The High Court of Australia recently considered an important question concerning covert recordings and the use of unlawfully obtained evidence in Potter (A Pseudonym) v The King [2026] HCA 25 in an appeal from South Australia.
The High Court itself uses the expression “covert recording” extensively in Potter. A covert recording is any audio, video, or digital capture of individuals or conversations made without the explicit knowledge, permission, or consent of all parties involved.
In the South Australian Surveillance Devices Act 2016 (SA), “covert” is not defined.
The term “covert” is also not defined in the Surveillance Devices Act 1998 (WA). Rather, the Act regulates the use of surveillance devices by reference to defined concepts including “private conversation”, “listening device” and “record”.
Accordingly, “covert recording” is a general description of a recording made without the other person’s knowledge or consent, rather than a specific term defined in legislation.
Potter (A Pseudonym) v The King [2026] HCA 25.
The case of Potter concerned a husband who had been charged with four counts of rape against his wife whilst she slept. Three counts were alleged to have occurred whilst the parties were in a relationship together. The last count was alleged to have occurred in while the parties were separated and living under the one roof.
The wife recorded a conversation with the husband on her mobile phone without his knowledge or consent where the husband admitted to having sexually assaulted the wife while she was asleep.
The wife had not originally made the recording for the purpose of taking it to the police or using it in a criminal prosecution. She made the recording because she was concerned about the relationship and wanted to remind herself of what had occurred and protect herself from returning to the relationship.
The husband’s lawyers argued the recording should not be allowed into evidence because it had been obtained without his consent and contrary to South Australia’s surveillance-device legislation.
The trial judge nevertheless admitted the recording by the wife into evidence. The husband was convicted on the second and fourth counts of rape. The jury were unable to reach a verdict on the other two counts and those charges were dismissed.
The trial judge made findings that “the listening device was used in a way which was reasonably necessary to protect a lawful interest of the complainant, “namely she had the right to protect herself from further crimes of rape by the accused in the form of not resuming her relationship with him“.
The husband appealed to the Supreme Court of South Australia, arguing the recording should have been excluded from evidence.
The South Australian Court of Appeal nevertheless upheld the admission of the recording.
Although the majority did not consider that the recording was reasonably necessary for the protection of the complainant’s lawful interests, it concluded that this did not prevent the recording from being admitted into evidence.
The husband then appealed to the High Court of Australia.
The appeal
The husband challenged his convictions on the basis that a covert recording had been unlawfully obtained and that the trial judge was wrong to find that the recording was reasonably necessary for the protection of the wife’s lawful interests.
The High Court considered whether a covert recording was reasonably necessary for the protection of the wife’s lawful interests.
In a unanimous judgment, the Court held “the better approach with respect to s 4(2)(a)(ii) of the SDA is to identify the relevant interest said to have been in need of protection, to determine whether that interest was lawful and to address… whether in all the circumstances the use was reasonably necessary (in the sense of appropriate) to protect that interest.”
The competing reasoning is relevant in the family law context. A person experiencing family violence may have a lawful interest in documenting or understanding conduct occurring within a relationship, particularly where doing so assists them to assess risk, protect themselves or make informed decisions about separation and future interactions.
However, Potter does not establish that covert recordings made in the context of family violence will necessarily be lawful. The circumstances and purpose of the particular recording remain important, as does the separate question of whether, if unlawfully obtained, the recording should nevertheless be admitted into evidence.
On 5 August 2026, five High Court judges dismissed the appeal. The recording therefore remained admissible in the criminal proceedings.
The High Court did not decide secretly recording someone is generally lawful.
Instead, Potter concerned whether the particular recording, despite the circumstances in which it had been obtained, could nevertheless be admitted into evidence.
That distinction is particularly important when considering what Potter might mean for family law proceedings.
Covert recordings
Section 5 of the Surveillance Devices Act 1998 (WA) generally prohibits a person from recording a private conversation to which they are a party without consent. However, there are exceptions, including where a principal party consents and the recording is reasonably necessary for the protection of that principal party’s lawful interests.
