Tasmania Recording Laws: Consent Rules and Penalties

Tasmania Recording Laws

Tasmania's Listening Devices Act 1991 regulates the use of listening devices to record or listen to private conversations. Tasmania has some of the strictest recording laws in Australia, making it illegal to record a private conversation even if you are a party to that conversation, unless specific exceptions apply.

Under Section 5 of the Act, it is illegal to use a listening device (such as a voice recorder, smartphone, or any device capable of recording audio) to record or listen to a private conversation, regardless of whether or not you are taking part in the conversation, unless:

• All principal parties to the conversation give express or implied consent to the recording. A principal party to the conversation consents to the recording and the recording:

• Is reasonably necessary for the protection of the lawful interests of that party.

• Is not made for the purpose of communicating or publishing the conversation to persons who are not parties to the conversation.

• The recording is made to obtain evidence or information concerning an imminent threat of serious violence to persons, substantial damage to property, or a serious narcotics offence.

Understanding Key Definitions

The Listening Devices Act 1991 provides important definitions that determine how the law applies:

Listening Device: Any instrument, apparatus, equipment, or device capable of being used to record or listen to a private conversation simultaneously with its taking place. This excludes hearing aids or similar devices used by people with impaired hearing.

Private Conversation: Any words spoken by one person to another in circumstances that may reasonably indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and some other person who has consent to listen.

Principal Party: A person by whom, or to whom, words are spoken in the course of the conversation.

Party: Includes a principal party, as well as any person who, with consent of any principal party, records or listens to the conversation.

The "Lawful Interests" Exception Explained

Tasmania allows recording without all-party consent when it is "reasonably necessary for the protection of the lawful interests" of the recording party. However, courts interpret this exception narrowly. Key considerations include:

• Reasonable Necessity: The recording must be genuinely necessary, not merely convenient. Courts have held that if other options exist (such as contacting police or seeking a warrant), the recording may not be considered reasonably necessary.
• Protection: Legal interpretation defines "protection" as defence from danger, harm, or evil, rather than simply gathering evidence for later use.
• Lawful Interests: These may include protecting oneself from threats, violence, or harassment, documenting evidence of abuse, or protecting financial or legal rights, but the determination depends on the specific circumstances of each case.

If you rely on this exception, you still cannot make the recording for the purpose of communicating or publishing it to persons who are not parties to the conversation, unless further exceptions apply.

Tasmania Video Recording Laws

The Listening Devices Act 1991 does not directly address video surveillance or optical recording devices. Tasmania has not enacted comprehensive surveillance device legislation covering video, tracking devices, or data surveillance like some other Australian states have.

However, the absence of specific video recording laws does not mean video recording is unregulated:

• Video with Audio: If your video recording device captures audio, it falls under the Listening Devices Act. A smartphone video or a security camera with audio enabled must comply with the audio recording rules.
• Video Only: Pure video recording (without audio) in public places where there is no expectation of privacy is generally permitted.
• Private Areas: Recording video in places where people have a reasonable expectation of privacy (such as bathrooms, bedrooms, or changing rooms) may constitute an offence under other criminal laws, including voyeurism offences under the Criminal Code Act 1924 (Tas).

For security cameras and CCTV systems in Tasmania, it is advisable to disable audio recording unless you have obtained consent from all parties who may be recorded. Video-only recordings that capture public areas or your own property are generally acceptable.

Security Cameras and CCTV in Tasmania

When installing security cameras in Tasmania, consider the following guidelines:

• Disable Audio: Since Tasmania's audio recording laws are strict, disabling audio on security cameras helps avoid potential legal issues.
• Point Cameras at Your Property: Aim cameras at your own property and common areas rather than neighbours' private spaces.
• Strata and Body Corporate Rules: If you live in a strata-controlled property, check the by-laws for any restrictions on camera placement.
• Notify Where Appropriate: Consider placing signage indicating that surveillance is in operation.

Dashcam Recording in Tasmania

Dashcams are popular in Tasmania for recording road incidents. The same principles apply:

• Video Only: A dashcam that records video without audio is generally permissible.
• Audio Recording: If your dashcam records audio of conversations inside the vehicle, you should obtain consent from all passengers or disable the audio function.
• Evidence in Accidents: Dashcam footage can be valuable evidence in insurance claims and court proceedings, provided it was lawfully obtained.

Tasmania Publishing Laws

Under Sections 9 and 10 of the Listening Devices Act 1991, it is illegal to publish, communicate, or submit a report of a private conversation that was obtained through unlawful use of a listening device. These restrictions are highly detailed and include specific exceptions.

Section 9 prohibits the communication or publication of a private conversation that came to a person's knowledge through unlawful recording or unintentional hearing via a listening device. Exceptions include:

• Communication to a party to the private conversation.
• Communication with express or implied consent of all principal parties.
• Communication in the course of proceedings for an offence against the Act.
• Communication reasonably necessary due to an imminent threat of serious violence, substantial property damage, or a serious narcotics offence.

Section 10 applies to parties who lawfully recorded a conversation but restricts subsequent communication or publication of that recording. Exceptions allow communication:

• To another party to the conversation or with consent of all principal parties.
• In the course of legal proceedings.
• That is not more than is reasonably necessary for the protection of the lawful interests of the person making the communication.
• To a person reasonably believed to have an interest in the conversation that makes the communication reasonable.

Possession of Recordings

Section 11 of the Act makes it an offence to possess a record of a private conversation knowing that it was obtained through unlawful use of a listening device or through unintentional hearing. This applies to audio recordings, transcripts, and any other form of record.

Exceptions include possession in connection with proceedings for an offence against the Act, possession with consent of all principal parties, or possession as a consequence of lawful communication.

Are Unlawfully Recorded Conversations Inadmissible in Court in Tasmania?

Section 14 of the Listening Devices Act 1991 addresses the admissibility of evidence obtained through recording devices. Generally, evidence obtained from illegally recorded private conversations cannot be given in any court proceedings unless:

• All principal parties to the conversation consent to the evidence being given in court.
• The evidence is given in proceedings concerning offences against the Listening Devices Act.
• The person also obtained knowledge of the conversation through lawful means.
• For serious offences (punishable by life imprisonment, 21 years imprisonment, or serious narcotics offences), the court may exercise discretion to admit the evidence if it considers it appropriate.

When determining whether to admit evidence of an unlawfully recorded conversation in serious cases, the court must consider:

• The public interest, including upholding the law, protecting people from illegal or unfair treatment, and punishing offenders.
• The seriousness of the offence for which the evidence is sought.
• The nature of the contravention of Section 5 (the recording offence).

Tasmania Recording Laws Penalties

Violating the Listening Devices Act 1991 is punishable under Section 12 by:

• For individuals: A fine not exceeding 40 penalty units or imprisonment for a term not exceeding 2 years, or both.
• For corporations: A fine not exceeding 500 penalty units.

Penalty units in Tasmania are indexed annually based on the Consumer Price Index. As of the 2024-25 financial year, one penalty unit in Tasmania is approximately $195. This means maximum fines are approximately:

Offender Type	Maximum Penalty Units	Approximate Maximum Fine (AUD)
Individual	40	$7,800
Corporation	500	$97,500