Lights, Camera, Action, Cut!
Is it legal to record your conversations with others without their knowledge?
Recording of telecommunications passing over a telecommunications system and the use of information gained by same is governed by the Federal legislation – the Telecommunications (Interception and Access) Act. This is the same law throughout Australia. A recording is not unlawful if it occurs with the knowledge of the person speaking at the time. Therefore, a caller may record his/her end of the conversation but cannot record the responses of the person they are speaking with, without their consent.
The Queensland Position
In Queensland, the recording of telephone conversations is also covered by the Invasion of Privacy Act. This Act prohibits the recording of private conversations with the following exceptions:
- Where the recording is made by a party to the conversation, including a listener known to the parties;
- Where the recording is made by a member of the police force authorised in writing in pursuance of his duty, and with approval given by a Judge of the Supreme Court;
- There are also other exceptions for authorised persons such as customs officials and a person employed in the connection with the security of the Commonwealth.
Tape Recordings as Evidence in the Family Court
The Family Court often deals with matters where a parent attempts to put tape recordings into evidence.
In the case of Byrne v Byrne there was a recording made by the father of a conversation he had with the mother. The mother argued that the tape was prohibited under the Telecommunications (Interception and Access) Act which prohibits the interception of communications passing over a telecommunication system. The father argued that it was exempted under the New South Wales Listening Devices Act as it was a recording which was reasonably necessary for the protection of his lawful interests.
The Court considered the conflict between the two pieces of legislation and stated that a State law cannot make lawful that which is unlawful under a Commonwealth Act, or make unlawful that which is lawful under the Commonwealth Act.
The Court determined that the recording was not made in contravention of an Australian law and it was admitted into evidence.
In the case of Farrelly v Kaling in the Federal Magistrates Court of Australia, the father produced in excess of 70 recordings to the Court. The father made the recordings primarily for use in the Final Hearing of the matter and the recordings included conversations which the father had with the child. The Court found that the father had staged many of the recordings and that the recordings demonstrated that the father has been engaging in undermining the role of the mother and engaging in alienating behaviour towards the mother. The Court said that the listener will hear the father and child having a series of ongoing conversations about the mother in a derogatory and negative fashion. The family report writer gave evidence of the negative impact on the child of the content of the conversations.
The legality of the recording is not the Family Court’s only consideration when determining the admissibility of the evidence. The Court will also consider the relevance of the recording, whether the voices on the recording can be properly identified and whether the original recording can be provided to the Court. You should obtain independent legal advice prior to recording any conversations in relation to the admissibility and relevance of the recordings.
For more information
This article reflected the state of the law at the time of publication. But the law is a living creation which is constantly changing and adapting. These articles should be treated as an information resource only and not as a substitute for specific legal advice in respect to your particular problems and circumstances.
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