Australian Capital Territory Recording Laws: Consent Rules and Penalties (2026)

How the ACT Regulates Recording

The Australian Capital Territory sits in a unique position among Australian jurisdictions when it comes to recording laws. The territory's primary legislation, the Listening Devices Act 1992, establishes an all-party consent framework for recording private conversations. But it also contains exceptions that, in practice, give participants more flexibility than the headline rule suggests.

The Act is administered by the Attorney-General through the Justice and Community Safety Directorate. First enacted on 25 September 1992, it has been amended 11 times since then, most recently by the Crimes Legislation Amendment Act 2021 (No 2), which took effect on 11 February 2022.

Understanding ACT recording law means understanding three things: what counts as a listening device, what counts as a private conversation, and when exceptions apply. Get any of those wrong, and you could face criminal penalties.

Key Definitions Under the Act

What Is a Listening Device?

The Act defines a "listening device" broadly. It covers any instrument, apparatus, equipment, or device capable of being used to listen to or record a private conversation. That includes smartphones, tablets, voice recorders, dictation devices, audio bug surveillance equipment, and any video camera with audio recording capability.

Hearing aids are specifically excluded from the definition.

The breadth of this definition matters. If you use your phone to record a conversation, your phone is a listening device under the Act. The same goes for a laptop running recording software, a smartwatch with a microphone, or a dashcam that captures audio.

What Is a Private Conversation?

The Act protects "private conversations," which are conversations carried on in circumstances that indicate the parties intended it to be heard only by themselves. The critical question is whether the participants had a reasonable expectation of privacy.

A conversation in a closed office between two colleagues is private. A conversation at a loud bar table could be private if the speakers intended it to stay between them. A speech delivered to a crowd at a public rally is not private.

For telephone calls, the analysis focuses on each party's circumstances. If one party is alone in a private room, the conversation is considered private, even if the other party happens to be in a public place. The expectation of privacy from the perspective of any one party can make the entire conversation private.

Principal Parties vs. Parties

The Act distinguishes between "principal parties" and "parties" to a conversation. A principal party is someone who speaks or is spoken to during the conversation. A party includes principal parties and also anyone who, with consent of a principal party, listens to or records the conversation.

This distinction matters because the Act's exceptions hinge on whether a "principal party" consents. Someone who is merely listening in with permission is a party, but their consent alone does not trigger the exceptions.

Section 4: The Core Recording Prohibition

Section 4 is the heart of the Act. It creates two distinct prohibitions:

Subsection 4(1)(a) makes it an offence to use a listening device to listen to or record a private conversation to which you are not a party. This covers eavesdropping and covert surveillance of other people's conversations.

Subsection 4(1)(b) makes it an offence to use a listening device to record a private conversation to which you are a party. This is the all-party consent rule. Even if you are participating in the conversation, you cannot record it without meeting one of the Act's exceptions.

The maximum penalty for violating Section 4 is 50 penalty units. Under the ACT's Legislation Act 2001 (Section 133), one penalty unit equals $160 for an individual and $810 for a corporation. That translates to a maximum fine of $8,000 for an individual or $40,500 for a corporation.

The Exceptions That Change Everything

Section 4 contains exceptions that significantly soften the all-party consent rule for participants in a conversation.

Subsection 4(2) exempts:

• Use of a listening device under an authority granted by Commonwealth or ACT law
• Unintentional hearing of a private conversation by means of a listening device

Subsection 4(3) provides the most important practical exception. The prohibition on recording your own conversations (subsection 4(1)(b)) does not apply if:

(a) Each principal party to the conversation consents to the recording; or

(b) A principal party consents, and one of the following applies:

• (i) That principal party considers, on reasonable grounds, that the recording is necessary for the protection of their lawful interests; or
• (ii) The recording is not made for the purpose of communicating or publishing the conversation to anyone who is not a party to the conversation.

The second exception under 4(3)(b)(ii) is particularly significant. It means you can record your own conversations as long as you do not intend to share the recording with outsiders. A recording made purely for your own reference, such as notes from a business meeting or a record of an important phone call, falls within this exception.

