South Australia Recording Laws: Consent Rules and Penalties

South Australia Recording Laws

The Surveillance Devices Act 2016 (SA) governs the recording of private conversations and activities in South Australia. This legislation came into effect on 18 December 2017, replacing the older Listening and Surveillance Devices Act 1972.

In South Australia, it is illegal to use any listening device to record or listen to a private conversation regardless of whether or not you are a party to the conversation without the express or implied consent of all the parties to the conversation. South Australia follows an "all party consent" model, making it one of the stricter jurisdictions in Australia for recording laws.

Exceptions apply if:

• A party to the conversation seeks express or implied consent from all parties to the conversation before recording.
• A party to the conversation makes the recording and the recording is reasonably necessary for the protection of the lawful interests of that person.
• An owner or occupier of a premises or owner of a vehicle agrees to the use of a recording device in the premises.
• The use of the recording in a premises or a vehicle is reasonably necessary for the protection of the lawful interests of the owner or occupier of the premises or vehicle or another person.
• The recording is in the public interest.

What Counts as a Private Conversation?

Under the Surveillance Devices Act 2016, a private conversation is defined as any conversation where at least one of the parties does not want the conversation to be heard by others and where the parties have a reasonable expectation that they will not be overheard.

However, a conversation is not considered "private" if all parties reasonably expect that it may be heard by a non-party. For example, two people having a hushed conversation while sitting next to each other on a bus would be having a private conversation. However, if they were speaking loudly across a crowded bus, it would no longer be considered private since they should reasonably expect to be overheard.

Phone calls are generally considered private conversations, regardless of the technology used, whether landline, mobile phone, Skype, Zoom, or other VOIP systems.

South Australia Video Recording Laws

It is illegal to install or use an optical surveillance device (video recording device) in or on a premises, vehicle or any other thing (regardless of whether or not you legally own the premises, vehicle or thing) to record or observe somewhere where a reasonable expectation of privacy exists.

This means that you can film public areas such as parks, buildings, and streets without gaining the consent of all parties. However, you cannot point cameras to watch a neighbour's backyard, over a fence, or through a window unless these areas can be readily observed from a public place.

The prohibition applies regardless of the technology used: CCTV cameras, smartphones, GoPros, drones, video doorbells (such as Ring), or any other vision capture device. However, telescopes and binoculars are not considered optical surveillance devices under the Act.

Tracking Devices

Under Section 7 of the Surveillance Devices Act 2016, it is also illegal to install or use a tracking device that determines the geographical location of a person, vehicle, or thing without their consent. Using a tracking device solely to locate and retrieve the device itself is not an offence.

This provision applies to GPS trackers, AirTags, and similar location-monitoring technology. Consent must be obtained before placing a tracking device on someone's vehicle or belongings.

Data Surveillance Devices

Section 8 of the Act prohibits installing or using a data surveillance device that accesses, tracks, monitors, or records the input or output of information from a person's computer without their consent. This includes:

• Keyloggers
• Screen monitoring software
• Programs that capture data flowing to or from a computer
• Spyware and similar surveillance software

South Australia Public Interest Exception

South Australia has a public interest exception that allows the installation and use of a listening device or video recording device to record private conversations and activities if the recording is in the public interest.

This exception gained prominence in 2020 when secret tapes were released following Rio Tinto's destruction of the Juukan Gorge caves in Western Australia. South Australia, Western Australia, and the Northern Territory all have public interest exemptions that can permit recordings in certain circumstances.

What constitutes the public interest will be determined objectively by considering the context and circumstances of the surveillance device being used, and weighing this against competing interests such as the need to protect personal privacy.

Lawful Interests Exception

People may be permitted to record a conversation without the consent of other parties if it is reasonably necessary to protect their own lawful interests. This is determined on a case-by-case basis.

South Australian courts have provided guidance on what does and does not constitute a lawful interest:

Situations where recordings are typically NOT considered lawful interests:

• Wanting to obtain an advantage in civil proceedings
• A mere desire to have a reliable record of a conversation
• Recording for potential future use in family law disputes (without additional safety concerns)

Situations where recordings may be considered lawful interests:

• Recording to uncover a crime or resist an accusation of a crime
• Recording when there is a genuine fear for personal safety
• Recording conversations during child custody handovers where intervention orders are in place
• Recording certain meetings where an accurate record is necessary (judged case by case)

Notable South Australia Court Cases

Several significant court cases have shaped how recording laws are interpreted in South Australia:

Groom v Police SASC 101

In this landmark case, a protected person made audio recordings of her former partner who contacted her in breach of an intervention order. The Supreme Court of South Australia held that the recording was admissible as evidence because it was made both to protect her lawful interest (genuine fear for safety) and was in the public interest. This case established that recordings made due to genuine safety concerns can be lawful under the Act.

