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Legal Rights

(for Professionals)

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Table of contents

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Recording the police – your rights

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Recording the police – your obligations

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Protecting your recording

 

Using your recording

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Getting further help

  • How do I complain about police conduct?

    • Northern Territory

    • Queensland

    • Western Australia

    • New South Wales

    • Victoria

    • South Australia

    • Tasmania

    • Australian Capital Territory

  • How do I get legal help?

    • Northern Territory

    • Queensland

    • Western Australia

    • New South Wales/Australian Capital Territory

    • Victoria

    • South Australia

    • Tasmania

Table of contents
Recording – your rights

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Recording the police – your rights

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Can I record the police in a public place?

 

Yes. Everywhere in Australia, the law says you can record in public, even if the police tell you to stop but you need to be aware of your legal obligations.

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Generally, you can also record conversations or activities that are ‘public’ even if they happen on private property. Have a look at the next section ‘Can I record the police on private property’ for more information about the difference between a public and a private conversation.

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There are some important exceptions you need to know. Even though a person may be in a public place, they may be engaged in a private activity or conversation.

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A private activity in a public place would include using a public toilet, or getting changed in a public change room. Obviously, you cannot record in these places. See the section ‘What if someone records me without consent, or shares a recording of me?’ for more information.

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Can I record the police on private property?

 

If you are on private property, you need to think about whether the conversation or activity is intended to be ‘private’ or not, because different rules apply.

 

‘Public conversations’ and ‘private conversations’

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It is a private conversation or activity if the people involved expect that it will stay private between them. If they are the only people in the room, or if they are whispering, this probably means they expect it to be private.

 

It is a public conversation or activity if the people involved did not have an expectation of privacy. If they are in a room full of people at a party, or on the front lawn surrounded by a group of people, this probably means they know other people will see or hear them.

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Recording public conversations/activities on private property

 

Generally, you can record conversations or activities that are ‘public’ even if they happen on private property.

 

For example, say you are at a friend’s house, you have permission to be there, and your friend is being questioned by police. If the police and your friend know that you are there, and they are not trying to have a private conversation (for example, by whispering) then you can record the police speaking to your friend as a ‘public’ conversation.

 

Recording private conversations/activities on private property

 

You need to be more careful recording ‘private’ conversations or activities – and the rules are different in different states and territories.

 

Generally, if you are a part of the conversation or activity, and you have the permission of everyone involved, then you are okay to record.

 

The situation is different if you are not involved in the conversation, or people have not given you permission to record their private conversation. An example is if you are hiding in another room watching the police question your friend, and the police do not know you are there. If you make a recording in this sort of situation, you need to get legal advice before using the recording. Often it is okay, but you can get in trouble if you don’t comply with the special rules that may apply, and the laws are different across Australia.

 

Make sure you also understand the rights of the people you are recording. See the section ‘What if someone records me without consent, or shares a recording of me?’

 

Can I record phone calls?

 

You can record phone calls if all the people on the call know it is being recorded, and give consent.

Phone calls would usually be private conversations. The people on the call would not expect other people to be listening in. Have a look at the section ‘Recording private conversations/activities on private property’ for the rules that apply to recording private conversations.

 

Keep in mind also that there are laws that apply across Australia that make it generally unlawful to use a wiretap or other ‘interception’ device to record phone calls.

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What about other devices, like drones?

 

The laws about recording people generally cover all sorts of recording devices like phones, cameras, and voice recorders.

 

For drones that can record, you need to be aware of the rules for flying drones as well as these recording rules. The rules for drones are different depending on their weight. Most drones are less than 2kg, so we will only look at the rules for these.

