Police surveillance drones in NSW: what the law allows, and whether the footage can be used as evidence.

The announcement, and the legal question it raises.

On 27 August 2026 the NSW Government announced that its Australian-first police drone trial in Moree would run for another two years, with a view to expanding the program across regional New South Wales. The program is called POLAIR Remote. Two remotely piloted drones operate over the town and are flown from the NSW Police Force Aviation Command at Bankstown Airport. Police say the drones can be over any part of Moree within a few minutes and give officers live vision of what they are responding to.

The policy is a matter for government. The question for a criminal lawyer is a narrower one. When police put a camera in the sky, what law governs it, and what happens to the footage it records? The answer sits across three separate bodies of law: the aviation rules that govern the flying of the aircraft, the surveillance rules that govern the recording of people, and the rules of evidence that decide whether the footage can be used in a prosecution. They do not always line up.

Can police use drones to watch you in NSW?

Yes. NSW Police operate drones, and have done so for some years for search and rescue, crime scenes and public order operations. The Moree trial is different only in that the drones are flown remotely from a distant control room rather than by an officer standing nearby. Two sets of rules apply at once. The Civil Aviation Safety Regulations 1998 (Cth) govern the flying of the aircraft, including where it may fly and who may pilot it. Those are aviation rules, and they say nothing about privacy. The Surveillance Devices Act 2007 (NSW) is the law that governs the recording of people, and it is the one that matters for what police may capture.

Police have said the Moree drones will not record while in the air unless they are responding to a particular crime, and will not be flying around looking into people's backyards. That is a statement of practice, and it is welcome. It is not the legal limit. What police may lawfully record is fixed by the Act, not by a press release, and the two are worth keeping apart.

What the Surveillance Devices Act 2007 (NSW) says.

A drone camera is an optical surveillance device. Section 4 of the Surveillance Devices Act 2007 (NSW) defines that as a device capable of being used to record or observe an activity visually. Section 8 is the main offence. It makes it unlawful to install, use or maintain an optical surveillance device to record or observe the carrying on of an activity where doing so involves either entry onto or into premises or a vehicle without the consent of the owner or occupier, or interference with a vehicle or object without consent.

The point that matters is what the section turns on. It does not ban all filming of private activity. It bans filming that depends on trespass, on entering premises or interfering with property. A drone hovering in public airspace and looking down does neither. It does not enter the premises and it does not interfere with anything. On the words of the section, a good deal of aerial observation may sit outside the prohibition. That gap is not an oversight so much as an accident of timing. The Act was written before cheap camera drones existed, and its language was built for a bug planted in a wall or a camera fixed to a fence, not a machine that films from the sky. Listening devices and tracking devices are dealt with separately, under sections 7 and 9, and a drone that only films does not engage those provisions.

Do police need a warrant to fly a drone over private property?

It depends on what the drone is doing. Where police want to use a surveillance device in a way that the Act would otherwise prohibit, Part 3 of the Surveillance Devices Act 2007 (NSW) lets them apply for a surveillance device warrant. A warrant is issued by an eligible judge, on grounds connected to the investigation of a relevant offence, and it authorises what would otherwise be unlawful. The Act also allows emergency authorisations in limited cases where there is no time to get a warrant.

The difficulty is that a drone filming from public airspace may not need a warrant at all, because it may not breach section 8 in the first place. There is no reported NSW decision squarely on the point, so the safest reading is a practical one. Overt, live use of a drone in public space, to help officers respond to an incident in progress, is a long way from a warrant question. Targeted, covert recording of a person's private activity over time is where the warrant provisions come into their own, and where police who skip them take a real risk with the footage. Cautious agencies treat a flight over private land as needing consent or a specific enforcement power, precisely because the law is unsettled.

What the Moree drones actually do.

It helps to be clear about the tool. The POLAIR Remote drones are based at Moree and flown from the police aviation command at Bankstown. Police say they can be over any part of the town within two to three minutes of launch, and that they send live vision to officers on the ground during pursuits, break and enters, vehicle recoveries and search and rescue. They are overt aircraft used for situational awareness in real time. They are not hidden devices left in place to gather evidence on one person over weeks.

That difference is a legal one, not just an operational one. A drone that films a public street while officers chase a car is doing something the law has always allowed police to do from a helicopter or a fixed camera. A drone tasked to sit over a home and record who comes and goes is doing something much closer to directed surveillance, and it invites the questions in the section above. The same aircraft can do both. Which one it was doing on a given day is a question of fact that decides how the footage is judged.

Can drone footage be used as evidence in court?

If the footage was obtained lawfully, it can be used like any other recording. It goes into the brief, it is played to the court, and it is weighed with the rest of the evidence. The interesting question is what happens when the footage was obtained in breach of the Surveillance Devices Act 2007 (NSW), or otherwise improperly or unlawfully.

