There continues to be a curious clashing between cries for privacy to be respected on the one hand, and anecdotal upwards trending of private conversations being secretly taped.

There has been media coverage of combatants going through relationship breakdowns resorting to wireless microphones being hidden in children’s toys to secretly gather evidence for deployment in Family Court cases. The press went hard on Donald Trump’s “boasting” of his exploits with women to Billy Bush, secretly recorded on a tour bus in 2005. Closer to home, an employee secretly recorded a conversation she had with her boss in a confrontation about being sacked, her pregnancy considered a liability by her former employer.[1] The South Australian Supreme Court had to deal with a dispute between mining joint venturers over whether management committee meetings could be electronically recorded.[2] An employee was found to have engaged in misconduct when he secretly recorded meetings and performance reviews between his manager, his union representative and himself.[3] Worrying media reports have emerged of the personal information of half a million parents and children being hacked and leaked, the information of users being originally uploaded via the use of internet-connected fluffy toys.[4]

The secret recording of meetings, conversations and phone calls seems to be an ever increasing activity, particularly with the continual improvements in recording device capabilities in terms of both recording quality and device size.

What many users don’t appreciate is that state laws around the country have in place strict laws that seek to preserve the privacy of conversations and activities where there is no agreement to recording them.

• In Western Australia, the Surveillance Devices Act 1998 (WA), makes it a criminal offence for a person to use, install or maintain, or cause to be installed, used, or maintained, a listening device to either:
• record, monitor, or listen to a private conversation to which that person is not a party; or
• to record a private conversation to which that person is a party

without consent from all parties to the conversation.

The penalty for breaking this law is a fine of up $5,000 or 12 months imprisonment for individuals, or both, and up to $50,000 for a body corporate.[5]

Visually recording or observing a private activity to which a person is not a party, or visually recording an activity to which a person is a party, is also not permitted under the Act, unless consent is obtained from all parties. The same stiff penalties apply.[6]

Just possessing a listening or optical recording device for any of these impermissible purposes, regardless of whether anything is actually ever recorded, is an offence. Again, the penalty outcomes are the same.[7]

It is also an offence to publish or communicate any recording that was obtained using a listening or optical recording device, unless, amongst other things, publication is:

• in the public interest; or
• made to a person who has an interest in the private conversation or activity such that disclosing it to them is reasonable.[8]

There is a heavy onus on being able to establish a defence under the Surveillance Devices Act.

Recording a telephone conversation has another layer of regulation imposed under the Telecommunications (Interception and Access) Act 1979 (Cth). Under this Act, there is a ban on intercepting, authorising the interception of, or doing anything that will enable the interception of, a communication ‘passing over’ a telecommunications system.[9] This covers conversations made over a landline or mobiles, or via a headset attached by a wire. It does not cover any recordings made by a device not attached to the telephone, but the Surveillance Devices Act provisions mentioned above are likely to apply.

Summary

While situations arise in business and socially that make it very tempting to go into secret record mode, the law is loud, clear and firm. Hitting record might very well be the commission of a criminal offence. Get legal advice before you tape.