Recording Conversations – Is it Legal?

The continual advancement of technology has allowed conversations to be covertly recorded within a finger’s reach. The question is, when is it okay to record a conversation? Although not strictly illegal to record a conversation in Queensland, there are a number of restrictions on how you can record a conversation and what you can do with the recording. If you are unsure of your “right to record” – get legal advice!

Invasion of Privacy Act

The ability to record and / or publish private conversations in Queensland is governed by the Invasion of Privacy Act 1971 (Qld) (‘IPA’). Section 43 of the IPA provides that it is an offence to use a listening device (other than a hearing aid) to overhear, record, monitor or listen to a private conversation. However, the following exceptions permit the use of listening devices in private conversations:

1. where the person using the listening device is a party to the private conversation;
2. where the private conversation is unintentionally heard by means of a telephone;
3. where the private conversation is heard in relation to the use of any listening device by—
   (i) an employee of the Commonwealth in relation to customs authorised by a warrant; or
   (ii) an employee of the Commonwealth when acting in the performance of the person’s duty under an Act passed by the Parliament of the Commonwealth relating to the security of the Commonwealth;
4. where the use of a listening device by a police officer who is authorised to use a listening device; or
5. where a listening device is a government network radio, activated by a communications centre operator for a public safety entity.

What is a private conversation?

The IPA outlines that private conversations include any words spoken by one person to another person in circumstances that indicate that those persons desire the words to be heard or listened to only by themselves.

Can you publish a recorded conversation?

Sections 44 and 45 of the IPA establish that a person is guilty of an offence if they try to communicate or publish a report of, the substance of, meaning or purported meaning of a private conversation that has come to his or her knowledge as a result of the unlawful use of a listening device. Again, there are exceptions to this, such as:

1. where the communication or publication is made to another party to the original conversation or with the express or implied consent of all other parties to the conversation;
2. when it is made during the course of legal proceedings; or
3. where the publication is not more than is reasonably necessary in the public interest, in the performance of a duty of the publisher or for the protection of the lawful interests of that person.

It is important to note that these comments relate to conversations in person. The recording of telephone communications with a device physically attached to the telephone is strictly prohibited by the provisions of the Telecommunications (Interceptions and Access) Act 1979 (Cth) (‘TIA’).

Telephone calls

Recording of telephone conversations is tightly controlled by the TIA. Pursuant to section 7 of the TIA, it is illegal to intercept, authorise the interception of, or do anything that would enable the interception of, a communication ‘passing over’ the telecommunications system. The notion of passing over has been taken to include the time during which a communication ‘passes over’ a communications system until it becomes accessible to the intended recipient (i.e. the time from sender to the intended recipient).

Noting the complexity of the above provisions, it is paramount that should you wish to record a conversation, you are certain it is legal to do so. If you have any queries about the possible legal liability that can ensue from recording conversations please contact our Litigation team by submitting an online enquiry or calling us on (07) 5592 1921