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Is it legal to record a phone call in Australia?

Is it legal to record a phone call in Australia?

Is it legal to record a phone call in Australia?

The rules vary across the nation when it comes to the legality of recording telephone calls.

There are various reasons why someone might want to record a phone call, including to gather incriminating evidence against another person.

But the reality is that it is normally against the law to record a phone call without the other person’s consent.

In fact, ‘covertly’ (secretly) using a listening device such as a mobile phone or digital recorder and publishing or otherwise distributing that material can amount to a criminal offence.

Here’s an outline of what the law says about recording phone calls in Australia.

Recording private conversations

The laws relating to using a listening device vary from jurisdiction to jurisdiction; in other words, between states and territories.

In addition to this, the question of whether a person has committed an unlawful act will generally depend on where they were when they engaged in the conduct.

So for example, if Person A is in Victoria and pressed record on their iPhone whilst on the phone with Person B who was in New South Wales, it is generally the Victorian law or the Surveillance Devices Act 1999 (Vic) that applies.

What counts as a ‘listening device’ is very broad and includes anything used to overhear, record, monitor or listen to a private conversation, or to the words spoken to or by any person in a private conversation. It does not include hearing aids or other similar devices.

The laws only apply to ‘private conversations’, which is one where the parties may reasonably assume that they don’t want to be overheard by others.

One of the exceptions to the prohibition against recording and/or publishing or distributing records of private conversations is where police officers have obtained what’s known as a ‘surveillance device warrant’ – also known as a ‘wire tap’ – which allows for the recorded material to be used for investigations and tendered in court provided, of course, that the material is relevant to the proceedings at hand.

These warrants can allow both undercover police officers and third parties, such as police informants, to lawfully record private conversations.

Between jurisdictions

It is legal in all jurisdictions to record a phone call if all parties to the phone call consent.

Consent can either be explicit or implied. Implied consent occurs if a reasonable person would assume consent. For example, one person on a group call says “I will start recording the call now” and there is no objection, this will imply consent by all parties involved.

In the Northern Territory and Victoria you can record a private conversation without consent of all parties as long as you are a party to the conversation yourself.

A person is ‘a party’ to a private conversation if words are spoken by them or to them in the course of the conversation.

Similar rules apply in Queensland, with an additional criteria that, once recorded, you cannot share the recording with anyone who wasn’t a party to the original conversation.

In New South WalesTasmania 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 either:

  • 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, it is generally illegal to record a private conversation without consent of all the parties even if you are a part to the conversation. Exceptions apply if:

  • The recording is in the public interest; or
  • The conversation was recorded to protect the lawful interests of one party.
A ‘lawful interest’ includes if a person has a genuine fear for their safety (Groom v Police [2015] SASC 101) however may not include recordings designed to gain an advantage in civil or family proceedings (see Thomas & Anor v Nash [2010] SASC 153).

It is recommended that legal advice is sought before attempting to record a conversation without consent in order to protect the ‘public interest’ or protect the lawful interests of a party.

Penalties

Recording conversations in breach of the law could result in a criminal charge. The maximum penalties (or punishment) varies by jurisdiction but can include:

  • 250 penalty units or imprisonment for 2 years or both (Northern Territory)
  • 240 penalty units or imprisonment for 2 years or both for an individual and 1200 penalty for a body corporate (Victoria)
  • 40 penalty units or imprisonment for 2 years or both (Queensland)
  • 100 penalty units or imprisonment for 5 years for an individual or both and 500 penalty units for a body corporate (New South Wales).
  • 40 penalty units or imprisonment for 2 years for an individual or both and 500 penalty for a body corporate (Tasmania)
  • 50 penalty units (Australian Capital Territory)
  • $15,000 or imprisonment for 3 years or both for an individual and $75,000 for a body corporate (South Australia).
  • $5,000 or imprisonment for 12 months or both for an individual and $50,000 for a body corporate (Western Australia).
The value of a ‘penalty unit’ varies in each State and Territory, you can see how much each unit is worth here.

Can an illegal recording be used as evidence?

Generally, if a recording has been obtained illegally it cannot be used as evidence.

However, the admissibility of evidence 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.

In most jurisdictions, the question of whether such evidence is admissible is governed by section 138 of the Evidence Act 1995, which gives the court a “discretion to exclude improperly or illegally obtained evidence”.

The section provides that unlawfully obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

In making that assessment the courts will look at a range of factors including the importance of the evidence in the proceedings, the gravity of the unlawful conduct used to obtain the evidence and the seriousness of the offence to which the evidence relates.

If you plan to record a conversation in anticipation of a legal proceeding it is suggested you obtain legal advice to ensure you are doing so lawfully, in order to ensure the recording has the best chance of being admitted into evidence.

Written by Jarryd Bartle. Republished with permission of Sydney Criminal Lawyers.