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.

What Counts as Consent Under These Acts

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.

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.

Recording Without Consent by Jurisdiction

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.

Penalties for Recording Without Consent

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.

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.