If someone taped me without permission, can the police still use it?

It might seem obvious that if a recording took place without your knowledge or consent, it should not be used against you. However, in New South Wales, the reality is more complicated.

Is it illegal to secretly record someone?

Generally, yes, it is illegal to secretly record someone. Under the Surveillance Devices Act 2007 (NSW), it is an offence to use a listening device to record a private conversation without consent.

A private conversation is any words spoken to another person that are reasonable to expect will not be overheard. A listening device is any device capable of overhearing, recording, or monitoring a conversation.

Exception: protecting your lawful interest

There is an important exception. A person who is a party to the conversation may lawfully record it if the recording is reasonably necessary to protect their lawful interest.

Lawful interest is broadly interpreted. It can include factors such as:

• Protecting yourself from threats or harm,
• Whether there were any other practical means of obtaining the evidence,
• Gathering evidence of abuse, and
• Preventing false allegations.

Courts used an objective test, based on the circumstances at the time of the recording.

What about sharing?

Section 11 of the Surveillance Devices Act 2007 (NSW) prohibits the communication or publication of private conversations, unless an exception applies. Passing the recording on to others can raise some legal issues. The maximum penalty is a fine of $11,000 or/and 5 years imprisonment.

Can police still use it?

Yes, even if the recording was made illegally, police may still rely on it. Illegally or improperly obtained evidence is not automatically excluded in Australia. A court must decide whether the evidence should be admitted by weighing:

• The desirability of admitting the evidence against
• The undesirability of admitting evidence obtained unlawfully,

If the court considers the evidence important and reliable, particularly in serious matters, it may still be admitted. Section 138(3) highlights what the court may consider:

(a) the probative value of the evidence, and

(b)  the importance of the evidence in the proceeding, and

(c)  the nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding, and

(d)  the gravity of the impropriety or contravention, and

(e)  whether the impropriety or contravention was deliberate or reckless, and

(f)  whether the impropriety or contravention was contrary to or inconsistent with a right of a person recognised by the International Covenant on Civil and Political Rights, and

(g)  whether any other proceeding (whether or not in a court) has been or is likely to be taken in relation to the impropriety or contravention, and

(h)  the difficulty (if any) of obtaining the evidence without impropriety or contravention of an Australian law.

When deciding whether to admit the recording, the court may look at:

• How the recording was obtained,
• Whether the conduct was deliberate or reckless,
• The seriousness of the offence,
• The importance and probative value of the evidence,
• Whether the evidence shown in the recording could have been obtained lawfully,
• In many cases, the more serious the allegation, the more likely the evidence will be admitted.

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Sources:

NSW Government, Crimes (Sentencing Procedure) Act 1999 (NSW), section 138, published on the NSW legislation website (accessed 31 March 2026 at 12:40) https://legislation.nsw.gov.au/view/html/inforce/current/act-1995-025#sec.138

NSW Government, Crimes (Administration of Sentences) Act 1999 (NSW), published on the NSW legislation website (accessed 31 March 2026 at 14:25) https://legislation.nsw.gov.au/view/whole/html/inforce/current/act-2007-064