Have you ever wondered why when you ring a big organisation ranging from telcos to other service providers that they advise you they are recording the phone call for “training purposes”? They may be recording your phone call for training purposes but really, it is so that it becomes legal to record your phone call and may be used for other purposes after their training.

Why would they want to record your phone call?

The answer is simple. If, in the future, they need to rely on the phone call to substantiate a conversation or to gather incriminating evidence against you for whatever reason, they cannot use the phone call unless you have been advised and you consent either expressly or implied.

In NSW, it is illegal to record a private conversation without consent between the callers, unless:

• It is reasonably believed that recording the conversation protects your lawful interest, 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.

Normally, it is against the law to record a phone call between parties without the other party’s consent. 

Recordings using a listening device, such as a mobile phone or digital recorder, and then publishing or distributing that information to a third party can amount to a criminal offence. The Surveillance Devices Act 2007 (the ‘Act’) is the corner stone of the legislation which governs the use of such devices in NSW.

In fact, Section 7 of the Act makes it an offence punishable by up to five years in jail and/or $55,000.00 per person to ‘knowingly install, use, cause to be used or maintain a listening device to:

(a) overhear, record, monitor or listen to a private conversation to which the person is not a party, or 

(b) to record a private conversation to which the person is a party’.

A listening device is defined by the Act as ‘any device capable of being used to overhear, record, monitor or listen to the conversation, or words spoken to, or by any person in conversation, that does not include a hearing aid or similar device’. This definition certainly includes a mobile phone or any other digital device, as well as recording devices you can see online. Also, there are video cameras which have recording facilities. 

What is a private conversation? 

This is defined as any words spoken by one person to another, or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to not only by themselves, or by some other person who has their consent, express or implied by all those persons to do so. That does not include a conversation made in circumstances in which the parties to it may reasonably expect that it might be overheard by someone else.

Don’t you love the law.

There are, however, exceptions within the law. These may include: 

• There has been a warrant or other legal authorisation to do so.
• To record the refusal of a police interview.
• To locate or retrieve the device.
• Where it is used by police to record the operation of a taser or on police body-worn video equipment. 
• The unintentional hearing of a private conversation by means of a listening device.

It is not an offence to record a private conversation to which a person is a party if: 

• There is consent by all parties to the conversation – either expressly or implied.
• It is reasonably necessary for the protection of the lawful interest of a principal party. 
• It 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.

For the police to apply for a warrant to listen or bug your home, they need to have reasonable grounds to suspect that someone is about to commit an offence, or that an offence has been committed, or that an offence is likely to be committed.

These are called surveillance warrants. For a Magistrate or Judge’s approval is required, which is at their discretion. In deciding whether a surveillance warrant is to be issued, consideration needs to be given. Such consideration involves the nature and severity of the alleged offence, the likely intrusion on the privacy of the person or persons being recorded, and whether there are alternative ways of obtaining any evidence that is required. When a surveillance warrant is issued, it will give very specific guidelines as to the type of device approved and how it can be used. More often than not, you will not be shown a copy of the surveillance warrant until after the event.

Surveillance warrants are referred to colloquially as a “wiretap”. Often these warrants are issued to allow undercover police officers and/or third parties, such as police informants, to lawfully record private conversations, and be able to use such ‘evidence’ in any court proceedings.

On another note, provided the parties to the conversation, whether one or more, are aware that the phone call or conversation is being recorded and there is no objection, this will imply that consent has been granted by the participating parties. 

It then becomes a little more complex, if for example, there are conversations between a person in Victoria that is recording a conversation from a person who is in NSW. In that regard, the Victorian law would prevail.

In the event that you have breached the Act, there is a penalty of 100 penalty units or imprisonment for five years for an individual or both, and up to 500 penalty units for a company. 

Can a video recorded without consent be used in Court? Generally, a video recorded without the person’s consent is not illegally recorded and can be used in Court if it is in a public place. Again, the express or implied consent rules apply. The admissibility of the video recording may, however, only have a limited purpose, such as :

• To prove the identity of a person, or 
• To prove the place or date where the footage or incident occurred. 

However, a video recording of something that has happened in a public place does not require the person’s consent, unlike the audio recording. 

Any video recorded without the person’s consent is not illegally recorded and can be used in Court. 

If you are wanting to use audio or video recording as evidence in a family law case, the Court must firstly determine whether the recordings have been illegally obtained. This will depend on all surrounding circumstances. 

The moral of the story is, videos can be used in a public place, but not the audio. If you wish to rely upon legally recorded evidence where the parties have consented, then the approval of the Court must be obtained. If the evidence is admitted into Court, then the Court has the discretion to decide the weight that is to be put on that evidence. 

There have been cases where Courts have allowed evidence by way of video, or audio, which was argued that the recording was reasonably necessary to protect the lawful interests of the person making the recording. These could include:  

• Not to be intimidated or harassed.
• Not to be forced to respond to physical or sexual demands, and 
• To obtain evidence of family violence that takes place behind closed doors.

If you do wish to record a conversation or a video, then it is strongly suggested you obtain legal advice as to the circumstances that may make that recording lawful, so it can be used in a positive way.

Given the invention of smart phones, and most people have a smart phone, there is the potential that every person has a tracking device in their pocket.

Paton Hooke

Taree.

Disclaimer: This information is made available for educational purposes, as well as to give you general information and a general understanding of the law, not to provide specific legal advice. By reading this article, you understand that there is no attorney client relationship between you and Paton Hooke Lawyers & Conveyancing. This article should not be used as a substitute for competent legal advice from a licensed professional attorney.