Listening Devices Laws in Australia

Recording conversations and using Listening Devices is regulated in most states of Australia, and like so many other things the rules are quite different from state to state. In this post I’m going to compare the laws which apply in each state and territory. 

I’m aiming this at Private Investigators, not at law enforcement, so Warrants etc will not be covered. This is just a summary of the main points - I’ve provided links to the relevant legislation so you can get the rest of the detail. 

Note also that some states have legislation restricting the advertising and sale of listening devices, separately from their use.

Listening Devices are generally defined as anything which is capable of being used to overhear, record, monitor or listen to a conversation (except a hearing aid). Definitions vary slightly between states, with the above definition applying in Victoria. Things to note from this definition: 

  • It doesn’t have to be able to record the sound to be a listening device
  • It doesn’t have to transmit the sound somewhere else to be a listening device (a normal Dictaphone is a listening device)
  • A video camera which records sound is usually also a Listening Device
  • If your intention is to listen to something other than a conversation, your device may still be a listening device when it is capable of being used to listen to a conversation
  • Even if your device is a classified as a Listening Device, it may still be lawful to use it in some circumstances
  • Generally it’s an offence both to use the listening device unlawfully and to publish or use any record of a conversation unlawfully recorded - check the legislation in your state or territory.

Victoria

You cannot install, use or maintain a listening device to overhear, record, monitor or listen to a Private Conversation unless you’re a party to the conversation, or you have consent of all the parties to that conversation.

 

A Private Conversation is one in circumstances where you may reasonably assume the parties to it don’t want to be overheard by others, unless the parties should reasonably expect that they may be overheard. 

Key points and examples:

  • If you are a party to the conversation, the use of a Listening Device is not restricted.
  • If you’re not a party to the conversation, you need consent from all the parties - not just one. Consent may be express or implied. 
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

Workplaces

Listening devices cannot be used in toilets, washrooms, change rooms or lactation rooms.

Surveillance Devices Act 1999 (Vic)

 

New South Wales

You cannot install, use, maintain or cause to be used a listening device to overhear, record, monitor or listen to a Private Conversation unless you are a party to the conversation and have the consent of all the principle parties to that conversation, or the consent of one of the principle parties and it’s for the protection of their interests.

Express or implied consent of one of the principle parties makes you a party to the conversation. 

Private Conversation is one in circumstances where you may reasonably assume the parties to it don’t want to be overheard by others, unless the parties should reasonably expect that they may be overheard.

 

Where you are recording a conversation to protect your own interests, it is for your own use and must not be communicated to other parties. 

Key points and examples:

  • If you are a party to the conversation, and if you have consent from all the principle parties (express or implied), you may use a Listening Device.
  • If you are a party to the conversation, and you are recording the conversation to protect your own lawful interests (eg. as evidence against later invented allegations of what was said) then you do not need consent from the other parties
  • If you’re not a party to the private conversation, use of a Listening Device is restricted even if you have consent.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.
  • “Causing” a Listening Device to be used unlawfully (asking someone else to do it) is also an offence

Workplaces

The use of Listening Devices is not subject to any special rules other than the above.

Surveillance Devices Act 2005 (NSW)

Queensland

 

You cannot use a listening device to overhear, record, monitor or listen to a Private Conversation unless you are a party to that conversation.

Express or implied consent of one of the parties speaking or being spoken to (which I will refer to as the principle parties, even though in Qld this term is not used) makes you a party to the conversation. As a party to the conversation, you may use a Listening Device. 

Private Conversation is one in circumstances where you may reasonably assume either of the principle parties don’t want to be overheard by others, unless either of the principle parties having the conversation should reasonably expect that they may be overheard. 

Key points and examples:

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principle parties, you are a party to that conversation.
  • If you are a party to the conversation, the use a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.
  • Only the use, not the installation or maintenance of a listening device is restricted in Qld

 

Invasion of Privacy Act 1971 (Qld)

Western Australia

You cannot install, use or maintain (or cause to be installed, used or maintained) a listening device to overhear, record, monitor or listen to a Private Conversation unless you are a party to the conversation and have the consent of all of the principle parties, or the consent of one of the principle parties and the use is for the protection of their interests.

Express or implied consent of one of the principle parties makes you a party to the conversation. 

 

Private Conversation is one in circumstances where you may reasonably assume any of the parties to it don’t want to be overheard by others, unless the parties should reasonably expect that they may be overheard. 

