Can you record someone without permission?

Man holding phone to record a conversation

The use of recording devices, whether audio, video, or both, has become increasingly common. But just because the technology is readily available doesn't mean it's always legal to use it.

This Melbourne man found himself in a video that went viral on TikTok. Friends and family from overseas alerted him to the post – they had recognised him in a video being filmed at a supermarket checkout. Someone else had paid for his groceries, and then, that benefactor filmed his reaction.

While ‘paying it forward' is always a nice gesture, some would argue that the benefactor's desire to film the kind act and then post it online, is not necessarily the right thing to do, even if it was in a post that encouraged acts of kindness.

The man who was filmed has since told the media that the video “creeped him out” and made him upset because he strongly values and defends his personal privacy – his right to choose where, when and with whom, he shares his information.

The post has collected more than 6 million views and 330,000 likes and reactions from viewers have stirred up both sides of the privacy debate.

In Western Australia, there are strict laws governing when and how someone can be recorded without their consent. Whether you're considering recording a conversation, filming a dispute, or using CCTV footage, it’s important to understand the legal framework surrounding privacy and surveillance.

In 2025, it's Easy to Record Video and Audio

In our technologically advanced world, smartphones and other readily available devices make it easy for people to make videos and audio recordings of others, regardless of whether they have the recorded person's consent.

It's not uncommon for large companies to record phone conversations for the purpose of training employees. As a criminal lawyer in WA, I often encounter scenarios where people have gone to the extent of recording conversations in an effort to obtain evidence.

So what does the law say when it comes to audio and visual recordings?

The Surveillance Devices Act – Western Australia

The law differs slightly from state and territory around Australia, but in Western Australia it is a criminal offence under section 5 (1) and 6 (1) of the Surveillance Devices Act 1998 (WA) to make an audio recording of a private conversation or a visual recording of a private activity.

The law also prohibits the publication of information obtained from unauthorised recordings of private activities or private conversations without the consent of the principal parties to the activity or conversation (Section 9 of the Act).

“Private activity” means any activity carried on in circumstances that may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves, such as a bathroom, change room, or inside someone’s house. On the other hand, private activity does not include an activity carried on in any circumstances in which the parties to the activity ought reasonably to expect that the activity may be observed.

“Private conversation” means any conversation carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves, but does not include a conversation carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard. For example, a discussion in someone’s home, a car, or a closed office would typically be considered private.

The Importance of Context

The law surrounding recordings is not black-and-white. The legality depends on a range of factors:

Where the recording occurred (private vs public setting)
Who made the recording, and their involvement
Whether any party had a reasonable expectation of privacy
The purpose or motive behind the recording
How the recording is used or shared afterwards

Even if a recording breaches legislation, there may be broader considerations around its purpose and impact.

Exceptions to the Rule

There are some exceptions to the prohibitions contained in sections 5 and 6 of the Surveillance Devices Act, which include the following:

Where all parties involved give implied or express consent to the recording;
Where a warrant or other legal authorisation has been made for the use of a listening device in circumstances such as in the course of an investigation into a suspected criminal offence;
Where a video recording is done in public, where there is no expectation of privacy;
Where the recording is necessary for the protection of the lawful interests of the party who makes the recording;
Where the recording is in the public interest, such as where, for example, it is to protect the best interests of a child.

Consent is Given (Express or Implied)

Express Consent: This is when a person explicitly agrees to being recorded, such as saying “yes” when asked if a conversation can be recorded.
Implied Consent: This arises from the context. For example, if someone is aware that a recording is being made and continues to engage in the conversation without objecting, a court might find that consent was implied.

Example: If a person joins a Zoom call where it is announced at the start that the meeting is being recorded and they stay in the meeting, this could be implied consent.

Legal Authorisation

A recording may be permitted if authorised by a warrant or court order, commonly seen in the context of police investigations. This is discussed in more detail below, under “Surveillance Warrants”.

Public Place, No Reasonable Expectation of Privacy

If a video or photo is taken in a public setting where there is no expectation of privacy, like a concert, shopping centre, or on a public street, then this is generally not an offence under the Act.

Example: Capturing footage of a protest in a public park does not breach privacy laws, unless the footage is used unlawfully.

Protecting Lawful Interests

A person may record a private conversation without consent if it is reasonably necessary to protect their lawful interests.

Example: A person might record a conversation on their mobile phone with a threatening neighbour to later present it as evidence in a restraining order application. Or an employee might record a meeting with an employer if they believe they are being unfairly treated or bullied, for use in a Fair Work proceeding.

This is a narrow exception and should not be relied upon lightly. The courts will look closely at the motive behind the recording.

In the Public Interest

This allows for recording where it is considered beneficial to the community at large.

Example: Secret recordings of abuse or neglect of a child in order to notify and provide evidence to authorities, even if consent is not obtained, may fall under this exception.

