Can Your Surveillance Camera Make You a Criminal?

You may have heard of Gary Jubelin — a former NSW Detective Chief Inspector who accumulated over three decades of service investigating some of Australia's most serious crimes.

What you may not have heard is how his police career ended: on the other side of a criminal prosecution. His offence was not corruption, violence or dishonesty. He used a recording application on his mobile phone to capture conversations during the William Tyrrell investigation without the required authorisation.

He was convicted. He was fined. His police career was over. If that outcome is possible for a senior detective who presumably knew the law better than most, consider what it means for an ordinary person who buys a surveillance camera because they want to protect their property.

That is not a hypothetical. It is a live risk that most surveillance camera users never consider.

What Is a Listening Device?

Every Australian state and territory has legislation that regulates listening devices. The specific Acts differ:

• New South Wales operates under the Surveillance Devices Act 2007
• Victoria under the Surveillance Devices Act 1999
• Queensland under the Invasion of Privacy Act 1971
• Western Australia under the Surveillance Devices Act 1998
• South Australia under the Listening and Surveillance Devices Act 1972
• Tasmania under the Listening Devices Act 1991
• The ACT under the Listening Devices Act 1992
• The Northern Territory under the Surveillance Devices Act

But the definitions share a common thread that most people do not expect.

A listening device is not defined by what it looks like. It is defined by what it can do. Under the NSW Act, any device capable of being used to overhear, record, monitor or listen to a conversation is a listening device. The same functional logic applies across jurisdictions. Critically, under section 4(3) of the NSW Act, any device that can record or transmit visual images is also classified as a listening device if it can simultaneously record or transmit sound.

That provision alone captures the vast majority of cameras currently on the market, including devices whose manufacturers actively promote their two-way audio and sound recording capabilities as selling points.

In other words: if your camera can hear, the law treats it as a listening device. The fact that it is primarily a camera is irrelevant.

The Consent Problem

Here is where Australian law fractures into two distinct camps, and where the risk profile for camera operators diverges sharply depending on where they are located.

1. The "all-party consent" group — NSW, Western Australia, South Australia, Tasmania, the ACT, and the Northern Territory — require that all parties to a private conversation consent to that conversation being recorded. Record a private conversation without that consent, and you have committed an offence. There is no ambiguity in that. The NSW Act makes it an offence to install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation, whether or not the person using it is a party to that conversation.
2. The "one-party consent" group - Victoria and Queensland take a more permissive position. In those jurisdictions, a person who is themselves a party to a conversation may record it without the consent of the other parties. Recording a conversation you are not part of remains an offence. And in both jurisdictions, even a lawfully obtained recording cannot be published or communicated to third parties without falling foul of separate offences. One-party consent is not a licence to share.

The practical consequence is this: a property owner in NSW who installs a camera with audio capability near a front door will capture conversations between visitors without their knowledge. Those conversations are private. No consent has been obtained. The recording is illegal, and the penalty under the NSW Act extends to five years imprisonment. In Victoria, the analysis is slightly different, but a camera recording conversations between third parties — tenants in a common area, for example — still creates exposure.

Private Conversations in Public Places

A common assumption is that conversations in a public place cannot be private. This is wrong, or at least incomplete. The legal definition of a private conversation is not about location: it is about reasonable expectation. A conversation between two people at a quiet corner table in a café, even though it occurs in a public venue, may well satisfy the definition of a private conversation if the participants would reasonably expect it not to be recorded. A conversation shouted across a busy food court would likely not meet that threshold. The line is not always obvious, and a fixed camera in a public-facing location does not automatically sit on the safe side of it.

The Warrant Framework

For law enforcement agencies, listening device legislation establishes a warrant framework that authorises use in defined circumstances. Those warrants are issued by Supreme Court judges and are subject to strict conditions, reporting obligations and oversight. The Jubelin prosecution arose precisely because recordings were made outside that authorised framework.

For private individuals and organisations, there is no equivalent warrant pathway. The exceptions available in most jurisdictions are narrow: the recording is reasonably necessary to protect a lawful interest of a party to the conversation, or all parties have given consent. Neither exception is a comfortable fit for a static surveillance camera whose audio capability is simply switched on by default.

What This Means for the Surveillance Camera Market

The commercial surveillance camera industry has not been shy about promoting audio features. Products are marketed on the basis that they record sound, provide two-way communication (ie. "the voice of God"), and offer remote audio monitoring capabilities. From a product perspective, these are genuine value-adds. From a legal perspective, they are the very features that classify the device as a listening device and bring the full weight of listening device legislation to bear on its operator.

This is a compliance gap that the market has largely ignored. The person who installs a camera because they saw it advertised as having "crystal clear audio" and "two-way talk" is unlikely to have read the relevant state legislation before mounting it on their property. They are also unlikely to know that their jurisdiction requires all-party consent, or that there is no private-use equivalent of a law enforcement warrant.

I am conscious of the risk of this reading as a product advertisement, so I will state plainly that my own field experience operating remote surveillance systems, including through Echidna Cams Pty Ltd, is what first focused my attention on this issue. Deploying audio-capable cameras in environments where conversations between third parties might be captured is not a theoretical concern. It is a practical one that deserves a practical legal answer, which most operators currently do not have.

When Illegal Evidence Backfires

There is an additional dimension that matters for anyone who installs a listening device hoping to capture evidence of wrongdoing by another person. The instinct is understandable: a property owner who suspects theft or trespass might assume that audio evidence will help them. The law does not work that way.

Under section 138 of the uniform evidence legislation, adopted in NSW, the Commonwealth, and mirrored in various forms across other states, evidence obtained in contravention of an Australian law is presumptively inadmissible. The court must assess whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was. The High Court addressed this directly in Kadir v The Queen [2020] HCA 1, a case involving surveillance footage obtained through repeated trespass in breach of the NSW Surveillance Devices Act. The Court held the footage inadmissible. The fact that the evidence was compelling, and that it concerned serious animal cruelty, was not sufficient to overcome the deliberate and repeated breach of the law used to obtain it.

The lesson is an uncomfortable one: illegally obtained surveillance evidence may not only fail to help you, it may expose you to prosecution while simultaneously being thrown out of the proceeding you hoped it would support. You face the criminal liability. The person you were trying to catch may walk away.

There is one further wrinkle worth noting. Even where you are a party to a conversation and recording it would be lawful in your jurisdiction, sharing or publishing that recording with third parties is a separate offence in virtually every Australian jurisdiction. Posting audio captured by your camera to social media, forwarding it to a neighbour, or even discussing its contents with someone outside the conversation can constitute an additional breach, independent of how the original recording was made.

Final Thought

Australian surveillance device law was not written with the modern consumer camera market in mind. It was written when listening devices were covert tools of law enforcement and professional investigation. The market has moved; the law has not kept pace; and the gap between them is currently being filled by products whose manufacturers have every commercial incentive to promote audio capability and no obligation to warn purchasers about the legal framework that capability triggers.

The result is a compliance exposure that most camera operators are carrying without knowing it. Jubelin knew the law and still found himself on the wrong side of it. For those who do not know the law, the risk is not smaller, it is simply less visible.