Can you record a phone call in NSW without consent?
Not as a general rule. Section 7(1) of the Surveillance Devices Act 2007 says a person must not knowingly install, use, cause to be used or maintain a listening device:
- to overhear, record, monitor or listen to a private conversation to which the person is not a party (section 7(1)(a)), or
- to record a private conversation to which the person is a party (section 7(1)(b)).
The second limb is the one that surprises people. Being on the call does not give you the right to record it. Section 7(3) then says when a party may record, and consent of everyone is the first and safest answer.
| Situation | Position under the NSW Act | Section |
|---|---|---|
| You are on the call and everyone agrees to the recording | Allowed. Consent can be express or implied. | s 7(3)(a) |
| You are on the call, the others have not agreed, and the recording is reasonably necessary to protect your lawful interests | Not an offence, if the recording was reasonably necessary. Decided on the facts. | s 7(3)(b)(i) |
| You are on the call, the others have not agreed, and you are not recording so the conversation can be communicated or published to people who were not part of it | Not an offence, provided that was not a purpose of the recording. | s 7(3)(b)(ii) |
| You are on the call, nobody else has agreed and neither exception applies | An offence. | s 7(1)(b) |
| You are not part of the conversation and record or listen in | An offence, apart from warrants and the other listed exclusions. | s 7(1)(a), s 7(2) |
| You pass on or publish a recording that was made in breach of the Act | A separate offence, with its own exceptions. | s 11, ss 14A, 14B |
Is NSW a two party consent state?
"Two party consent" and "one party consent" are American terms. The NSW Act does not use them. It talks about the consent of "all of the principal parties", so NSW is better described as an all-party consent state. If there are four people on the call, two yeses are not enough.
NSW is not a one party consent state in the way Victoria and Queensland are. One principal party agreeing is only enough when one of the two exceptions in section 7(3)(b) also applies.
What counts as a private conversation and a listening device
Three definitions in section 4 decide whether the rule applies to your call.
- Private conversation means words spoken by one person to another in circumstances that may reasonably be taken to indicate that any of them wants the words to be listened to only by themselves, or by themselves and someone who has the consent of all of them. It does not include a conversation where the parties ought reasonably to expect it might be overheard by someone else.
- Listening device means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. A phone, a recording app and a dictaphone all fit those words. Disability aids are excluded.
- Principal party means a person by or to whom words are spoken in the course of the conversation. Party is wider: it also covers a person who records, monitors or listens with the consent of any of the people speaking.
A client call about a loan, a legal matter or a financial plan is a private conversation on any ordinary reading. Do not look for a way around the definition for client work.
The exceptions in section 7(3)
Section 7(3) says the ban on recording your own conversation does not apply in three situations. In each one the person recording must be a party to the conversation.
- Everyone agrees. All of the principal parties consent, expressly or impliedly, to the listening device being used (section 7(3)(a)).
- Lawful interests. A principal party consents to the device being used and the recording is reasonably necessary for the protection of the lawful interests of that principal party (section 7(3)(b)(i)).
- Not for passing on. A principal party consents and the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to it (section 7(3)(b)(ii)).
The Act does not define "lawful interests" or say when a recording is "reasonably necessary". Those questions are decided on the facts of each case, usually after the event and by a court. That makes the lawful interests exception a poor foundation for a firm that records calls as routine.
The third exception looks generous until you read the purpose test. A "report" of a conversation includes a report of its substance, meaning or purport (section 4). If you record a client call so the recording, a transcript or a summary can go on a file that colleagues, a supervisor, a licensee or an auditor will read, it is hard to say the recording was not made to communicate the conversation to people who were not part of it.
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Other exclusions in the Act
Section 7(2) lists things the offence does not cover at all. Most are for law enforcement: warrants and emergency authorisations, police body-worn video and similar. Two are worth knowing for ordinary readers:
- the unintentional hearing of a private conversation by means of a listening device (section 7(2)(c)), and
- the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979 or any other Commonwealth law (section 7(2)(b)).