Public interest generally includes matters affecting safety, transparency, and the welfare of vulnerable individuals. However, whether a recording meets this threshold is ultimately a matter for the courts to decide.

Surveillance Warrants

Upon an application by the police, the court may issue an optical surveillance device warrant, or listening device warrant in order for the police to lawfully record a person.

For the court to issue the warrant, the court must be satisfied that there are reasonable grounds for believing an offence has been, is being, is about to be, or is likely to be committed, and the use of the device would assist a formal police investigation of the offence.

Whether or not a warrant will be issued will be at the court's discretion.

When considering an application for a listening device warrant, an optical surveillance device warrant or a tracking device warrant, the court is required to consider:

the nature and severity of the offence;
the extent of intrusion on the person's privacy;
whether there are alternative means by which the evidence can be obtained;
the probative value of the evidence to be obtained;
whether there are any other warrants issued for the same matter;
whether it is in the public interest.

If issued by the court, a surveillance or listening device warrant will contain specific rules regarding, for example, the type of device that is approved, and in what circumstances the device can be used.

The warrant may also limit the locations where the surveillance device is authorised to be used, as well as who can use the device, and for how long.

If the police do not act within the perimeters of the warrant, the evidence obtained may be ruled inadmissible in court.

Admissibility of Illegally Obtained Recordings in Court

Even if a recording was made unlawfully, that doesn't automatically mean it can't be used as evidence in court. However, it does raise serious legal and ethical concerns, and the person who made the recording may face penalties, even if the recording ends up being admitted.

Criminal Proceedings

In criminal matters, courts are guided by the Evidence Act 1906 (WA), as well as common law principles. Illegally obtained evidence, such as a recording made in breach of the Surveillance Devices Act 1998 (WA), is known as improperly or unlawfully obtained evidence.

Courts must weigh whether the probative value (its usefulness in proving something) outweighs the prejudicial effect (such as how unfair or damaging it might be to the defendant). Ultimately, the judge will decide whether admitting the evidence is in the interests of justice.

Example: If a person secretly records a confession in a criminal matter without consent, the court may still admit the recording if it provides strong evidence of the accused’s guilt and there are no other viable ways to prove the case. However, the court will consider factors such as how serious the breach of the law was, whether there were alternative legal means to obtain the evidence, and the impact on the accused’s rights.

Civil and Family Law Proceedings

In civil or family law disputes, the rules are slightly more flexible. Courts have broader discretion to admit evidence, even if it was unlawfully obtained, especially where the best interests of a child or a party’s safety is at stake.

Example: A parent in a family law dispute who made a secret recording of incidents of domestic violence, such as abusive language or threats from the other parent. While the recording may technically breach surveillance laws, the court could allow it if it is highly relevant to issues such as parenting capacity or the child’s welfare.

That said, parties who submit illegally obtained recordings in court could still be subject to separate proceedings, including criminal charges or adverse costs orders.

Penalties for Illegal Recording in Western Australia

The Surveillance Devices Act 1998 (WA) sets out clear penalties for individuals who unlawfully use listening, optical, tracking or data surveillance devices.

Key Offences and Maximum Penalties

Using a Listening Device to Record a Private Conversation
- Penalty: Up to $5,000 fine or 12 months’ imprisonment for an individual.
Installing or Using a Surveillance Device Without Proper Authority
- This includes placing a hidden camera or microphone in someone’s home, office, or vehicle.
- Penalty: Similar to the above - fines and/or imprisonment.
Disclosing or Publishing a Private Recording Made Illegally
- Even if you weren’t the one who made the recording, disclosing or sharing it may still be an offence.
- Penalty: Fines and possible imprisonment, depending on the circumstances.

Aggravating Factors

Courts may treat the offence more seriously if:

The recording was made for exploitative, threatening, or coercive purposes (e.g. blackmail).
The recording was distributed online or to third parties without consent.
The subject of the recording was a vulnerable person (e.g. a child, elderly individual, or person with disability).

Maximum Penalties Differ Between States

Each Australian jurisdiction has its own legislation and penalties:

In NSW, for instance, recording a private conversation without consent can attract fines of up to $11,000 and/or 5 years’ imprisonment.
In Victoria, it’s generally legal for a party to record their own conversation, but distributing it may still be illegal.
Queensland allows one-party consent recordings but penalises distribution without consent.

This variation highlights the importance of understanding the local laws in your state or territory before making or using a recording.

How Do WA Laws Compare to Other States?

While Western Australia’s Surveillance Devices Act 1998 (WA) sets strict rules around recording private conversations, the laws vary significantly across other Australian states and territories. This means that the legality of recording someone without their knowledge or consent can differ depending on where you are in the country.

