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Is It Illegal to Record Someone Without Consent in Australia?

By Recording Law Editorial Team11 min read
Is It Illegal to Record Someone Without Consent in Australia?

Recording someone without their consent in Australia is governed by state and territory surveillance or listening devices Acts, not a single national rule. Whether it is an offence depends on which of three statutory patterns applies in your jurisdiction and whether an exception is available.

This article addresses recording another person without consent under the eight state and territory surveillance or listening devices Acts and the federal statutory privacy tort in Schedule 2 of the Privacy Act 1988 (Cth), current as at 19 July 2026. For the equivalent rule for phone calls, see recordinglaw.com's guide to recording a phone call in Australia; for the full comparison across all eight jurisdictions, see the Australia recording laws overview.

Every surveillance or listening devices Act reviewed for this article recognises two forms of consent: express, given in words, and implied, inferred from conduct or the circumstances. None of the eight Acts prescribe a required form, such as a signed document. New South Wales excuses recording where "all of the principal parties to the conversation consent, expressly or impliedly" (Surveillance Devices Act 2007 (NSW) s 7(3)(a)); Victoria, Western Australia and South Australia use materially the same language in their own consent limbs. A principal party means someone who takes part in the conversation, not someone merely present, and whether particular conduct amounted to consent is a factual question this article cannot answer in the abstract. Whether that consent, or an exception, is even required at all depends on which of three statutory groups your jurisdiction falls into, the same three-group framework set out in recordinglaw.com's comparison of Australia's recording laws.

Group 1: Recording Is Outside the Offence for a Participant

In Victoria, the offence under the Surveillance Devices Act 1999 (Vic) s 6(1) is limited to a private conversation "to which the person is not a party"; s 7 uses the same structure for optical surveillance. The Northern Territory's Surveillance Devices Act 2007 (NT) s 11(1) is drafted the same way, and s 12 extends a comparable optical offence. Queensland's Invasion of Privacy Act 1971 (Qld) s 43 exempts a party under s 43(2), but the Act regulates listening devices only; it has no optical provision, so a participant filming, rather than audio-recording, another person in Queensland is not addressed by this Act.

recording law - phone call recording

Group 2: A Broad Personal-Use Exception in New South Wales, Tasmania and the ACT

New South Wales, Tasmania and the ACT prohibit a party from recording a private conversation they are part of, then excuse it under a personal-use limb. Surveillance Devices Act 2007 (NSW) s 7(3)(b)(ii) excuses a recording "not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation"; Listening Devices Act 1991 (Tas) s 5(3) and Listening Devices Act 1992 (ACT) s 4(3) use near-identical language. New South Wales' optical provision works differently: s 8 only catches a device installed by trespassing on or interfering with premises or a vehicle, so filming from your own property without entering the other person's land generally falls outside it entirely. Tasmania and the ACT have no general optical provision at all.

Group 3: The Narrow Lawful-Interests Test in Western Australia and South Australia

Western Australia and South Australia prohibit a party from recording a private conversation without consent, and neither Act has a personal-use exception. The exception in each requires either all-party consent or that recording "is reasonably necessary for the protection of the lawful interests of that principal party" (Surveillance Devices Act 1998 (WA) s 5(3)(d); Surveillance Devices Act 2016 (SA) s 4(2)(a)(ii) uses equivalent language). Neither Act defines what makes an interest lawful or when recording is reasonably necessary to protect it, and this article does not predict whether any reader's situation satisfies that test. South Australia has one further avenue Western Australia lacks: Surveillance Devices Act 2016 (SA) s 6 provides the prohibition "does not apply... if the use of the device is in the public interest", with s 6(2) applying the same exception to optical devices under s 5. Describing South Australia as simply the strictest jurisdiction is therefore an oversimplification; both states share the same narrow structure, but South Australia has this one further statutory exception.

JurisdictionGroupPersonal-use exceptionLawful-interests exceptionAdditional exceptionMaximum penalty (individual)
New South Wales2Yes, s 7(3)(b)(ii)Yes, s 7(3)(b)(i)None100 penalty units or 5 years, or both
Victoria1Not applicable, outside the offenceNot applicableNone240 penalty units or 2 years, or both
Queensland1Not applicable, outside the offenceNot applicableNone40 penalty units or 2 years
Western Australia3NoYes, s 5(3)(d)None$5,000 or 12 months, or both
South Australia3NoYes, s 4(2)(a)(ii)Public interest, s 6$15,000 or 3 years
Tasmania2Yes, s 5(3)Yes, s 5(3)None40 penalty units or 2 years
Australian Capital Territory2Yes, s 4(3)(b)(ii)Yes, s 4(3)(b)(i), limited by s 4(4) for Territory useNone50 penalty units
Northern Territory1Not applicable, outside the offenceNot applicableNone250 penalty units or 2 years

recording law - intercom and entry recording

Publishing or Sharing a Recording Is a Separate Offence

Communicating or publishing a recording is regulated separately from making it in every Act reviewed here. Surveillance Devices Act 2007 (NSW) s 11 prohibits publishing a private conversation obtained in contravention of the Act, subject to exceptions including consent and use in legal proceedings. Surveillance Devices Act 1999 (Vic) s 11 and Invasion of Privacy Act 1971 (Qld) ss 44 and 45 impose their own, separately numbered offences. South Australia's sit at Surveillance Devices Act 2016 (SA) s 9, for lawful-interest material, and s 10, for public-interest material. A lawfully made recording can still expose the person who shares it to liability under these provisions.

