What are recording devices?
In New South Wales, the Surveillance Devices Act 2007 ('the SDA') regulates the use of any recording devices. This includes the use, installation and maintenance of a listening device to record, monitor or listen to a private conversation. Pursuant to the SDA, a surveillance device includes listening devices, optical or data surveillance devices, or tracking devices. Colloquially we often call them bugs.
Can you record someone without their consent?
It is an offence in NSW to record private conversations without the consent of all parties. This can carry penalties including fines and up to 5 years imprisonment.
When is it lawful to use recording devices?
If all parties impliedly or expressly consent to being recorded, it is legal to use a listening device to record that conversation. However, the use of listening devices or recording devices is legal in accordance with a warrant or emergency authorisation. Police officers can use these devices if there is an imminent threat of violence.
Is it admissible in court?
Generally, these recordings are not admissible in court however there are circumstances in which they can be admitted. Under section 7(3) of the SDA, recording evidence may be "reasonably necessary for the protection of the lawful interests of that principal party" as seen in Dong v Song [2018] ACTSC 82. The court may exercise its discretion if they find admitting the unlawfully recorded evidence outweighs the alternative.
Laws in Different States
However, States and territories other than NSW have their own
legislation in relation to recording devices. For example, in
Victoria, Queensland, and the Northern Territory, recording a
private conservation does not need the consent of both parties,
however publishing those recordings constitutes an offence, unless
permitted in special circumstances.
Below are legislations relevant to your state:
- NSW: Surveillance Devices Act 2007
- Victoria: Surveillance Devices Act 1999
- South Australia: The Surveillance Devices Act 2016
- Western Australia: Surveillance Devices Act 1998
- Queensland: Invasion of Privacy Act 1971
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