The Surveillance Devices Act contains provisions dealing with public interest and emergency use of surveillance devices.
There are also restrictions concerning the subsequent publication or communication of material obtained through surveillance devices.
Jurisdiction
Potter concerned the South Australian surveillance devices legislation, its reasoning is not necessarily confined to South Australia.
As a decision of the High Court, the principles stated by the Court are binding throughout Australia.
However, whether Potter produces the same result in another jurisdiction will depend upon the wording and structure of that jurisdiction’s legislation. Where the relevant provisions are materially similar, Potter is likely to provide strong guidance.
Where the legislation differs, the decision may be distinguished and the admissibility of the recording will need to be determined according to the applicable legislation.
Under s 4(1)(b) of the Surveillance Devices Act 2016 (SA), a person who is a party to a private conversation must not use a listening device to record that conversation. However, s 4(2)(a)(ii) provides an exception where the use of the device is “reasonably necessary for the protection of the lawful interests” of the person making the recording.
The WA legislation contains a very similar provision. Under s 5(1)(b) and s 5(3)(d) of the Surveillance Devices Act 1998 (WA), a person who is a party to a private conversation cannot use a listening device to record it unless, among other things, a principal party consents and the recording is “reasonably necessary for the protection of the lawful interests” of that party.
The key difference is the West Australian legislation expressly refers to consent as part of the exception, whereas the South Australian Act in Potter separately provides the consent and lawful-interests exceptions.
Family law proceedings
Potter is interesting for family law matters.
It was not necessary for the High Court in Potter to consider Section 138 of the Evidence Act 1995 (Cth). That section provides that evidence obtained improperly or in breach of an Australian law is generally not to be admitted, unless the Court considers the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in that way.
For covert recordings, this means that even if a recording was made in breach of surveillance-device legislation, the recording may still be admitted into evidence, depending on the circumstances.
This is the important connection between s5 of the Surveillance Devices Act 1998 (WA) and s138 of the Evidence Act 1995 (Cth): the first may determine whether the recording was unlawfully obtained; the second can determine whether the Court should nevertheless admit it.
The decision of Potter is particularly significant in the context of family violence. It shows the difficulty between a person’s right to privacy and the reality that victims of family violence may have very limited means of obtaining evidence of what has occurred behind closed doors.
Family violence frequently occurs in private. There may be no independent witnesses. There may be no police report, or reports to third parties. There may be no medical evidence. There may be no text message recording precisely what occurred.
A victim may therefore possess information about family violence that is highly relevant to parenting proceedings but difficult to prove through conventional evidence.
Since the Family Law Amendment Act 2023 and the Family Law Amendment Act 2024, the Family Court of Western Australia takes into account the effect of family violence, what arrangements would promote the safety of the child and each person who has care of the child, including any history of family violence, abuse or neglect, and removed the previous statutory presumption of equal shared parental responsibility.
The amendments also recognised that family violence can have lasting economic consequences for a party and require those consequences to be taken into account where relevant to the determination of property matters. They also expressly recognise economic and financial abuse as forms of family violence.
This means the impact of family violence is no longer confined to parenting proceedings or allegations of physical violence. Where relevant, its financial consequences can now form part of the Court’s assessment of the parties’ property interests.
What if a recording is the only evidence of family violence?
This is where Potter may be significant.
For example, a party may produce a covert recording in which their former partner appears to admit to violence, threats or controlling behaviour. Such a recording may be highly relevant and potentially persuasive evidence for the Family Court to consider.
Family law proceedings frequently involve competing allegations and denials. One party may allege family violence, while the other denies the allegations or makes allegations of their own. Often, there are no independent witnesses and little objective evidence capable of resolving the competing accounts.
The difficulty is that these allegations may not be finally determined for a considerable period. An interim hearing is generally concerned with making arrangements pending the final determination of the proceedings. While the Court may consider allegations of family violence and potential risk when determining interim parenting arrangements, an interim hearing is not ordinarily the occasion for finally determining disputed factual allegations.