That is where section 138 of the Evidence Act 1995 (NSW) comes in. It says that evidence obtained improperly or in contravention of a law is not to be admitted unless the desirability of admitting it outweighs the undesirability of admitting evidence obtained in that way. The court runs a balancing exercise, weighing the factors listed in section 138(3). Those include the value of the evidence, how important it is to the case, the seriousness of the offence, how grave the impropriety or illegality was, whether it was deliberate or reckless, and whether the same evidence could have been obtained lawfully. This is the modern form of the discretion the High Court set out in Bunning v Cross (1978) 141 CLR 54.

The result is that unlawfully obtained drone footage is not thrown out as a matter of course. A serious offence and highly probative footage can be admitted despite a breach. A minor matter, a deliberate breach and footage that could easily have been gathered with a warrant point the other way. For the defence, the work is to show the breach and to argue the balance. For the prosecution, the work is to show the footage was lawful in the first place. Either way, the footage is not the end of the argument. It is the start of one.

What to do if a police drone has filmed you.

Get advice before you speak to police, and do not treat the footage as the last word. If drone material is part of a brief, the two questions that decide its weight are whether it was obtained lawfully and whether it should be excluded under section 138. Both are open to argument, and both are shaped by what is done early. The guidance in our note on the police interview and the ERISP applies from the first contact, and our explainer on stop and search powers under LEPRA sets out how police powers are meant to be exercised and what happens when they are not.

Surveillance technology in policing is moving faster than the law that governs it, and drones are only the latest example. The same tension runs through our note on drones used to drop contraband into prisons, where the aircraft is the offence rather than the tool. As these methods spread, the value of early advice grows, because the questions they raise are decided in the first weeks of a matter. Our note on the first thirty days of a serious case sets out why those early decisions carry so much weight.

Primary sources: police use of optical surveillance devices is governed by the Surveillance Devices Act 2007 (NSW), with the key definitions in section 4 and the main offence in section 8, and the warrant provisions in Part 3. The admission of improperly or unlawfully obtained evidence is governed by section 138 of the Evidence Act 1995 (NSW). The discretion it codifies comes from Bunning v Cross (1978) 141 CLR 54, searchable on JADE. General police powers are set out in the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), and the flying of the aircraft is regulated under the Civil Aviation Safety Regulations 1998 (Cth).

Common questions

Can police use drones to watch you in NSW?

Yes. NSW Police operate remotely piloted aircraft, and the Moree trial flies two drones over the town from a control room at Bankstown Airport. Aviation rules under the Civil Aviation Safety Regulations 1998 (Cth) govern the flying of the aircraft; the Surveillance Devices Act 2007 (NSW) governs the recording of people. Police say the Moree drones will not record unless responding to a crime and will not look into backyards, but the binding limit on what may be recorded is the Act, not a media statement.

Do police need a warrant to fly a drone over private property in NSW?

It depends on what the drone is doing. Section 8 of the Surveillance Devices Act 2007 (NSW) bans using an optical surveillance device to record a private activity where doing so involves entry onto premises or interference with an object without consent. A drone observing from public airspace may fall outside that, because there is no entry or interference. Where a warrant is needed, Part 3 of the Act allows police to apply to an eligible judge. There is no reported NSW case squarely on point, so cautious agencies fly over private land only with consent or under an enforcement power.

What does the Surveillance Devices Act 2007 (NSW) say about optical surveillance devices?

An optical surveillance device is defined in section 4 as a device capable of recording or observing an activity visually. Section 8 makes it an offence to install, use or maintain one to record an activity where that involves entry onto premises or a vehicle without consent, or interference with a vehicle or object without consent. The Act pre-dates cheap drones, and its focus on entry and interference is why its application to aerial filming is unclear. Listening and tracking devices are dealt with under sections 7 and 9.

Can drone footage be used as evidence in court?

If obtained lawfully, yes, like any other recording. If obtained in breach of the Surveillance Devices Act 2007 (NSW) or otherwise improperly, section 138 of the Evidence Act 1995 (NSW) applies. That section keeps improperly or illegally obtained evidence out unless the desirability of admitting it outweighs the undesirability of admitting it in that way, weighing the factors in section 138(3). Unlawful footage is not automatically excluded, but it is open to challenge.

What are the Moree police drones and what can they do?

The program is called POLAIR Remote. Two drones are based at Moree and flown remotely from the police aviation command at Bankstown Airport. Police say they can reach any part of the town within two to three minutes and send live vision to officers for pursuits, break and enters, vehicle recoveries and search and rescue. They are overt, live situational tools, not hidden recording devices. The NSW Government extended the trial for a further two years on 27 August 2026 and said it will look to expand it to other regional areas.

What should you do if a police drone has filmed you?

Get advice before you speak to police, and do not assume the footage settles anything. If drone material is in a brief, the questions are whether it was obtained lawfully and whether it should be excluded under section 138 of the Evidence Act 1995 (NSW). Both are open to argument. Keep a record of what happened, note the time and place, and get advice early, because how to deal with surveillance material is best decided before the first court date.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 28 August 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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