While it may seem reasonable to record a private conversation to protect your interests, safeguard a third party, or gather evidence for legal proceedings, doing so raises important legal considerations. This article explores the legal framework surrounding the recording of private conversations in each Australian State and Territory.
Key points:
- Whether you can record a private conversation will depend on your location, who has consented, and why you’re recording
- The law is different in each State and Territory – there’s no uniform law
- The Fair Work Commission generally discourages the use of private recordings in evidence – but can use its discretion to allow them
Can you record a private conversation in Australia?
There is no federal law that prohibits the recording of private conversations in Australia. Each State and Territory in Australia has its own legislation that governs the use of recording devices (refer interactive map below).
The interception of phone calls and other communications passing through telecommunications systems is prohibited across Australia by the Telecommunications (Interception and Access) Act 1979 (Cth). However, this legislation is primarily concerned with third parties seeking to intercept communications, as opposed to participants in the conversation taking steps to record it.1
In most jurisdictions, it is illegal to record a private conversation using a listening device without the consent of all parties involved.
However, in Queensland, Victoria and the Northern Territory, it is lawful to record a conversation without the other party’s consent, provided you are an active participant in that conversation.
Explore the interactive map for information on the laws governing the use of listening devices to record private conversations in each jurisdiction.
*Hover over or click on each State or Territory on the interactive map below to reveal jurisdiction-specific legal information about recording private conversations.
Tax and Structuring
Including asset protection, family governance structures and policies, entity establishments, restructuring, and tax and duty advice
Please note that the information on this page is general in nature, and summarises the legal position in each State and Territory. This summary is not intended to be exhaustive. Legal advice should be sought to consider any specific circumstances.
Can employees secretly record a private conversation in the workplace?
Although recording a private conversation may be legal in certain situations depending on the State or Territory, secretly recording conversations in the workplace may give rise to further issues. Employers may have policies in place that expressly forbid secretly recording private conversations, the breach of which may result in an employee’s termination. Further, the Fair Work Commission (FWC) has affirmed on many occasions that it disapproves of employees making secret recordings at work and has considered that doing so may be a valid reason for dismissal.
In Schwenke v Silcar Pty Ltd t/a Silcar Energy Solutions [2013] FWC 4513, a Full Bench of the FWC held that secretly recording conversations breached the duty of good faith the employee owes to their employer, undermined trust, and justified summary dismissal in the circumstances.
This principle was reaffirmed in Karen Altham-Wooding v PKDK Adventures Pty Ltd [2024] FWC 2753, where Deputy President Saunders endorsed the observations of Deputy President Coleman in Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4839. Deputy President Coleman held that secretly recording workplace conversations with colleagues is highly inappropriate, irrespective of whether it constitutes a criminal offence in the relevant jurisdiction. Such conduct is deemed inappropriate because it is inherently unfair to those being secretly recorded.
What if an employee secretly records a private conversation to aid in recall?
There may be occasions where employees have secretly recorded workplace conversations, meetings, or counselling sessions, believing it necessary to protect their lawful interests regarding the termination of their employment.
However, the recent decision of Harry Holt v TEEG Australia Pty Ltd [2025] FWC 1531, suggests that it is unlikely to be reasonably necessary for an employee to secretly record a conversation when they have readily available options to keep a record of the conversation in other ways. This includes taking notes during a meeting, having a support person take the notes or making contemporaneous notes after a meeting.
In this case, Commissioner McKinnon found that had Mr Holt made the recordings for his own private use, he could have used them privately to aid his recall when preparing for any conference or hearing of the matter. However, as he sought to use them in the proceedings as evidence, , they were not admissible.
Can covertly recorded conversations be admitted into evidence in the Fair Work Commission?
The Fair Work Commission has the discretion to admit covert recordings into evidence, even where the recording has been improperly obtained.
By way of example, in the recent decision of Lipari v Transit Systems West Services Pty Ltd [2025] FWC 1430, despite not being bound by the rules of evidence Commissioner Ryan considered the principles in s.138 of the Evidence Act 1995 (Cth), which provides that improperly or illegally obtained evidence may be admitted if the desirability of admitting it outweighs the undesirability. This involves taking into account factors such as the probative value, the importance of the evidence to the proceedings, and the gravity of any impropriety.
Commissioner Ryan noted that, while secret recordings are generally discouraged, the FWC has a broad discretion to inform itself as it considers appropriate. Where, as in this case, there were significant inconsistencies in witness accounts and the recording was central to determining what actually occurred, the Commission may find that the interests of justice favour admitting the recording, even if there are concerns about how it was obtained.
For more information regarding recording a private conversations and exemptions or tendering a recorded conversation in a legal proceeding, contact Timothy Zahara and Mark Schneider.
1Furnari v Ziegert [2016] FCA 1080 at [28].
2Listening Devices Act 1992 (ACT) section 4(1).
3Listening Devices Act 1992 (ACT) section 4(3)(b)(i).
4Listening Devices Act 1992 (ACT) section 4(3)(b)(ii).
5Listening Devices Act 1992 (ACT) section 5(1), section 6(1) and section 7(1).
6Listening Devices Act 1992 (ACT) section 5(2), section 6(2) and section 7(2).
7Surveillance Devices Act 2007 (NSW) section 7(1).
8Surveillance Devices Act 2007 (NSW) section 7(2) and section 7(3).
9Surveillance Devices Act 2007 (NSW) section 11(1).
10Surveillance Devices Act 2007 (NSW) section 11(2).
11Surveillance Devices Act 2007 (NT) section 11(1)(a).
12Surveillance Devices Act 2007 (NT) section 15(1).
13Surveillance Devices Act 2007 (NT) section 15(2).
14Invasion of Privacy Act 1971 (QLD) section 43(1) and section 43(2).
15Invasion of Privacy Act 1971 (QLD), section 45(1).
16Invasion of Privacy Act 1971 (QLD) section 45(2).
17Surveillance Devices Act 2016 (SA) section 4(1) and section 4(2)(ii).
18Surveillance Devices Act 2016 (SA) section 9 and section 10.
19Surveillance Devices Act 2016 (SA) section 9(1).
20Listening Devices Act 1991 (TAS) section 5(1) and section 5(3).
21Listening Devices Act 1991 (TAS) section 5(2).
22Listening Devices Act 1991 (TAS) section 9 and section 10.
23Listening Devices Act 1991 (TAS) section 9(2) and section 10(2).
24Surveillance Devices Act 1999 (VIC) section 11(1).
25Surveillance Devices Act 1999 (VIC) section 11(2).
26Surveillance Devices Act 1998 (WA) section 5(1).
27Surveillance Devices Act 1998 (WA) section 5(2).
28Surveillance Devices Act 1998 (WA) section 9(1).
29Surveillance Devices Act 1998 (WA), section 9(2).