The "lawful interests" exception under 4(3)(b)(i) also deserves close attention. Courts have interpreted "necessary" in this context to mean "reasonably appropriate" rather than "absolutely essential." If you have a legitimate reason to believe a recording will protect your legal rights, a business interest, or your personal safety, this exception may apply.

Section 5: Sharing Recordings Made by Parties

Section 5 governs what happens after a lawful recording is made. Even if you recorded a conversation legally under the Section 4 exceptions, you cannot freely share it.

A party to a private conversation commits an offence by communicating, publishing, or divulging a record of that conversation if the party knows the record was made using a listening device. The maximum penalty is 50 penalty units, imprisonment for 6 months, or both.

Exceptions under Section 5(2) allow sharing in these circumstances:

• Communication to another party to the conversation
• With consent of each principal party
• In the course of civil or criminal proceedings
• When reasonably necessary for the protection of the party's lawful interests
• Under an authority granted by law

The practical takeaway: you can record a conversation for personal reference, but sharing that recording with a third party requires you to meet one of these exceptions. Posting a recording on social media, for example, would almost certainly violate Section 5 unless every principal party consented.

Section 6: Sharing Unlawfully Obtained Recordings

Section 6 addresses a different scenario: what happens when someone receives a recording that was made illegally. If a private conversation comes to your knowledge through the unlawful use of a listening device, you commit an offence by communicating or publishing that conversation or any report of it.

The maximum penalty mirrors Section 5: 50 penalty units, imprisonment for 6 months, or both.

This provision means that even if you did not make the illegal recording yourself, passing it along or publishing its contents is a separate criminal offence. Journalists, employers, and anyone who receives leaked recordings should be aware of this rule.

Section 7: Possession of Unlawful Recordings

Section 7 makes it an offence to possess a recording that you know was obtained through the unlawful use of a listening device. It does not matter whether you were involved in making the recording. Simply having it in your possession, while knowing it was illegally obtained, is enough.

The maximum penalty is again 50 penalty units, imprisonment for 6 months, or both.

Section 8: Manufacturing and Supplying Listening Devices

Section 8 targets the supply chain. It is an offence to manufacture, supply, sell, distribute, possess, or offer to supply, sell, or distribute a listening device if you know it is intended or principally designed for use in contravention of Section 4.

The maximum penalty is 50 penalty units, imprisonment for 6 months, or both.

This section is aimed at sellers of covert surveillance equipment marketed specifically for illegal recording purposes, not at manufacturers of smartphones or general consumer electronics.

Recording Phone Calls in the ACT

Phone calls in the ACT are subject to both territory and federal law. The Listening Devices Act 1992 governs the use of recording devices, while the Commonwealth Telecommunications (Interception and Access) Act 1979 separately prohibits the interception of telecommunications.

Under Section 7 of the federal TIA Act, it is a criminal offence to intercept a communication passing over a telecommunications system without proper authorization. However, a party to a telephone conversation who records it using their own device (rather than tapping the telecommunications line itself) generally falls under state or territory legislation rather than the federal intercept provisions.

In practical terms, if you are a party to a phone call in the ACT and want to record it:

• You can record it for personal reference without sharing it (Section 4(3)(b)(ii) exception)
• You can record it if you reasonably believe it is necessary to protect your lawful interests (Section 4(3)(b)(i) exception)
• You need consent from all principal parties if you intend to share the recording with non-parties

Businesses that record phone calls, such as call centres, must obtain consent from all parties. The standard practice of playing "this call may be recorded for quality assurance purposes" at the start of a call is designed to obtain that consent. If the other party stays on the line after hearing the notification, their continued participation constitutes implied consent.

Recording In Person in the ACT

The rules for in-person recording mirror those for phone calls. The Listening Devices Act applies to any private conversation, regardless of the medium.

If you are sitting in a meeting and want to record it, the same Section 4(3) exceptions apply. You can record for personal reference without intending to share. You can record to protect your lawful interests. Or you can get consent from all principal parties.

Recording in public places follows different rules. If a conversation takes place in a genuinely public setting where no reasonable expectation of privacy exists, it is not a "private conversation" under the Act, and the recording restrictions do not apply. Street performers, public speeches, and open-air protests fall into this category.

But be cautious with semi-public spaces. A conversation at a restaurant table, even though the restaurant is open to the public, could still be private if the speakers intended their discussion to remain between themselves.