The Court may therefore be required to make decisions concerning children without determining which party’s account is ultimately true (or not true).
Only a small percentage of family law proceedings proceed to trial at which the Family Court can make definitive findings about whether family violence occurred.
Many matters resolve before trial through negotiation, mediation or other forms of dispute resolution, meaning no findings are made. For those matters that do proceed to trial, the final hearing may not occur for several years.
This can create a particular difficulty where one party relies upon a recording which they contend supports or proves their allegations, while the other disputes the circumstances in which the recording was made, its reliability, or what it actually demonstrates.
Evidence obtained during a relationship, or shortly after separation, may therefore remain relevant for a significant period before the Court has an opportunity to make final findings about the events in question.
This is one reason covert recordings may assume particular importance in family law proceedings. They may provide contemporaneous evidence of an interaction that might otherwise depend largely upon one party’s account against the other’s.
The potential evidentiary significance of a recording does not resolve the separate question of whether it was lawfully obtained or whether it should ultimately be admitted into evidence.
The Court may need to consider (including but not limited to):
- Was the recording lawfully obtained?
- If the recording was unlawfully or improperly obtained, does s138 of the Evidence Act apply?
- What is the probative value of the recording?
- How important is the recording to the issues in dispute?
- Was the recording deliberately made in breach of the legislation?
- Could the evidence realistically have been obtained by another means?
- Does the recording contain evidence of family violence, abuse, coercive control or risk to a child?
- What consequences would admission or exclusion of the evidence have for the fairness and proper determination of the proceeding?
Potter demonstrates even where a recording has been made unlawfully, admissibility may remain a separate question.
That does not, however, allow a party to secretly record a former partner.
There can be consequences beyond the family law proceedings
A person contemplating making a covert recording for the purpose of obtaining evidence in family law proceedings should not assume the recording is admissible merely because it is intended to be used in court.
In Western Australia, the Surveillance Devices Act 1998 contains separate restrictions concerning the communication or publication of private conversations and activities obtained through surveillance devices.
Consequently, a person who makes a covert recording could potentially expose themselves to criminal liability even if they ultimately hoped to use the recording as evidence in family law proceedings.
The fact the recording is later admitted into evidence does not retrospectively make the original conduct lawful.
A person may reasonably believe a recording is necessary to establish what has happened, particularly where the alleged conduct occurs privately and is denied by the other party. But the person may also be placing themselves at risk by creating that evidence.
Potter does not remove that risk, but reinforces the importance of considering the circumstances surrounding the recording rather than treating covert recordings as automatically admissible or automatically inadmissible.
Potter should not be read as a green light to record
There is a possibility that Potter could be misunderstood as establishing a broad rule that a person may secretly record another person whenever they believe the recording will be useful in litigation.
That is not the consequence of the High Court’s decision.
The High Court was dealing with a specific statutory regime and a specific factual context involving a victim of serious sexual offending who made the recording for the purpose of protecting herself against further offending. The High Court’s judgment expressly identifies issues including bodily autonomy, bodily integrity, personal privacy, lawful interests and the circumstances in which the recording was made.
At paragraph 29 of the High Court’s decision, the wife “had the right to protect herself from further crimes of rape”.
The decision therefore needs to be approached carefully.
The current Family Law Act framework requires the Court to consider safety, family violence, abuse and the broader consequences of violence when determining parenting arrangements.
The 2023 amendments to the Family Law Act strengthened the consideration of family violence in parenting proceedings, while the 2024 amendments to the Family Law Act expressly recognised the economic consequences of family violence in property proceedings.
The importance of evidence does not eliminate the rules governing how that evidence is obtained
Potter demonstrates the balance will not always fall in favour of exclusion merely because a recording was unlawfully obtained. But it equally does not provide a general immunity for covert recording.
For anyone involved in family law proceedings, particularly proceedings involving allegations of family violence, the safest approach remains to obtain legal advice before making or disseminating a covert recording, rather than assuming its potential evidentiary value will protect the person who made it.
