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More on recording conversations in Australia: What is allowed?

Published at 10:27 on 25 Jan 2023

Can you record conversations in Australia?  This is the most common question we get asked by our online followers. And the answer is … it depends.

We try and explain more below.

But first … a disclaimer:

NB: This blog post is geared towards providing more information about the making and use of voice recording. Privacy 108 provides services to businesses, government agencies and employers. Privacy 108 does not offer employment, criminal or family law legal services, and does not represent individuals in claims relating to their employer or otherwise.

We are not able to help you with any individual questions you might have about your rights to make recordings.

Please seek relevant advice from a legal professional experienced in these fields (e.g. employment law) if your query relates to any of these privacy concerns. 

You may also wish to consult the following governmental departments:

Laws around recording conversations

Australian businesses, educational institutions, and most professionals are covered by a patchwork of laws relating to voice recordings and workplace surveillance. They include:

  • Surveillance laws: There are state laws that cover the use of cameras and audio recordings and sometimes even location trackers. They are all slightly different but usually apply to the use of surveillance devices.  Every State has a different piece of legislation, with different application and different exceptions, so it really depends on where you are.

A list of some of the state surveillance laws is included at the end of this post.

  • Workplace surveillance laws: specific workplace surveillance laws that cover how employers can monitor their employees exist only in NSW,  the ACT and, to some extent, in Victoria[1].
  • Privacy laws: privacy laws can apply to information collected via recordings but their application is complicated. Some information on surveillance and monitoring is available here. Information from Fair Work Australia on privacy in the workplace is available here.

Other laws provide related protections, without necessarily being designed to control the use of surveillance devices per se. For example, s 227A of the Queensland Criminal Code provides for a misdemeanour where a person observes or visually records another person ‘in circumstances where a reasonable adult would expect to be afforded privacy’, if the second person is in a private place or engaged in a private act and has not provided consent. A similar offence exists in s 91K of the Crimes Act 1900 (NSW), where the recording is obtained for the purpose of obtaining ‘sexual arousal or sexual gratification’.

WSurveillance is also included as a form of stalking: eg, s 21A(f) of the Crimes Act 1958 (Vic).

As you can see, the laws are complex and in a lot of cases very out of date.

There is a proposal to overhaul Australia’s surveillance legislation (mostly aimed at how law enforcement access  stored emails and phone call data but also covering interception of calls and messages).  It’s being considered by the Department of Home Affairs.  We covered that in more detail in this blog post.

But what does it all means …

Generally, it is legal to record conversations that are not private (or intended to be private). However, before recording a private conversation, you need to understand the laws of that state or territory to determine whether it is legal to record a conversation – starting with what consent you might need.

We have looked at when you need consent and when you don’t in a separate blog post. This is the best starting point to work out what you can and can’t do generally and we recommend that you read that post.

But we know you will still have questions.The following provides some answers to some of the specific questions we’ve been asked:

 

Can I record a conversation with a co-worker/my manager as evidence of that conversation

There are lots of reasons you may want to record a conversation in the workplace e.g. with your boss or another co-worker where you think there is bullying, harassment or discrimination in the workplace.  You may just want to keep the recording so you have evidence of the conversation and what was said.

You may also want the recording as evidence of something that the company or its officers is doing wrong, that you could use as part of a whistle blowing or public interest disclosure.

Answer:

First off – you need to check the local laws to see whether you need consent from just one party to the conversation (Queensland) or both (everywhere else).

You might also need to consider if you can rely on one of the exceptions to the consent requirement, (which again are different in different states).

These exceptions include where the recording is:

  • in the public interest (heavily relied on by journalists and whistle blowers);
  • for the protection of your own lawful interests;
  • for protection from imminent threat (for example, where someone is threatening you with harm).

If you are concerned about the activities of your employer, then you may be covered by whistle blower protections.  More information about those protections is available here.

However, remember that while it may be legally permissible to record certain conversations (e,g, in Queensland where you need single party consent), the reality is that recording conversations at work can be serious misconduct and may constitute grounds for termination.

The Fair Work Commission has repeatedly found that secretly recording conversations at work, ‘strikes at the heart of the employment relationship’ and undermines ‘the necessity of trust and confidence in the employment relationship’. The cases have referred to the general community expectation in both business and social behaviour that participants will not be subjected to covert recording of a conversation, saying that such conduct is an ‘extreme impropriety’

Two unfair dismissal cases provide examples of the Fair Work Commission’s view on the matter.

In Zhang v Royal Automobile Association of South Australia Incorporated t/a RAA the Fair Work Commission found that a covert recording by Mr Zhang of a meeting between him and his managers “fatally damaged” the employment relationship and was a valid reason for dismissal (amongst other reasons). The Commissioner did not accept the recording into evidence despite Mr Zhang’s submissions.

In Chandler v Bed Bath N’ Table the Commission again confirmed that a covert recording may be a valid reason for dismissal. In that case, the unfair dismissal claim was successful subject to later determination of appropriate compensation. Interestingly, Commissioner Lee accepted the recording into evidence and it substantially assisted Ms Chandler’s case, including evidencing some incorrect representations of the Fair Work Act 2009 (Cth) made by the employer. The Fair Work Commission found that Ms Chandler’s dismissal was unfair and the reasons originally relied upon by the employer were not valid (in part due to the recording evidence).

However, Ms Chandler’s making of the recording, only discovered after the dismissal and during the proceedings, was found itself to be a valid reason for dismissal and was successfully relied upon by the employer as a justification for avoiding a reinstatement order due to a loss of trust and confidence between the parties. That is, if the employer had discovered the recording during the employment and followed a fair process, the employee could, based on her making of the recording, have been validly dismissed.

