Is it legal to record a phone call in Victoria?

Can you record a phone call in Victoria without consent?

If you are one of the people in the conversation, the Victorian Act does not make recording it an offence. Section 6(1) says a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

The offence is aimed at outsiders. There is no Victorian equivalent of the New South Wales rule that bans recording a conversation you are part of. That is why Victoria is usually described as a one party consent state.

Is Victoria a two party consent state?

No. Victoria is a one party consent state for recording: under the Victorian Act, a party to a private conversation commits no offence by recording it, even without telling the others. "Two party consent" is an American term for states where everyone must agree. The Australian equivalents are New South Wales, Western Australia, South Australia, Tasmania and the ACT.

The label only tells half the story. Victoria switches to an all-party rule at the point you share the recording. Section 11 asks for the consent of each party before a recording or a report of the conversation is communicated or published. For anyone recording for work, that second rule is the one that matters most.

What counts as a private conversation and a party

The definitions are in section 3(1).

• Private conversation means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves. It does not include a conversation made in circumstances in which the parties ought reasonably to expect that it may be overheard by someone else.
• Party, for a private conversation, means a person by or to whom words are spoken in the course of the conversation.
• 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 hearing aid or similar device is excluded.
• Report, in relation to a conversation, includes a report of the substance, meaning or purport of the conversation.

The definition of "party" has a practical consequence. You are a party if words are spoken by you or to you. A colleague who silently listens on a second handset, or software set up by someone who is not in the conversation, does not fit that description. In those cases section 6(1) requires the express or implied consent of each party.

Sharing or publishing a recording: section 11

Section 11(1) says a person must not knowingly communicate or publish a record or report of a private conversation that has been made as a direct or indirect result of the use of a listening device. Unlike the New South Wales provision, it is not limited to recordings that were made unlawfully. A recording you were entitled to make is still caught.

Section 11(2) lists when the ban does not apply. The ones relevant outside law enforcement are:

• a communication or publication made with the express or implied consent of each party to the private conversation (section 11(2)(a))
• a communication or publication that is no more than is reasonably necessary in the public interest (section 11(2)(b)(i))
• a communication or publication that is no more than is reasonably necessary for the protection of the lawful interests of the person making it (section 11(2)(b)(ii))
• a communication or publication in the course of legal proceedings or disciplinary proceedings (section 11(2)(c)).

The Act does not define "lawful interests" or "public interest". Whether a particular disclosure was "no more than is reasonably necessary" is decided on the facts, usually after the event. The remaining paragraphs of section 11(2) cover protected information, law enforcement officers and Commonwealth security law.

Note the words "record or report". A report includes the substance of the conversation, and the definition of "record" includes a documentary record prepared from an audio or digital record. On those words, a transcript or a summary written from a recording can be caught as well as the audio.

Is it legal to secretly record a conversation in Victoria?

If you are a party to it, making the recording is not an offence under section 6. Three limits remain.

1. Sharing. Section 11 restricts communicating or publishing the recording or a report of it, as set out above.
2. The phone line. If the conversation is a phone call and the recording is made as the call passes over the telecommunications system, the federal interception law applies and it turns on the knowledge of the person speaking. See the next section.
3. Other duties. A professional who records clients without telling them may breach privacy obligations, a licensee or employer policy, or professional conduct rules, whatever the Surveillance Devices Act allows.

The Act has one set of workplace rules, in Part 2A. Section 9B stops an employer using a listening device or camera to listen to, record or monitor a worker in a toilet, washroom, change room or lactation room. It does not change the section 6 rule for a conversation you are part of, whether that is with a client, a colleague or a manager.

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.

So the Victorian one party rule is not a complete answer for a phone call. A recording made inside a phone system, on the line, is the kind of recording the federal Act is aimed at, and the test there is whether the person on the call knows. 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. The two laws stack. Telling the other person at the start of the call deals with the federal Act, and getting their yes deals with section 11.

Penalties under the Victorian Act

These are the maximum penalties as written in the Act on the date we read it. We have not converted penalty units to dollars because the value of a penalty unit is set elsewhere.

Whether a recording can be used as evidence is a separate question. Section 5A(1) says the Act is not intended to limit a discretion that a court has to admit or exclude evidence in any proceeding.

Interstate calls: you in Victoria, the client somewhere else

Section 6 does not say what happens when the other person is in another state or territory. If your client is in New South Wales, Western Australia, South Australia, Tasmania or the ACT, the law there generally requires everyone in the conversation to agree before a party records it. 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 answer a mobile.

The practical answer is to act as though the stricter rule applies to every call. Ask for consent each time and the border question stops mattering. Our guides for New South Wales, 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 Victoria

Most professionals who record a call do it for the file note. In Victoria you may make the recording, but the note, the transcript and the audio are all going somewhere other people can read them. Treat every recorded or transcribed client call as needing the consent of each person on it.

1. Ask at the start of the call, before anything of substance is said.
2. Say why you are recording or transcribing and who will see the result.
3. Wait for a clear yes from each person on the call. If someone joins late, ask them too.
4. Put the consent in the file note: who agreed, the date and the time.
5. If anyone says no, stop the recording or transcription and take notes yourself.

Section 11 is about records and reports made as a result of using a listening device. Notes you write or type yourself during the call, and a recap you dictate afterwards in your own words, come from your own memory of the conversation.

Consent wording you can use

The second sentence is there for section 11: the client is agreeing to the recording being shared with the people who will handle the file, as well as to it being made. If the call is transcribed and not recorded, say "transcribe". There is more wording, including a phone system announcement and an engagement letter clause, in our call recording disclosure wording examples.

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 rules above apply to that system and to you, and the consent has to be collected on the call. Sending a transcript to any software provider, ours included, is one more reason to have each party agree to how the record will be used. 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