Workplace Recording and Surveillance

The ACT has a separate statute governing workplace surveillance: the Workplace Privacy Act 2011.

Notified Surveillance

Employers who want to conduct surveillance in the workplace must give affected workers at least 14 days written notice before the surveillance begins. During this notice period, the employer must consult in good faith with any employee who raises concerns about the surveillance.

The notice must describe the type of surveillance, the areas it will cover, and how the information collected will be used. This applies to audio recording, video cameras, email monitoring, internet usage tracking, and GPS tracking of company vehicles.

Covert Surveillance

Covert surveillance (monitoring without the employee's knowledge) requires authorization from the ACT Magistrates Court. An employer must apply to the court and demonstrate reasonable grounds for the covert monitoring. If approved, the court issues an authority that outlines the permitted scope and duration of the surveillance. The authority is valid for 30 days.

This is a higher bar than most Australian jurisdictions impose for workplace surveillance.

Prohibited Areas

The Workplace Privacy Act absolutely prohibits surveillance in certain areas, including toilets, parent rooms, and showers. No exception exists for these locations, regardless of whether the employer has obtained notice or court authorization.

Penalties

Violations of the Workplace Privacy Act carry penalties of up to 50 penalty units for the most serious offences and 20 penalty units for lesser violations.

Evidence Rules: Admissibility of Recordings

Part 3 of the Listening Devices Act addresses the admissibility of recordings as evidence in court proceedings.

Section 9 provides that references to "giving evidence" of a private conversation include producing a record of that conversation.

Section 10 establishes the general rule: evidence of a private conversation that was obtained through the unlawful use of a listening device is not admissible in court. Neither is evidence obtained as a direct consequence of such a conversation.

However, there are exceptions. The evidence may be admissible if:

• The recording was made by a party who had consent of each principal party
• The recording was made by a party to protect their lawful interests
• Each principal party consents to the evidence being given
• The proceedings are for an offence under the Listening Devices Act itself
• The person also obtained knowledge of the conversation from other sources not involving the listening device

The court also retains a general discretion. Even where the evidence was illegally obtained, a judge may admit it if the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained through illegal means. In practice, this balancing test is most commonly applied in criminal proceedings where the recording captures evidence of serious offences.

How the ACT Compares to Other Australian Jurisdictions

Australia does not have a single national recording law. Each state and territory has its own legislation, creating a patchwork of rules.

One-Party Consent Jurisdictions

Queensland and Victoria operate under one-party consent for participants. If you are a party to the conversation, you can record it without telling anyone else. Queensland restricts sharing the recording with non-parties, while Victoria is more permissive.

The Northern Territory also allows participants to record their own conversations without consent from other parties.

All-Party Consent Jurisdictions (With Exceptions)

The ACT sits in this category alongside New South Wales, South Australia, Western Australia, and Tasmania. All of these jurisdictions start from an all-party consent position but carve out exceptions for participants who need to protect their lawful interests.

NSW's Surveillance Devices Act 2007 has a nearly identical structure to the ACT's Listening Devices Act, including the lawful interest and personal use exceptions. South Australia and Western Australia follow similar patterns under their respective Surveillance Devices Acts.

The Practical Difference

In practice, the ACT's recording framework is more permissive than the all-party consent label suggests. The Section 4(3)(b)(ii) exception, which allows recording as long as you do not intend to share the recording with non-parties, effectively functions as a one-party consent rule for personal recordings.

The real restriction is on what you do with the recording afterward. Making the recording is often legal; sharing it without consent or legal justification is where most people run into trouble.

Penalties Summary Table

Offence	Section	Maximum Fine	Maximum Imprisonment
Unlawful use of listening device	Section 4	50 penalty units ($8,000)	N/A
Sharing lawful recording without authority	Section 5	50 penalty units ($8,000)	6 months
Sharing unlawfully obtained recording	Section 6	50 penalty units ($8,000)	6 months
Possessing unlawful recording	Section 7	50 penalty units ($8,000)	6 months
Manufacturing/supplying devices for illegal use	Section 8	50 penalty units ($8,000)	6 months

Note: For corporations, the penalty unit value is $810, making the maximum corporate fine $40,500 per offence.