Western Australia Recording Laws: Consent and the Lawful-Interests Exception

Western Australia requires consent before any private conversation is recorded, including your own. Section 5 of the Surveillance Devices Act 1998 (WA) has no personal-use exception; without every principal party's consent, a participant's recording is excused only on narrow statutory grounds, such as protecting their lawful interests or a public-interest ground under Part 5.

Does Western Australia Require Consent to Record a Conversation?

Western Australia requires the consent of every party to a private conversation before any participant, including someone taking part in the conversation, may record it. Section 5(1) of the Surveillance Devices Act 1998 (WA) prohibits recording both a conversation you are not part of and a conversation you are part of. Without consent, express or implied, from each principal party, a participant needs another listed exception: the narrow lawful-interests exception in s.5(3)(d), recording as or for a law enforcement officer (s.5(3)(a) and (b)), or the public-interest provisions of Part 5 (s.5(2)(d)).

Western Australia has no personal-use exception of the kind that applies in New South Wales, Tasmania and the Australian Capital Territory, where a recording made purely for the recorder's own reference, and never intended for anyone outside the conversation, is excused even without consent. In Western Australia, that same recording, made with no consent and no other statutory justification, remains an offence. The same framework applies to video of a private activity under s.6 of the Act.

Information last verified on 2026-07-21. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article addresses audio and video recording law in Western Australia under the Surveillance Devices Act 1998 (WA), the federal Telecommunications (Interception and Access) Act 1979 (Cth), and the federal Criminal Code as amended to 2024. It does not address the law of other Australian states or territories in detail; for a national comparison, see the Australia recording laws hub. Recording rules differ significantly between Australian jurisdictions, and a rule that applies in Western Australia should never be assumed to apply elsewhere.

Quick Answer: What Are the Rules for Recording in Western Australia?

A participant may not record their own private conversation in Western Australia unless every principal party consents or another statutory exception applies, chiefly the lawful-interests exception (s.5(3)(d)) or a public-interest ground under Part 5 (s.26). Section 5(1) of the Surveillance Devices Act 1998 (WA) prohibits installing, using or maintaining a listening device to record a private conversation, whether or not the recorder is a party to it, unless a s.5(2) or s.5(3) exception applies.

This distinguishes Western Australia from Victoria, Queensland and the Northern Territory, where a participant's own conversation is outside the offence (by definition in Victoria and the Northern Territory, and through an express party exemption in Queensland), and from New South Wales, Tasmania and the ACT, where a participant is covered by the offence but a broad personal-use exception usually excuses ordinary private recording. Western Australia sits with South Australia as the two Australian jurisdictions with no personal-use exception: a participant needs consent or one of a short list of statutory grounds, such as a genuine lawful interest or, in Western Australia, a public-interest ground under Part 5.

The Act defines "private conversation" as any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties desires it to be listened to only by themselves, but the definition excludes a conversation carried on in circumstances where the parties ought reasonably to expect it may be overheard. Conversations in genuinely public settings, where participants reasonably expect to be overheard, fall outside the definition entirely and may be recorded without engaging the Act. The Australia recording consent checker applies this state-by-state framework to a specific situation and states whether recording is likely lawful under WA's narrower exception structure.

Surveillance Devices Act 1998 (WA): Section 5 (Listening Devices)

Section 5 of the Surveillance Devices Act 1998 (WA) is the primary provision governing audio recording in Western Australia. It provides:

A person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device: (a) to record, monitor, or listen to a private conversation to which that person is not a party; or (b) to record a private conversation to which that person is a party.

Surveillance Devices Act 1998 (WA), s.5(1)

The second limb, paragraph (b), is what separates Western Australia from Victoria, Queensland and the Northern Territory. In those three jurisdictions the offence is defined so that it excludes a conversation the recorder is part of, meaning a participant never needs an exception. In Western Australia, paragraph (b) brings a participant's own conversation inside the offence, and the only way out is s.5(2) (a listening device warrant, an emergency authorisation, a law of the Commonwealth, use under Part 5, or unintentional hearing) or s.5(3) (each principal party consents expressly or impliedly, or one principal party consents and the recording is reasonably necessary to protect that party's lawful interests, or the recording is carried out in the course of a law enforcement officer's duty).

