This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws, a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

Is It Legal To Record Phone Calls?


Recording a phone call or conversation using a smartphone is increasingly common. But is it legal to record a phone call in the Australian Capital Territory? There are strict laws in place in the ACT to protect privacy, and generally, recording a conversation without the consent of other parties to that conversation is illegal, as this article explains.

Legislation

The Listening Devices Act 1992 regulates the use of listening devices in the ACT.

Section 4 prohibits intentional recording of a private conversation, whether a person is a party to the conversation or not.

Sections 5 prohibits a party to the conversation from divulging or communicating a record of the conversation if they know the record was made using a listening device. Section 6 extends the prohibition to those who are not a party to the conversation.

Section 7 states a person commits an offence if they possess a record of a private conversation if they know the record was obtained via the illegal use of a listening device.

A party is any person in the conversation who speaks or has words spoken to them, or who listens to or records the conversation with the consent of the other parties to the conversation.

What constitutes a ‘listening device’?

The Act states a listening device means any instrument, apparatus, equipment or device that can be used to record a private conversation but this definition does not include a hearing aid.

What is a ‘private conversation’?

The Act defines a private conversation as any conversation where the parties reasonably expect their words to be listened to only by themselves, or by others when there is consent from each party to the conversation.

Penalties

The penalty if you record a phone call without consent in the ACT is 50 penalty units, imprisonment for six months, or both.

If a court convicts a person of an offence under the Act, it can order that the listening device used to commit the offence be forfeited or destroyed. A police officer can seize the device or record to give effect to the order.

When is it legal to record a conversation?

The Section 4 ban does not apply if:

  • the device is used under an authority granted by a Commonwealth law;
  • the conversation is heard unintentionally;
  • each party to the conversation consents to its recording; or
  • a party to the conversation consents to the device being used in order to protect their lawful interests, or the recording is not made to be shared with anyone who is not a party to the conversation.

When is it legal to share a record of a phone call?

The Section 5 and 6 ban does not apply if the communication or publication is:

  • made to another party to the conversation;
  • made with the consent of each party to the conversation;
  • made in the course of civil or criminal proceedings;
  • considered to have been made by a party to protect their lawful interests;
  • made to a person who is reasonably believed to have such an interest in the conversation as to make the communication or publication reasonable;
  • made under an authority granted by a Commonwealth law.

When is it legal to possess a record of a phone call?

The Section 7 ban does not apply if:

  • the possession is in connection with proceedings for an offence under the Act;
  • there is consent from each party to the conversation;
  • the possession is a consequence of circumstances that do not constitute an offence under the Act.

Can a recording be used as evidence?

A person in any civil or criminal proceedings cannot give evidence of a private conversation or a record of it if a listening device was used illegally.

This includes where:

  • the conversation was heard unintentionally;
  • the recording was made with consent of each party to it;
  • the recording was made by a party to protect their lawful interests
  • the recording as made by a party not to communicate, publish or report it to anyone outside the conversation.

However, exceptions apply where:

  • each party to the conversation consents to the evidence being given;
  • the proceedings are for an offence against the Act;
  • the listening device was used by a party to protect their lawful interests;
  • the court considers the evidence should be admitted in the public interest;
  • if the person giving evidence obtained knowledge of the private conversation or report without the use of a listening device.

In deciding whether to admit a private conversation, or record of it, as evidence, the court must consider the public interest, such as upholding the law, protecting people from illegal or unfair treatment, and punishing those guilty of offences while also protecting an individual’s right to privacy.

It must also consider the seriousness of the offence to which the evidence relates and the nature of the contravention of Section 4.

The court can also make an order prohibiting the publication of any evidence, or the substance or meaning of the evidence.

Conclusion

It might be tempting to secretly record a phone call that could be useful, but in short, if you don’t have permission, you might be breaking the law.

This is a complex area of law, so for advice on this or any legal matter, contact Armstrong Legal.

WHERE TO NEXT?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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