State/Territory Relevant Surveillance Legislation
Lawful to secretly record a private conversation to which you are a party?
Victoria
Surveillance Devices Act 1999 (VIC)
Yes
Queensland
Invasion of Privacy Act 1971 (QLD)
Yes
NT
Surveillance Devices Act 2007 (NT)
Yes
WA
Surveillance Devices Act 1998 (WA)
No
SA
Listening and Surveillance Devices Act 1972 (SA)
No
ACT
Listening Devices Act 1992 (ACT)
No
NSW
Surveillance Devices Act 2007 (NSW)
No
Tasmania
Listening Devices Act 1991 (TAS)
No
Legality of secretly recording conversations in Australia
By Brenton Allen, Law Graduate, MST Lawyers
1. Introduction
MST recently acted in a Federal Court adverse action case which involved an employee secretly recording (through a phone) a meeting during which he was advised of his dismissal by his manager.
When told of the reason for his dismissal (being performance related), the employee dismissed the reason and attempted to elicit a confession from his manager that the real reason for the dismissal was because the employee had made an earlier complaint about his wages.
Whilst the audio recording was made without the consent or knowledge of the manager, it was allowed to be admitted as evidence in the Federal Court.
Given that adverse action claims are increasingly becoming the “preferred” claim for employees, this article examines the lawfulness of secret audio recordings in each Australian State and Territory and its implication in evidentiary disputes.
2. Legal Framework
Each State and Territory has legislation on surveillance and listening devices (see below).
As a general rule, if a person is not a party to a private conversation, that person is prohibited from secretly recording or using a device to listen to that conversation. (NB: Exceptions to the general rule exist for law enforcement purposes)
On the other hand, if a person is a party to a private conversation, there is an interesting divergence in the law for different States and Territories.
In Victoria, Queensland and the NT, a person who secretly records a private conversation to which that person is a party does not appear to be in breach of surveillance legislation. On the contrary, legislation in WA, SA, ACT, NSW and Tasmania expressly prohibits such conduct.
Note that publication or communication of any recording of a private conversation is prohibited in all jurisdictions. Save for in NSW, there is an exception for publication or communication made in the course of legal proceedings.
3. Jurisdiction summary
The position in each state as to the legality of secret recordings is summarised in the table below.
4. Application
Employers in Victoria, QLD and NT are able to arrange for secret (and lawful) recording of termination meetings.
In an adverse action case, the recording can be used as supporting evidence of the reason for the dismissal, together with a termination letter and evidence given by the decision maker of the employer.
In an unfair dismissal case, the recording can be used to evidence that procedural fairness had been afforded to the employee prior to the termination.
By Ugur Nedim | 03/09/2014 | No Comments
Thanks to the proliferation of smartphones and other surveillance technology which is readily available to consumers, it is now easier than ever to make video and audio recordings of people, whether you have their consent or not.
But whether it is companies recording phone conversations for training purposes, or individuals recording conversations to help them obtain evidence for a legal or criminal matter, the law is complex when it comes to audio recordings.
In NSW, recording conversations is against the law unless you have the consent of the person who is being recorded, except under very specific circumstances.
When is it legal to record audio conversations?
You can record telephone or other conversations when the other person is aware that they are being recorded, and they consent.
This law varies from the law around videoing people, which states that it is legal to film anyone who is in a public space, even if they don’t give you consent.
If you record someone without their consent and they later find out, you could in certain circumstances face criminal charges.
According to the Surveillance Devices Act, it is generally an offence to record someone or intercept a conversation without their knowledge, and it is also an offence to have a recording of a conversation obtained illegally in your possession.
It is also against the law to manufacture devices used for unlawful recording of conversations, and to publish conversations which were illegally recorded.
In 2010, the producer and a presenter of the well-known TV program A Current Affair were found guilty of breaching the Act when a story they ran involved publishing the recording of a telephone conversation which was obtained without the knowledge of one of the parties.
Although the producer of the program was found guilty of a criminal charge for setting up the surveillance devices to record the conversation, the story was deemed to have been in the public interest and the recordings were considered to be admissible in court.
