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Legalities of recording a conversation in the ACT?

By sbugden - 30 May 2012 16

Can anyone help me I am trying to find out if it is illegal to record a conversation with someone without notifying them?

Not over a telecommunications device, just like the old tape recordings? 

I have contacted the AMCM the AG’s Dept and also the privacy commision to no avail, all  they can tell me is about recording a telephone conversation but not recording/notifying when a recording has been made of a conversation held in person (not using a telecommunications device). 

I looked at the listening devices act 1992 and that didn’t help either. 

The act local law society were happy to help me if i made an appt with one of their solicitors. 

Any help would be appreciated.

Thanks.

What’s Your opinion?


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16 Responses to
Legalities of recording a conversation in the ACT?
farnarkler 7:46 pm 30 May 12

So which part of Section 4, (1) (a) or (b) is so hard to understand?
(1) A person must not use a listening device with the intention of—

(a) listening to or recording a private conversation to which the person is not a party; or

(b) recording a private conversation to which the person is a party.
Maximum penalty: 50 penalty units.

(2) Subsection (1) does not apply to—

(a) the use of a listening device under an authority granted by or under a law of the Commonwealth; or

(b) the unintentional hearing of a private conversation by means of a listening device.

(3) Subsection (1) (b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if—

(a) each principal party to the conversation consents to that use of the listening device; or

(b) a principal party to the conversation consents to the listening device being so used, and—

(i) the recording of the conversation is considered by that principal party, on reasonable grounds, to be necessary for the protection of that principal party’s lawful interests; or

(ii) the recording is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to any person who is not a party to the conversation.

(4) Subsection (3) (b) (i) does not apply so as to exempt a person from the application of subsection (1) if the relevant listening device is used by or on behalf of the Territory.

Pork Hunt 4:54 pm 30 May 12

Funny how you can’t opt out of having your image recorded when you go shopping etc….

HenryBG 4:18 pm 30 May 12

Disinformation said :

This particular topic comes up reasonably regularly and I have given non legal advice on it before based on practical experience.
A friend of mine has had an incredibly bad divorce. It has cost him at least half a million dollars.
Eventually I persuaded him to carry out all conversations via a “communications book” that went back and forth with his kids. All pages are scanned as they get filled out to so that nobody can “lose” the book.
His ex then decided to use the phone to make various threats.
Because he had listened to what I assured him was likely to happen, he had recorded all conversations from the time I mentioned it.
.

And he’s had no troubles using those recordings in court to disprove the insane, nasty, ridiculous crap the mad cow keeps trying to sling his way.

I think I know the same guy. Most patient man in the world. I would have gone nuts if I’d had to put up with just half of what he’s gone through. And to think that crazy, crazy woman is employed by the ACT government as a teacher….rioters, maker sure she isn’t involved with *your* offspring.

G-Fresh 2:05 pm 30 May 12

Myles Peterson said :

A common trick is to record the conversation, then transcribe it immediately afterwards and claim the notes are an accurate account of what was said (which they are). The notes can then be used in court, but have to be constructed in a particular manner, similiar to police note-taking. There’s a term for it that I can’t remember. Heard this (possibly dodgy) advice given several times, but I won’t disclose the circumstances.

Please don’t take my advice as accurate or expert in any way, I dropped out of law school.

Yes you can record the conversation, as long as your cat knows about it and the notepad you are using to transcribe is made of 100% recycled hemp paper off cuts dipped in lime for colour.

Disinformation 1:50 pm 30 May 12

This particular topic comes up reasonably regularly and I have given non legal advice on it before based on practical experience.
A friend of mine has had an incredibly bad divorce. It has cost him at least half a million dollars.
Eventually I persuaded him to carry out all conversations via a “communications book” that went back and forth with his kids. All pages are scanned as they get filled out to so that nobody can “lose” the book.
His ex then decided to use the phone to make various threats.
Because he had listened to what I assured him was likely to happen, he had recorded all conversations from the time I mentioned it.

There are no problems with recording your own conversations without notifying other parties under any laws I can find in Australia.
However, what they are able to be used for (other than for your own personal recall) is where the problems of permission and notification start.

Regardless of this, when someone discovers that all their conversations have been recorded, they tend to lose all interest in following courses of action based on claims of content within conversations that they assume weren’t recorded.

Even if that information isn’t technically legally admissable as evidence, that doesn’t mean at all that it can’t end up in the public domain for other people to have an opinion about. My, how the convenience of the internet has changed things….

