Is It a Crime to Record Someone Without Their Consent in NSW? What the Law Really Says

You’re in an argument. You hit ‘record’. You think it’ll protect you — maybe from false accusations or to prove your side.

But what if recording someone, even in your own home, is actually a criminal offence?

In NSW, the law around audio and visual recordings is complicated, especially in the context of domestic violence, coercive control, stalking or intimidation, and sexual assault allegations. What you think is evidence could, in some cases, land you with a criminal charge.

At National Criminal Lawyers®, we regularly advise clients on whether recordings can be used in court, whether they were obtained legally, and how they affect charges or defence strategies.

Let’s unpack what the law actually says in NSW — and how it compares to other states.

What Law Governs Recordings in NSW?

The main legislation is the Surveillance Devices Act 2007 (NSW). This Act governs the use of listening devices, optical surveillance, tracking devices, and data surveillance.

Key Provision: Section 7

“A person must not knowingly install, use or cause to be used or maintained a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, or to record a private conversation to which the person is a party.”

So:

• If you’re NOT a party to the conversation: it’s illegal to record it.
• If you ARE a party: it may be legal unless you share it or use it improperly.

Penalties:

• Up to 5 years imprisonment for unlawfully recording a private conversation.
• 100 penalty units (for individuals); 500 penalty units (for corporations)

What Does “Using a Recording Improperly” Actually Mean?

If you legally record a conversation you’re part of, you’re not committing an offence by recording it, unless you’re causing harm or breaching privacy – this is improper use.

This could include:

Sharing the recording without consent

• Posting it on social media
• Sending it to mutual friends or family to shame or manipulate the other person

Using it to threaten or intimidate someone – Coercive control, intimidation

• “If you don’t do what I want, I’ll send this to your boss.”
• Telling someone you’ve secretly recorded them to control or silence them

Publishing it to gain leverage in family, work or court disputes

• Especially in AVO, family law, or employment contexts where privacy expectations are high

Altering the recording or misrepresenting its contents – Defamation

• Cutting parts out to mislead or frame someone

Even if the original recording is lawful, improper use of it thereafter might infringe upon privacy rights and other offences, such as Use Carriage Service to Menace.

• The recording thus shifts from private protection to public retaliation or manipulation

Speak to the trusted team at National Criminal Lawyers®, your experienced criminal lawyers Sydney, to guide you through the legal boundaries of recording and ensure your actions stay within the law

Exceptions Under Section 7(2): When Recording May Be Permitted

The Act provides key exceptions where recording may be lawful even if it would otherwise be prohibited:

Under Section 7(2), it is not an offence if:

1. The recording is reasonably necessary for the protection of lawful interests of the person making it (e.g. to protect themselves from blackmail, threats, or violence).
   
2. It is made in accordance with a warrant, emergency authorisation, or other legal authority.
   
3. The recording is authorised by another Act or regulation.
   

For example, if someone records a conversation with a violent partner during a domestic dispute to later show to police or the court, and they’re part of that conversation it may fall under the lawful interests exception.

However, the courts interpret this strictly. You must have a clear, lawful purpose and not use the recording to humiliate, intimidate or unlawfully disclose the material.

But what is a “Private Conversation”?

Section 3 defines it as a conversation in circumstances where parties reasonably assume it won’t be overheard or recorded.

That includes:

• Phone calls
• Conversations inside a home, car, or private business
• Even quiet conversations in public places, if not openly broadcast

It does not include:

• Shouting in public
• Broadcast media
• Conversations intended to be overheard

Can You Record Someone Without Consent in Your Own Home?

This is a grey area. If you are part of the conversation, you may record it — but only for a lawful purpose. Covertly recording housemates, partners, or guests when you are not part of the conversation is likely illegal under the Act.

In domestic violence and coercive control contexts, this can become critical.

• You can record your own interaction with an abusive partner
• You cannot bug the house or install hidden cameras to record third parties

What If It’s in Public?

In public, visual recordings are generally allowed. But audio recordings of private conversations (e.g. someone whispering at a bus stop) are still protected.

Recording someone:

• Arguing with you: Usually legal if you’re a party
• Talking to someone else: Illegal if you’re not part of the chat
• Without their knowledge: Risky if inside a home or private setting

Can You Use Recordings as Evidence in Court?

Even illegally obtained recordings can sometimes be used in court under Section 138 of the Evidence Act 1995 (NSW) if:

..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.

This is common in:

• Stalking or intimidation charges (s 13 CDPVA)
• Sexual assault or DV matters
• AVO proceedings, where recordings show threats or abuse

What About Other States?

Recording laws differ across Australia. Your top criminal defence lawyers Sydney prioritise that you know the law when you travel interstate and happen to record.

State	Can a Party Record Without Consent?	Notes
NSW	✅ Yes, if you’re a party	Illegal to share/publish without consent
VIC	✅ Yes	Similar to NSW
QLD	✅ Yes	Audio surveillance laws less strict
SA	❌ No	All-party consent required
WA	✅ Yes	But not admissible in all cases
TAS	✅ Yes	But some exceptions
ACT	✅ Yes	Aligns with federal laws

How This Relates to Charges Like DV, Stalking and Coercive Control

Recordings are increasingly being used in:

• Defence: To prove lack of intent, mutual provocation, or false allegations
• Prosecution: To show patterns of coercive control, intimidation, or threats

Courts often see:

• Abusers recording victims without consent to control or shame them
• Victims recording threats for their safety
• Disputes over whether the recording is intimidating, harassing, or self-defensive

What Should You Do If You Have or Are Facing a Recording?

• Do not share recordings publicly or online
• Keep original files intact with timestamps and metadata
• Get legal advice before trying to use recordings in court
• Do not secretly record people you’re not speaking with directly

At National Criminal Lawyers®, we:

• Challenge the legality and admissibility of recordings
• Help protect victims who were recorded without consent
• Defend accused persons whose recordings are misunderstood
• Represent clients in AVO, assault, stalking, and coercive control matters

Final Thoughts: Protecting Yourself Without Breaking the Law

You might believe that recording someone protects you. And sometimes it does. But in NSW, how you make the recording matters just as much as what it shows.

If you’re in a high-conflict relationship, DV dispute, or legal battle, don’t risk a criminal charge by installing hidden mics or pressing record at the wrong time.

Call National Criminal Lawyers® Today

If you’re involved in a case involving secret recordings, intimidation, stalking, coercive control, or AVOs, get expert legal guidance now.

📞 Call 1800 CRIM LAW for a free first consultation.

We offer:

• Fixed fees
• Expertise in DV and surveillance law
• Offices across Sydney, Parramatta, and Greater NSW

Your safety matters. So does your freedom. Let us protect both