The Act defines "listening device" broadly: any instrument, apparatus, equipment, or other device capable of being used to record, monitor, or listen to a private conversation. This covers smartphones, voice recorders, smart watches, smart speakers set to record, and any other technology with audio capture capability.

What Is a "Private Conversation" in Western Australia?

Under section 3 of the Surveillance Devices Act 1998 (WA), a private conversation means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties desires it to be listened to only by themselves, but the Act excludes a conversation carried on in circumstances in which the parties ought reasonably to expect that it may be overheard.

Conversations held inside a home, a closed office, a parked car, a private meeting room, or during a one-to-one phone call are typically private. Conversations at a crowded restaurant, in an open-plan public space, or at a public event, where participants reasonably expect bystanders may hear, typically do not meet the definition. The Supreme Court of Western Australia has held that if any one or more parties desired the conversation to be heard only by the parties to it, the first limb of the definition is satisfied.

Section 6: Video Recording (Optical Surveillance Devices)

Section 6 of the Surveillance Devices Act 1998 (WA) extends a closely parallel framework to video recording of private activities. It prohibits installing, using, or maintaining an optical surveillance device to record visually or observe a private activity to which the person is not a party, or to record visually one to which they are a party, unless a s.6(2) or s.6(3) exception applies.

"Optical surveillance device" is defined to include any device capable of recording visually or observing a private activity: smartphones, CCTV cameras, dashcams, nanny cams, body-worn cameras, and similar equipment. A "private activity" is any activity carried on in circumstances that may reasonably be taken to indicate that a party desires it to be observed only by those present. Activities in bathrooms, bedrooms, changing rooms, or inside a private residence are the clearest examples. An activity carried on where observation by others is reasonably expected falls outside the definition.

Exceptions Under Section 6

Video recording of a private activity is excused where:

• Each principal party to the private activity consents expressly or impliedly to the recording.
• A principal party consents and the recording is carried out in the course of a law enforcement officer's duty, or as instructed or authorised by a law enforcement officer investigating a suspected offence.
• A principal party consents and the recording is reasonably necessary to protect that party's lawful interests (the s.5(3)(d) equivalent applied to optical devices).
• The recording is made under a warrant or emergency authorisation issued under Part 4 of the Act, or in accordance with a law of the Commonwealth.
• The recording is made in accordance with Part 5 (the public-interest provisions).
• The recording results from the unintentional recording or observation of a private activity.

The Lawful-Interests Exception: Section 5(3)(d)

The lawful-interests exception is one of the routes, other than consent, by which a Western Australian participant may record their own private conversation; the public-interest route in Part 5 is described below. Section 5(3)(d) permits a participant to record without the consent of all other parties where a principal party consents, expressly or impliedly, to the recording and it is reasonably necessary for the protection of that party's lawful interests.

In AW v Rayney [2010] WASCA 161 at [257] (Buss JA, with whose construction of s.5(3)(d) McLure P agreed), the Western Australia Court of Appeal set out the operative principles for this exception:

• "Necessary" means appropriate or adapted to the purpose, rather than essential or indispensable.
• "Reasonably" imposes an objective test: the recording must be objectively appropriate or adapted in the circumstances, not merely something the recorder subjectively believed was justified.
• Whether the recording is reasonably necessary is assessed by reference to the facts and circumstances existing at the time of the recording, not with the benefit of hindsight.
• "Protection" means defending, preserving, or safeguarding the party's lawful interests.
• "Lawful interests" are interests not contrary to statute or general law; their specific content depends on the facts of the case.

These principles have been applied in family law proceedings in Western Australia, where courts have considered whether recordings made by parties to custody or domestic violence disputes fall within the exception. The critical question is whether the recording was objectively necessary to protect a genuine interest, not merely convenient or precautionary. There is no separate limb, as there is in New South Wales, Tasmania and the ACT, for a recording that was never intended to be shared with anyone outside the conversation. In Western Australia, that intention is irrelevant if no consent and no other statutory ground exists.