In the event that the matter relates to a court case or other legal issue, any evidence that is obtained as a result of an illegally recorded conversation may not be admissible in court.
This is a matter for the judge or magistrate’s discretion, and will depend on a number of different factors including how important the evidence is to the case and whether that outweighs the circumstances surrounding when and how it was obtained.
What about law enforcement?
Police are legally allowed to record conversations through the use of surveillance devices or informants in specific situations if they have a warrant.
Evidence gained through legal surveillance is considered admissible in court as long as it meets the right criteria.
What do police have to prove to get a surveillance warrant?
If police want to legally be able to record conversations, either in person or over the phone, there are certain legal requirements they must fulfil in order to get a warrant.
Any recordings which are made which don’t follow proper legal procedure may not be admissible in court.
To apply for a warrant, a police officer has to have reasonable grounds to suspect that someone is about to commit an offence, or that an offence has been committed, or that an offence is likely to be committed.
There also has to be an investigation into the alleged offence, or be likely that an investigation will arise, and the police officer has to show that surveillance will be necessary in that investigation.
Whether or not a warrant will be granted depends on the judge or magistrate’s discretion.
Some of the factors which will be considered include the nature and severity of the alleged offence, the likely intrusion on the privacy of the person or persons being recorded, and whether there are alternative ways of obtaining the evidence that is needed.
They will also consider what value the evidence which is likely to be obtained will have to the case as a whole.
Once a surveillance warrant is granted, it will give very specific guidelines as to the type of device which is approved, and how it can be used.
If police breach those guidelines, any evidence obtained may be inadmissible in court.
The warrant will state rules like where the surveillance device is authorised to be used, by who, and for how long.
If you suspect that your conversations are being recorded or if you have recorded someone else’s conversation and aren’t sure whether or not you can use it in court, speak to an experienced criminal lawyer as soon as possible or refer the matter to police.
In admitting any evidence in Court parties must remain mindful that through doing so they are seeking to persuade the Court of a particular fact. More specifically, there are three key issues that parties should consider before producing evidence.
- Firstly, parties should consider how to present to the Court evidence of the fact that they are claiming.
- Secondly and very importantly, parties need to consider whether the evidence is admissible, that is permitted, as evidence in the relevant proceeding.
- And thirdly, parties should consider the weight and importance of the evidence and its possible implications for the Court’s final decision. 1
Strict statutory rules and well established case law exist to govern the form and use of evidence in proceedings. Recent times have seen increased debate surrounding the use of audio recordings in court proceedings, and particularly, in Family Court proceedings. The key issue with the use of audio recordings in Family Court proceedings is not necessarily their use, but how such recordings were obtained which in turn determines their admissibility as evidence.
The letter of the law: RE audio recordings
Whilst exceptions exist in both State and Federal legislation, the principal rule is that a party must consent to being recorded by a listening or surveillance device. Without such consent, audio recordings are considered to be prima facie illegal, thus rendering the publishing of those recordings illegal, as seen in the recent Family Court case of Huffman v Gorman 2
The legislative basis behind the ruling in Huffman v Gorman and other such decisions lies in the Commonwealth Surveillance Devices Act 2004 as well as in the related statutes of States and Territories3
Such legislation purposed towards the protection of privacy and the facilitation of a cohesive scheme for controlling privacy infringements, prohibits the installation, use and maintenance of listening devices to record private conversations, both to which the person is and is not a party4
In addition, the communication or publication of private conversations, or recordings of private activities, is prohibited5 A lack of consent from other parties to record private conversations classifies the conversations as protected information6 and unauthorised recording as illegal and punishable as a criminal offence.
Exclusionary Provisions: Exceptions to the prohibition of unauthorised recording of private dealings
The above however, is not to say that audio recordings are always illegal and thus completely inadmissible as evidence in Family Court proceedings. Exceptions to the prohibition on recording, communicating and publishing private conversations do exist, but such exceptions, importantly, are limited. The Commonwealth Surveillance Devices Act 2004 and its corresponding State and Territory statutes permit the recording, communication and publication of private conversations in circumstances where all principle parties consent to such, either expressly or impliedly7.
