28/09/2026
THE HIGH COURT CLARIFIES WHEN A SECRET RECORDING MAY BE LAWFUL
Potter (A Pseudonym) v The King [2026] HCA 25
On 5 August 2026, the High Court delivered an important judgment concerning covert recordings, personal privacy and the circumstances in which a person may secretly record a private conversation. Ultimately, secretly recording a person outside their knowledge may be lawful because it is reasonably necessary to protect a person’s “lawful interests”.
I generally provide guidance to clients that it is not a good idea to covertly record people without getting their consent first, as the defence of “lawful interests” arises only after you commit the offence under s 7 of the Surveillance Devices Act 2007. So, from the moment you start covertly recording a person, without a warrant from a Judge, you may be committing a criminal offence that carries a term of imprisonment.
That is why I typically advise getting express or implied consent.
Express consent means telling the person overtly that they are being recorded, even though they have a lawful right to refuse, and they agree to being recorded.
Implied consent means telling a person you are recording them, and it is up to them whether they want to speak while being recorded. Should they then choose to speak knowing they are being recorded, they are impliedly, at law, consenting. For example, when you ring someone, you are told to leave a voicemail message. It is up to you whether you leave a message and be recorded, and if you do, you are impliedly consenting to being recorded. Neither circumstance breaches the Surveillance Devices Act in NSW.
The Potter Decision
The Potter decision is a South Australian case and is also relevant in New South Wales because our Surveillance Devices Act 2007 contains a similar exception in s 7(3)(b)(i).
The case arose from the appellant’s trial on four counts of r**e involving his wife. He was convicted on two counts. The prosecution case was that the sexual activity occurred while the complainant was asleep and without her consent: Potter at [1]–[3]. High Court of Australia
A key piece of evidence was a conversation the complainant secretly recorded on her mobile telephone in December 2019.
During that conversation, the appellant said:
“I sexually assaulted you.”
He also acknowledged commencing sexual in*******se while she was asleep. At trial, he accepted making the statements but maintained that he had said them to placate her.
The complainant explained that she had not made the recording for the immediate purpose of going to police or commencing criminal proceedings.
As an aside comment, this is quite critical because in New South Wales you may in fact record someone covertly, if it is not for a third-party reason, i.e. that is, if you are not intending to use it outside you as the principal party and the other party to the conversation. That provision is found at s 7(3)(b)(ii) of the Surveillance Devices Act 2007.
For example, that may include a conversation with your specialist during a conference, and you record it for future reference when reviewing their advice. At the time, you keep the recording for yourself and no one else. In my view, this circumstance in Potter is very similar. Which, in essence, does not really change the law as it was anyway! That may be controversial, but in my view, nothing in how the High Court expressed the law, as far as NSW is concerned, has really changed.
In Potter, the complainant said she wanted a permanent reminder of what had occurred so she would not be persuaded to resume the relationship: Potter at [28]–[30]. High Court of Australia – that is, she intended to keep the recording for herself, rather than for another person, such as gathering evidence in the r**e trial.
That distinction became central to the case.
The legal issue
South Australian legislation, like NSW legislation, generally protects the privacy of private conversations and restricts their covert recording.
However, s 4(2)(a)(ii) of the South Australian Act created an exception where the use of the listening device was “reasonably necessary for the protection of the lawful interests” of the person making the recording.
The High Court held that the intermediate Court of Appeal had taken too narrow a view of that concept.
Importantly, the Court explained that “reasonably necessary” does not mean that making the recording must have been absolutely essential. It is sufficient that recording the conversation was appropriate for the protection of the relevant lawful interest.
The assessment is objective, but it must be undertaken having regard to the circumstances actually confronting the person at the time the recording was made. The person’s subjective reasons are relevant, but do not determine the legal characterisation of the interest being protected.
The High Court then provided a useful framework. A court should identify the interest said to require protection, determine whether that interest is lawful, and then consider whether, in all the circumstances, making the recording was reasonably necessary or appropriate to protect that interest. High Court of Australia
What is a “lawful interest”?
This is one of the most significant aspects of the judgment.
The High Court rejected the proposition that a “lawful interest” is confined to an existing legal right, legal title, duty or liability. It is a broader concept.
