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This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), 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?

Recorded phone calls can constitute evidence in court, or they can be useful to refresh your memory about what was said in a conversation. But is it legal to record a phone call in Victoria? There are limits on when you can record and how the recording can be used, as this article explains.

Legislation

The recording and publishing of private conversations in Victoria is governed by the Surveillance Devices Act 1999.

Section 11 states:

“A person must not publish, or communicate to any person, a private conversation or a record of the carrying on of an activity, or a report of a private conversation or carrying on of an activity, that has come to the person’s knowledge as a direct or indirect result of the use of a listening device…”

The maximum penalty for doing so is 500 units (currently $82,610) for a corporation, or 100 penalty points (currently $16,522) or 5 years imprisonment, or both, in any other case.

Section 12 prohibits a person from possessing a record of a private conversation made using a listening device, unless there is consent, express or implied, from all parties to the conversation, or unless the recording is being used in proceedings for an offence against the Act.

What is a ‘listening device’?

The Act defines a listening device as a device that can be used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in the conversation. This does not include a hearing aid or similar device.

What is a ‘private conversation?

The Act states a private conversation is between parties who do not intend for their words to be heard by anyone but themselves. This does not include a conversation that takes place in circumstances in which the parties might reasonably expect it to be overheard by someone else.

A person is a party to the conversation if they speak or have words spoken to them during the conversation.

When is it an offence to share a recorded conversation?

The prohibition in Section 11 does not apply if the recording is communicated or published:

To a party to the conversation;
With the consent, express or implied, of all the parties in the conversation;
To investigate or prosecute an offence against the section;
In the course of proceedings for an offence against the Act;
When there is an immediate threat of serious violence to a person or substantial damage to property, or the commission of a serious narcotics offence.

Court orders

If a person is convicted of an offence under the Act, in addition to any penalty, the court can order any device used in the commission of the crime be forfeited to the State or destroyed.

The court can also order that any record of a private conversation to which the offence relates be forfeited to the State or destroyed.

A police officer can seize the device or recording to give effect to the order.

When is it legal to record a phone call?

Section 7(1) states a person must not use a listening device to:

overhear, record, monitor or listen to a private conversation to which the person is not a party; or
record a private conversation to which the person is a party.

Section 7(2) lists the recording of a private conversation is permitted when:

the listening device is used in accordance with a warrant, or emergency authorisation;
the listening device is used in accordance with the Telecommunications (Interception and Access) Act 1979, or any other law of the Commonwealth;
the hearing of conversation is unintentional;
it is made by police to record a refusal to consent to the recording of an interview with a person suspected of committing an offence;
it is used to locate and retrieve a device;
the device is integrated into a Taser to record operation of the Taser;
it is used by a police officer in conjunction with a body-worn camera.

Section 7(3) states further exemptions, including when:

all parties to the conversation consent, expressly or impliedly, to the recording;
it is reasonably necessary for protecting the lawful interests of a party;
the recording is not made to communicate or publish it to anyone who is not a party to the conversation.

Conclusion

You need to be aware that the laws that govern the recording of phone calls are complex.

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

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