By: Richard Leder, Georgie Austin, Blake Pappas and Jessica Bennett
At a glance
- Across Australia, various state and territory laws govern the recording of private conversations and the communication and publishing of such recordings.
- Before publishing or sharing any recordings, it is crucial to be aware that doing so may not only work against your interests but could also constitute a punishable offence.
- If you are uncertain about your legal position or unsure which state legislation applies to you, it is important to seek expert advice.
Background
In the defamation proceeding between ousted Victorian Liberal MP Moira Deeming and party leader John Pesutto, the court has heard a 70-minute recording of a tense conversation involving Ms Deeming and state Liberal leaders.
While the recording may prove to be valuable evidence in this case, it is also a reminder that the recording (and communicating) of private conversations is not without risk.
Across Australia, various state and territory laws govern the recording of private conversations and the communication and publishing of such recordings. The legal right to publish such recordings is highly contingent on where the recording has taken place.
This article will provide an overview of the key provisions in each jurisdiction.
Recording, communicating and publishing private conversations in Victoria
In Victoria, the Surveillance Devices Act 1999 (Vic) (the Act) operates to protect persons from unjustified invasions of their privacy.1 The Act’s protective provisions, particularly section 11, reflect the community’s aversion to the illicit recording of private conversations.
While the Act does not prevent a party to a private conversation from surreptitiously recording it,2 section 11 imposes, with limited exceptions, a ban on knowingly communicating or publishing a record or report (i.e. transcript) of a private conversation obtained through the use of various devices, including devices such as mobile phones.
What is a ‘private conversation’?
The Act defines a ‘private conversation’:3
1) as a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves.
2) but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else.
Recent cases on the definition have provided further insight into what constitutes a ‘private conversation’:
1) A conversation can be private even though the participants are at liberty to tell others about it later. The term “private” is used not in the sense of “secret” or “confidential”, but in the sense of “not public”. For example, a telephone conversation with a friend is characterised as private, even if the friend is at liberty to discuss it with someone else. Conversely, a telephone conversation on talk back radio would not be deemed private.4
2) ‘Conversation’ does connotate communications with a degree of informality.5 In Alliance Craton Explore Pty Ltd v Quasar Resources Ltd,6 a meeting of the management committee of a joint venture was not considered a private conversation, noting the meeting had commercial character and purpose, a degree of formality about it given the way it was conducted, and involved written agendas and minutes.
3) In Nanosecond Corporation Pty Ltd v Glen Carron Pty Ltd, the Court considered a telephone conversation to be a private conversation, stating the commercial flavour to the discussions did not deprive them of their status as a conversation. Even though they may fairly be described as meetings, they were not formal and structured.7
4) In Together t/as Patrick Together Artists’ Management v Alexander, the Court decided that a meeting attended by administrative, performance and production personnel was a private conversation although there was an indeterminate number of attendees and the content of the conversation concerned the operation, performance and frustration of contracts, rather than personal matters.8
Exceptions
Publishing or communicating a recording of a private conversation can result in serious consequences, including imprisonment, substantial fines, or both.
However, there are several exemptions, including:
1) Consent: implied or express consent has been obtained from each party to the private conversation to communicate or publish the recording.
2) Public interest: the communication or publication of the recording is no more than is reasonably necessary in the public interest.
3) Lawful interest: the communication or publication of the recording is no more than is reasonably necessary for the protection of the lawful interests of the person making it.
4) Legal or disciplinary proceedings: the communication or publication of the recording is made in the course of legal proceedings or disciplinary proceedings.
Among these exceptions, the public interest and lawful interest exceptions are likely to be the most challenging to establish. This is evident from the case of Farm Transparency v NSW,9 where the High Court acknowledged that proving dissemination of information was truly in the public interest “cannot be assumed to be an easy task”.10
Federal Legislation in relation to Telephone conversations
The Telecommunications (Interception and Access) Act 1979 (Cth) (TIA Act) is a piece of Commonwealth legislation that extends liability to persons who intercept or record communications, particularly in relation to telecommunication devices and networks.
Section 7 of the TIA Act prohibits the interception of communications passing over a telecommunications system, except in limited circumstances.11 In applying this provision, courts have distinguished between two types of scenarios:
1) Integrated: in cases where a person uses equipment integrated into the telecommunications system the TIA Act applies – for example, in Russell v Russell12 a husband was found to have contravened section 7 when he secretly installed a recording device into his wife’s Nokia phone to listen to and download her private conversations.