Watch out: The lawful-interests exception is narrow and courts apply an objective standard. Believing subjectively that a recording was necessary to protect your interests is not enough if a reasonable person in your position would not have found it necessary. Recording "just in case," or as general insurance against a future dispute, is unlikely to satisfy s.5(3)(d).

The Public-Interest Route: Part 5 (Sections 26 to 31)

Section 5(2)(d) takes outside the offence any use of a listening device "in accordance with Part 5", the part of the Act headed "Use of surveillance devices in the public interest" (s.6(2)(d) does the same for optical devices).

• Section 26(1): "A person who is a party to a private conversation may use a listening device to record or monitor the private conversation if a principal party to the private conversation consents expressly or impliedly to that use and there are reasonable grounds for believing that the use of the listening device is in the public interest." Section 27(1) is the equivalent for video of a private activity.
• Section 28: a person may record a private conversation if, at the time of use, "there are reasonable grounds for believing that the circumstances are so serious and the matter is of such urgency that the use of the listening device is in the public interest" (s.29 is the video equivalent). Under s.30, a person who does so must deliver a written report to a judge without delay, and failing to do so is an offence.
• Section 31: unless another s.9 exception applies (for example, communication to police or in legal proceedings), publishing or communicating a recording made under these provisions requires a judge's order, made on a written application, where the judge is satisfied the publication or communication "should be made to protect or further the public interest".

Section 24 defines "public interest" to include the interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals, and the protection of the rights and freedoms of citizens. The belief must rest on reasonable grounds, and a recording made under Part 5 does not by itself give a right to share it.

Section 9: Publication and Communication Restrictions

Section 9 of the Surveillance Devices Act 1998 (WA) creates an offence separate from the recording offence in s.5. Even where a recording is lawfully made, for example with the consent of all parties, section 9 prohibits publishing or communicating the recorded conversation or activity without the consent of all parties, unless an exception applies.

The main exceptions to the s.9 publication prohibition permit publication or communication:

• To a party to the private conversation or activity, or with the express or implied consent of each principal party.
• To persons authorised for the purpose by the Commissioner of Police, the Corruption and Crime Commission or the Chair of the Board of the Australian Crime Commission, or by a law enforcement officer to the Director of Public Prosecutions.
• In the course of the duty of the person making the publication or communication.
• For the protection of the lawful interests of the person making the publication or communication, or, where the underlying recording relied on the s.5(3)(d) or s.6(3)(b)(iii) lawful-interests exception, in the course of reasonable action to protect the lawful interests of the principal party who consented to the recording.
• In accordance with Part 5, or in the course of legal proceedings.
• To a member of a police force in connection with an indictable drug offence or another sufficiently serious indictable matter (s.9(2)(b)).
• Where the person believes on reasonable grounds that it was necessary in connection with an imminent threat of serious violence to persons or of substantial damage to property (s.9(2)(c)).

Under s.9(3), these exceptions are a defence only if the publication or communication meets one of the listed conditions, such as being no more than is reasonably necessary in the public interest, in performing a duty, or to protect the lawful interests of the person sharing it, or being made to someone with such an interest in the conversation or activity as to make it reasonable.

The practical implication is significant: recording a conversation lawfully with everyone's consent does not automatically authorise sharing that recording with third parties, posting it online, or using it in a media report. Each act of publication or communication requires its own basis under s.9. The criminal penalty for contravening s.9 is the same as for contravening s.5: a fine of $5,000 or imprisonment for 12 months, or both, for an individual, and $50,000 for a body corporate.

Children and Protected Persons

Under s.26(3) (audio) and s.27(3) (video), a person who has under their care, supervision or authority a child under 18, or a person who cannot consent because of mental impairment, may, on that person's behalf, record a private conversation or activity to which the child or protected person is a principal party, if there are reasonable grounds for believing the recording will contribute towards the protection of the best interests of the child or protected person and is in the public interest. The carer does not need to be a party. Sharing the recording is a separate question: under s.31 it needs a judge's order, unless another s.9 exception applies. This exception recognises the need for carers to gather evidence of potential abuse, neglect, or other harmful conduct affecting vulnerable individuals.

