Victoria Recording Laws: Consent Rules and Penalties

Victoria Recording Laws

In Victoria, it is against the law to knowingly install, use or maintain a listening device to listen or record a private conversation to which you're not a party without the consent, express or implied, of all parties to the conversation. This means if you are taking part in a private conversation, you are within the law to record the conversation. However, if you are not an active party to the conversation, you can record the private conversation provided you obtain consent from at least one party to the conversation. Section 6 Surveillance Devices Act 1999.

This makes Victoria a "one-party consent" jurisdiction, which is more permissive than some other Australian states. Listening devices in this case refers to devices such as phones, voice recorders, video cameras that can record audio, and similar technology.

Victoria Video Recording Laws

Section 7 of the Surveillance Devices Act 1999 stipulates that it is against the law to install, use or maintain an optical surveillance device to record or observe a private activity to which the person is not a party. To record such private activity, the law requires the consent, express or implied, of all parties to the private activity be obtained.

Private activity in this case refers to activities that the parties to the activity expect a reasonable expectation of privacy and desire it to be observed by themselves only. This does not include:

• An activity carried outside a building.
• Activities carried out in circumstances in which the parties to the activity should reasonably expect it to be observed by other persons.

Is it Legal to Record a Conversation in Victoria?

If you are party to the conversation you are legally allowed to record it. If you are not part of the conversation then you must have consent from at least one party.

If you are a third-party and require consent from the parties taking part in the conversation you may gain consent by:

• Getting verbal or written consent prior to the recording being made.
• A verbal notification being played before the conversation begins. (For example: "This phone call is being recorded for quality control purposes…").

Victoria Workplace Recording Laws

Employers in Victoria are not allowed to install audio or video recording devices to monitor the conversations or activities of workers in toilets, washrooms, change rooms, or lactation rooms in the workplace. This is governed by Part 2A of the Surveillance Devices Act 1999.

While it may be technically legal for employees in Victoria to secretly record workplace conversations they are party to, doing so can have serious consequences for their employment.

Employee Recordings at Work

Because Victoria follows the one-party consent rule, employees can legally record conversations they participate in without informing their employer or colleagues. However, this does not mean such recordings are consequence-free:

• Employers may have workplace policies that prohibit recording conversations, and breaching these policies can be grounds for disciplinary action or dismissal.
• The Fair Work Commission has consistently held that secret recordings can undermine the trust and confidence necessary in an employment relationship.
• Even if a recording is legal, it may constitute misconduct that justifies termination.

Employer Surveillance of Workers

Employers who wish to conduct surveillance of employees in the workplace must:

• Ensure any surveillance is conducted in accordance with the Surveillance Devices Act 1999.
• Not install surveillance devices in areas where employees would have a reasonable expectation of privacy.
• Consider privacy obligations under the Privacy and Data Protection Act 2014 (Vic) for Victorian public sector employers.

Victoria Tracking Device Laws

Section 8 of the Surveillance Devices Act 1999 makes it an offence to install, use or maintain a tracking device to determine the geographical location of a person or object without the express or implied consent of that person or the owner of the object.

This means:

• You cannot place a GPS tracker on someone else's vehicle without their consent.
• Tracking a spouse's car without their knowledge may be illegal, even if you jointly own the vehicle.
• Employers must have appropriate policies and consent before tracking company vehicles driven by employees.

Victoria Publishing Laws

It is illegal to publish or communicate a record or report of a private conversation or activity unless the communication or publication is made:

• With the express or implied consent of all parties to the private conversation or activity.
• Is reasonably necessary in the public interest or for the protection of the lawful interests of the person making it.

Can Recordings Be Used as Evidence in Victoria Courts?

Even if a recording is made legally in Victoria, its admissibility as evidence in court proceedings is a separate matter. Courts have discretion to admit or exclude recordings based on several factors.

Fair Work Commission Proceedings

The Fair Work Commission can use its discretion to admit covert recordings into evidence, even where the recording may have been improperly obtained. When deciding whether to admit such evidence, the Commission considers:

• The probative value of the recording.
• The importance of the evidence to the proceedings.
• The gravity of any impropriety in obtaining the recording.
• Whether the recording party had other means of obtaining the evidence.

Family Court Proceedings

In family law matters, section 138 of the Evidence Act 1995 (Cth) allows courts to admit evidence that was illegally obtained if the desirability of making it admissible outweighs the undesirability of admitting improperly obtained evidence. The Family Court will consider:

• Whether the recording is relevant to issues in dispute.
• The probative value of the recording.
• Whether the recording was made to document family violence.
• Whether the person making the recording provoked or "set up" the recorded behaviour.

Notable Victoria Recording Law Court Cases

Several important cases have shaped how recording laws are applied in Victoria, particularly in the workplace context.

Schwenke v Silcar Pty Ltd (2013)

In Schwenke v Silcar Pty Ltd FWC 4513, a trades assistant was dismissed after secretly recording a disciplinary meeting with management. The Fair Work Commission held that the employee's secret recording, along with performance concerns, were valid reasons for his dismissal.

Commissioner Cloghan noted that "secretly recorded discussions are objectionable because one party is being deceptive and purposefully misleading the other party." The Commission concluded that secret recordings breach an employee's duty of good faith and fidelity and undermine the mutual trust and confidence required in the employment relationship.

However, the Commissioner acknowledged that secret recordings may be excusable in some circumstances, such as documenting discrimination, harassment or bullying, though "the gravity and cause would have to be significant to override the general requirement of dealing honestly and openly with the employer."

Gadzikwa v Australian Government Department of Human Services (2018)

In Tawanda Gadzikwa v Australian Government Department of Human Services FWC 4878, a Victorian employee had developed a practice of secretly recording conversations with colleagues. Deputy President Coleman criticised Mr Gadzikwa's actions, stating that secret recordings are "unfair to those who are being secretly recorded."

The Commission found that once it is known that a person has secretly recorded conversations, "this is apt to produce a sense of foreboding in others, an apprehension that they must be cautious" in their dealings with that person. The recordings were found to dilute points in the employee's favour regarding his termination claim.

Altham-Wooding v PKDK Adventures Pty Ltd (2024)

In Karen Altham-Wooding v PKDK Adventures Pty Ltd FWC 2753, Deputy President Saunders reaffirmed that secretly recording workplace conversations is "highly inappropriate, irrespective of whether it constitutes a criminal offence in the relevant jurisdiction."

Holt v TEEG Australia Pty Ltd (2025)

In the recent case of Harry Holt v TEEG Australia Pty Ltd FWC 1531, a worker who secretly recorded workplace conversations during meetings had those recordings excluded from evidence. Commissioner McKinnon found that it was unlikely to be "reasonably necessary" to secretly record a conversation when an employee has other options, such as taking notes during the meeting, having a support person take notes, or making contemporaneous notes afterward.

How Victoria Recording Laws Compare to Other States

Australia does not have uniform recording laws across all states and territories. Victoria's approach differs significantly from some other jurisdictions.

State/Territory	Consent Required	Governing Legislation
Victoria	One-party consent	Surveillance Devices Act 1999 (Vic)
Queensland	One-party consent	Invasion of Privacy Act 1971 (Qld)
Northern Territory	One-party consent	Surveillance Devices Act 2007 (NT)
Tasmania	One-party consent	Listening Devices Act 1991 (Tas)
New South Wales	All-party consent	Surveillance Devices Act 2007 (NSW)
South Australia	All-party consent	Surveillance Devices Act 2016 (SA)
Western Australia	All-party consent	Surveillance Devices Act 1998 (WA)
ACT	All-party consent	Listening Devices Act 1992 (ACT)