Sharing or publishing a recording: section 11
Recording and sharing are separate offences. Under section 11(1) a person must not publish, or communicate to any person, a private conversation, or a report of one, that has come to their knowledge as a direct or indirect result of a listening device being used in contravention of Part 2 of the Act.
Section 11(2) and (3) then set out when that does not apply. The main ones:
- the communication is made to a party to the conversation
- it is made with the consent, express or implied, of all the principal parties
- it is made for the purpose of investigating or prosecuting an offence against section 11, or in the course of proceedings for an offence against the Act
- it is no more than is reasonably necessary in connection with an imminent threat of serious violence to persons, substantial damage to property or a serious narcotics offence
- the person learned of the conversation in a way that did not involve a contravention, even if the same knowledge was also obtained unlawfully (section 11(3)).
Sections 14A and 14B add further exceptions. Under section 14A a person does not commit an offence against section 11 by communicating a recording to a law enforcement agency in the public interest, or by communicating a recording that has already been published to the public.
Possession is also covered. Section 12 makes it an offence to possess a record of a private conversation if you recorded it, or caused it to be recorded, in contravention of Part 2. It is also an offence if you know the record was made in contravention and fail to promptly give it to a law enforcement agency.
What is the penalty for recording without consent in NSW?
These are the maximum penalties as written in the Act on the date we read it. The Act states them in penalty units, and we have not converted them to dollars because the value of a penalty unit is set elsewhere.
| Offence | Section | Maximum for an individual | Maximum for a corporation |
|---|---|---|---|
| Recording a private conversation in breach of section 7 | s 7(1) | 100 penalty units or 5 years imprisonment, or both | 500 penalty units |
| Communicating or publishing a recording made in breach of Part 2 | s 11(1) | 100 penalty units or 5 years imprisonment, or both | 500 penalty units |
| Possessing a record made in breach of Part 2 | s 12(1) | 100 penalty units or imprisonment for 5 years, or both | 500 penalty units |
Whether an unlawful recording can be used as evidence is a separate question. Section 3(2) says the Act is not intended to limit a discretion a court has to admit or exclude evidence in any proceeding.
Phone calls and the federal interception law
A phone call also sits under the Telecommunications (Interception and Access) Act 1979 (Cth), which applies in every state. Section 7(1) of that Act says a person shall not intercept a communication passing over a telecommunications system. Section 6(1) says interception consists of listening to or recording, by any means, such a communication in its passage over that system without the knowledge of the person making the communication.
Two things follow for a firm. A recording made inside a phone system, on the line, is the kind of recording that federal Act is aimed at, and the test there is the knowledge of the person on the call. Whether a recording made another way, for example on a separate device beside the phone, is made "in its passage" over the system depends on how it is made, and that is a question for a lawyer. And the two laws stack: meeting one does not excuse you from the other. Telling each person on the call and getting a yes deals with both: knowledge for the federal Act, consent for the NSW Act.
Interstate calls: you in NSW, the client somewhere else
Section 7 does not say what happens when the other person is in another state or territory. Victoria, Queensland and the Northern Territory let a party record their own conversation. Western Australia, South Australia, Tasmania and the ACT, like NSW, generally require everyone to agree. Which law governs a call that crosses a border is not something we can answer for you, and you often do not know where a client is when they pick up a mobile.
The practical answer is to apply the NSW standard to every call. If you ask for consent each time, the border question stops mattering. Our guides for Victoria, Queensland, Western Australia and South Australia set out each state rule, and the national guide has all eight side by side.
Recording calls for business or note-taking in NSW
Most professionals who record a call do it for the file note. A recording made so that a note, transcript or summary can be written and filed is made to be shared with the file, so treat it as needing the consent of everyone on the call. The same goes for transcription. The definition of "record" in section 4 includes a documentary record prepared from an audio or digital record, so a transcript made from a recording is a record of the conversation too.