 

You do not need a licence to fly a drone, but there are some important rules to remember so you do not cop a big fine:

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  • Only fly in visual line of sight – for example, not at night, not through cloud or fog, and be able to see the aircraft with your own eyes

  • Do not fly closer than 30 metres to vehicles, boats, buildings or people

  • Do not fly over populous areas like beaches, parks, or sports ovals when they are in use

  • Do not fly higher than 120 metres (400 feet) when in controlled airspace – this applies to most Australian cities

  • Do not create a hazard for other aircraft – this means staying at least 5.5 km away from airfields, aerodromes and helicopter landing sites unless you comply with certain additional restrictions

  • Do not fly over restricted or prohibited areas without permission from the controlling authority – this includes, for example, military spaces, air shows, large public events and where police impose restrictions near bushfires or crime scenes

 

The Civil Aviation Safety Authority (CASA) has an app that shows where you can and cannot fly your drone.

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Private place
Phone calls
Drones
Recording - your obligations
Move back request
Recording the police – your obligations
 
Do I have to tell the police I am recording them?

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Not if you are in public. Everywhere in Australia, the law says you can freely record in public, even if the police tell you to stop, but you need to be aware of the legal obligations in this section.

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It is a bit more complicated if you are on private property, or the conversation or activity is private. Have a look at the section ‘Can I record the police on private property’ for more information.

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Keep in mind though, one of the reasons for recording police is to improve their behaviour and stop harassment. If the police know they are being recorded this may be enough to stop any unwanted or unlawful behaviour but sometimes it can anger them. It is important to hold people in authority accountable for their actions, and achieve real change. But in the moment, keeping your friends, family and yourself safe is the most important thing. Even if you have a legal right to do something never put yourself or your property in danger and always de-escalate a situation by following orders and moving back if requested. Standing away from the immediate action and observing is safer and more effective than using a camera in someone’s face like a weapon

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What if the police ask me to move back or move on?

 

Move back

 

While you are recording, you must keep a safe distance, not obstruct traffic or police, and obey reasonable police instructions, like moving back if asked.

 

You can keep recording while you do this. It might be a good idea to point the camera down for a moment to record the steps back you are taking.

 

How far back is reasonable? There is no exact rule, just be sensible and use your good judgement.

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Move on

 

‘Move on’ orders are more formal powers for the police to direct you to leave a public place. The rules are a bit different across Australia, but generally the police have this power if they reasonably believe that a person:

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  • has committed, or are about to commit, an offence

  • is blocking traffic or other people

  • is in danger, or making someone else feel in danger

  • is stopping other people enjoying or using the public place

 

Just like any incident in a public place, you can record your interaction subject to your obligations.

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What happens if I am on someone else’s private property?

 

If you are on private property and the owner (or occupier, for example the tenant in a rented property) asks you to leave, then you should leave. If you don’t, you might be trespassing.

 

However, trespass requires you to physically be on the property. If you are standing outside the property, say on the footpath, you can keep recording without committing trespass.

 

Before recording someone on their own property though, make sure you understand the rules about stalking covered in section on ‘What if someone records me without consent, or shares a recording of me?’, and private conversations covered in section ‘Can I record the police on private property?’.

Private property
Protecting your recording
Protecting your recording

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Can the police take my phone or other recording device?

 

The police cannot take your phone just because they do not like you recording. There must be a lawful reason for them to take your phone.

 

There are only limited circumstances where they can take your phone, but the laws are a little bit different in different places. Generally, the police can only take your property in the following circumstances:

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The police have a warrant

 

Police usually need a warrant to search you, your possessions or your property. If the warrant includes your phone, the police will be able to seize it and examine its contents.

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The police arrest you

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If you are arrested, the police can usually search you once you are in lawful custody, and then seize anything in your possession. This alone does not give the police power to search the contents of your phone, just to hold onto your possessions while you are in custody.

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If you believe you are about to be arrested and you have the chance, this is a good time to use the ‘Notify emergency contacts’ tool in the Copwatch app.

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The police believe you have committed an offence

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There are some limited circumstances where police may search without a warrant and seize your property, including your phone. These rules are different across Australia, but generally they apply only if you have committed an offence, and the search relates to that offence.

