Clients usually ask criminal defence lawyers whether it is legal to record a phone conversation. In NSW and Australia, it is illegal to do so without the other party’s consent.
The law-making recording illegal is governed by section 7 Surveillance Devices Act 2007 (NSW). It provides that if a person knowingly installs, maintains or uses a listening device to overhear, record, monitor, or listen to a private conversation; they are guilty of an offence.
The maximum penalty in NSW is up to 5 years imprisonment and/or a fine of up to 100 penalty units. Penalties in other states vary.
You can defend this charge. The defences available for this offence are;
Reasonable is an objective test to be assessed based on the circumstances of the recording. A ‘lawful interest’ includes if a person has a genuine fear for their safety. But this may not involve recordings designed to gain an advantage in civil or family proceedings.
In most circumstances, phone recordings cannot be used as evidence. However, it can be admitted into evidence on your behalf. The requirement is to satisfy section 138 of the Evidence Act. That unlawfully obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained.
You may wish to record a phone conversation to protect your lawful interest. However, you should obtain legal advice before recording a phone conversation. This offence is serious, and only if you believe it is necessary to protect your lawful interest, you should do so.
It is an offence to install or use a tracking device to determine another person’s location without that person’s consent. In addition, it is an offence to install or use an optical surveillance device on a vehicle or within premises without the permission of the owner or occupier.