The Court referred to earlier NSW authority suggesting that “lawful interests” are closer to legitimate interests and emphasised that the expression should generally be applied case by case rather than artificially confined by rigid categories.
That does not mean that anyone can secretly record any conversation simply because they would prefer to have a record of it.
The statutory protection of privacy remains important. A genuine lawful interest must be protected, and the recording must bear the required relationship to protecting that interest.
The High Court specifically contrasted legitimate protective recordings with recordings made merely to trap another person or create leverage in a commercial dispute.
Why the complainant’s recording was lawful
The Court held that the relevant interest had been wrongly characterised by the majority in the South Australian Court of Appeal as merely an interest in leaving or not resuming a relationship.
The true interest was much more significant.
It was the complainant’s bodily autonomy, bodily integrity and personal safety.
The High Court described bodily integrity and autonomy as a common law “fundamental right” and emphasised the exceptionally strong legal interest a person has in protecting themselves against sexual assault.
The Court then considered the complainant’s actual circumstances.
She remained living in the same house as the appellant. She had significant health issues, responsibility for two small children and limited support. The Court concluded that the circumstances exposed her to a real risk of further sexual assault.
It did not matter that she could theoretically have written herself a note.
Nor did it matter that she could have approached police.
The Court held that an audio recording of the appellant’s admissions provided a substantially more powerful reminder of the danger she perceived than a handwritten note, while the response and timing of any police investigation were matters outside her control.
The High Court therefore held that the covert recording was not unlawfully made and that it had been properly admitted into evidence. The appeal was dismissed.
WHAT DOES THIS MEAN IN NSW?
This is where the decision matters most for NSW practitioners and members of the public.
As I explained above, section 7(1) of the Surveillance Devices Act 2007 generally prohibits covertly recording a private conversation, except in circumstances of s 7(3)(b)(i) and (ii).
However, s 7(3)(b)(i) provides an exception where a principal party (you as the person recording) consents to the recording and the recording is reasonably necessary for the protection of that principal party’s lawful interests.
The High Court expressly referred to the NSW provision and then considered the NSW Court of Criminal Appeal decision in DW v The Queen [2014] NSWCCA 28.
In DW, a young complainant secretly recorded a conversation in circumstances where the recording could corroborate her account and assist in protecting her from further abuse. The High Court treated that case as illustrating the proper operation of the “lawful interests” exception.
Secretly recording someone in NSW is not automatically lawful simply because the person making the recording believes it might be useful later. But the law also does not require a person to show that recording was their only possible option.
Following Potter, the critical questions include:
What precise interest was the person trying to protect?
Was that a lawful or legitimate interest?
What circumstances confronted the person when the recording was made?
Was recording the conversation objectively appropriate to protect that interest?
How significant was the threatened interest, including personal safety, bodily integrity, protection against serious criminal conduct or protection against a serious false allegation?
Was the recording genuinely protective, rather than simply an attempt to manufacture evidence, trap someone or gain leverage?
Those questions must be determined on the particular facts.
Potter therefore does not create a general licence to secretly record private conversations.
What it does do is provide authoritative High Court guidance that “reasonably necessary” is not synonymous with indispensable, that “lawful interests” extend beyond strictly defined legal rights, and that the seriousness of the interest requiring protection matters greatly when deciding whether the statutory exception is engaged.
For NSW lawyers dealing with domestic violence allegations, sexual offences, intimidation, threats, workplace disputes, family disputes and other cases in which secretly recorded conversations emerge, Potter is now an important authority to consider alongside DW v The Queen [2014] NSWCCA 28, Sepulveda v The Queen (2006) 167 A Crim R 108 and Levy v Bablis [2013] NSWCA 28.
Importantly, the legality of making a recording and the separate questions of subsequently using, communicating or publishing that recording are not necessarily the same thing. Anyone contemplating covert recording should obtain legal advice before assuming that a recording, or its later distribution, is lawful.
Case Reference:
Potter (A Pseudonym) v The King [2026] HCA 25, Gageler CJ, Gordon, Steward, Jagot and Beech-Jones JJ, 5 August 2026.
McDonald Law Criminal Law | Police Powers | Surveillance Devices | Fi****ms & Weapons Law [email protected]
I have been practising law for over two decades, and I specialise in Criminal, Wills, and Family Law.
