Can You Use a Secret Recording as Evidence in an Australian Court?

Whether a secretly made recording can be used as evidence in an Australian court depends on two separate questions: whether the recording was lawful under the state Act, and, in Queensland, Tasmania and the ACT only, whether a standalone statutory bar then applies before the general discretion is reached.

This article covers admissibility of secret recordings under Evidence Act 1995 (Cth) s 138 and its mirrors, the statutory bars in Queensland, Tasmania and the ACT, the modified position in family law proceedings, and the Fair Work Commission's approach. It does not address whether making the recording was itself lawful, which depends on the state Acts covered on the sibling pages linked below.

The Two-Part Admissibility Question in Australian Courts

Whether an Australian court admits a secretly made recording turns on two separate questions, and most online guidance answers only the first. The first is whether the recording was lawfully made under the surveillance or listening-devices Act where it happened, covered on this cluster's state pages rather than here. The second, the subject of this article, is what a court does with the recording once tendered, regardless of whether making it broke the law. In Queensland, Tasmania and the ACT only, an unlawfully obtained recording meets a standalone statutory bar before a court reaches its general discretion. In NSW, Victoria, WA, SA and the NT there is no such bar; admissibility goes straight to the general discretion.

That grouping does not track the familiar uniform/non-uniform Evidence Act split. Tasmania and the ACT are uniform Evidence Act jurisdictions that also carry their own statutory bar in front of s 138. Queensland has no uniform Evidence Act, applies Bunning v Cross instead, and still has a standalone bar. A jurisdiction can have both an extra gate and a general discretion, or a discretion alone; the combination has to be checked state by state, not assumed from the label.

The General Discretion: Evidence Act 1995 (Cth) s 138

Every Australian jurisdiction applies some version of a general discretion to exclude improperly or illegally obtained evidence, and in most of the country it is the only gate a secret recording has to pass. Evidence Act 1995 (Cth) s 138(1) provides that evidence obtained improperly or in contravention of an Australian law 'is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.' The uniform Evidence Act applies in the Commonwealth, NSW, Victoria, Tasmania, the ACT and the NT. Queensland, SA and, for now, WA apply Bunning v Cross (1978) 141 CLR 54 instead, weighing a similar balance without the statutory checklist.

Section 138(3) directs a court to weigh, among other things:

• the probative value and importance of the evidence
• the nature of the offence, cause of action or defence
• the gravity of the impropriety, and whether it was deliberate or reckless
• whether it breached a right recognised by the International Covenant on Civil and Political Rights
• whether any other proceeding has been or is likely to be taken over it
• the difficulty, if any, of obtaining the evidence lawfully

No single factor is decisive; s 138 does not produce a fixed rule that recordings obtained a particular way are always admitted or excluded.

Western Australia is mid-transition. The Evidence Act 2025 (WA), assented 25 September 2025, adopts the uniform approach but had not commenced as at this article's verification date, so WA courts still apply the Evidence Act 1906 (WA) and Bunning v Cross.

The Extra Statutory Bar in Queensland, Tasmania and the ACT

Three jurisdictions layer a standalone statutory bar in front of the general discretion, drafted in near-identical terms: where a private conversation comes to a person's knowledge through an unlawfully used listening device, evidence of it may not be given in court proceedings. Queensland's version is Invasion of Privacy Act 1971 (Qld) s 46, Tasmania's is Listening Devices Act 1991 (Tas) s 14, and the ACT's is Listening Devices Act 1992 (ACT) s 10. Each excuses the evidence where a party consents, the knowledge came from some other means, or the proceedings concern an offence against the Act itself. Tasmania and the ACT add an exception for offences punishable by life, 21 years or more, or a serious narcotics offence, weighing the public interest and gravity of the contravention.

State-by-State: Statutory Bar and General Discretion

The table below sets out both layers for all eight jurisdictions. A jurisdiction with no standalone bar still applies a general discretion.