Penalties for Recording Offences

The Surveillance Devices Act 1998 (WA) uses fixed dollar penalties rather than the penalty-unit system most other Australian jurisdictions use. Never convert a Western Australian penalty using a penalty-unit multiplier from another state.

The Act also makes it an offence, with the same penalties, to use a tracking device without consent (s.7) and to possess a surveillance device knowing it is intended or principally designed for use in breach of s.5, 6 or 7 (s.34).

The Criminal Code (WA) s.221BD separately provides for imprisonment of up to 3 years (or, on summary conviction, 18 months and a fine of $18,000) for distributing intimate images without consent (see below). The federal deepfake offences carry up to 7 years imprisonment (see below).

Civil liability can also arise where a recording or publication causes loss or damage. The Act does not codify a specific civil damages regime, but Australian courts have not settled whether a common-law privacy tort exists; the statutory tort for serious invasions of privacy in Schedule 2 of the Privacy Act 1988 (Cth) may be available depending on the circumstances.

Phone Call Recording in Western Australia

Recording a phone call in Western Australia involves two concurrent legal frameworks: the state Surveillance Devices Act 1998 (WA) and the federal Telecommunications (Interception and Access) Act 1979 (Cth) (the TIA Act).

Section 7 of the TIA Act prohibits intercepting a communication passing over a telecommunications system without the knowledge of the person making the communication. Under sections 5F and 5H of the TIA Act, a call stops passing over the system once it becomes accessible to the person it is sent to, so a party recording at the point of receipt is generally not intercepting it. That makes the state Act, not the federal interception offence, the operative framework for the question of whether you can record your own phone call. Law enforcement interceptions under the TIA Act separately require a warrant.

The practical rule for phone recording in WA is straightforward: obtain the express consent of every party before recording a phone call, unless a statutory exception, such as a genuine, objectively assessable lawful interest, justifies recording without it.

Recording Police Officers in Western Australia

Recording a police officer or other public official performing their duties in a genuinely public setting does not ordinarily contravene section 5 of the Surveillance Devices Act 1998 (WA). The reason is definitional: an officer conducting official duties in a public place, making an arrest, directing traffic, addressing a crowd, cannot reasonably be taken to desire those communications to be heard only by the parties to them. A conversation carried on openly in public by an officer exercising public powers is not a "private conversation" under s.3.

The analysis changes where the interaction occurs in a setting where both the officer and other participants have a reasonable expectation of privacy. An interview inside a private home, a conversation in a police interview room, or a discussion in a private space accompanying the officer may attract the private conversation definition, in which case s.5 and its exceptions apply.

A separate, independent restriction applies to recordings made inside a courtroom or court precinct under the Evidence Act 1906 (WA) and associated court rules, which may require judicial authorisation. Those rules operate independently of the Surveillance Devices Act.

In-Person Conversations: When Is Recording Lawful?

For face-to-face conversations in Western Australia, the key question is whether the setting makes the conversation private under s.3 of the Surveillance Devices Act 1998 (WA). If it does, recording requires consent from every principal party or another statutory exception, such as a lawful-interest justification. If it does not, the Act does not apply.

Settings where conversations are typically private:

• Inside any private dwelling (home, unit, caravan).
• In a closed office or meeting room.
• In a parked vehicle away from public thoroughfares.
• In a medical or legal consultation room.
• In a restaurant booth or quiet corner where participants are not overheard.

Settings where conversations are typically not private:

• On a public street or footpath.
• In an open public park.
• In a genuinely noisy public venue where conversation is audible to passers-by.
• At a public rally, hearing, or community meeting.

In ambiguous settings, the safe course is to obtain express consent from all participants before recording.