Thomas v Nash SASC 153

This probate case addressed the admissibility of secretly recorded conversations. Chief Justice Doyle ruled that the desire to gain an advantage in civil proceedings is not ordinarily considered a lawful interest. The defendant had made numerous recordings using a handheld tape recorder without the knowledge of other parties. The court held that most recordings were inadmissible, establishing important precedent about recording for litigation purposes.

Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd SASC 116

This case demonstrated that courts will examine each recording individually. The Supreme Court held that some recordings were made for the protection of the plaintiffs' lawful interests and were therefore lawful, while others were not made for such purposes and were found to be unlawful. This case shows that the context and purpose of each recording matters significantly.

Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd SASC 266

This case considered whether keeping an accurate record of certain meetings could constitute a lawful interest. The court found that it may be permissible in some circumstances, though each case must be viewed on its own facts.

Workplace Recording in South Australia

Unlike New South Wales and the Australian Capital Territory, South Australia does not have specific workplace surveillance legislation. Instead, workplace surveillance is governed by the general Surveillance Devices Act 2016.

To ensure compliance with the Act, employers in South Australia should:

• Develop and make available to all employees clear policies regarding the use of surveillance devices
• Obtain consent from employees before implementing surveillance measures
• Install signs alerting people to surveillance devices and their intended purpose
• Update policies to detail how, why, and where workplace surveillance occurs
• Ensure new employees understand and acknowledge surveillance policies

Employers must be overt in their surveillance or monitoring of employees. Good practice includes installing signs alerting people to surveillance devices. Toilets, bathrooms, and changing rooms should never be monitored.

There may be evidentiary issues if an employer attempts to rely on surveillance footage in disciplinary proceedings against an employee when consent has not been obtained and there is no governing workplace policy.

Secret Recordings by Employees

The Fair Work Commission has consistently held that secretly recording conversations in the workplace may justify dismissal, even in states where such recordings might be legal. In Schwenke v Silcar Pty Ltd FWC 4513, a Full Bench held that secretly recording conversations breached the duty of good faith an employee owes to their employer, undermined trust, and justified summary dismissal.

This principle was reaffirmed in Karen Altham-Wooding v PKDK Adventures Pty Ltd FWC 2753, where the Commission noted that secretly recording workplace conversations with colleagues is highly inappropriate, irrespective of whether it constitutes a criminal offence in the relevant jurisdiction.

South Australia Publishing Laws

It is illegal to communicate or publish information or material obtained through the use of listening devices or video recording devices unless the communication or publication is made:

• To a person who was party to the private conversation or activity which was recorded.
• With the consent of all parties to the conversation or activity.
• For the purposes of a relevant investigation or a relevant proceeding relating to violation of South Australia recording laws.
• To an investigating agency (such as SAPOL or ICAC).
• To the media (for public interest recordings).
• In accordance with an order from the Supreme Court.

If you wish to use information obtained from a surveillance device for civil proceedings, you may need to apply to the Supreme Court for an order to allow its use, communication, or publication. Applications are governed by Chapter 4 Part 6 of the Uniform Special Statutory Rules 2022 (SA), and filing fees will apply.

How South Australia Differs from Other Australian States

Recording laws vary significantly across Australian states and territories. Understanding these differences is important, as the law that applies depends on where the person doing the recording is located.

Jurisdiction	Consent Required	Key Features
South Australia	All parties	Lawful interest and public interest exceptions available
Western Australia	All parties	Similar to SA with lawful interest and public interest exceptions
New South Wales	All parties	Lawful interest exception if recording not made for publication
Tasmania	All parties	Exception for imminent threat of serious violence
Australian Capital Territory	All parties	Lawful interest exception available
Queensland	One party	Can record if you are a party, but cannot share with non-parties
Victoria	One party	Can record if you are a party to the conversation
Northern Territory	One party	Can record if you are a party; public interest exception