The evolution of technology means that it is easier than ever to record and document conversations and occurrences. However, it is against the law to secretly record another person or conversation without the permission of all people involved.
Can I secretly record a phone call?
In New South Wales, it is against the law to record a private conversation without the consent of the other person. s 7 of the Surveillance Devices Act 2007 (NSW) states that a person must not knowingly install, maintain or use a listening device to overhear, record, monitor, or listen to a private conversation. You can still commit an offence even if you are not a party to the conversation.
A private conversation is one which, in the circumstances, may reasonably be intended to be listened to only by those involved in the conversation or other people who have the consent of all participants to listen. A private conversation is also one where the parties might ought to reasonably expect that it will not be overheard by someone else.
It is important to note that a listening device does not include a hearing aid or similar device used by a person with impaired hearing.
It is not an offence if:
- Both parties consent to the recording, or
- The principal party consents to a listening device being used, and recording 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. The ‘principal party’ is the person by, or to whom words are spoken in the course of the conversation.
- A private conversation is heard unintentionally by means of a listening device.
Can I track someone’s location?
Like listening devices, it is an offence to install or use a tracking device to determine the location of another person or an object (for example, a car), without that person’s consent. It is also an offence to install or use an optical surveillance device (such as a camera) on a vehicle or within premises without the consent of the owner or occupier.
Can I monitor someone’s computer or device?
Like listening and tracking devices, it is also against the law to install or use a data tracking device to record or monitor the input or output of information from a computer. This is only an offence if done without the consent of the person who has lawful possession or control of the computer.
It is also an offence to publish any recording, or communicate anything discovered by tracking, filming or listening to information
Publishing an audio, visual or digital record of any activity or data (or a document prepared from one of these methods) is an offence. Similarly, it is against the law to communicate anything that has come to your knowledge as a direct or indirect result of the illegal use of a listening device, an optical surveillance device or a tracking device.
What is the penalty for an offence?
If found guilty of any of these offences, the maximum penalty is $11,000 or 5 years’ imprisonment, or both. If the offender is a corporation, the penalty is increased to $55,000.
Are there any exceptions?
Firstly, it is not an offence if both parties consent to the recording.
The Act also makes an exception for the use of a surveillance devices by police if they possess a valid warrant or are acting otherwise in accordance with law. The law permits the police to use body-worn cameras, utilise cameras when conducting certain searches, and to use listening or recording devices integrated into Tasers.
In many circumstances, the police must apply for a warrant in order to be able to conduct surveillance. To apply for a warrant, police must suspect on reasonable grounds that an offence has been, is being, or is likely to be committed, and there is (or will be) an investigation into that offence. The use of the surveillance device must be necessary for the investigation. A judge or magistrate may issue a warrant if they are satisfied that there are reasonable grounds. They also must consider:
- the nature and gravity of the alleged offence in respect of which the warrant is sought, and
- the extent to which the privacy of any person is likely to be affected, and
- the existence of any alternative means of obtaining the evidence or information sought to be obtained and the extent to which those means may assist or prejudice the investigation, and
- the extent to which the information sought to be obtained would assist the investigation, and
- the evidentiary value of any information sought to be obtained