State and Territory laws (Australia)
For your interest, we provide the following summary of the State and Territory laws in place applicable to recording a private conversation:
Surveillance and Devices Act 1999 (Vic)
Section 11 of the Act prevents the publication of a private conversation – this obviously applies subject to what constitutes a publication.
Under section 11 of the Act, a person must not publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device. The penalty for this is 2 years’ imprisonment or 240 penalty units or both and, in the case of a body corporate, 1200 penalty units.
A ‘private activity’ means an activity carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be observed only by themselves, but does not include—
(a) an activity carried on outside a building; or
(b) an activity carried on in any circumstances in which the parties to it ought reasonably to expect that it may be observed by someone else;
private conversation" means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;
This is not defined but, from the commentary, appears to be defined broadly to mean any communication/dissemination.
– A communication made with the express or implied consent of each party to the private conversation
– A communication that is no more than is reasonably necessary
– In the public interest; or
– For the protection of the lawful interests of the person making it; or
– A communication in the course of legal or disciplinary proceedings.
In New South Wales, sound recordings are regulated by the Surveillance Devices Act 2007 (NSW Act). The NSW Act is contravened by making a recording where the recording party does not first obtain consent (see section 7). In this respect, consent still provides a defence to making the record; however, liability may arise where consent is not first obtained.
In Queensland, sound recordings are regulated by the Invasion of Privacy Act 1971 (QLD) (QLD Act). The QLD Act is similar to the Victorian Act in that, the recording in itself is not problematic where the recording party is a party to the conversation being recorded (see section 43). Again, consent operates as a defence to a contravention of the QLD Act.
In WA, sound recordings are regulated by the Surveillance Devices Act 1998 (WA Act). The WA Act operates much the same as the NSW Act in the sense that it its contravened by making a recording in itself (see section 5). As with the other state acts, consent does provide a defence to this.
The penalties for a contravention vary but in some states, for a body a corporate, are in the vicinity of $55,000 (NSW).
In Tasmania, sound recordings are regulated under the Listening Devices Act 1991 (TAS Act). The TAS Act operates much the same as the WA Act and the NSW Act in that it is contravened by making a recording (section 5) – however, consistent with the other Acts, consent provides a defence to this.
In the ACT, sound recordings are regulated under the Listening Devices Act 1992 (ACT Act). The ACT Act is contravened by recording a private conversation without obtaining consent and operates in the same manner as the NSW, WA and TAS Act.
In the NT, sound recordings are regulated under the Surveillance Devices Act 2007 (NT Act). The NT Act operates in the same manner at the Victorian Act – in that it contemplates an offence to a recording where the person is not a party to that conversation (therefore allowing the recording of a conversation where that person is a party).