(1) A person must not knowingly install, use or cause to be used or maintain a listening device:(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or(b) to record a private conversation to which the person is a party.Maximum penalty: 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).
(2) Subsection (1) does not apply to the following:(a) the installation, use or maintenance of a listening device in accordance with a warrant, emergency authorisation, corresponding warrant or corresponding emergency authorisation,(b) the installation, use or maintenance of a listening device in accordance with the Telecommunications (Interception and Access) Act 1979 , or any other law, of the Commonwealth,(c) the unintentional hearing of a private conversation by means of a listening device,(d) the use of a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence,(e) the use of a listening device and any enhancement equipment in relation to the device solely for the purposes of the location and retrieval of the device or equipment,(f) the use of a listening device, being a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation,(g) the use, in accordance with section 50A, of body-worn video by a police officer.
(3) Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:(i) is reasonably necessary for the protection of the lawful interests of that principal party, or(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
(4) Subsection (1) does not apply to the use of a listening device to record, monitor or listen to a private conversation if:(a) a party to the private conversation is a participant in an authorised operation and, in the case of a participant who is a law enforcement officer, is using an assumed name or assumed identity, and(b) the person using the listening device is that participant or another participant in that authorised operation.
(5) In this section:
"authorised operation" and
"participant" in an authorised operation have the same meanings as in the Law Enforcement (Controlled Operations) Act 1997 .Note : The definition of
"participant" in an authorised operation includes a
"civilian participant" within the meaning of the Law Enforcement (Controlled Operations) Act 1997 .