 

So, for example, if the police believe you have committed a graffiti offence, they can search you for spray paint, and if they find spray paint they can take that spray paint because it is related to the offence. They should not take your phone, unless it is related to the offence.

 

This power may also apply if the police believe you have something that is stolen. If the police believe that your mobile phone is stolen, they may be able to seize it.

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The police believe you have made an illegal recording

 

There are not many circumstances where it is unlawful to make a recording, so this really should not happen. Everywhere in Australia, the law says you can record in public, even if the police tell you to stop.

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You just need to make sure you are aware of the rules around recording private conversations or activities (See the section ‘Can I record the police on private property?’) and also how the law protects people from things like stalking (See the section ‘What if someone records me without consent, or shares a recording of me?’).

 

The police want to preserve evidence

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If the police believe that your property is, or contains, evidence of an offence, they may be able to seize it to make sure evidence is not destroyed or lost. This may include evidence stored on your recording device.

 

The rules are slightly different depending on where you are. In some places, this power only applies if the alleged offence is a serious (indictable) one.

 

These rules are really designed to make sure that the police can seize items to prove an offence. They are not designed for police to take your phone because there is evidence against the police. However, if you have recorded someone else committing an offence, the police may have the power to keep this evidence.

 

You may even commit an offence yourself if you delete evidence. See the section ‘Can my recording be used as evidence?’  for more information about this.

 

Can the police search my phone?

 

Police usually need a warrant to search you, your possessions or your property. This includes searching your phone.

 

Can the police make me unlock my phone?

 

If the police have a warrant to search your phone, you would usually need to provide them with access to the electronically stored information (that is, the contents of your phone). This means you may have to unlock the phone for them.

 

The police cannot physically force you to unlock your phone, for example, by physically pressing your finger against the fingerprint recognition button. If you refuse to unlock the phone, the police should seize the phone and follow up with the court that issued the warrant. This protects your rights to make a case that, for example, the phone was not actually covered by the warrant in the first place.

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Always speak to a lawyer first before you unlock your phone for the police

 

Can the police delete my recording?

 

No. Definitely not. Not under any circumstances.

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How can I make sure my recording is stored safe in the cloud?

 

We have designed the Copwatch app to help you do this. The Copwatch app helps you set up your phone to make sure recordings are copied to the cloud to keep them safe and secure. The Copwatch app also lets you quickly send location details to your emergency contacts if you are involved in an incident.

 

The app is free and keeps you in control of your information and recordings.

 

Get the app here.

 

Please note that some features require a connection to wifi or a mobile service.

Unlock phone
Search phone
Delete recording
Cloud Storage
Using your recording
Using your recording
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Can I use the recording on social media?

 

The law talks about this as ‘publishing’ your recording.

 

If the recording was made in a public place, or of a public conversation or activity, you can legally share it - but it is really important to have a look at the next section ‘What should I think about before sharing my recording?’ first.

 

If the recording is of a private conversation or activity, generally the law says you need the permission of all the parties before sharing or publishing it. There are some circumstances where it is okay, but special rules apply and the laws are different across Australia. You should get legal advice before using the recording.

 

Have a look at the section ‘Can I record the police on private property?’ to learn more about what is a ‘public’ and ‘private’ conversation.

 

If a court has ordered that something not be published, and you go ahead and publish it anyway, you will probably be in contempt of court. This is a serious offence and can result in significant fines or even imprisonment.

 

There are some matters that you cannot publish as they are against the law, such as; publishing the identity of a child in state care (a ward of the state), the identity of a sexual assault victim, the identity of parties in Family Court proceedings, matters that could prejudice a jury and matters of national security. This list is not exhaustive and you might be committing a serious offence if you do. These laws vary from state to state so seeking legal advice is essential.

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What should I think about before sharing my recording?