Workplace Recording Laws in Western Australia

Recording workplace conversations in Western Australia without the consent of everyone present is a criminal offence under s.5 of the Surveillance Devices Act 1998 (WA), unless an exception, such as the lawful-interests exception, applies. Depending on the circumstances, the Fair Work Commission can treat covert workplace recording as a valid reason for dismissal in unfair dismissal proceedings.

In Chandler v Bed Bath N' Table [2020] FWC 3706, a decision made in Melbourne, the Fair Work Commission found that the employee's covert recording of workplace conversations was a valid reason for dismissal, even though the employer had not relied on it and did not know of the recordings when it dismissed her, but still found that she had been unfairly dismissed; permission to appeal was refused ([2020] FWCFB 6714). The Commission said the covert recording was inappropriate, and that she could have achieved the same objective by saying she was recording.

In Ogbonna v CTI Logistics Ltd (No 2) [2015] FCCA 2318, the Federal Circuit Court, sitting in Perth in a racial discrimination claim, refused under s.138 of the Evidence Act 1995 (Cth) to admit a covert recording of a meeting that it found had been made contrary to s.5(1), because it was made deliberately, was not of probative value, and evidence of the meeting could be obtained in other ways.

When Workplace Recording May Be Justified

The lawful-interests exception in s.5(3)(d) may apply in workplace settings where an employee faces a genuine and credible threat to their legal interests: documented harassment, bullying, or discrimination, credible threats of physical harm, or circumstances where alternative evidence collection is not reasonably available. Even where recording falls within the exception, employees should be aware that the recording may still damage the employment relationship, and that courts and the Fair Work Commission may take covert recording into account as a factor against reinstatement, even where the recording itself was lawful.

Home Security Cameras in Western Australia

Installing security cameras on private property for security purposes is generally lawful in Western Australia, subject to important limitations:

• Video recording: CCTV cameras monitoring your own property, including entrances, driveways, and backyards, are generally lawful. Cameras should be positioned to capture primarily your own premises.
• Audio recording: recording audio through a home security system requires the consent of everyone whose conversations may be captured. If your security system includes microphones, either disable the audio feature or ensure clear notice is given and consent obtained from anyone who may be recorded.
• Neighbour privacy: positioning cameras to deliberately capture images within a neighbouring property, into windows, or into private outdoor areas beyond your own boundary may contravene s.6 of the Surveillance Devices Act 1998 (WA).

The Act does not impose a consent requirement for capturing footage of genuinely public spaces, footpaths, public roads, or open public areas visible from your property, because persons in those settings have no reasonable expectation of privacy.

Surveillance Warrants in Western Australia

Part 4 of the Surveillance Devices Act 1998 (WA) authorises courts to issue surveillance device warrants to law enforcement officers. A warrant permits recording that would otherwise be unlawful under ss.5 and 6.

To issue a warrant, the court must be satisfied that there are reasonable grounds to believe an offence has been, is being, is about to be, or is likely to be committed, and that use of the device would assist the investigation. The court must also consider the nature and severity of the offence, the extent of intrusion on privacy, whether alternative evidence-gathering means are available, the probative value of the expected evidence, whether other warrants are in force for the same matter, and the public interest. Evidence obtained outside the scope of a warrant may be inadmissible.

Admissibility of Unlawfully Obtained Recordings

An unlawfully obtained recording is not automatically inadmissible in Western Australian proceedings. In WA state courts, the discretion to exclude improperly obtained evidence is currently a common-law one (the Evidence Act 2025 (WA), which will replace the Evidence Act 1906 (WA), is not yet in force for this purpose), while federal courts sitting in WA apply s.138 of the Evidence Act 1995 (Cth). Courts weigh the probative value of the recording against the public interest in maintaining the integrity of the judicial system and deterring unlawful conduct.

In criminal proceedings, the court applies a balancing exercise. Factors include the seriousness of the breach, whether alternative lawful means existed, the impact on the accused's rights, and the probative strength of the recording. A deliberate breach of the Surveillance Devices Act can weigh against admission.