A workable process:
- Ask at the start of the call, before anything of substance is said.
- Say why you are recording or transcribing and who will see the result.
- Wait for a clear yes from each person on the call. If someone joins late, ask them too.
- Put the consent in the file note: who agreed, the date and the time.
- If anyone says no, stop the recording or transcription and take notes yourself.
The offence in section 7 is about using a listening device to record. Writing or typing your own notes during the call does not use one. Dictating a recap afterwards, in your own words, is your recollection of the call and not a recording of the conversation.
Consent wording you can use
Before we start, I would like to record this call so my file note is accurate. The recording and the note stay on your file and are seen by me and my team. Are you happy for me to record?
If the call is transcribed and not recorded, say that instead: "I would like to transcribe this call" is a different request and the client is entitled to know which one it is. There is more wording, including a phone system announcement and an engagement letter clause, in our call recording disclosure wording examples.
- Consent to record
At the start of the call I asked Priya whether she was happy for the call to be recorded so the file note would be accurate. She said yes at 2:16 pm. Nobody else was on the call.
- What the client wants
Priya wants to refinance her home loan to a lower interest rate and is open to changing lenders.
- Next steps
- Priya will send her last two payslips and her latest loan statement by Friday 9 October 2026.
- We will compare three lenders and call her back the following week.
Where a transcript-based note tool sits
CallNote does not record calls, does not join meetings and does not store call audio. It takes a transcript that already exists, from a phone system such as Aircall or Dialpad, from Microsoft Teams, or one you paste or upload, and turns it into a file note in your format.
That changes where the consent question sits. It does not remove it. If your phone system records or transcribes the call, the NSW rule applies to that system and to you, and the consent has to be collected on the call. Using CallNote afterwards makes no difference to whether the recording was lawful. We explain the difference between tools that record and tools that only receive a transcript in do AI note takers record your calls and AI note takers that do not record.
If you are checking a single call, our free Can I record this call? tool shows the rule and the Act for each state.
Common questions
Is it illegal to record a phone call in NSW?
It is an offence under section 7(1)(b) of the Surveillance Devices Act 2007 (NSW) to record a private conversation you are a party to, unless all the principal parties consent, or one of two narrow exceptions in section 7(3)(b) applies. Recording a conversation you are not part of is an offence under section 7(1)(a).
Is it legal to record a conversation in NSW without consent?
Only in limited cases. A party to the conversation may record without the others agreeing if the recording is reasonably necessary to protect that party's lawful interests (section 7(3)(b)(i)), or if it is not made for the purpose of communicating or publishing the conversation to people who were not parties (section 7(3)(b)(ii)). Both depend on the facts.
Is NSW a two party consent state?
In effect, yes, though the Act says "all of the principal parties", so everyone speaking in the conversation must agree. NSW is not a one party consent state. One party agreeing is only enough where a section 7(3)(b) exception also applies.
Can I record a conversation in NSW if I am part of it?
Being part of the conversation is not enough on its own. Section 7(1)(b) specifically covers recording a private conversation to which you are a party. You need the consent of all principal parties, or one of the two exceptions in section 7(3)(b).
What is the penalty for recording someone without consent in NSW?
The maximum penalty in section 7(1) is 100 penalty units or 5 years imprisonment, or both, for an individual, and 500 penalty units for a corporation. Communicating or publishing a recording made in breach of the Act carries the same maximum under section 11(1).
Can I share a recording of a phone call in NSW?
If the recording was made in breach of the Act, communicating or publishing it is a separate offence under section 11. Exceptions include communicating it to a party to the conversation, doing so with the consent of all the principal parties, and giving it to a law enforcement agency in the public interest (section 14A).
Does CallNote record phone calls?
No. CallNote never records a call or joins a meeting. It works from a transcript your phone system or Microsoft Teams has already made, or one you paste or upload. Consent for any recording or transcription still has to be collected on the call.