By Helen Christinson -
Snapshot
- The High Court’s decision in Potter (A Pseudonym) v The King clarifies when a covert recording may be reasonably necessary to protect a person’s lawful interests.
- Its reasoning gives particular weight to bodily autonomy and safety, while confirming that a recording need only be reasonably appropriate, not essential, to protect the relevant interest.
- For NSW practitioners, Potter provides a clearer framework for advising on the admissibility of recordings made without another party’s consent.
Secretly recording someone is a crime in NSW, unless it isn’t. Under section 7(1) of the Surveillance Devices Act 2007 (NSW) (‘NSW Act‘), it is unlawful to record a private conversation without the consent of the other parties to it. However, section 7(3)(b)(i) carves out an important exception if the recording is ‘reasonably necessary for the protection of the lawful interests’ of the person making it. Practitioners advising on the admissibility of covert recordings in NSW have, for some years, worked with a reasonably settled, if fact-heavy, body of authority on when that exception applies.
On 5 August 2026, in Potter (A Pseudonym) v The King [2026] HCA 25 (‘Potter’), the High Court handed down its first detailed treatment of an equivalent exception. Although the case arises under South Australia’s Surveillance Devices Act 2016 (‘SA Act’), its reasoning is directly relevant to how NSW courts and practitioners will approach section 7(3)(b)(i) going forward.
This article outlines the facts, the Court’s analysis and reasoning in relation to the statutory carve out, and what it means in practice for solicitors advising clients on recordings that were made without the other party’s consent.
