Legality of secretly recording conversations in Australia

By Brenton Allen, Lawyer, MST Lawyers

1. Introduction

 MST recently acted in a Federal Court adverse action case which involved an employee secretly recording (through a phone) a meeting during which he was advised of his dismissal by his manager.

When told of the reason for his dismissal (being performance related), the employee dismissed the reason and attempted to elicit a confession from his manager that the real reason for the dismissal was because the employee had made an earlier complaint about his wages.

Whilst the audio recording was made without the consent or knowledge of the manager, it was allowed to be admitted as evidence in the Federal Court.

Given that adverse action claims are increasingly becoming the “preferred” claim for employees, this article examines the lawfulness of secret audio recordings in each Australian State and Territory and its implication in evidentiary disputes.

 

2. Legal Framework

Each State and Territory has legislation on surveillance and listening devices (see below).

As a general rule, if a person is not a party to a private conversation, that person is prohibited from secretly recording or using a device to listen to that conversation.  (NB: Exceptions to the general rule exist for law enforcement purposes)

On the other hand, if a person is a party to a private conversation, there is an interesting divergence in the law for different States and Territories.

In Victoria, Queensland and the NT, a person who secretly records a private conversation to which that person is a party does not appear to be in breach of surveillance legislation.  On the contrary, legislation in WA, SA, ACT, NSW and Tasmania expressly prohibits such conduct.

Note that publication or communication of any recording of a private conversation is prohibited in all jurisdictions. Save for in NSW, there is an exception for publication or communication made in the course of legal proceedings.

        

3.  Jurisdiction summary

The position in each state as to the legality of secret recordings is summarised in the table below.

State/Territory

Relevant Surveillance Legislation

Lawful to secretly record a private conversation to which you are a party?

Victoria

Surveillance Devices Act 1999 (VIC)

Yes

Queensland

Invasion of Privacy Act 1971 (QLD)

Yes

NT

Surveillance Devices Act 2007 (NT)

Yes

WA

Surveillance Devices Act 1998 (WA)

No

SA

Listening and Surveillance Devices Act 1972 (SA)

No

ACT

Listening Devices Act 1992 (ACT)

No

NSW

Surveillance Devices Act 2007 (NSW)

No

Tasmania

Listening Devices Act 1991 (TAS)

No

       

4.  Application

Employers in Victoria, QLD and NT are able to arrange for secret (and lawful) recording of termination meetings.

In an adverse action case, the recording can be used as supporting evidence of the reason for the dismissal, together with a termination letter and evidence given by the decision maker of the employer.

In an unfair dismissal case, the recording can be used to evidence that procedural fairness had been afforded to the employee prior to the termination.

The information contained above is provided for general guidance only and does not constitute legal advice. As different legislation may apply depending on your specific circumstances, professional advice should be obtained before acting on the contents of this article.

For more information in relation to the topic covered by this article, please contact our Employment Law and Workplace Safety team by email workplace@mst.com.au or by telephone +61 8540 0200.