Thanks to the proliferation of smartphones and other surveillance technology which is readily available to consumers, it is now easier than ever to make video and audio recordings of people, whether you have their consent or not.
But whether it is companies recording phone conversations for training purposes, or individuals recording conversations to help them obtain evidence for a legal or criminal matter, the law is complex when it comes to audio recordings.
In NSW, recording conversations is against the law unless you have the consent of the person who is being recorded, except under very specific circumstances.
When is it legal to record audio conversations?
You can record telephone or other conversations when the other person is aware that they are being recorded, and they consent.
This law varies from the law around videoing people, which states that it is legal to film anyone who is in a public space, even if they don’t give you consent.
If you record someone without their consent and they later find out, you could in certain circumstances face criminal charges.
According to the Surveillance Devices Act, it is generally an offence to record someone or intercept a conversation without their knowledge, and it is also an offence to have a recording of a conversation obtained illegally in your possession.
It is also against the law to manufacture devices used for unlawful recording of conversations, and to publish conversations which were illegally recorded.
In 2010, the producer and a presenter of the well-known TV program A Current Affair were found guilty of breaching the Act when a story they ran involved publishing the recording of a telephone conversation which was obtained without the knowledge of one of the parties.
Although the producer of the program was found guilty of a criminal charge for setting up the surveillance devices to record the conversation, the story was deemed to have been in the public interest and the recordings were considered to be admissible in court.
In the event that the matter relates to a court case or other legal issue, any evidence that is obtained as a result of an illegally recorded conversation may not be admissible in court.
This is a matter for the judge or magistrate’s discretion, and will depend on a number of different factors including how important the evidence is to the case and whether that outweighs the circumstances surrounding when and how it was obtained.
What about law enforcement?
Police are legally allowed to record conversations through the use of surveillance devices or informants in specific situations if they have a warrant.
Evidence gained through legal surveillance is considered admissible in court as long as it meets the right criteria.
What do police have to prove to get a surveillance warrant?
If police want to legally be able to record conversations, either in person or over the phone, there are certain legal requirements they must fulfil in order to get a warrant.
Any recordings which are made which don’t follow proper legal procedure may not be admissible in court.
To apply for a warrant, a police officer has to have reasonable grounds to suspect that someone is about to commit an offence, or that an offence has been committed, or that an offence is likely to be committed.
There also has to be an investigation into the alleged offence, or be likely that an investigation will arise, and the police officer has to show that surveillance will be necessary in that investigation.
Whether or not a warrant will be granted depends on the judge or magistrate’s discretion.
Some of the factors which will be considered include the nature and severity of the alleged offence, the likely intrusion on the privacy of the person or persons being recorded, and whether there are alternative ways of obtaining the evidence that is needed.
They will also consider what value the evidence which is likely to be obtained will have to the case as a whole.
Once a surveillance warrant is granted, it will give very specific guidelines as to the type of device which is approved, and how it can be used.
If police breach those guidelines, any evidence obtained may be inadmissible in court.
The warrant will state rules like where the surveillance device is authorised to be used, by who, and for how long.
If you suspect that your conversations are being recorded or if you have recorded someone else’s conversation and aren’t sure whether or not you can use it in court, speak to an experienced criminal lawyer as soon as possible or refer the matter to police.