The Federal Statutory Tort: Civil Exposure on Top of the Criminal Offence

Since 10 June 2025, Schedule 2 of the Privacy Act 1988 (Cth) creates a statutory tort for serious invasions of privacy, inserted by the Privacy and Other Legislation Amendment Act 2024 (Cth). Under Privacy Act 1988 (Cth) sch 2 cl 7(1), a plaintiff must establish all of: an invasion of privacy by intruding on seclusion or misusing information; a reasonable expectation of privacy in the circumstances; that the invasion was intentional or reckless, meaning negligence is not enough; that it was serious; and that the public interest in privacy outweighed any countervailing public interest, such as freedom of expression (cl 7(3)). The tort is actionable without proof of damage (cl 7(2)). Damages for non-economic loss, plus any exemplary damages, are capped at the greater of $478,550 or the equivalent defamation-law cap (cl 11(5)), and a claim must generally begin within the earlier of one year of awareness or three years of the invasion (cl 14).

The tort's first published application, Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396, concerned private wedding photographs published online during an extortion campaign. The New South Wales District Court found serious questions to be tried on the statutory tort and granted urgent interlocutory injunctions. That ruling is interlocutory, not a final decision on the merits or damages.

Maximum penalties vary by jurisdiction and are set out in the table above. Western Australia and South Australia use fixed dollar figures rather than penalty units: Western Australia's Surveillance Devices Act 1998 (WA) s 5 sets $5,000 or 12 months, or both, for an individual, and $50,000 for a body corporate; South Australia's Surveillance Devices Act 2016 (SA) s 4 sets $15,000 or 3 years for an individual, and $75,000 for a body corporate. These are statutory maxima, not sentencing predictions.

recording law - wearable recording devices

Recordinglaw.com also has dedicated state and territory guides, including New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, the ACT and the Northern Territory.

This article provides general legal information about recording someone without consent under Australian law as at 19 July 2026. It is not legal advice and does not account for your circumstances. For advice about a specific recording, consult a legal practitioner admitted in the relevant Australian state or territory.

Frequently Asked Questions

Is it illegal to record someone without their consent in Australia?

It depends on the state or territory and whether you are a party to the conversation. In Victoria, Queensland and the Northern Territory, recording a conversation you are part of is outside the offence. Elsewhere it is prohibited by default unless an exception, such as consent or a lawful-interest justification, applies.

What does lawful interests mean under these Acts?

The Acts do not define the phrase. They generally require the recording be reasonably necessary for the protection of the lawful interests of the person relying on the exception, such as under Surveillance Devices Act 1998 (WA) s 5(3)(d) or Surveillance Devices Act 2016 (SA) s 4(2)(a)(ii). Courts assess this against the facts of a case, not a fixed list.

Can I record someone in public without their consent?

This article addresses private conversations and private activities specifically regulated by each Act. Several of the Acts' definitions exclude circumstances where a person ought reasonably to expect they might be overheard or observed, but that exclusion's scope differs by jurisdiction and is outside this article's scope.

Does secretly filming someone breach the same law as secretly recording audio?

Not always. Some Acts, such as Victoria's and South Australia's, regulate optical surveillance under a separate but structurally similar provision to their audio provision. Queensland, Tasmania and the ACT have no general optical surveillance provision at all.

Can I sue someone who recorded me without consent?

Since 10 June 2025, a federal statutory tort for serious invasions of privacy under Privacy Act 1988 (Cth) sch 2 can provide a civil claim, on top of any state criminal offence, where the elements at cl 7(1), including a reasonable expectation of privacy and an intentional or reckless, serious invasion, are established.

Is Western Australia or South Australia stricter about recording without consent?

Both share the same narrow lawful-interests-only structure, with no personal-use limb. South Australia has one further exception, a public-interest exception at Surveillance Devices Act 2016 (SA) s 6, that Western Australia's Act lacks.

How much can someone be fined for recording without consent?

Penalties differ by jurisdiction, from fixed amounts in Western Australia ($5,000 individual, $50,000 body corporate) and South Australia ($15,000 individual, $75,000 body corporate) to penalty-unit maxima elsewhere, such as 100 penalty units in New South Wales and 240 in Victoria. These are statutory maxima, not sentencing predictions.

Sources and References

  1. Surveillance Devices Act 2007 (NSW) s 7, consent and personal-use exception(austlii.edu.au)
  2. Surveillance Devices Act 2007 (NSW) s 8, optical surveillance trespass test(austlii.edu.au)
  3. Surveillance Devices Act 2007 (NSW) s 11, publication offence(austlii.edu.au)
  4. Surveillance Devices Act 1999 (Vic) s 6, participant scope of the listening devices offence(austlii.edu.au)
  5. Invasion of Privacy Act 1971 (Qld) ss 43-45, listening device and publication offences(legislation.qld.gov.au).gov
  6. Surveillance Devices Act 1998 (WA) s 5, prohibition and lawful-interests exception(austlii.edu.au)
  7. Surveillance Devices Act 2016 (SA) ss 4 and 6, lawful-interests and public-interest exceptions(legislation.sa.gov.au).gov
  8. Listening Devices Act 1991 (Tas) s 5, prohibition and personal-use exception(legislation.tas.gov.au).gov
  9. Listening Devices Act 1992 (ACT) s 4, prohibition and personal-use exception(legislation.act.gov.au).gov
  10. Surveillance Devices Act 2007 (NT) s 11, listening devices offence(legislation.nt.gov.au).gov
  11. OAIC, statutory tort for serious invasions of privacy, Privacy Act 1988 (Cth) sch 2(oaic.gov.au).gov
  12. Kurraba Group Pty Ltd & Anor v Williams [2025] NSWDC 396, first application of the statutory privacy tort(cso.nsw.gov.au).gov
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