Defamation and Media Law Journal 8: Listening Devices

Each of the states and territories of Australia have different laws governing the recording of private conversations.  In Queensland, the Invasion of Privacy Act 1971 applies in respect of listening devices used for the purposes of recording private conversations.

Essentially the Act provides that it is permissible to use a concealed listening device for the purposes of recording a private conversation, provided that the person recording that conversation is a party to the same.  It is however illegal to otherwise intentionally record a conversation without the parties consent.  Certain exceptions apply in respect of the use of such devices by the police and others employed by the Commonwealth Government as for example customs officials.

Whilst it may be legal to secretly record a private conversation that one is a party to, there are strict limits in respect of the communication or publication of those recordings without the consent of the other party/parties.  The exceptions to this include use of the recording in the course of legal proceedings, publications deemed to be in the public interest or in the line of duty or for the protection of one's lawful interests, or made to a person believed on reasonable grounds to have an interest in the private conversation. 

Pursuant to the Telecommunication (Interception and Access) Act 1979 (CTH) it is an offence to listen to or tape a telephone conversation by means of a listening device without the knowledge of the person making the communication.  This prohibition only applies in respect of the interception of the electromagnetic signal and does not apply after the communication has been transformed into audible sound.  Therefore placement of a tape recording device adjacent to a handset of a telephone would not be a contravention of the telecommunications legislation albeit that it might in certain circumstances contravene the listening devices legislation of some states and/or territories.  

Journal author Mark Jones heads the firm's Defamation and Media Services practice. If you believe your privacy may have been compromised or a private conversation recorded by a listenting device contact Mark on + 61 7 3001 2999.

 

Authors

Mark Jones is a Special Counsel at Bennett & Philp Lawyers

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