 

Once you have shared your recording either on social media or by sending it to someone else, you lose control of it. Other people can now share and post – and even edit – your recording.

 

How would you feel if it went viral? Think about who else is in the recording. How would they feel seeing it on Facebook or Youtube? Does it embarrass anyone, or show someone committing a crime? Are there cultural issues you need to consider? Is it against the law to publish it? (See ‘Can I use the recording on social media?’ for more information).

 

Make sure you think carefully before sharing a recording, because once it is out there, it is out there forever.

 

Of course, the main reason for recording people in authority is to hold them accountable for their actions, but sometimes it may be much more sensible to keep the recording safe and secure, and be ready to use it for evidence. Even though you may be filming an innocent party their life or job prospects might be affected by having an interaction with the police on the web.

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How can my recording be used as evidence?

 

There are some important things to remember when making a recording if you want it to be useful evidence:

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  • Only speak to identify who you are, who the other people are, where you are, and perhaps the date and time. You want the recording to speak for itself. If you describe what is happening, you may talk over important parts of the conversation.

  • If you can record identifying details, then do so. This may include number plates, police badges, street signs, clocks and watches or other information that helps establish where you are and who else is there.

  • Save the original somewhere safe in the highest resolution possible. You want to make sure that if you edit or share a version, you still have the original to use as evidence. Saving a video to a third party website such as Youtube doesn’t guarantee that it will be saved forever. Youtube can and does delete material from their site.

 

If you have made a recording that is evidence of an offence, that recording might be subpoenaed by the Court. This means you have to produce it or you may be held in ‘contempt of court’. This can lead to significant fines or even imprisonment. Possessing a recording of a confession or admission made to police is an also offence in some states. If these situations apply to you, please seek legal advice.

 

Keep in mind that even if your recording was not lawful, for example, because it was of a private conversation and made without consent, there are still some circumstances where a court will accept it as evidence but that use is quite separate to the question of whether you might have committed an offence.

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What if someone records me without consent, or shares a recording of me?

 

Generally, the person who made the recording owns the recording and its ‘copyright’. This means that in many cases, they are able to use or publish it how they like. However, there are very important exceptions to this rule.

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Stalking

 

Unlawful stalking is an offence, though the laws a slightly different in different places. Generally though, stalking may include:

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  • keeping somebody under surveillance

  • threatening, harassing or intimidating a person, including conduct on social media or other electronic communications (such as texts)

  • putting a person in fear or apprehension of violence by following, watching or approaching a person, or by sending them unsolicited offensive material

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Nuisance and Harassment

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Surveiling someone or recording them and posting on social media might also leave you open to a civil nuisance or a harassment claim. Even using a private recording to embarrass a person publicly could be nuisance or harassment.

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‘Breach of confidence’ (or privacy)

 

There is no formal right to privacy in Australia, but if somebody shares a private video of you, this may be a ‘breach of confidence’. Always remember though, it is pretty much impossible to remove a recording once it has been shared online. Please think carefully before giving someone permission to record you.

 

‘Upskirting’ and ‘revenge porn’

 

‘Upskirting’ refers to where someone takes a picture up the skirt of another person without the victim’s knowledge. This is a form of sexual harassment, as is any similar form of intimate photography and can be a breach of confidence.

 

‘Revenge porn’ is a term commonly used to refer to the distribution of nude, sexual or sexually explicit images without the victim’s consent, often by social media or mobile phone. This too is a form of sexual harassment. There are specific laws against this in some states, with other offences applying elsewhere.

Sexual harassment is never ok. If this happens to you, or you see it happening to someone else, notify the police and seek legal help.

Sharing recording
Use in evidence
Consent
Complain about police
Getting further help
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How do I complain about police conduct?

 

If you have been harassed or treated unfairly by police, you can lodge a formal complaint. How you do this depends on where you are.

