Can you record a conversation without consent? What the High Court said in Potter (a Pseudonym) v The King [2026] HCA 25

Content Warning: This document contains legal analysis of a criminal case involving sensitive and potentially triggering material, including sexual offences. Reader discretion is advised.

A woman covertly recorded her husband admitting that he had sexually assaulted her while she slept. In Potter (A Pseudonym) v The King [2026] HCA 25, the High Court has dismissed his appeal against the admission of that recording at trial. The decision settles how far the "lawful interests" exception stretches, and it reaches well past criminal practice.

Relevant documents:

• Potter (A Pseudonym) v The King [2026] HCA 25

• Surveillance Devices Act 2016 (SA)

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Quick takeaways

• Consent is not always required. A covert recording can still be lawful where it is "reasonably necessary for the protection of the lawful interests of that person".

• The party seeking to rely on an exception bears the onus to prove that the exception applies.

• The rules are not uniform. Whether recording a conversation you are part of is an offence at all depends on the State or Territory.

What happened: the recording and the trial ruling

Potter (the appellant) initially stood trial in the District Court of South Australia on four counts of rape, he was convicted on two counts and the jury were unable to reach a verdict on the remaining two counts. The appellant's wife was the complainant on each count. The prosecution alleged that he had sex with her while she was asleep.

In December 2019 before the last allegation, the complainant covertly recorded a conversation between herself and the appellant on her mobile phone where the appellant admitted to sexually assaulting her while she was asleep. At first instance, the trial judge ruled that the recording was not unlawful as it was "reasonably necessary for the protection of the lawful interests" as set out in s 4(2)(a)(ii) of the Surveillance Devices Act 2016 (SA).

The prosecution relied on an affidavit from the complainant to make out the exception. She said she made the recording as a reminder to convince herself never to go back to the appellant, and that this was her only intention at the time. The trial judge found the recording was made to protect her lawful interest in not being sexually assaulted, by helping her avoid resuming the relationship.

The appellant appealed to the Court of Appeal on the ground that the trial judge was wrong to admit the covert recording because the exception did not apply. The Court of Appeal dismissed the appeal, but the judges split on the reasoning. Two of the three found the exception did not apply. They would have admitted the recording in any event: it was highly probative, it concerned serious offending and was for the complainant's own purposes rather than for legal proceedings. The third judge found the exception did apply.

Ultimately the High Court found that the exception did apply. The complainant did have a lawful interest to protect her bodily autonomy and integrity, and the High Court said in this particular case that:

"Rape is a violent affront to that value, and the interest of a person in not being raped is an interest deserving of the very strongest protection in the application of s 4(2)(a)(ii)".

How the rules differ in each State and Territory

New South Wales

New South Wales (NSW) has similar legislation (Surveillance Devices Act 2007) to South Australia (SA) in that it is an offence to record a private conversation without the consent of the other party (s 7(1)) and also contains an exception that it is not an offence if the recording "is reasonably necessary for the protection of the lawful interests of that principal party..." (s 7(3)(b)(i)).

Queensland

Queensland (QLD) differs from NSW and SA as s 43(2)(a) of the Invasion of Privacy Act 1971 allows for someone to record a private conversation if they are a party to the conversation. However it is an offence to publish the private recording but there is an exception if the publication of the recording is not more than reasonably necessary for the protection of the lawful interests of that person (s 45(2)(c)(iii).

Victoria

Victoria (VIC) is similar to QLD in two ways. A person can record a private conversation if they are a party to that conversation (s 6(1) Surveillance Devices Act 1999 (Vic)) and similar to QLD it is an offence in VIC to publish a private recording but contains a similar exception if the publishing of the recording is no more than reasonably necessary for the protection of the lawful interests of the person making it (s 11(2)(b)(ii)).

Tasmania

Tasmania (TAS) has similar laws to NSW and SA. It is an offence to record a private conversation even if the person recording is a party to that conversation (s 5(1)(b) Listening Devices Act 1991 (Tas)) and again there is an exception to this and is similarly worded to all the other states which is the recording of the conversation is reasonably necessary for the protection of the lawful interests of that principal party (s 5(3)(b)(i)).

Australian Capital Territory

The Australian Capital Territory (ACT) is similar to NSW, SA and TAS. It is an offence for someone to record a private conversation even if they are a party to it (s 4(1)(b) Listening Devices Act 1992 (Act)). There is a similar exception if the recording of the conversation is considered necessary by the principal party to be necessary for the protection of that principal party's lawful interests (s 4(3)(b)(i)).

Northern Territory

The Northern Territory (NT) is more similar to QLD and VIC. It is only an offence to record a private conversation if you are not a party to that conversation (s 11(1)(a) Surveillance Devices Act 2007 (NT)). There is a similar exception to the publishing of a private conversation so long as it is reasonably necessary for the protecting of the lawful interests of the person making it (s 15(2)(b)(ii)).

Western Australia

Western Australia (WA) is most similar to the ACT, NSW, SA and TAS, it is an offence for someone to record a private conversation even if they are a party to that conversation (s 5(1)(b) Surveillance Devices Act 1998) and has a similar exception so long as the private conversation is reasonably necessary for the protection of the lawful interests of that principal party (s 5(3)(d)).

Eight jurisdictions, eight sets of rules

Surveillance device law is one of the areas where the answer changes the moment a matter crosses a border. LEAP Legal Software keeps legislation, forms and precedents current for every Australian jurisdiction, and legal research sits alongside the matter, so you can check the provision that applies without leaving the file.

What this means in practice

• Ask when the recording was made and why. Purpose at the time is what the exception turns on.

• Do not assume a recording that was lawful in one State or Territory is lawful in another.

• In Queensland, Victoria and the Northern Territory, the exposure is usually publication rather than the recording itself.

• Lawfulness is only the first question. Admissibility and the discretion to exclude still follow.

Frequently asked questions

Can I record a conversation I am part of without telling the other person?

It depends on the jurisdiction. In Queensland, Victoria and the Northern Territory a party to a private conversation may generally record it; in New South Wales, South Australia, Tasmania, the ACT and Western Australia it is an offence unless an exception applies.

What does “reasonably necessary for the protection of lawful interests” mean?

There is no fixed list. Potter confirms a person’s interest in their own bodily autonomy and integrity is a lawful interest capable of engaging the exception.

Does a lawful recording automatically get into evidence?

No. Lawfulness is one question and admissibility is another.