recording Conversations

Thanks to the proliferation of smartphones and other surveillance technology which is readily available to consumers, it is now easier than ever to make video and audio recordings of people, whether you have their consent or not.

But whether it is companies recording phone conversations for training purposes, or individuals recording conversations to help them obtain evidence for a legal or criminal matter, the law is complex when it comes to audio recordings.

In New South Wales

Listening device legislation is primarily state based.

The Surveillance Devices Act 2007 is the main piece of legislation which governs the use of such devices in NSW.

Section 7 of that Act makes it an offence punishable by up to five years’ imprisonment and/or $55,000 for a person to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, or to record a private conversation to which the person is a party.

A ‘listening device’ is defined by the Act 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, but does not include a hearing aid or similar device…”. This includes a mobile phone or other digital device.

However, there are a range of exceptions to the prohibition contained in section 7, which include:

  • the use of a listening device with a warrant or other legal authorisation, or to record the refusal of a police interview, or to locate and retrieve the device, or where it is used by police to record the operation of a Taser, or on police body-worn video equipment, and
  • the unintentional hearing of aprivate conversation by means of a listening device.

In addition, it is not an offence to record a private conversation to which a person is a party if:

  • all of the principal parties to the conversation consent, expressly or impliedly, or
  • a principal party consents and the recording of the conversation:

– is reasonably necessary for the protection of the lawful interests of that principal party, or

– 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.

A ‘principal party’ is defined as “a person by or to whom words are spoken in the course of the conversation”.

Case study

In 2010, the producer and a presenter of the well-known TV program A Current Affair were found guilty of breaching the Act when a story they ran involved publishing the recording of a telephone conversation which was obtained without the knowledge of one of the parties.

Although the producer of the program was found guilty for setting up the surveillance devices to record the conversation, the story was deemed to have been in the public interest and the recordings were considered to be admissible in court.

In the event that the matter relates to a court case or other legal issue, any evidence that is obtained as a result of an illegally recorded conversation may not be admissible in court.

This is a matter for the judge or magistrate’s discretion, and will depend on a number of different factors including how important the evidence is to the case and whether that outweighs the circumstances surrounding when and how it was obtained.

Surveillance warrants

Police can apply for a surveillance warrant in order to lawfully record a person.

To apply for a warrant, a police officer has to have reasonable grounds to suspect that someone is about to commit an offence, or that an offence has been committed, or that an offence is likely to be committed.

There also has to be an investigation into the alleged offence, or be likely that an investigation will arise, and the police officer has to show that surveillance will be necessary in that investigation.

Whether or not a warrant will be granted depends on the judge or magistrate’s discretion.

Some of the factors which will be considered include the nature and severity of the alleged offence, the likely intrusion on the privacy of the person or persons being recorded, and whether there are alternative ways of obtaining the evidence that is needed.

They will also consider what value the evidence which is likely to be obtained will have to the case as a whole.

Once a surveillance warrant is granted, it will give very specific guidelines as to the type of device which is approved, and how it can be used.

If police breach those guidelines, any evidence obtained may be inadmissible in court.

The warrant will state rules like where the surveillance device is authorised to be used, by who, and for how long.

If you suspect that your conversations are being recorded or if you have recorded someone else’s conversation and aren’t sure whether or not you can use it in court, speak to an experienced criminal lawyer as soon as possible or refer the matter to police.

previous post: The Insider – What you can expect working in Criminal Law

next post: When Can I be Filmed by NSW Police Cameras?

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About Ugur Nedim

Ugur Nedim is an Accredited Specialist Criminal Lawyer and Principal at Sydney Criminal Lawyers®, Sydney's leading firm of criminal and traffic defence lawyers.


  1. Seeker

    Thanks for a great post, it really found it useful,though three years after you wrote it! I’m surprised it received no comments till now.

  2. Judy

    My family has had trackers put on all there cars by vic police one of the cars was sold and when sent for a rwc they told him it’s wired in our phones are listened in on all the time my children’s father has been on bail since 2010 when he was released from prison he is a nobody we are broke arse family that have been hounded by vic police for 32 years getting back to bail his be found no charge to answer to since 2008 but just sick of the police wasting hundreds of thousands of dollars they are sick

  3. Judy

    I love how your law firm actually gets up there and fights for justice and a fair hearing and you guys aren’t intimidated by police

  4. Huey Breen

    What I can’t find out is.. Via your mobile fone record app.. If at a meeting or other situation.. If you tell them you are recording them and whether they like it or not you do.. Where do you stand using this to make others aware of what was recorded.. and whether it can be legally used as evidence.. I bet that when warned they are being recorded they’ll be carefull just what they say etc.

  5. Andrea

    Hi, just wondering if it is illegal to record a telephone call in NSW, but only recording your side of the conversation and not recording the other party at all? That is, only you voice is recorded and not the other party. I cannot find info on this. I know that you cannot record a conversation without the other party’s consent, but a conversation, by definition, involves two or more people, so….is recording yourself only classed as recording a ‘conversation’?

  6. Karen

    Myself and two work colleagues were recently recorded covertly by a client and the video uploaded to facebook and has since been removed from fb. I would like to know the legality of this action. Also should the employer be responsible for taking action or the individuals concerned? Thank you

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