 

It is important to provide as much detail as you can if you make a complaint. It is a great idea to write everything down immediately after an incident. This could be on paper, but it could also be an email to yourself, as this shows the date and time you made the notes. Include things like the name and badge number of the police officers involved (they need to give this to you if you ask), the place, date and time, who was there, and as much of the exact words used as what you can remember.

 

Keep in mind that for some complaints there are time limits, which means you have to make a complaint within a certain time. Also, where the police have recorded an incident through body worn cameras or CCTV footage, you can request a copy of this. Footage may only be held for a number of days, so if you do want to make a request, make sure you do not delay.

 

It is best to seek professional help in writing a complaint to make sure you don’t make any admissions that could harm your own situations and to ensure that the complaint is effective.

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Northern Territory

 

Complaints about unfair treatment by NT police can be made:

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Queensland

 

Complaints in Queensland are made directly to the Queensland Police Service. Outcomes of complaints however are subject to review by the Crime and Corruption Commission (CCC).

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Western Australia

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To make a complaint you can contact your local police station or visit the complaints website.

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New South Wales

 

A complaint about the NSW Police Force or its employees can be made to the Commissioner of Police or the Law Enforcement Conduct Commission (LECC).

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Victoria

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Visit the Victoria Police website for more information about making a complaint.

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South Australia

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You can make a complaint about any conduct of a police officer that you consider to be criminal or a breach of professional standards.

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Tasmania

 

If you have a complaint about police conduct, you must lodge a written complaint within 6 months after the conduct became known to you. Visit the website here. If you are not satisfied with how the Police Commissioner handled your complaint, you may wish to complain to the Tasmanian Ombudsman.

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Australian Capital Territory

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ACT Policing services are provided by members of the Australian Federal Police (AFP). Complaints about the AFP are within the jurisdiction of the Commonwealth Ombudsman who is also the Law Enforcement Ombudsman. In this capacity, the Ombudsman can investigate complaints about the actions of AFP members and about the policies, practices and procedures of the AFP as an agency.

Find out more about making a complaint here.

Legal Help
How do I get legal help?
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There are a number of other organisations that can help with legal advice.

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Northern Territory

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If you are an Aboriginal or Torres Strait Islander person you can call the 24 hour legal service North Australian Aboriginal Justice Agencies (NAAJA) on:

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  • Darwin:           1800 898 251

  • Katherine:       1800 897 728

  • Nhulunbuy:     1800 022 823

 

For southern areas of Northern Territory you can call the 24 hour legal service at the Central Australian Aboriginal Legal Aid Service (CAALAS) on 1800 636 079.

 

Visit their website.

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Queensland

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The Aboriginal and Torres Strait Islander Legal Service (Qld) Ltd , is a community-based organisation established to provide professional and culturally competent legal services for Aboriginal and Torres Strait Islander people across Queensland.

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Visit their website or call 1800 012 255.

 

Western Australia

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ALSWA provides legal aid services to Aboriginal and Torres Strait Islander peoples throughout Western Australia.

 

Visit their website or call 1800 019 900.

 

New South Wales/Australian Capital Territory

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The Aboriginal Legal Service (ALS) is an Aboriginal community organisation giving information and referral, and legal advice and court representation to Aboriginal and Torres Strait Islander men, women and children across NSW and ACT.

 

Visit their website or call 1800 765 767 (for criminal matters) or 1800 733 233 (for care and protection matters).

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Victoria

 

VALS is an Aboriginal community controlled organisation operating Statewide in Victoria, providing community justice services and legal practice services to all Victorian Aboriginal community.

 

Visit their website or call 1800 064 865.

 

South Australia

 

The Aboriginal Legal Rights Movement helps protect the legal interests of Aboriginal people in South Australia.

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Visit their website or call 1800 643 222.

 

Tasmania

 

The Tasmanian Aboriginal Community Legal Service (TACLS) provides free legal support to aboriginal people in Tasmania.

 

Visit their website or call 1800 064 865.

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