Secret Recordings in the Family Law Courts

The Federal Circuit and Family Court of Australia applies the Evidence Act 1995 (Cth) in the ordinary way, subject to modifications the Family Law Act 1975 (Cth) makes for child-related proceedings. Section 102NL(1) disapplies, by default, several parts of the Evidence Act in those proceedings, including the hearsay, opinion, admissions and credibility rules, so a court can receive material more informally. That section replaced the former s 69ZT, which was repealed when Division 12A was removed by the Family Law Amendment Act 2024, and it now reaches property and other non-child-related proceedings as well as child-related ones. It does not disapply Part 3.11, the part that contains s 138, so the general discretion survives intact even though other evidentiary rules are relaxed. A secret recording tendered in a parenting dispute is assessed under the same s 138 balancing exercise used everywhere else, not a separate, looser family-law standard.

What Family Law Courts Have Actually Done With Secret Recordings

Family law decisions applying s 138 to secret recordings turn heavily on their own facts, and no single case sets a general rule for when a recording will be let in. Huffman & Gorman [2014] FamCA 150 is a useful caution about how these disputes actually unfold. A father had made dictaphone recordings between 2006 and 2008 which were not tendered until 2013. The court expressly did not decide whether they were admissible, noting that the question before it "is not the ultimate admissibility of the tapes and their transcripts and the photographs but whether they should be made available to the Single Expert", and left admissibility to be argued at trial. It restrained release of the material to the single expert in the meantime. Latham and Latham [2008] FamCA 877 went the other way: recordings made in the family home, while the husband was present and entitled to participate, were treated as ordinary protection of the family's interests, and the court indicated it would have admitted them under s 138 regardless.

Corby and Corby [2015] FCCA 1099 found a lawful interest where a mother's non-consensual recordings, made amid allegations of coercion and violence, showed the gap between a party's public and private conduct. Gawley v Bass (2016) 313 FLR 346 and Janssen & Janssen [2016] FamCA 345 similarly admitted recordings on the basis a parent has an interest in protecting a child from harm. In Janssen the recordings fell within the lawful-interests exception in Surveillance Devices Act 2007 (NSW) s 7(3)(b), and the court admitted them in the exercise of its s 138 discretion.

Where a recording was excluded, the language was direct. In Callahan and Callahan [2014] FCCA 2930, a child secretly recorded a phone call with his mother and passed it to his father, who tendered it. Scarlett J excluded it under s 138(1): 'I am not satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained by a child recording a telephone conversation with his mother and passing it on to his father. It is not desirable to encourage or even condone a child taking a partisan attitude to proceedings between his parents.' Alexander and Turner [2015] FCCA 3197 also involved a child covertly recording a parent. The court voiced unease about condoning that, but ultimately relied on the recorded material in finding the contravention proved, so it is a weaker example than Callahan of a court actually shutting such evidence out.

The Parenting-Assessment Risk

The point most consistently missing from general commentary is that making a secret recording can itself count against the parent who made it, separately from whatever a court decides about admissibility. In Simmons and Simmons [2013] FCCA 304, a mother had planted a recording device on the parties' child before supervised time with the father, amid allegations of sexual abuse. McGuire J admitted the recording but was sharply critical of both parents: 'The actions of both these parents are at best naive and at worst a form of child abuse. In this sense they are equally culpable.' The recording was let in and still counted against the parent who made it, part of a pattern of courts being reluctant to treat a parent's use of a child as the recording instrument as a legitimate exercise of the parent's own lawful interests.

None of this means a secret recording will help a particular case. Making one without the consent required under the relevant state Act can itself be a criminal offence, independent of anything a court later decides about admissibility. The safer course in a live family law matter is to raise the question with a family lawyer before recording anything, not after.

Secret Recordings and the Fair Work Commission

The Fair Work Commission is not a court bound by the Evidence Act. Fair Work Act 2009 (Cth) s 591 provides the Commission is not bound by the rules of evidence and procedure, though findings still need a basis in evidence with rational probative force and the Commission remains bound by procedural fairness. In practice it has treated a secret workplace recording as relevant in its own right, separate from whether the recording is admitted.

In Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753, an employee had secretly recorded herself in the workplace office. Deputy President Saunders declined to admit the recording at hearing, and separately held the secret recording was itself a valid reason for dismissal, reasoning that secret workplace recording is generally inappropriate whether or not it amounts to an offence under a state Act, and that the employer only learning of it once it was produced as evidence did not stop it being a valid reason. The application was dismissed, mirroring the family law lesson: secretly recording can become the issue a decision-maker focuses on.

What This Means If You Are Considering Relying on a Secret Recording

This article describes the tests Australian courts and the Fair Work Commission apply once a secret recording is tendered; it cannot tell a reader whether their own recording will be admitted or will help their case. That depends on facts a court has not yet assessed. Anyone holding a secret recording relevant to a dispute should raise it with a legal practitioner admitted in the relevant Australian state or territory, because making it may itself have been an offence, and because the recording can become part of what a court thinks of the person who made it.

This article provides general legal information about the admissibility of secretly made recordings in Australian courts and before the Fair Work Commission. It is not legal advice and does not predict the outcome of any case. Statutes and cases referenced were verified against primary sources as at 19 July 2026 and are subject to amendment. Consult a legal practitioner admitted in the relevant Australian state or territory for advice on a specific matter.

Related reading: the Australia recording laws hub links to a dedicated page for each state and territory, and Is It Legal to Record a Conversation in Australia? sets out the three-group framework for whether a recording was lawfully made. For the underlying recording law itself, see New South Wales, Victoria, Queensland, Western Australia, South Australia, Tasmania, ACT and Northern Territory.

Frequently Asked Questions

Can I use a secret recording as evidence in an Australian court?

It depends on the jurisdiction and the facts. Courts weigh admissibility under Evidence Act 1995 (Cth) s 138, or Bunning v Cross in Queensland, SA and, for now, WA. Queensland, Tasmania and the ACT also apply a statutory bar first. No court guarantees admission or exclusion in advance.

Which states have a statutory bar on secret recordings as evidence?

Only Queensland (Invasion of Privacy Act 1971 s 46), Tasmania (Listening Devices Act 1991 s 14) and the ACT (Listening Devices Act 1992 s 10). NSW, Victoria, WA, SA and the NT have no equivalent bar and go straight to Evidence Act 1995 s 138 or its state mirror.

Does admissibility depend on whether the recording was lawful to make?

It is one factor, not the whole test. An unlawfully made recording can still be admitted after a court weighs the s 138 or Bunning v Cross factors.

Can a secret recording be used in a family law parenting case?

Family Law Act 1975 (Cth) s 102NL, which replaced the repealed s 69ZT, does not disapply the part of the Evidence Act that contains s 138. Courts have both admitted and excluded secret recordings in parenting matters, depending on the facts.

Does it help my case if I secretly record my ex-partner?

Not necessarily; this article cannot predict an outcome. Courts have criticised parents for secret recording even where it was admitted, and making it may itself be a criminal offence. Speak with a family lawyer before recording.

Can my employer use a secret recording I made against me?

The Fair Work Commission is not bound by the rules of evidence under Fair Work Act 2009 (Cth) s 591. In Altham-Wooding v PKDKAdventures Pty Ltd [2024] FWC 2753, it declined to admit one and found the secret recording itself a valid reason for dismissal.

Is Western Australia's evidence law changing?

Yes. The Evidence Act 2025 (WA), assented 25 September 2025, adopts the uniform approach used in NSW, Victoria, Tasmania, the ACT and the NT, but had not commenced as at this article's verification date. WA courts still apply Bunning v Cross.

Can a child's secret recording be used as evidence?

Family law courts have been cautious about it. In Callahan and Callahan [2014] FCCA 2930, a recording a child secretly made of a phone call was excluded under s 138, the court unwilling to condone a child taking a partisan role in a parents' dispute.