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Is it Illegal to Record a Conversation Without Consent?

is recording a conversation illegal | Justice Family Lawyers

Laws regarding recording conversations without consent vary widely depending on the jurisdiction. The admissibility of phone recordings in court depends on how they were obtained and the case’s specifics.

Under the Telecommunications (Interception) Act 1979 (Cth), it is generally illegal to record phone conversations without all parties’ consent.

However, there are exceptions, such as if the recording is done in the course of your lawful duties, in the public interest, or to protect your legal interests.

If the recording was obtained legally and is relevant to the case, it may be used as evidence. However, this is subject to the discretion of the court.

Furthermore, even if a recording was obtained illegally, there is a provision in the Evidence Act 1995 (Cth) that allows such evidence to be used if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way the evidence was obtained.

Listening Device as Defined

Section 4 of the Surveillance Devices Act 2007 (NSW) says the following about a “listening device”:

Any device that can be used to overhear, record, monitor, or listen to a conversation or words spoken to or by any person in conversation. This does not include a hearing aid or similar device used by a person with hearing loss to help them listen to conversations or words spoken in their immediate area.

This term includes various possible devices, such as cameras, tape recorders, digital voice recorders, cell phones used to record conversations, etc. It doesn’t cover things like hearing aids, which help people who have trouble hearing.

Any recording that violates surveillance and privacy laws in the relevant state, even if obtained legally, is considered inadmissible evidence. In many Australian states, recording a private conversation without the consent of all parties involved is illegal.

Also read: Do the Police Need Evidence to Charge You

Australia’s State And Territory Laws On Recording Phone Calls

Both federal and state laws govern the recording of phone calls and the use of such recordings as evidence.

Federal Legislation – The Telecommunications (Interception and Access) Act 1979 (Cth): This law generally prohibits intercepting or recording telephone calls without all parties’ consent.

However, exceptions exist, such as law enforcement agencies being granted a warrant to block calls in certain circumstances.

Each state and territory in Australia also has its legislation governing the recording of conversations:

  1. Western Australia – The Surveillance Devices Act 1998 (WA) and The Telecommunications (Interception) Western Australia Act 1996: These laws generally require the consent of all parties for a private conversation to be recorded.
  2. South Australia – The Listening and Surveillance Devices Act 1972 (SA): Generally, consent from all parties is required to record a private conversation. Using a device to listen to or record a private conversation without permission is an offence.
  3. Tasmania – The Listening Devices Act 1991 (TAS): Consent of all parties is generally required to record a private conversation.
  4. Australian Capital Territory – The Listening Devices Act 1992 (ACT): The consent of all parties is generally required for a private conversation to be recorded.
  5. Northern Territory – The Surveillance Devices Act 2007 (NT): The consent of all parties is generally required for a private conversation to be recorded.

Exceptions

Generally, recording a private conversation without consent is considered illegal, but there can be exceptions. The Court can admit them in certain circumstances. 

  • In New South Wales, according to the Surveillance Devices Act 2007, recording a private conversation without consent from all parties is illegal unless it’s reasonably necessary to protect the lawful interests of the person making the recording.
  • In Victoria, under the Surveillance Devices Act 1999, a private conversation can be recorded by a party to the conversation if it’s reasonably believed that recording is necessary for legal interests.
  • Queensland, under the Invasion of Privacy Act 1971, permits a person to secretly record a private conversation to which they are a party.

However, the admissibility of such recordings in court is another matter. It depends on the judge’s discretion, the relevance of the recording, how it was obtained, and its necessity to the proceedings.

Is NSW a One-Party Consent State?

Yes, New South Wales (NSW) is considered a one-party consent state when it comes to recording conversations. This means that it is generally legal to record a conversation as long as one party involved in the conversation consents to the recording.

However, it’s important to be aware of the following:

  • Private Conversations: The one-party consent rule applies specifically to private conversations. If the conversation is not considered private (e.g., a public speech or a conversation in a public place where there is no reasonable expectation of privacy), recording may be permitted even without the consent of any party.
  • Exceptions: There are some exceptions to the one-party consent rule, such as when the recording is reasonably necessary to protect the lawful interests of the person making the recording.
  • Use of Recordings: Even if a recording is made legally, there may be restrictions on how it can be used. For example, using a recording to blackmail or harass someone would likely be illegal.

Circumstances When Recording Private Conversation is Used as Evidence

Do phone recordings hold up in court in Australia, and what does the court consider before admitting them as evidence?

