Is it legal to record a live phone call without consent in NSW? Can you record someone without their knowledge or permission in NSW?

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 taking phone calls or having conversations without the permission of all people involved.



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Can I track someones 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 someones 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 audio, visual or digital records 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 to obtain a phone call recording, 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 surveillance devices by law enforcement officers if they possess a valid warrant or are acting otherwise in accordance with the law. The law permits the police to use body-worn cameras, utilise cameras when conducting certain searches, and use listening or a recording device 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 such 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

Key Takeaways

How we can help

If you have been charged with a criminal offence, you can contact the team at Hamilton Janke Lawyers 24/7 by calling 4038 1666.

Written By
Picture of James Janke
James Janke

James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia