Is it Legal to Record Phone Calls?

It is an offence to record private conversations, calls or other exchanges by installing, using or maintaining a ‘listening device’ in NSW. Listening devices include “any device capable of being used to overhear, record, monitor or listen to a conversation” and captures things like the record, video or call function on phones, CCTV or ring cameras. The offence is often referred to as “installing, using or maintaining a listening device”.

The offence carries a maximum penalty of 5 years imprisonment and/or 100 penalty units (or 500 penalty units for a corporation).

It is also a separate offence to share, publish or communicate a recording.

What is the offence of Installing, Using or Maintaining a Listening Device?

The offence of Installing, Using or Maintaining a Listening Device is contained in section 7 of the Surveillance Devices Act 2007 (NSW) which states:

(1) A person must not knowingly install, use or cause to be used or maintain a listening device–

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or

(b) to record a private conversation to which the person is a party.

: Maximum penalty–500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

A “listening device” means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

A “private conversation” means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only–

(a) by themselves, or

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

A “principal party” , in relation to a private conversation, means a person by or to whom words are spoken in the course of the conversation.

There are a number of ‘exceptions’ to the offence. This means that where an exception applies, it is not an offence. These include:

1. Where all of the parties consent to the recording;
2. Where one of the parties to the conversation agrees to the recording and either:
   1. The recording is reasonably necessary for the protection of their lawful interests; or
   2. The recording is not made for the purpose of communicating or publishing the conversation (or a report of it) to persons who were not a party to the conversation;
3. Engaging in the conduct in accordance with a warrant, emergency authorisation or certain legislation;
4. Where it is unintentional; or
5. Where it relates to certain law enforcement processes, procedures and use of weapons.

The following acts may constitute an offence of Installing, Using or Maintaining a Listening Device:

• Using your phone to record your partner during an argument without their knowledge (unless it is done legitimately to protect your lawful interests);
• Calling your boss before inviting a colleague into your office to have a discussion, so your boss can listen in without the colleague knowing; 
• Setting up ring cameras which, from time to time, capture conversations your neighbour have in their yard without their knowledge or permission; or
• Police intercepting phone calls or using recording devices without an appropriate warrant or legal basis to do so.

What Must be Proven?

For a person to be found guilty of Installing, Using or Maintaining a Listening Device the Prosecution must prove each of the following matters beyond a reasonable doubt:

• That you installed, used or maintained a listening device; 
• You did so to either:
  • Overhear, record monitor or listen to a private conversation to which you were not a party; or
  • To record a private conversation to which you were a party; and
• None of the exceptions apply. 

Which Court Will Hear the Matter?

This offence is a Table 2 offence, which means the matter will be finalised in the Local Court unless either the Prosecution elects to have it dealt with in the District Court. 

Possible Defences

The following defences may be available:

• To argue that you were not the person who committed the crime;
• To argue that you didn’t install, use or maintain a listening device; 
• To argue that you didn’t do so to either:
  • Overhear, record monitor or listen to a private conversation to which you were not a party; or
  • To record a private conversation to which you were a party;
• To argue that what was recorded was not a ‘private conversation’;
• To argue that the parties consented;
• To raise that one of the exceptions apply (such as that you did it to protect your own legal interests); or
• To argue necessity or duress.

Common Questions

Will I receive a criminal conviction?

Probably. While prosecutions for this offence are relatively rare, where a person pleads guilty or is found guilty, a conviction and criminal record for this offence is likely. However, it remains possible to avoid a conviction. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge:

• Gaol Sentence
• Intensive Corrections Order (ICO)
• Community Corrections Orders (CCO)
• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living and any need to travel. It is important to get legal advice if you think an offence like this would impact your future. 

Will I go to Gaol?

Potentially. While it’s more likely that a person receives a non-custodial outcome (such as community corrections order or fine), a Gaol sentence has been imposed previously. There is also a low number of prior prosecutions which makes relying on past indicators as to sentence difficult. Whether a person will receive a Gaol sentence depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

Can illegal recordings be relied on in Court?

Potentially. A recording obtained illegally may not be able to be used in Court if the recording is objected to. Section 138 of the Evidence Act 1995 gives the Court “a discretion to exclude improperly or illegally obtained evidence”. It states such illegally or improperly obtained evidence “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 Court can consider such factors as the importance of the evidence to the matter, the nature of the offence to which the evidence relates, and the gravity of offending involved in obtaining the illegal recording.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.