Recording Conversations

The Surveillance Devices Act 1998 (WA) regulates the use of surveillance devices in Western Australia. It also restricts the communication and publication of information obtained through the use of surveillance devices.

When is it an offence to use a listening device?

It is an offence to install, use, or maintain a listening device to record a private conversation whether or not the person is a party to the conversation.
This prohibition is only for private conversations. A listening device can be used where the conversation is not private. Private conversations do not include conversations where those involved should have reasonably expected that the conversation may be overheard.

For example

• A conversation between two people in a crowded food court that is loud enough for the person seated next to them to hear would not be private.
• A conversation between two people at low volume in a busy park where there is no one close to them would be a private conversation.
• A conversation between two people taking place in a private home where they are alone would constitute a private conversation.
Maximum penalty: $5,000 or imprisonment for 12 months or both.

For example: It is an offence for a person to install an audio bug surveillance device in their home to record, monitor, or listen to private conversation that their partner are having with other people in the home.

When can a listening device be used?

It is legal if you unintentionally hear a private conversation through a listening device such as a private conversation between two people coming from a baby monitor.
It is legal to record a private conversation to which you are a party if all the participants in that conversation consent to the recording. It is also legal if there is a police warrant allowing it.

It is legal to use a listening device to record a private conversation in certain circumstances if it is in the public interest such as to protect the best interests of a child.

‘Public interest’ also includes the interest of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens.

For example: A mother sets up a listening device in her child’s bedroom because she suspects the child’s father is sexually abusing the child, this could be argued as necessary to protect the best interest of the child and in the public interest.

It is legal to record a private conversation where a person who is a principal party in the private conversation consents to the use of the listening device (expressly or impliedly) and its use is reasonably necessary to protect that person’s lawful interest.

Reasonably necessary for the protection of the lawful interest of that principal party

‘Lawful interest’ was defined in Farris v Boase [2013] WASC 227 as interests which are not unlawful; it’s meaning is similar to the expressions ‘legitimate interests’ or ‘interests conforming to law’.

For example: A woman who receives constant calls from a private number, she picks up and recognizes the voice to be her ex-partner who threatens to harm her. The woman installs an app on her phone that records telephone conversations so the next time the private number calls, she records the incoming calls which directly threatens her safety.