RECORDING TELEPHONE AND/OR PRIVATE CONVERSATION

If someone records a telephone conversation without the express or implied consent of the parties to that conversation, it is highly likely that, by doing so, that person has committed an offence.

Two legislative instruments regulate the recording of telecommunications in New South Wales:

  • Surveillance Devices Act 2007 (NSW); and
  • Telecommunications (Interception and Access) Act 1979 (Cth).

WHEN IS EAVESDROPPING ILLEGAL?

These Acts prohibit a person from:

  • knowingly using a listening device to overhear a private conversation, or record a private conversation (even if they are a party to that conversation); and
  • intercepting (and recording) a communication passing over a telecommunications system anywhere in Australia.

However, there are a number of exceptions to these blanket prohibitions. For example, it is not illegal to record a private conversation if:

  • a person unintentionally heard or recorded the conversation through a listening device;
  • a person had a warrant to record that conversation;
  • a law enforcement officer, who does not have a warrant, reasonably suspects that there is an imminent threat of serious violence to a person, substantial damage to property, or that a serious narcotics offence will be committed and it is not practicable to obtain a warrant in those circumstances;
  • all of the principal people to the conversation gave their consent (express or implied); or
  • one of the principal people to the conversation gave their consent to a recording and the recording is reasonably necessary to protect their lawful interests.

SANCTIONS

A person who uses a listening device to overhear and/or record a private conversation, or a person who intercepts telecommunications (without a lawful reason for doing so), will be guilty of an indictable offence.

Depending on the nature of the offence, the maximum penalty can range from $11,000 - $55,000 or two-five years' imprisonment, or both.

ILLEGALLY OBTAINED EVIDENCE - IS IT ADMISSIBLE?

Despite the illegality of the recording of the conversation, the courts have a discretion to allow such a conversation in to evidence.

In considering whether to allow an illegally obtained conversation into evidence, the court will consider the probative value of the evidence, the significance of the conversation in the context of the case and the nature of the case.