Is it Legal to Record Phone Calls?
There are many reasons it could be useful to record a phone call. But is it legal in New South Wales? Generally, it is against the law to record a phone call without the other person’s consent. If you secretly record a conversation using your smartphone, then publish it, you could be charged with a criminal offence. This article explains why.
The use of listening devices in New South Wales is governed by the Surveillance Devices Act 2007.
Section 7(1), which deals with the prohibition on installation, use and maintenance of listening devices, states:
“(1) A person must not knowingly install, use or cause to be used or maintain a listening device–
(a) to 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 party is any person in the conversation who speaks or has words spoken to them.
What constitutes a ‘listening device’?
The Act states a listening device “means any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device.”
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 and anyone else who has their consent.
When is it an offence to share a recording?
Under Section 11, a person is prohibited from publishing or communicating to any person:
- knowledge of a private conversation
- a record of the carrying on of the activity
- a report of a private conversation or carrying on of an activity
that has come to their knowledge via the direct or indirect use of a listening device.
This prohibition does not apply if:
- the person was a party to the private conversation;
- there is consent, express or implied, of all parties (Implied consent is when a reasonable person would assume consent, such as when a person says “This call will be recorded” and there is no objection);
- the purpose is to investigate an offence under the Act;
- there is an imminent threat of serious violence to a person or substantial damage to property, or commission of a narcotics offence.
The penalty for recording a phone call without consent is $11,000 or 5 years imprisonment for an individual or both, and $55,000 for a body corporate.
When is it legal to record a phone call?
Section 7(2) lists exceptions to the prohibition:
(a) police use of a surveillance device warrant, also known as a “wiretap”, which allows the recorded material to be used for investigations and tendered in court;
b) for warrants authorising organisations, such as ASIO, to intercept information;
c) an unintentional hearing of a private conversation;
d) to record the refusal of a police interview;
e) to locate or retrieve the device;
f) where it is used by police to record the operation of a Taser;
g) on police body-worn cameras.
Also, under Section 7(3), it is legal to record a conversation if:
- all parties to the conversation consent;
- it is reasonably necessary to protect your lawful interests. “Lawful interest” is objectively determined and includes if a person has a genuine fear for their safety (Groom v Police  SASC 101) but not if a person wants to gain an advantage in civil proceedings (Thomas & Anor v Nash  SASC 153).
- it is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to anyone who is not a party to it.
Can an illegal recording be used as evidence?
Generally, a recording obtained illegally cannot be used as evidence. However, Section 138 of the Evidence Act 1995 gives the court “a discretion to exclude improperly or illegally obtained evidence”.
It states such evidence “is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained”.
The court can consider such factors as the importance of the evidence to the matter, the nature of the offence to which the evidence relates, and the gravity of offending involved in obtaining the illegal recording.
It might be tempting to record a discussion that could be useful to you in a legal proceeding, but there are many potential pitfalls.
This is a complex area of law, so for advice on this or any legal matter, contact Armstrong Legal.