2) External: if an external device, like a separate mobile phone or Dictaphone, is used to record a conversation (e.g. by placing a call on speaker phone and recording with a separate device), State legislation will apply, as the communication is no longer “passing over” the telecommunications network.13
Section 63 of the TIA Act prohibits the use or communication of intercepted information, unless it can be established that the use satisfied one or more of the exemptions provided for in sections 67, 68 and 74.
Snapshot: jurisdictional positions on recording conversations
The legal rights and liabilities of individuals and corporations under the legislative framework are highly contingent upon their location and their status as a participant in the private conversation (i.e. involved or an unrelated third-party).
It is important to remember that even if a recording has been obtained improperly or in contravention of an Australian law, in a legal proceeding, a court may still have discretion to admit such evidence if the desirability of admission outweighs the undesirability.
| Jurisdiction | Snapshot of position |
| Australian Capital Territory (ACT) | Relevant legislation
Listening Devices Act 1992 (ACT) Can I record a private conversation? No, it is an offence to record a private conversation, regardless of whether you are a party to the conversation or not.14 Exemptions apply, with the most relevant being:15 1) With the consent of each party to the conversation. 2) If made to protect lawful interest. Can I communicate or publish a record of a private conversation? It is an offence to divulge or communicate a record of the conversation if you know the record was made using a listening device (whether or not in contravention of section 4).16 Exceptions apply, with the most relevant being:17 1) In the course of a civil or criminal proceeding. 2) If a communication or publication is made to protect lawful interest. |
| New South Wales (NSW) | Relevant legislation
Surveillance Devices Act 2007 (NSW) Can I record a private conversation? No, it is an offence to use a listening device with the intention of recording a private conversation, regardless of whether or not you are a party to the conversation.18 Exemptions apply, with the most relevant being:19 1) With the consent of each party to the conversation. 2) If made to protect lawful interests. Can I communicate or publish a record of a private conversation? It is an offence to publish or communicate a record of a private conversation that has come to you knowledge as a direct or indirect result of the use of a listening device in contravention of the Act.20 Exemptions apply, with the most relevant being:21 1) With the consent of each party to the conversation. 2) In the course of proceedings for an offence against this Act. |
| Northern Territory (NT) | Relevant legislation
Surveillance Devices Act 2007 (NT) Can I record a private conversation? If you are not a party to the private conversation, then it is an offence to record a private conversation.22 Exemptions apply, with the most relevant being:23 1) With the consent of each party to the conversation. Can I communicate or publish a record of a private conversation? It is an offence to communicate or publish a record of a private conversation if you know the record has been made as a direct or indirect result of the use of a listening device.24 Exemptions apply, with the most relevant being:25 1) With the consent of each party to the conversation. 2) If a communication or publication is made to protect lawful interests or public interest. 3) In the course of legal or disciplinary proceedings. |
| Queensland (QLD) | Relevant legislation
Invasion of Privacy Act 1971 (QLD) Can I record a private conversation? No, it is an offence to use a listening device to record a private conversation.26 Exemptions apply, with the most relevant being:27 1) If the person using the listening device is a party to the private conversation. Can I communicate or publish a record of a private conversation? It is an offence to communicate or publish a record of a private conversation that has come to your knowledge as a result of using a listening device used in contravention of the Act.28 Exemptions apply, with the most relevant being:29 1) With the consent of each party to the conversation. 2) In the course of proceedings for an offence under this Act. 3) If a party to the conversation makes the communication in the course of legal proceedings. 4) If a party to the conversation considers it reasonably necessary in the public interest or for the protection of lawful interests. |
| South Australia (SA) | Relevant legislation
Surveillance Devices Act 2016 (SA) Can I record a private conversation? No, it is an offence to knowingly use a listening device to record a private conversation, regardless of whether you are a party to the conversation or not.30 Exceptions apply, with the most relevant being:31 1) With the consent of each party to the conversation. 2) If made to protect lawful interests. Can I communicate or publish a record of a private conversation? No, only if the communication or publication of the material is to protect lawful interest or in the public interest. However, even in these circumstances, further exceptions to such communication or publication may apply.32 |
| Tasmania (TAS) | Relevant legislation
Listening Devices Act 1991 (TAS) Can I record a private conversation? No, it is an offence to use a listening device to record a private conversation, regardless of whether you are a party to the conversation or not.33 Exceptions apply, with the most relevant being:34 1) With the consent of each party to the conversation. 2) If made to protect lawful interests. 3) The use is to obtain evidence in connection with imminent threat of violence or property damage. Can I communicate or publish a record of a private conversation? It is an offence to communicate or publish a record of that conversation.35 Exceptions apply, with the most relevant being:36 1) With the consent of each party to the conversation. 2) A party to the conversation communicates or publishes the record in the course of legal proceedings. 3) If a party to the conversation considers it reasonably necessary in the public interest or for the protection of lawful interests. |
| Western Australia (WA) | Relevant legislation
The Surveillance Devices Act 1998 (WA) Can I record a private conversation? No, it is an offence to use a listening device to record a private conversation, regardless of whether you are a party to that conversation or not.37 Exceptions apply, with the most relevant being:38 1) With the consent of each party to the conversation. Can I communicate or publish a record of a private conversation? It is an offence to knowingly publish or communicate a record of a private conversation that has come to your knowledge as a result of the use of a listening device.39 Exceptions apply, with the most relevant being:40 1) With the consent of each party to the conversation. 2) If a communication or publication is made to protect lawful interests or public interest. |
Key takeaways
In the technological era, we have unprecedented access to devices capable of recording important conversations, which may prove useful as seen in the recent defamation proceeding Deeming v Pesutto.
