Listening Devices (Qld)

Rapid advances in technology have made it easy to record and share conversations using listening devices such as mobile phones. There are restrictions on when you can use a listening device and what you can do with the recording, as this article explains.

Legislation

The recording and publishing of private conversations in Queensland is governed by the Invasion of Privacy Act 1971.

Section 43(1) states:

“A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.”

(Forty penalty units is currently $5338)

What is a “listening device”?

The Act defines a listening device as “any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place”. The definition does not include a hearing aid or similar device used by a person with impaired hearing

What is a “private conversation”?

The Act states a private conversation is between parties who do not intend for their words to be overheard, recorded, monitored or listened to by another person.

When is it an offence to share a recorded conversation?

Section 44 states a person will be liable to a maximum penalty of 40 penalty units or two years’ jail if they communicate or publish a private conversation recorded by a listening device in contravention of section 43, unless there is express or implied consent from parties to the conversation, or this is done in the course of proceedings for an offence against the Act.

Section 45 states a party to a conversation who makes a recording must not communicate or publish the conversation unless this is done:

• with the express or implied consent from the other parties;
• in the course of legal proceedings;
• in the public interest;
• in the performance of a duty;
• for the protection of the lawful interests of that person;
• to share it with a person who is believed to have such an interest in the conversation as to make the sharing reasonable in the circumstances.

Court orders

In proceedings for an offence against the Act, the court may make an order, at any stage of proceedings, that prohibits publication of any evidence, or reporting of the substance or meaning of any evidence, relating to a recording obtained illegally.

If a person is convicted of an offence under section 43, the court can order any device used in the commission of the crime be forfeited. The offender must deliver the device to a person specified in the order within a specified period. If this is not done, the offender is subject to a maximum fine of 20 penalty units ($2611) and a police officer can seize the device and deliver it under the order.

When is it legal to use a listening device?

Section 43(2) lists when the recording and publishing of a private conversation is permitted. This is:

1. a) where the person using the listening device is a party to the conversation. A party is a person who speaks or is spoken to, or a person who, with the consent of others in the conversation, overhears, records, monitors or listens;
2. b) where the hearing of conversation is unintentional;
3. c) during warrants executed by Commonwealth officers in Customs and national security;
4. d) where it is done by police under an Act authorising use of a listening device;
5. e) where the recording is done by a communications centre operator for a public safety entity, where a duress alarm has been activated, a request for help has been made, or when they believe there is a risk to the life, health and safety of an officer. A public safety entity is the Queensland Ambulance Service, Queensland Police Service, Queensland Fire and Emergency Service, State Emergency Service, an emergency service unit, or a rural fire brigade.

Advertising listening devices

It is an offence under the Act to publish an advertisement about any type of listening device, with the intent to promote the sale or use of the device. This applies whether the advertisement is by radio, television, newspaper, public exhibition or other means, The maximum penalty is 20 penalty units ($2669) or imprisonment for one year.

For advice on this or any legal matter, call Armstrong Legal.