Key points and examples:

  • If you are not a party to the private conversation, the use of a Listening Device is restricted.
  • If you are a principle party to the conversation and you’re making a recording for protection of your interests, the use of a Listening Device is not restricted.
  • If you have consent from a principle party to the conversation and you’re making a recording for protection of that party’s interests, the use of a Listening Device is not restricted.
  • If you are a party to the conversation, and you have consent from all the principle parties, the use of a Listening Device is not restricted. 
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, the use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

Surveillance Devices Act 1998 (WA)

South Australia

 

You cannot use a listening device to overhear, record, monitor or listen to a Private Conversation unless you have consent of all the parties to that conversation, or you are a party to the conversation and the use of the device is in the course of your duty, in the public interest or for the protection your interests. 

In the course of duty may refer to Private Investigators.

Private Conversation is one in circumstances where you may reasonably assume the parties to it don’t want to be overheard by others. There is no exception in SA for circumstances where the parties should reasonably expect that they may be overheard - these are still private conversations.

Key points and examples:

  • If you are a party to the conversation, and you have consent from all the parties to that conversation, the use of a Listening Device is not restricted
  • If you are a party to the conversation, and the use is in the course of your duty, or in the public interest, or to protect your interests, the use of a Listening Device is not restricted
  • If you’re not a party to the conversation, the use of a Listening Device is restricted. 
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

 

Because private optical surveillance is not specially restricted in SA, these rules also form the restrictions on Optical surveillance where it includes audio.

Listening and Surveillance Devices Act 1972 (SA)

Tasmania

You cannot use (or cause or permit to be used) a listening device to overhear, record, monitor or listen to a Private Conversation unless you are a party* to the conversation and have the consent of all of the principle parties, or the consent of one of the principle parties and the recording is for the protection of their interests. 

 

Express or implied consent of one of the principle parties makes you a party to the conversation. 

Private Conversation is one in circumstances where you may reasonably assume the any of the parties don’t want to be overheard by others. There is no exception for circumstances where the parties should reasonably expect that they may be overheard. 

Key points and examples:

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principle parties, you are a party to that conversation.
  • If you are a party to the conversation, and you have consent of all the principle parties, the use a Listening Device is not restricted.
  • If you are a party to the conversation, and you have the consent of one principle party, and it’s for the protection of that party’s interests, the use of a device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

Because private optical surveillance is not specially restricted in Tas, these rules also form the restrictions on Optical surveillance where it includes audio.

 

Listening Devices Act 1991 (Tas)

Northern Territory

You cannot install, use or maintain a listening device to overhear, record, monitor or listen to a Private Conversation when

  • you’re not a party to that conversation; and 
  • you know that the device is being used (installed, maintained etc) without the express or implied consent of each of the parties.

Private Conversation is one in circumstances where you may reasonably assume the parties to it don’t want to be overheard by others, unless the parties should reasonably expect that they may be overheard.

This legislation has a big loophole - you need to have actual knowledge that you don’t have the consent of the parties in order for the use of the listening device to be unlawful. If a client asks you to install and use a listening device and they tell you that the parties to the conversation have given consent, both your and their actions are lawful - even when they did not actually consent.   

 

Key points and examples:

  • If you are a party to the conversation, the use of a Listening Device is not restricted.
  • If you have consent from all the parties to the conversation, or you think you do (ie. you don’t know that you don’t), then the use of a Listening Device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, use of a Listening Device is not restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

Surveillance Devices Act 2007 (NT)

ACT

You cannot use a listening device to overhear, record, monitor or listen to a Private Conversation unless you are a party to the conversation and have the consent of all of the principle parties, or the consent of one of the principle parties and the recording is for the protection of their interests. 

 

Express or implied consent of one of the principle parties makes you a party to the conversation. 

Private Conversation is one in circumstances where you may reasonably assume the any of the parties don’t want to be overheard by others. There is no exception for circumstances where the parties should reasonably expect that they may be overheard. 

Key points and examples:

  • If you’re not a party to the private conversation, use of a Listening Device is restricted.
  • If you have consent to overhear/record/etc the conversation from one of the principle parties, you are a party to that conversation.
  • If you are a party to the conversation, and you have consent of all the principle parties, the use a Listening Device is not restricted.
  • If you are a party to the conversation, and you have the consent of one principle party, and it’s for the protection of that party’s interests, the use of a device is not restricted.
  • If the conversation is loud enough for you to hear it, in a place where you or other people may hear it, then it’s not a private conversation and use of a Listening Device is still restricted.
  • If you’re listening to anything other than a private conversation, use of a Listening Device is not restricted.

Because private optical surveillance is not specially restricted in the ACT, these rules also form the restrictions on Optical surveillance where it includes audio. 

 

Listening Devices Act 1992 (ACT)

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If you believe any of the above is in error, please let me know!

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