However, before publishing or sharing any recordings, it is crucial to be aware that doing so may not only work against your interests but could also constitute a punishable offence.
If you are uncertain about your legal position or unsure which state legislation applies to you, it is important to seek expert advice. Our experienced commercial litigation team is here to provide tailored advice and help you navigate the complexities of Australia’s surveillance device legislation. Contact our authors to discuss how we can support you.
[1] Together t/as Patrick Together Artists’ Management v Alexander [2019] NSWDC 192 at [57].
[2] It is an offence to record a private conversation to which the person is not a party under Section 6 of the Act.
[3] Surveillance Devices Act 1999 (VIC), Section 3.
[4] Thomas v Nash (2010) 107 SASR 309 at [37].
[5] RRG Nominees Pty Ltd v Visible Temporary Fencing Australia Pty Ltd (No 3) [2018] FCA 404 at [20].
[6] [2010] SASC 266 at [31].
[7] Nanosecond Corp Pty Ltd v Glen Carron Pty Ltd (2018) 362 ALR 472 at [88].
[8] Together t/as Patrick Together Artists’ Management v Alexander [2019] NSWDC 192 at [21].
[9] Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1.
[10] Farm Transparency International Ltd v New South Wales (2022) 403 ALR 1 at [51].
[11] Section 5F states that a communication is taken to continue to pass over the system until it becomes accessible to the intended recipient.
[12] Russell v Russell [2012] FamCA 99.
[13] Furnari v Ziegert [2016] FCA 1080; Violi v Berrivale Orchards Ltd [2000] FCA 797.
[14] Listening Devices Act 1992 (ACT), Section 4(1).
[15] Listening Devices Act 1992 (ACT), Sections 4(2) and (3).
[16] Listening Devices Act 1992 (ACT), Sections 5(1) and 6(1)
[17] Listening Devices Act 1992 (ACT), Sections 5(2) and 6(2).
[18] Surveillance Devices Act 2007 (NSW), Section 7(1).
[19] Surveillance Devices Act 2007 (NSW), Sections 7(2) and (3).
[20] Surveillance Devices Act 2007 (NSW), Section 11.
[21] Surveillance Devices Act 2007 (NSW), Section 11(2).
[22] Surveillance Devices Act 2007 (NT), Section 11(1).
[23] Surveillance Devices Act 2007 (NT), Section 11(2).
[24] Surveillance Devices Act 2007 (NT), Section 15(1).
[25] Surveillance Devices Act 2007 (NT), Section 15(2).
[26] Invasion of Privacy Act 1971 (QLD), Section 43(1).
[27] Invasion of Privacy Act 1971 (QLD), Section 43(2).
[28] Invasion of Privacy Act 1971 (QLD), Sections 44(1) and 45(1).
[29] Invasion of Privacy Act 1971 (QLD), Sections 44(2) and 45(2).
[30] Surveillance Devices Act 2016 (SA), Section 4(1).
[31] Surveillance Devices Act 2016 (SA), Section 4(2).
[32] Surveillance Devices Act 2016 (SA), Sections 9 and 10.
[33] Listening Devices Act 1991 (TAS), Section 5(1).
[34] Listening Devices Act 1991 (TAS), Section 5(2).
[35] Listening Devices Act 1991 (TAS), Sections 9(1) and 10(1).
[36] Listening Devices Act 1991 (TAS), Sections 9(2) and 10(2).
[37] The Surveillance Devices Act 1998 (WA), Section 5(1).
[38] The Surveillance Devices Act 1998 (WA), Section 5(3).
[39] The Surveillance Devices Act 1998 (WA), Section 9(1).
[40] The Surveillance Devices Act 1998 (WA), Section 9(2).