I’m also willing to bet that the punishment for crime of “illegally” recording a conversation isn’t really of much incentive if it prevents having no access to one’s children, or some other similar occurance.

If someone wants to see if the legalities of it have been tested in court, it would be useful to compare the results against payout figures in divorce cases. Historical evidence does tend to beat out theoretical legal implications that haven’t been tested.

If you only get ten years for murder in the ACT, you’re probably likely only to get advised not to do it again for illegal conversation recordings.

Myles Peterson 12:33 pm 30 May 12

A common trick is to record the conversation, then transcribe it immediately afterwards and claim the notes are an accurate account of what was said (which they are). The notes can then be used in court, but have to be constructed in a particular manner, similiar to police note-taking. There’s a term for it that I can’t remember. Heard this (possibly dodgy) advice given several times, but I won’t disclose the circumstances.

Please don’t take my advice as accurate or expert in any way, I dropped out of law school.

vg 12:13 pm 30 May 12

TheDancingDjinn said :

Anything i can find says if your going to use the recordings in court of any kind the person has to be notified they are being recorded. If they leave an incriminating message on your voicemail or answering machine then that’s a different issue – but if your using it as evidence you cant record it.

http://www.lifehacker.com.au/2010/03/can-you-legally-record-phone-calls-in-australia/

http://www.privacy.gov.au/faq/individuals/q1

there are a few more sites – but it seems to say the same thing, if you want it as evidence you have to warn people – like a call center.

Incorrect

vg 12:13 pm 30 May 12

What

pptvb said :

OK,
Basically my understanding, from a Master Security Licence holders perspective, is:
– You cannot record a conversation, as a third party, without a court order.
– You may record a conversation you have with others, as long as one party of the conversation
(you) are aware it is being recorded.

These are the the guidelines the AFP operate under when recording.

Correct

TheDancingDjinn 11:15 am 30 May 12

Anything i can find says if your going to use the recordings in court of any kind the person has to be notified they are being recorded. If they leave an incriminating message on your voicemail or answering machine then that’s a different issue – but if your using it as evidence you cant record it.

http://www.lifehacker.com.au/2010/03/can-you-legally-record-phone-calls-in-australia/

http://www.privacy.gov.au/faq/individuals/q1

there are a few more sites – but it seems to say the same thing, if you want it as evidence you have to warn people – like a call center.

pptvb 11:11 am 30 May 12

I always assumed it was illegal, mainly as there were so many state laws that contradicted each other, until I asked a friend of mine.
He is a current AFP sargeant here in Canberra, and that is what he told me.
I can record my conversation with you, without you having any knowledge, or giving any permission,
Whether it is a face-to-face chat, or on the phone.

EvanJames 11:03 am 30 May 12

pptvb’s understanding is the one I have too. You can record a conversation that you are a party in. You can’t record a conversation that you’re not involved in (spying).

I’ll be interested to learn if this is in fact the case or not.

Skidbladnir 11:02 am 30 May 12

pptvb:

One-party-consent applies only if its reasonably related to protection of your legal interest\s.
In most other cases, you’re granting implied consent every time you wave through or don’t care about the ‘recorded for training porpoises” warning you deal with a call centre.

That was our expected defence fairly regularly way back when I worked in Security, should it ever be asked..

pptvb 10:48 am 30 May 12

OK,
Basically my understanding, from a Master Security Licence holders perspective, is:
– You cannot record a conversation, as a third party, without a court order.
– You may record a conversation you have with others, as long as one party of the conversation
(you) are aware it is being recorded.

These are the the guidelines the AFP operate under when recording.

Skidbladnir 10:32 am 30 May 12

I looked at the listening devices act 1992 and that didn’t help either.

Read it again.
Section 4 covers use of a device by organisations or individuals and adds a requirement of all-party consent (except under certain conditions).

(1) A person must not use a listening device with the intention of:
(a) listening to or recording a private conversation to which the person is not a party; or
(b) recording a private conversation to which the person is a party.
...Subsection (1)(b) does not apply to the use of a listening device by, or on behalf of, a party to a private conversation if:
(a) each principal party to the conversation consents to that use of the listening device;...

PS: Not a lawyer, and this is a public forum. Giving personal legal advice here would probably get a qualified person fired. If you want actual advice on your situation, find someone qualified and pay them.

Duffbowl 10:19 am 30 May 12

My understanding, and this is not nor should it be construed to be legal opinion, is that any recording taken without permission or without warrant is unlawful.

Go to a lawyer.

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