Is it legal to record a phone call 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 or conversation without the permission of all people involved.
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:
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.
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.
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.
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.
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 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: