Can I Record a Phone Call without Consent in NSW?

26 June 2025 in Criminal Law | 4 min read | skip to FAQs

In New South Wales, recording a phone call without the consent of the other party to the call can be a criminal offence. With smartphones and recording technology becoming easily accessible, it is important to fully understand the legal risks before recording a conversation. This area of law is governed by the Surveillance Devices Act 2007 (NSW) (The Act) which sets strict rules around when and how a phone call can be legally recorded. This article outlines what is permitted, what is prohibited and what the consequences are for breaching Section 7 of the Act.

When Is Recording a Phone Call Illegal?

Section 7 of the Surveillance Devices Act 2007 makes it an offence to ‘install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation without consent.’ This section of the legislation applies even if you are a participant in the call. Section 4 of the Act defines ‘listening device’ as any device capable of recording audio, such as a smartphone or digital recorder. A ‘private conversation’ is also defined as one carried out in circumstances where the parties reasonably expect it to be heard only by themselves or others who have given consent. If you are a part of a private conversation and record it without informing the other party, you may be committing a criminal offence.

Are There Any Exceptions?

The Act provides for several exceptions where recording a conversation may be legal, including:

1. If a private conversation is recorded accidentally, such as through the accidental activation of a device
2. If all parties to the conversation consent, either expressly or impliedly, then you are allowed to record the conversation. Implied consent can be inferred when one party clearly states that the call is being recorded, and the other individuals continue on with the call without objecting.
3. If a person is a party to the conversation and the recording is made because it is ‘reasonably necessary’ to protect their lawful interests, then this may also fall within an exception. Courts have previously accepted this in cases involving family violence or when a party is attempting to document threats or harassment. However, recording to simply gain an advantage in legal proceedings will not meet this threshold.
4. In some circumstances, if a person records a conversation they are a part of, and that person is not intending to be published or communicated to anyone outside the conversation, this may also constitute an exception under the Act.
5. If the recording is made by police officer (or other enforcement officers) acting under a warrant or in accordance with statutory powers. For instance, the use of  body worn cameras, is considered an exception under legislation.

What Are the Penalties?

The penalties for breaching s7 of the Surveillance Devices Act are significant and reflect the seriousness of invading the privacy of an individual and the potential for misuse of private information obtained without consent.. For individuals, the maximum penalty is:

1. A fine of up to 100 penalty units (currently $11,000.00) and/or
2. Up to 5 years imprisonment

For corporations, the maximum fine increases to $55,000.00.

Can an Illegally Recorded Phone Call Be Used in Court?

In general, illegally recorded phone calls cannot be used during court proceedings. Section 138 of the Evidence Act 1995 (NSW) outlines that evidence that has been illegally or improperly obtained is ‘not to be admitted into evidence unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in that way’.

In determining whether evidence obtained improperly should be admitted, the court follows Section 138(3) of the Evidence Act 1995, which states they may consider:

1. The probative value of the evidence, and
2. The importance of the evidence in the proceeding, and
3. The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and
4. The gravity of the impropriety or contravention, and
5. Whether the impropriety or contravention was deliberate or reckless, and
6. The difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

In some cases, particularly where the evidence is significant to an issue in the case, the court may allow the recording into evidence despite it being obtained improperly. However, relying on this exception carries significant risk.

Can Business’s Record Phone Calls?

Businesses often record phone calls for training or quality assurance purposes. These recordings are not against the law, provided that the customer is informed and does not object to the recording. Implied consent can be given for the recording to take place when the caller is clearly told that the call may be recorded and continues with the conversation.

Businesses must ensure that the recordings that they take are only used for the stated purpose and are stored securely. Any misuse of recorded data by a business may also be in breach of the Privacy Act 1988.

What Should I Do If I Have Already Recorded a Call?

If you are in possession of a phone call recorded without consent of the other party, you should obtain legal advice before attempting to use it as evidence in legal proceedings. Attempting to use the recording may expose you to potential criminal charges.

On the other hand, if you believe that another individual has recorded you without consent, you may have grounds to report the matter to police or consider other civil remedies in more serious cases.

How can BSM Sydney Lawyers assist you?

The expert lawyers at Brander Smith McKnight Sydney Lawyers have experience in a wide range of legal problems, including privacy law, criminal law and evidence matters. We are able to advise you of your rights regarding consent for recording phone calls. Conversely, if you have committed a crime by recording a phone call. Our highly experienced senior criminal lawyers can advise you on whether a recording can legally be used, or assist you if you are facing charges. The criminal lawyers at BSM Sydney Lawyers offer a free 20-minute consultation.

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