State / Territory	Is One-Party Consent Allowed?	Legislation	Key Notes
Western Australia (WA)		Surveillance Devices Act 1998 (WA)	All parties must consent unless an exception applies. Strictly enforced.
New South Wales (NSW)		Surveillance Devices Act 2007 (NSW)	Recording a private conversation requires consent from all parties.
Victoria (VIC)		Surveillance Devices Act 1999 (VIC)	A party to the conversation may record it, but distribution is restricted.
Queensland (QLD)		Invasion of Privacy Act 1971 (QLD)	One-party consent allowed. Sharing recordings may still be illegal.
South Australia (SA)		Surveillance Devices Act 2016 (SA)	All-party consent is required unless an exemption applies.
Tasmania (TAS)		Listening Devices Act 1991 (TAS)	One-party consent permitted. Similar to VIC/QLD model.
Australian Capital Territory (ACT)		Listening Devices Act 1992 (ACT)	One-party consent allowed, but care needed with use/distribution.
Northern Territory (NT)		Surveillance Devices Act 2007 (NT)	One-party consent permitted. Restrictions apply on sharing recordings.

New South Wales (NSW)

In NSW, the Surveillance Devices Act 2007 (NSW) prohibits the recording of private conversations without the consent of all parties involved. This means you cannot legally record a conversation, even one you are part of, unless everyone agrees, either expressly or implicitly. Exceptions exist for lawful interests and public interest, but these are interpreted narrowly.

Victoria

Victoria takes a more permissive approach. Under the Surveillance Devices Act 1999 (VIC), a person who is a party to a private conversation may legally record it without the other parties’ knowledge or consent. However, it remains an offence to share or distribute that recording without permission, especially if it causes harm or breaches privacy.

Queensland

Queensland operates under similar principles to Victoria. The Invasion of Privacy Act 1971 (QLD) allows a person to record a conversation to which they are a party. However, recording conversations that you're not involved in, or distributing those recordings without consent, can still attract criminal penalties.

South Australia

South Australia follows a stricter model more aligned with NSW and WA. The Surveillance Devices Act 2016 (SA) prohibits recording private conversations without the consent of all participants. Exceptions are again made for lawful interests, emergencies, or if the recording is in the public interest.

Tasmania, ACT, and Northern Territory

These jurisdictions generally follow models closer to Queensland and Victoria, allowing one-party consent for recordings. However, sharing or publishing those recordings without authorisation may still be restricted under separate legislation (including privacy and defamation laws).

Because the laws differ across Australia, it’s crucial to be aware of the state-specific rules, especially if your recording involves people located in other states or if you're planning to share it publicly or use it in legal proceedings. What might be lawful in Victoria could lead to criminal charges in WA or NSW.

If you're unsure about the legality of a recording, it’s always best to seek legal advice, particularly before using the material as evidence or sharing it with others.

Andrew Williams can provide advice tailored to Western Australian law and help you navigate any legal risks.

Frequently Asked Questions

What is the Surveillance Devices Act in Western Australia?

The Surveillance Devices Act 1998 (WA) is a law in Western Australia that makes it a criminal offence to make an audio recording of a private conversation or a visual recording of a private activity without the consent of the parties involved. It also prohibits the publication of information obtained from such recordings without consent.

What constitutes a private activity under the Surveillance Devices Act?

According to the Surveillance Devices Act, a private activity refers to any activity carried out in circumstances where the parties involved reasonably expect it to be observed only by themselves. However, it does not include activities carried out in circumstances where the parties ought reasonably to expect that the activity may be observed.

What is considered a private conversation under the Surveillance Devices Act?

A private conversation, as defined by the Surveillance Devices Act, is any conversation carried out in circumstances where the parties involved reasonably desire it to be listened to only by themselves. However, it does not include conversations carried out in circumstances where the parties ought reasonably to expect that the conversation may be overheard.

What are the exceptions to recording and publishing private conversations and activities?

The exceptions to the prohibitions under the Surveillance Devices Act include situations where all parties involved give implied or express consent to the recording when a warrant or legal authorization has been issued for the use of a listening device in the course of a criminal investigation, when the recording is done in a public place with no expectation of privacy, when the recording is necessary for the protection of the lawful interests of the party making the recording, and when the recording is in the public interest, such as for the best interests of a child.

Under what circumstances can the court issue a surveillance or listening device warrant?

The court may issue a surveillance or listening device warrant if there are reasonable grounds to believe that an offence has been, is being, is about to be, or is likely to be committed, and if the use of the device would assist a formal police investigation of the offence.

The court will consider factors such as the nature and severity of the offence, the extent of the intrusion on privacy, alternative means of obtaining evidence, the probative value of the evidence, other warrants issued for the same matter, and the public interest when deciding whether to issue a warrant.

Is it illegal to video record someone without consent in Australia?

Yes, it is generally illegal to video record someone without their consent in Australia and is considered a breach of privacy.

In general, secret recordings or recording someone's private activity without their consent is considered a violation of privacy laws. The specific laws regarding video recording without consent may vary slightly between states and territories.

It is important to obtain the consent of the individuals involved before recording them, especially in situations where there is a reasonable expectation of privacy.

Is it illegal to take photos of someone without their permission in Australia?

Not necessarily. In public places, it is generally legal to take photographs without permission, provided the subject does not have a reasonable expectation of privacy. For instance, taking a photo of someone walking down the street or at a public event is typically lawful.

However, it may be illegal to take photos:

In private settings where the person expects privacy (e.g. inside their home, bathroom, or changing room).
If the images are invasive or offensive, such as upskirting, voyeurism, or stalking.
If the images are distributed without consent, particularly if done maliciously or for sexual gratification.

Laws around image-based abuse and consent vary by state, and offences can carry serious penalties, including imprisonment.

Can a voice recording be used as evidence without consent?

It depends on how the recording was obtained and the type of court proceeding.

In criminal cases, a judge may exclude unlawfully obtained recordings unless their admission is considered necessary in the interests of justice.
In family or civil matters, courts may allow a recording if it is highly relevant or probative, such as revealing threats, admissions of guilt, abusive conduct and evidence of family violence.

However, even if admitted, the person who made the recording may still face penalties for breaching the Surveillance Devices Act if the recording was made without legal justification.

Do you have to tell someone a phone call is being recorded in WA?

Yes. If the conversation is considered private and you are in Western Australia, you must have the consent of all parties to legally record it.

This can be express consent (e.g. “Is it okay if I record this call?”) or implied consent, such as when a person continues the conversation after being notified that the call is being recorded.

Failing to obtain consent may lead to criminal charges and the recording could be excluded from court proceedings.

Can I record a conversation if I feel threatened or harassed?

Possibly. This may fall under the exception where the recording is necessary to protect your lawful interests.

For example, if you're being harassed, threatened, or subjected to workplace bullying, recording a conversation might help support a complaint or application for a protection order.

However, this exception is narrowly interpreted and should not be relied upon lightly. The recording must be directly connected to protecting your legal rights, and not simply for personal interest or curiosity.

Can I record my child’s conversations or interactions with someone else?

This is a complex area. Parents may feel justified in recording interactions involving their children, especially in family law disputes or concerns about safety.

However, recording someone else's private conversation with your child, especially if you're not a party to it, can still breach surveillance laws. Courts may be more lenient if the purpose of the recording is to protect the child and is genuinely in their best interests, but this is assessed on a case-by-case basis.

Legal advice should always be sought in these circumstances.

Is it legal to record someone in a workplace setting?

That depends on the context and your role in the conversation:

If you are a party to the conversation (e.g. a staff meeting or performance review), you may be able to lawfully record it, especially if you're protecting your legal interests.
If you are not a participant (e.g. secretly recording colleagues), this would likely be unlawful.

Employers and employees should both be aware of workplace surveillance policies and their obligations under relevant privacy and workplace laws. Covert recordings in the workplace can also lead to disciplinary action, even if not prosecuted under criminal law.

Is it legal to publish a recording or share it with others?

Even if a recording is lawfully made, sharing or publishing it without consent can still be illegal.

For example:

Uploading a private conversation to social media without permission could breach defamation, privacy, or surveillance laws.
Distributing intimate recordings without consent may constitute image-based abuse, a serious criminal offence under federal and state laws.

Before sharing any recording, it's important to consider both the lawfulness of the recording itself and the intended use.

Read more about Intimate Image Laws here.

Can I use a recording device on my property to monitor people (like CCTV or dashcams)?

Generally, yes. Homeowners are allowed to use CCTV or similar devices to monitor activity on their own property for security purposes, particularly if cameras are visible and used responsibly.

However:

You must avoid recording areas beyond your property boundaries (like into a neighbour’s window).
Covert audio recording is more strictly regulated than video.
In shared accommodation or rental properties, placing surveillance in common areas or private spaces (like bathrooms) without consent can be illegal.

Always check local privacy and tenancy laws before installing surveillance equipment.

Need Legal Advice?

If you’re looking for an experienced Criminal Defence Lawyer and Barrister operating in Perth or Fremantle who can provide expert advice regarding an unlawful recording you've found it.

Andrew is well-versed across a wide range of criminal law services and can guide you through your legal issue while working towards the best outcome for your case.

Call Us Now: (08) 9278 2575

This post is informative only. It is not legal advice. If you have a specific legal matter you’d like to discuss, please contact us.

PLEASE NOTE: The material in this blog post is for informational use only and should not be construed as legal advice. For answers to your questions regarding this or other topics, please contact a professional legal representative.