In civil and family law proceedings, courts have broader discretion to admit illegally obtained evidence, particularly where the best interests of a child or a party's safety are at stake. Family courts in Western Australia have admitted recordings in domestic violence and parenting capacity proceedings where the recording was the only practicable means of preserving evidence of abuse or threats. A person who tenders an unlawfully obtained recording may still face a separate criminal prosecution under the Surveillance Devices Act, and potential adverse costs orders.

No General State Privacy Statute: The Pre-2024 Gap

Until recently, Western Australia and South Australia were the only mainland Australian states without a general privacy or personal information protection statute covering the state public sector. The federal Privacy Act 1988 (Cth) covers private sector entities with annual turnover above $3 million, and certain smaller entities in prescribed categories, regulated by the Office of the Australian Information Commissioner (OAIC). The Privacy Act 1988 (Cth) does not extend to state and territory government agencies, which left WA public sector agencies outside any privacy statute regime before 2024.

Privacy and Responsible Information Sharing Act 2024 (WA)

The Privacy and Responsible Information Sharing Act 2024 (WA) (the PRIS Act) and the Information Commissioner Act 2024 (WA) received Royal Assent on 6 December 2024. The PRIS Act introduces 11 Information Privacy Principles and creates a mandatory breach notification scheme, with an Information Commissioner, supported by a Privacy Deputy Commissioner, overseeing privacy matters.

The PRIS Act's phased commencement schedule is:

• 6 December 2024: preliminary and amending provisions commenced; no substantive privacy obligations yet.
• 1 July 2025: the Information Commissioner and the Chief Data Officer commenced to support implementation of the new laws.
• 1 July 2026: the main privacy obligations (the Information Privacy Principles) came into force for WA public sector agencies.
• 1 January 2027: the notifiable information breach scheme commences.

The PRIS Act covers WA state government agencies only. Private sector entities in WA remain subject to the federal Privacy Act 1988 (Cth) where applicable. The PRIS Act does not amend or replace the Surveillance Devices Act 1998 (WA) recording rules.

Federal Privacy Act 1988 and WA

The Privacy Act 1988 (Cth), administered by the OAIC, applies to private sector organisations in WA with annual turnover above $3 million, and to health service providers, credit providers, and other prescribed entities regardless of turnover. The 13 Australian Privacy Principles (APPs) in Schedule 1 of the Act govern the collection, use, disclosure, and storage of personal information, including audio and video recordings that identify individuals. The Privacy Act 1988 (Cth) does not displace the Surveillance Devices Act 1998 (WA) recording rules. An entity that lawfully records a conversation under the state Act may still breach the Privacy Act if it collects, uses, or discloses the personal information in that recording in a way inconsistent with the APPs.

Voyeurism and Intimate Image Offences

Criminal Code (WA), Section 221BD

The Criminal Law Amendment (Intimate Images) Act 2019 (WA) inserted section 221BD into the Criminal Code (WA). Section 221BD makes it an offence to distribute an intimate image of another person without that person's consent. "Distribute" includes sharing via social media, messaging apps, email, or any online platform.

The penalty is imprisonment for 3 years, or imprisonment for 18 months and a fine of $18,000 on summary conviction. The offence does not require proof that the offender intended to cause harm or that the victim suffered harm; non-consensual distribution of the image is sufficient.

Defences to s.221BD include distribution for a genuine scientific, educational, or medical purpose, distribution reasonably necessary for legal proceedings, and distribution for media activities where the publisher did not intend to cause harm and reasonably believed publication was in the public interest. A further defence applies where a reasonable person would consider the distribution acceptable, having regard to matters such as the nature of the image, the circumstances of the distribution, the depicted person's age and vulnerability, and the relationship between them.

"Intimate image" means an image showing, in circumstances in which the person would reasonably expect to be afforded privacy, a person's genital or anal area or (for a female person, or a transgender or intersex person identifying as female) breasts, whether bare or covered by underwear, or a person engaged in a private act. It also includes an image created or altered to appear to show any of those things, so a sexual deepfake distributed in WA can fall under s.221BD as well as the federal offences below. The definition extends to images captured covertly, including through devices installed unlawfully in breach of s.6 of the Surveillance Devices Act 1998 (WA).

Deepfake Sexual Material: Federal Criminal Code Overlay

The Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) amended Part 10.6 of the Criminal Code (Cth) and applies Australia-wide, including in Western Australia.

The Act inserted two new offences:

Section 474.17A, non-consensual sharing of sexually explicit material (including deepfakes): a person commits an offence if they use a carriage service (internet, phone network) to transmit, make available, publish, distribute, advertise, or promote material that is sexually explicit and non-consensual. The offence applies to real material and to material created or altered using technology, including AI-generated deepfakes. Maximum penalty: 6 years imprisonment.

Section 474.17AA, aggravated offences: an aggravated version of the s.474.17A offence arises where the offender was responsible for creating or altering the material, or the offender had three or more prior civil penalty orders under the Online Safety Act 2021 (Cth) relating to similar material. Maximum penalty: 7 years imprisonment.

These federal offences are separate from, and cumulative with, the WA Criminal Code s.221BD offence. A person who creates and distributes a deepfake intimate image of a Western Australian resident without consent may face both WA state and Commonwealth charges.

Cross-Border Recording: Which Law Applies?

When a recording spans two jurisdictions, for example a person in Western Australia records a phone call with a person in Victoria, or an interstate employer records a meeting with a WA employee, the question of which recording law applies is not fully settled by statute and requires careful analysis.

The general principles are:

• Where all parties are in WA at the time of recording: the Western Australian rule in s.5 and its exceptions applies.
• Where the recording is made in WA but a party is interstate: WA law applies to the person making the recording in WA; the interstate party's own state law applies to conduct on their end. Both sets of laws must be satisfied. Because Western Australia has no personal-use exception, recording without consent of everyone involved is likely unlawful in WA even if it would be lawful under a more permissive rule in the other state.
• Where the recorder is interstate and the conversation partner is in WA: the law of the state where the recorder is located governs the recorder's conduct, though the WA participant's rights and any potential civil claims may also involve WA law.
• Federal TIA Act: the TIA Act 1979 (Cth) applies to telephone and internet communications passing over telecommunications systems regardless of where the parties are located, in addition to any applicable state law.

For cross-border workplace or business recording, the safest approach is to apply the most restrictive law of any state where a party to the conversation is located. Given Western Australia's narrow exception structure, that generally means obtaining consent from everyone in cross-border conversations involving WA participants.

How Western Australia Compares to Other Australian States

Australia has no single national rule for recording your own conversation. There are three genuinely distinct groups, based on whether the recording offence catches a participant at all, and if so, how broad the exception is.

Disclaimer

This article presents general legal information about recording and surveillance law in Western Australia. It is not legal advice and does not create a lawyer-client relationship. The information covers the Surveillance Devices Act 1998 (WA), the Telecommunications (Interception and Access) Act 1979 (Cth), the Privacy Act 1988 (Cth), the Privacy and Responsible Information Sharing Act 2024 (WA), the Criminal Code (WA), and the Criminal Code (Cth) as those laws stood on 2026-07-21. Laws change; readers should verify currency with the relevant legislation before acting. For advice about a specific situation, consult a legal practitioner admitted in Western Australia or the relevant Australian state or territory.

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Last updated: 2026-07-21. Statutes cited reflect their in-force versions as of 2026-07-21.

Frequently Asked Questions

Can I record a phone call in Western Australia without telling the other person?

Generally no. Under section 5(1) of the Surveillance Devices Act 1998 (WA), recording a private conversation, including a phone call, without the consent of every party is a criminal offence unless a statutory exception applies, such as a recording reasonably necessary to protect your own lawful interests or one made on reasonable grounds in the public interest under s.26. Recording without the other party's knowledge or consent, and without such a justification, exposes you to a fine of up to $5,000 or imprisonment for up to 12 months, or both.

Is Western Australia a one-party or two-party consent state?