This is obviously a very complex area of the law. You should get advice from an employment law specialist (NOT Privacy 108) before recording conversations in the workplace, especially where you are doing that in a covert way (e.g. without letting the other person know) and because you want to use the recordings in evidence against your employer.

This explainer on bullying in the workplace and this link to the Fair Work page on help with bullying in the workplace may be of use.  More Information from Fair Work Australia on privacy in the workplace is available here.

 

I feel unsafe at work- can I record conversations others are having around me in the workplace?

There are cases where you may want to record a conversation that you are not part of e.g. as evidence of the sort of things your co-workers talk about or the sort of language they use in the workplace.

Answer:

If you are not a party then even in Queensland this is likely to not be allowed unless you can rely on one of the exceptions.

Again, remember that there may be issues under your employment contract if you record conversations at work and any covert recording may be regarded as serious misconduct by you and grounds for termination.  Check with an employment lawyer before you do anything.

Can I use a recording in legal proceedings, even if I didn’t have consent?

Answer:

Generally, even if evidence is obtained improperly or in contravention of an Australian law, you might still be able to use it in legal proceedings e.g. where you are alleging discrimination or harassment in the workplace. Under uniform evidence legislation, courts are given a discretion to allow unlawfully obtained evidence to be used in a proceeding (for example, where it is a recording in breach of a surveillance device law). This is subject to the court being satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained (in the circumstances that the evidence was improperly or unlawfully obtained).

In Ogbonna v CTI Logistics Ltd & Ors1, the Federal Circuit Court found that the desirability of admitting the covert recording did not outweigh the undesirability of admitting it. In making this decision, the Court took the following matters into consideration:

  • the recording was made contrary to the Surveillance Devices Act 1998(WA);
  • the evidence was available through oral witnesses; and
  • the recording did not assist in the determination of the issue in the proceeding (racial discrimination).

If you are thinking of recording a conversation or meeting to help you in subsequent legal proceedings be very careful. If made in breach of relevant laws, it will need to pass a strict test of the desirability of admitting it as evidence before it can be relied on.

Get legal advice (not from Privacy 108 – sorry, this isn’t our area) before going ahead.

 

I think my employer is secretly recording my phone calls at work – what can I do?

Answer:

Recording or listening in to phone calls introduces new complexities.

As well as the surveillance device laws we’ve been discussing, there are federal laws that apply to the tapping of phone conversations, or the interception of emails or text messages sent across the internet.

In Australia, interception of online communications is covered by the Telecommunications (Interception and Access) Act 1979. Under that legislation, it is a federal offence to record or intercept a conversation received from a telecommunication system (including telephone calls and video conferencing) by direct connection to the telecommunications system even if the parties are aware of the recording.

As such, it might be illegal to record a telephone or video conference at work even if the person recording is a party to the conversation or if both parties consent.  This applies to employees as well as employers.

The federal law prevails over any inconsistent state law. So in Queensland, for example, it is unlawful to record a telephone call by direct connection to the telecommunications system even if the person recording is a party to the conversation.

If you think your employer is recording your calls, ask them whether they are and what the purpose of the recording is.  You might also want to check your rights with the Fair Work Ombudsman or contact the Telecommunications Ombudsman and discuss your concerns with them.

If you think someone else is tapping your calls, contact your phone provider and have a talk to them …

 

Are there different rules for journalists?

We have been asked, for example, whether a journalist doing a story on medical malpractice, can wear a wire into a doctor’s office (this would be covert surveillance).

Answer:

There are different rules for journalists but the carve outs are limited. Journalists may be able to rely on the public interest exemption to the surveillance data laws to record the conversation in a covert way and without consent.

There is an exemption from the Privacy Act that might be relevant for journalists but it is limited to:

  • media organisations who have publicly committed to published privacy standards;
  • to the activities of those media organisation in the course of journalism

More on the privacy act here: www.oaic.gov.au

Conclusion

A few key takeaways:

  • There are laws that cover the recording of conversations and you need to comply with them.
  • Those laws are different in each State.
  • Covertly (or secretly) recording conversations or meetings in your workplace is a bad idea – it’s likely to be grounds for dismissal and the recordings probably won’t be allowed as evidence if you are using them to challenge your termination. They may be useful as evidence of discrimination or harassment but still not a great idea …
  • You can and should ask your employer for clear information about any workplace surveillance they may be doing, and you have the right to make sure that this is done in accordance with any state based surveillance laws and the federal Privacy Act (if it applies).

Although it may now be incredibly easy to record every aspect of your working and private life, there are some very serious consequences if you don’t get it right.

State surveillance device laws:

  • Surveillance Devices Act 2007(NSW);
  • Invasion of Privacy Act1971 (Qld);
  • Listening and Surveillance Devices Act 1972(SA);
  • Listening Devices Act1991 (Tas);
  • Surveillance Devices Act 1999(Vic);
  • Surveillance Devices Act 1998(WA);
  • Listening Devices Act1992 (ACT);
  • Surveillance Devices Act(NT)..

State privacy regulators:

Links for State and territory bodies responsible for privacy laws (if you want to check your rights):

More references:

https://www.alrc.gov.au/wp-content/uploads/2019/08/fr123_14._surveillance_devices.pdf

[1]Workplace Surveillance Act 2005 (NSW), Workplace Privacy Act 2011 (ACT), Surveillance Devices Act 1999 (Vic) pt 2A.

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