Can you record a phone call?
Can you record a phone call?
People usually ask criminal defence lawyers, is it illegal to record phone calls? In NSW and most states and territories in Australia, it is illegal to do so without the other party’s consent.
Call Recording Laws Australia
The federal Telecommunications (Interception and Access) Act 1979 and the State and Territory listening devices laws can both cover monitoring or recording telephone calls. Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits intercepting a telephone call. In section 6, one of which is that it is made “without the knowledge of the person making the call.
Can you Record a Phone Call in New South Wales?
The law-making recording illegal is governed by section 7 of the Surveillance Devices Act 2007 (NSW). It provides that if a person knowingly installs, maintains or uses a listening device to overhear, record, monitor, or listen to a private conversation, they are guilty of an offence.
The maximum penalty in New South Wales is up to 5 years imprisonment and/or a fine of up to 100 penalty units. Penalties in other states vary.
Accordingly, the general rule is that parties to the conversation using a mobile phone cannot secretly record the phone call.
Can you Record a Phone Call in Victoria?
In Victoria, it is against the law to record a private conversation without the express or implied consent of each party.
Pursuant to Section 6 of the Surveillance Devices Act 1999 (Vic), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party.
The maximum penalty for recording a private conversation is to 2 years’ imprisonment and/or 240 penalty units.
Can you Record a Phone Call in Queensland?
In Queensland, you can legally record a conversation you’re a part of, even if the other person doesn’t agree to it. However, it is an offence to post or broadcast a recording unless it is used for legal proceedings or to safeguard your legitimate interests. That is, publishing the conversation is a criminal offence.
Possible Defences
You can defend this charge. The defences available for this offence of recording the call are;
- That all parties consented to the recording of the conversation; or
- It was reasonably necessary to record the conversation to protect your lawful interests.
Reasonable is an objective test to be assessed based on the circumstances of the recording. A ‘lawful interest’ includes if a person has a genuine fear for their safety. But this may not involve recordings designed to gain an advantage in civil or family proceedings.
Can the recording be used as evidence?
In most circumstances, phone recordings cannot be used as evidence. However, it can be admitted into evidence on your behalf. The requirement is to satisfy section 138 of the Evidence Act. That unlawfully obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained.
You may wish to record a phone conversation to protect your lawful interest. However, you should obtain legal advice before recording a phone conversation. This offence is serious, and only if you believe it is necessary to protect your lawful interest, you should do so.
Can the Recordings be admitted in Family Court?
If it is legally required for the security of the person making the recording, a recording can be used in Family Court.
At law, there is concrete rule, however there are cases which can provide examples. For example, a recording made in anticipation of a possible dispute or to keep an accurate record of what was said or done will not be a sufficient reason. However, if there is a serious dispute between the parties which will depend on one person’s word against another’s, then the recording is more likely to be lawful.
What if I wanted to track someone?
It is an offence to install or use a tracking device to determine another person’s location without that person’s consent. In addition, it is an offence to install or use an optical surveillance device on a vehicle or within premises without the permission of the owner or occupier.