Neither US label accurately describes WA law, and the one-party/two-party framing does not map onto the Surveillance Devices Act 1998 (WA). Section 5 of the Act requires the consent of every principal party to record a private conversation, or, if consent is not obtained, another statutory ground such as a lawful-interests justification or a public-interest ground under Part 5. Unlike New South Wales, Tasmania and the ACT, there is no exception for a recording made purely for your own private reference. In a conversation with more than two participants, every one of them must consent, or another exception must apply.

Does the lawful-interests exception let me record conversations at work?

Potentially, but the exception is narrow. Section 5(3)(d) of the Surveillance Devices Act 1998 (WA) permits a participant to record without everyone's consent where the recording is reasonably necessary to protect that participant's own lawful interests: AW v Rayney [2010] WASCA 161. Recording to document genuine harassment, credible threats, or conduct likely to cause you legal harm may qualify. Recording ordinary workplace interactions or meetings as a general precaution is unlikely to satisfy the objective 'reasonably necessary' standard, and courts and the Fair Work Commission may treat even a lawful covert recording as a factor against you in later proceedings.

Can I share a recording I made lawfully with the consent of everyone involved?

Not without restriction. Section 9 of the Surveillance Devices Act 1998 (WA) creates a separate offence for publishing or communicating a recording of a private conversation or activity without the consent of every party. Consent to the recording is not consent to publication. To share a recording, you need a separate basis under s.9, most commonly the consent of everyone involved, or one of the narrow statutory grounds such as protecting your own lawful interests or a court proceeding.

Is it legal to film police in Western Australia?

Recording a police officer performing their duties in a genuinely public place is generally lawful under the Surveillance Devices Act 1998 (WA), because an officer exercising public powers in public is not engaged in a 'private conversation' or 'private activity' under the Act. Recording a private exchange with police, for example inside your home during an investigation, requires consent from every party or another statutory exception, such as a lawful-interest justification under s.5. Separate court and evidence rules also restrict recording inside courtrooms and court precincts.

What is the penalty for recording someone without consent in WA?

Under sections 5 and 6 of the Surveillance Devices Act 1998 (WA), the penalty for an individual is a fine of $5,000 or imprisonment for 12 months, or both. For a body corporate, the fine is $50,000. Publishing or communicating an unlawfully obtained recording under s.9 carries the same penalties. Distributing an intimate image without consent under Criminal Code (WA) s.221BD carries imprisonment for up to 3 years, or 18 months and a $18,000 fine on summary conviction.

Does the new WA privacy law change recording rules?

No. The Privacy and Responsible Information Sharing Act 2024 (WA) addresses the collection, use, and disclosure of personal information by WA public sector agencies. It does not amend the Surveillance Devices Act 1998 (WA) recording rules. The PRIS Act's main obligations commenced on 1 July 2026. Private sector entities remain governed by the federal Privacy Act 1988 (Cth). The Surveillance Devices Act consent rule is unchanged by the PRIS Act.

Can employers legally monitor employee communications in WA?

Employer monitoring of workplace communications is subject to the Surveillance Devices Act 1998 (WA). Monitoring employee phone calls, recording meetings, or installing audio-capable devices in workplaces requires the consent of everyone whose private conversations may be captured. Monitoring email or computer activity does not ordinarily engage the Surveillance Devices Act, which covers oral conversations and visible activities, but it may engage the federal Privacy Act 1988 (Cth) and the Telecommunications (Interception and Access) Act 1979 (Cth), depending on the method used. A clear, disclosed written policy is the standard approach for lawful workplace monitoring in WA.

What are deepfake laws in Australia and how do they apply in WA?

The Criminal Code Amendment (Deepfake Sexual Material) Act 2024 (Cth) introduced sections 474.17A and 474.17AA into the federal Criminal Code. Section 474.17A makes it a federal offence to share sexually explicit material, including AI-generated deepfakes, without the consent of the person depicted, via a carriage service. The maximum penalty is 6 years imprisonment, or 7 years for an aggravated offence under s.474.17AA, including where the offender created the deepfake. This federal law applies in Western Australia alongside the state Criminal Code s.221BD intimate image offence.