When can an employee use a covertly recorded workplace conversation?

Most states and territories have laws that prohibit the use of electronic devices to record private conversations. Generally, these prohibitions allow for an exception when the recording is reasonably necessary for the protection of the lawful interest of that person.

How to determine whether the exception applies

If an employee covertly records their performance review or a disciplinary meeting, and wants to use it as evidence in subsequent unfair dismissal, adverse action, discrimination, bullying or harassment proceedings, courts and tribunals will determine whether the lawful interest exception applies by:

identifying the relevant interest of the employee that may have been in need of protection;
determining whether that interest is lawful; and
determining whether the use was reasonably necessary to protect that interest having regard to both the nature of interest and the fact that the exception is afforded to private conversation (not merely confidential conversation).

High Court of Australia’s recent decision on the exception

In Potter v The King (2026), the High Court had to determine whether the complainant’s use of her phone to make a covert recording of her conversation with her partner satisfied the exception of being reasonably necessary to protect lawful interest.

The Court ruled that the prohibition of covert recording did not apply to the recording, finding that it was reasonably necessary to protect the complainant from risk posed to her bodily integrity and autonomy.

In coming to its decision, the Court ruled that the scope of what is ‘reasonably necessary’ should be better understood, not as what is essential but rather what is appropriate to protect lawful interests. This determination is an objective exercise, evaluated at the time of use of the listening device to record the conversation. The Court also held that protection is taken to mean defence or preservation from harm, danger or impairment.

The lawful interest was held as not being limited to legal right, title, duty or liability but extending to interests that are legitimate and not unlawful. The Court held that the determination of whether an interest is lawful should be applied on a case-by-case basis.

How this decision impacts the rights of employees to record conversations

Following Potter, an employee can argue that their interests may extend beyond a legal cause of action and be relevant to their reputation or psychological safety at work.

The protection element of the exception will mean that the employee must prove that there was a threat to their employment, or reputation or psychological safety, for which they must have been seeking protection.

Potter does not create a blanket right to covertly record conversations where lawful interests are perceived to be under threat. Instead, it emphasises that the availability of the statutory exception will depend on the circumstances of each case, including:

the nature of the lawful interest identified;
the risk posed to that interest; and
whether the recording was reasonably necessary to protect it.

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