Is it Legal to Record Phone Calls?

It may be useful to record phone calls for many reasons. But is it legal to record phone calls in Western Australia? There are strict laws in place in WA to protect the privacy of conversations where there has been no agreement that the conversation will be recorded, as this article explains. 

Legislation on recording phone calls

The use of listening devices in Western Australia is governed by the Surveillance Devices Act 1998. Section 5(1) of that act, which deals with the regulation of installation and use of listening devices, states:

“a person shall not install, use, or maintain, or cause to be installed, used, or maintained, a listening device –

(a) to record, monitor, or listen to a private conversation to which that person is not a party; or

(b) to record a private conversation to which that 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 is any instrument, apparatus or equipment that can be used to record, monitor or listen to a private conversation. The definition 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. It does not include circumstances in which they could reasonably expect their conversation to be overheard by others.

Penalties if you record phone calls

If you record phone calls without consent in WA, the penalty is $5000 or 12 months imprisonment, or both for an individual, and $50,000 for a body corporate.

When is it legal to record phone calls?

The Section 5 prohibition does not apply to certain situations where a conversation may be recorded, including when the installation, use or maintenance of a listening device was in accordance with:

• a warrant;
• an emergency authorisation; or
• was in the public interest.

Warrants

A court can issue a listening device warrant if there are reasonable grounds for believing an offence has been, is being, is about to be, or is likely to be committed, and use of the device would help an investigation of the offence.

When considering an application for a listening device warrant, an optical surveillance device warrant or a tracking device warrant, the court must consider:

• the nature of the offence;
• the extent to which a person’s privacy is likely to be infringed;
• whether such evidence can be gained in other ways;
• the value of the evidence to be gained;
• any other warrants issued for the same matter;
• the public interest.

Emergency authorisations

There are several reasons an authorised person can issue an emergency authorisation to use a listening device to record phone calls. These include if there are reasonable grounds for believing there is an imminent threat of serious violence to a person or substantial damage to property; or if an indictable drug offence has been, may have been, is being, is about to be, or is likely to be committed, and use of the device is necessary for investigating the offence.

If a person using a listening device under a warrant or emergency authorisation inadvertently or unexpectedly comes across a conversation, evidence of that conversation, and evidence obtained as a consequence of it, can be presented in a criminal proceeding.

Public interest

A person who is a party to a private conversation can use a listening device if the principal party consents to that use and if there are reasonable grounds for believing the use is in the public interest. This may be pertinent when a person has a child under their care and they reasonably believe use of the device will contribute to the protection of the best interests of the child.

Emergency use of a listening device to record phone calls is permitted if a person believes the circumstances are so serious and the matter is so urgent that use is in the public interest.

A judge can order a person to publish or communicate a private conversation, or a record or report of it, in order to protect or further the public interest.

Other exemptions

The prohibition also does not apply if the person who is a party to the private conversation, installs, uses or maintains the listening device because:

• they are carrying out their duty as a law enforcement officer;
• they are instructed or authorised to do so in the course of an investigation into a criminal offence;
• each party to the conversation consents explicitly or impliedly;
• they believe it is reasonably necessary to protect their lawful interests.

It also does not apply if the recording of the private conversation was unintentional.

When is it an offence to record phone calls and share them?

Section 9(1) of that act, which deals with the regulation of publication or communication of private conversations, states:

“a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person’s knowledge as a direct or indirect result of the use of a listening device…”

Section 9(2) lists exceptions to the prohibition, where the publication or communication is made:

• to a party to the conversation;
• when all parties to the conversation consent;
• with the authority of the Commissioner of Police, or a Crime Commission or other Commission;
• by a law enforcement officer to the Director of Public Prosecutions of the State
• in the course of any legal proceedings;
• when there are reasonable grounds to believe there is an imminent threat of serious violence to a person or substantial damage to property

Conclusion

It might be tempting to secretly record phone calls that could be useful, but if you do, you could be committing a criminal offence.

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