In a situation where only one principal party consents to recording it must be shown that doing so was reasonably necessary for the protection of their lawful interests8. The then communication of such recordings is only acceptable when a party is rationally required to do so to prevent or reduce an imminent risk of serious violence towards a person or threat of substantial damage to property9.
The Commonwealth Evidence Act 1995 builds on this, allowing illegally or improperly audio recordings to be admitted as evidence only when the desirability of its admission outweighs the undesirability of how it was obtained10
Such an issue was raised in the case ofLatham v Latham11, where the benefits of recordings framing the mother as a serious child abuser were seen to outweigh the way they were obtained. A similar position was taken in Tripp v Tripp in which the value of an improperly obtained recording of an interview with a single expert witness prevailed over the circumstance of its recording 12
On the contrary however, there have been a number of recent cases where parties, believing that the benefit of information in audio recordings outweighs their illegitimate obtainment, have presented audio recordings which have been dismissed or have worked against them. In the 2011 case of Hazan v Elias13 a fathers recording of his conversation with a family consultant was held to be inadmissible under the Evidence Act 1995.
Furthermore, the 2012 case Farrelly v Kaling14, whilst circumstances were more severe in that some of the recordings presented were believed to be falsified, the recordings were held to reflect extremely poorly on the respondent father who presented them. It was held that the fathers’ recordings could not be relied upon15, and further, that such recordings raised a number of concerns and questions regarding the fathers’ character.
Whilst it is clear that exceptions to the prohibition of recording, communicating or publishing private and protected conversations exists, R v Lee16 reminds us that first and foremost, the circumstances in which the initial recording took place will always be relevant to the determination of whether or not there was a reasonable necessity for doing so.
What will the Family Court consider when deciding the admissibility of audio recordings?
In addition to the aforementioned exceptions and considerations, the Evidence Act 1995 outlines the matters that a court may take into account in determining the admissibility of evidence. Among those relevant to family law proceedings, the Family Court may consider the probative value of the evidence17, that is, to what the effect of the evidence in proving a said fact.
The Family Court may also consider the importance of the evidence in relation to the proceeding18, the nature of the subject matter of the proceeding19, and the gravity of the impropriety20 in making the recording.
In relation to the impropriety of the recording the Family Court may consider whether or not it was deliberate or reckless21, whether or not another proceeding is likely to be taken in relation to the improper recording22, and the difficulty of obtaining evidence without the impropriety23 of the recording.
Opinion of Legal Practitioners Regarding Audio Recordings
Members of the legal profession have expressed views regarding the use of audio recording in Family Court proceedings both inside and outside the courtroom. Reflecting on the multitude of cases in which audio recordings are admitted as evidence, Federal Magistrate John Croker has asserted that the use of audio recordings in family law proceedings appears to have gathered support both from parties to proceedings and from their legal representatives24
Despite such support, the use of audio recordings, to Magistrate Croker, arises too frequently and raises serious questions about the behaviour and character of the party who records and presents such evidence25
In a similar vein Senior Counsel Graeme Page attributes little worth to the presentation of audio recordings in court but gives credence to their use by lawyers prior to court proceedings in establishing the nature of events and those involved 26
Other practitioners, rather than expressing strong support or opposition to the use of audio recordings advise that they be approached with caution and that anyone contemplating their use strongly consider the relevant law and its implications27
It should be stressed that these laws are not static and changes are always a possibility.
For instance, the surveillance laws in South Australia may soon drastically change given the Surveillance Devices Bill before the South Australian parliament.
The South Australian Attorney General has stated that the changes to the laws were meant to “stop ordinary citizens bugging” each other and would not apply to recordings of public forums such as speeches, council meetings or Parliament. But, they would apply to private discussions where someone was recorded without consent. 28
This highlights the importance for any parties contemplating the use of audio recordings in Family Court proceedings, to ensure they consult their legal practitioner or a relevant legal body first.