When a court in Australia considers admitting a recorded private conversation as evidence, several factors come into play:

  • The Legality of the Recording: Under the federal Telecommunications (Interception and Access) Act 1979, recording a telephone conversation without consent from all parties is generally illegal. State and territory laws also regulate the recording of conversations, typically under their respective Surveillance Devices Act.
  • Relevance: The evidence must be relevant to the case. It must have a reasonable tendency to prove or disprove an essential fact.
  • Probative Value vs Prejudicial Effect: The court will weigh whether the probative value (the extent to which the evidence could contribute to proving a particular fact) outweighs any potential prejudicial effect (the potential of the evidence to harm the other party’s case unfairly).
  • Interests of Justice: Even if a recording has been obtained improperly or illegally, under Section 138 of the Evidence Act 1995 (Cth), the court may still allow it to be used as evidence if it believes the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way it was.
  • Potential to Mislead or Confuse: The court will also consider if the evidence might mislead or confuse the court or if providing the evidence would result in an undue waste of time.

Defences to Recording a Private Conversation in Australia

In certain circumstances, recording a private conversation without consent might be legally defensible.

Here are some examples, based on the information available up until my training data in September 2021:

  • Protecting lawful interests: Some jurisdictions may allow the recording of a conversation to defend one’s lawful interests. For example, if you believe the conversation will provide evidence of unlawful conduct against you, it may be legal to record it. The specifics of a “lawful interest” can vary, and you should seek legal advice in your jurisdiction.
  • Preventing or proving the commission of a serious crime: If a conversation provides evidence of the commission of a serious offence, it may be permissible to record that conversation. What constitutes a “serious offence” can differ depending on jurisdiction.
  • Involvement in the conversation: In some Australian states, like Victoria and Queensland, it is legal to record a conversation you are a party to without informing the other parties.
  • Consent: While recording a private conversation generally requires the consent of all parties, if you can prove that all parties had indeed given consent (express or implied), it would be a valid defence.
  • Journalism and public interest: There may be exceptions for newsgathering and publication in the public interest, although these would generally still require adherence to journalistic ethics and standards.

Also read: What Is Evidence That Cannot Be Used In Court

Sample Family Law Cases Demonstrating How the Court Decided About Recorded Phone Calls as Evidence

Do phone recordings hold up in court in Australia? Find out how courts decide upon them with these family law cases:

Huffman & Gorman (No 2) [2014] FamCA 1077

The court contemplated admitting the father’s unlawful recordings. The father said the mother was aggressive throughout the relationship.

The mother rejected his claims, saying the father never reported any concerns to the police. The father used recordings of the mother throughout the relationship to prove abuse.

Due to the “notorious difficulty to obtain evidence of family violence, which often takes place behind closed doors,” the judge allowed the evidence because it was in the children’s best interests.

Garner & Garner [2016] FamCA 630

The wife’s secret recordings of her husband cursing, calling her names, and threatening suicide were introduced into evidence.

The Husband objected to the recordings, but both parties submitted them to the Court. “There is no doubt that the father’s language, as recorded in the transcripts, would satisfy the definition of family violence,” the Court said.

The recordings were domestic violence under the Family Law Act 1975’s s4AB. According to the judge, the recordings were probative of domestic violence, and using them as evidence was in the children’s best interests.

Nagel & Clay (2020) FamCA 326

In her Trial Affidavit, the mother presented over eight hours of digital and audio recordings of the father’s behaviour at changeovers and separation. F

ather didn’t know he was being recorded. The mother said the recordings supported her claim that the father was “verbally and physically violent towards her”.

The father argued that the 8-hour recording was only a snapshot of over 400 changeovers and, therefore, inaccurate.

The Court excluded the recordings because they were irrelevant, had limited probative value, and could unfairly prejudice the father and mislead the court.

Since the Mother had already provided the Family Report Writer with a copy of her trial affidavit attaching the recordings, the Report Writer was ordered to ignore the recordings in preparing and finalising her report.

Guzniczak & Rogala [2017] FamCA 758 

Before separation, the husband secretly recorded the wife for family law proceedings. The Court believed the Husband “goaded” the wife and set up “traps” to portray himself as a victim and the wife as an aggressor.

The Judge called it “theatrical and manipulative.” The parties had been together for many years, and I’m sure the husband knew how to upset or aggravate the wife.” The recording was admitted into evidence but interpreted against the Husband. 

This case shows that a recording’s admissibility does not guarantee its weight. Where one party has been “set up” by the other to misrepresent what happened, the Court may still disregard it, give it little weight, or interpret it in a way that was not intended.

Ultimately, a witness’s reliability will still impact the judge’s final decision.

Can A Secret Recording Be Used As Evidence?

Our AVO lawyers are here to answer your queries and provide expert legal advice.

Our team is experienced in navigating complex legal issues and can guide you on the potential admissibility of such recordings.

We are committed to ensuring that your rights are protected. Need help with your case? Reach out to Justice Family Lawyers today, and let us stand with you.

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