A frequent question posed to Duxton Hill, is “Can I record a private conversation or telephone call?” Most people who record their conversations or calls do so to protect themselves. These recordings may be used as evidence in civil court cases and criminal investigations, and more.
But is it legal to record a private conversation or telephone call in Australia? The short answer is:
- it depends on where you live, and/or;
- the circumstances under which the recording is made, and/or;
- the purpose for the recording.
The rules vary as to the legality of recording private conversations, depending on which State or Territory they were made. One must therefore identify which State or Territory law applies to determine whether the recording of a private conversation is lawful.
As a 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. A private conversation is one where at least one party would not reasonably want or expect to be overheard or observed by anyone aside from those present. A person is ‘a party’ to a private conversation if words are spoken by them or to them during the conversation.
It is legal in all jurisdictions to record a private conversation or telephone call if all parties to the conversation or telephone phone call consent.
Here’s an outline of what the law says about recording private conversations in Australia.
In the Northern Territory and Victoria you can record a private conversation without the consent of all parties if you are a party to the conversation yourself.
Queensland has similar legislation, with the exception that once recorded; you cannot share the recording with anyone who wasn’t a party to the original conversation.
In New South Wales, Tasmania, and the Australian Capital Territory, it is legal to record a private conversation without consent of all parties if you are a party to the conversation and ONLY IF one of the following two conditions is met:
- It is reasonably believed that recording the conversation protects your lawful interests; or
- The recording 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.
In South Australia and Western Australia, the Surveillance Devices Act prohibits the installation, use or maintenance of a listening device to record a private. Exceptions apply where:
- The parties to a conversation consent to the use of a listening device; or
- The recording is in the public interest; or
- The conversation was recorded to protect the lawful interests of one party.
What constitutes a “lawful interest” or what is “in the public interest” will be determined objectively by considering the context and circumstances of the listening device being used and weighing this against competing interests such as the need to protect personal privacy.
However, the courts have previously ruled that it is not considered to be a lawful interest to use a device for the purpose of gaining an advantage in civil proceedings, for example [Thomas & Anor v Nash  SASC 153].
The court has accepted, however, that the recording of a private conversation was in the person’s lawful interest where the person had a genuine fear for their safety [Groom v Police  SASC 101]. In Groom v Police, a protected person made audio recordings of her former partner who contacted her in a way that was a breach of an intervention order. In this case, the Supreme Court held that the recording could be admitted into evidence as it was both protecting her lawful interest and in the public interest.
Note that publication or communication of any recording of a private conversation is prohibited in all jurisdictions. NSW is the exception, which allows for the publication or communication of private conversations made during legal proceedings.
Recording of telephone conversations is tightly controlled by the Telecommunications (Interceptions and Access) Act 1979. (TIA) Pursuant to section 7 of the TIA, it is illegal to intercept, authorise the interception of, or do anything that would enable the interception of, a communication ‘passing over’ the telecommunications system. The notion of passing over has been taken to include the time during which a communication ‘passes over’ a communications system until it becomes accessible to the intended recipient (i.e. the time from sender to the intended recipient).
In most cases, if a recording of a private conversation has been obtained illegally it cannot be used as evidence. The admissibility of evidence of private conversations obtained via listening devices is a complex area of law and there are some exceptions where an illegally obtained recording may still be used in court. Courts have the discretion to allow admission of secret recordings into evidence, even if the evidence has been obtained improperly and without the knowledge of the parties and in breach of the applicable State or Territory legislation.
In these times of ready access to technology capable of instant and covert recording, the temptation to record interactions between parties can be strong, but it is not without its risks. You should always seek legal advice if you are considering the need to take such action.
Note: This article is for information purposes only and is not legal advice. If you wish to obtain advice about a particular matter, please contact our fraud lawyers at Duxton Hill.