With the invent and prevalence of smart phones, the recording of conversations is becoming an increasing phenomenon.
In Queensland, the Invasion of Privacy Act 1971 (“the Act”) applies to the use of a 'listening device' for the purpose of recording a 'private conversation'.
To set the scene, generally the Act sets out that there is a prohibition of using a listening device to overhear, record, monitor or listen to a private conversation.[1] There are exceptions to this prohibition including where the person using the listening device is a party to the private conversation.[2]
To understand this a little more, one needs to first look at the meanings of 'listening device' and 'private conversation'.
A ‘listening device’ means any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place.[3]
On the other hand, a ‘private conversation’ means any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves or that indicate that either of those persons desires the words to be heard or listened to only by themselves and by some other person, but does not include words spoken by one person to another person in circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person, not being a person who has the consent, express or implied, of either of those persons to do so.[4]
The Act also sets out that there is a prohibition preventing the person who has lawfully recorded the private conversation with a listening device from communicating or publishing to any other person any record of the conversation.[7] This does not apply in a number of situations, including (but not limited to) where the communication or publication:
It should also be noted that legal proceeding includes civil or criminal proceedings in any court, proceedings before justices and proceedings before any court, tribunal or person (including any inquiry, examination or arbitration) where evidence is or may be given or any part of a legal proceeding.[11]
So, as a general rule, it is legal in Queensland:
for a telephone call to be secretly recorded by an external device (e.g. a smart phone or dictaphone) by a person who is a party to the conversation;
for a face to face conversation to be secretly recorded by a person who is a party to the conversation;
for the lawfully recorded private conversation to be published or shared with a person who was a party to the conversation;
for the lawfully recorded private conversation to be published or shared where you have the consent of all the parties to the private conversation;
for the lawfully recorded private conversation to be published during the course of a legal proceeding to protect your legitimate interest.
Despite the above, generally you should be aware that it is illegal in Queensland:
to record a telephone call with a device physically attached to the telephone;[5] and
for a person who is not a party to the conversation to record a conversation (whether by telephone or face to face), for example, a parent leaving a listening device next to their child to listen to what another parent is telling them;[6]
for the lawfully recorded private conversation to be published or shared with a person who is not party to the private conversation if you do not have the consent of all the parties to that private conversation;
for the lawfully recorded private conversation to be transcribed and shared online if you do not have the consent of all the parties to the private conversation.
Further, in other States and Territories of Australia, the law is different and you may not have a right to record a private conversation.
Lastly, there has been commentary on recording private conversations in the employment and family law arena, noting that they have otherwise been found to be admissible in most cases.[12]
Conclusion
Here at Richard Hoare & Co, we understand the law and how it applies to using a listening device to record a private conversation. In the event you have used a listening device to record a private conversation that you were a party of, and you need advice in respect of its use or publication, contact us or alternatively book an appointment online.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
Scott A. Green © References
[1] Invasion of Privacy Act 1971 (Qld), section 43(1). [2] Ibid, section 43(2)(a). [3] Ibid, section 4. [4] Ibid. [5] Telecommunications (Interception) Act 1979 (Cth). [6] Above n, 1. [7] Ibid, section 45(1). [8] Ibid, section 45(2)(a). [9] Ibid. [10] Ibid, section 45(2)(b). [11] Ibid, section 45(3). [12] See Thomas v Newland Food Company Pty Ltd [2013] FWC 8220 (October 2013) and Janssen & Janssen [2016] FamCA 345 (1 February 2016); Gorman & Huffman [2015] FamCAFC 127 (3 June 2015); Corby & Corby [2015] FCCA 1099 (16 April 2015).