The Legality of Recording Conversations

Vince Scopelliti - Wednesday, March 20, 2019

How many times have you wished you had a record of a conversation? Perhaps you would have liked evidence of what was said, or you would have appreciated being able to play a conversation back for training purposes. 

Whatever the reason, we examine the legality of recording conversations in Australia. 

when can you record a conversation?

The legality of recording a conversation in Australia depends entirely on the jurisdiction. Each state and territory has separate legislation which sets out the law on surveillance and listening devices. 

Residents of Victoria, Queensland and the Northern Territory may be concerned to learn that there is no legislation prohibiting the recording of a private conversation (as long as the person recording is involved in that conversation). By contrast, recording conversations without permission of all parties is prohibited in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. 

Regardless of the jurisdiction, there is a prohibition on persons who are not party to a conversation, secretly recording or using a device to listen in on a conversation (with the exception of law enforcement). The obvious example here would be listening or recording devices being covertly installed in hotel rooms. 

what about recordings in the workplace? 

Conversations in the workplace come under the same legislation, which means whether or not it is legal to make a recording depends on jurisdiction. Covert recordings are against the law in New South Wales, Tasmania, Western Australia, South Australia and the Australian Capital Territory. But employers in Victoria, Queensland and the Northern Territory are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination. 

It is also legal for an employee in these states to record a conversation they are having with a colleague. However, it is important to note that, even though the recording of such a conversation may not necessarily be a criminal act, it is certainly frowned upon in the workplace. 

This was highlighted in the Fair Work Commission decision of Tawanda Gadzikwa v Australian Government Department of Human Services [2018] FWC 4878

In that decision, Mr Gadzikwa took a period of unpaid sick leave arising from a mental health condition. After a certain time, that leave was deemed to be unauthorised, and he was ultimately dismissed for non-performance of duties. 

During the course of the hearings, Mr Gadzikwa (who worked in Victoria) admitted that he had developed a practice of secretly recording conversations with his colleagues. While it is relevant that this practice did not form part of the employer's motivation in terminating Mr Gadzikwa's employment, the employer did submit that this was an inappropriate practice, regardless of Mr Gadzikwa's contention that he recorded conversations 'to protect himself'. 

Deputy President Colman criticised Mr Gadzikwa for his actions in doing so, noting that secret recordings are 'unfair to those who are being secretly recorded'. Ultimately, in the absence of any decent justification for recording the conversations, Deputy President Colman determined that Mr Gadzikwa's actions in doing so effectively diluted points in his favour which would have suggested that he had been inappropriately terminated.

covert recordings inadvisable at work

The warning contained in this decision is clear: everybody in the workplace, whether employer or employee, should be aware that even if it is not illegal to secretly record colleagues, bosses, or staff members, it is considered inappropriate, and may have negative ramifications in any dismissal or similar proceedings. If an individual has formed the view that a recording of a conversation is appropriate and necessary, the other participants should be advised in advance that the conversation is to be recorded, so that any objections can be voiced. 

WISE Workplace is highly experienced at conducting investigations into allegations of workplace misconduct and the surrounding legal issues. If you are looking for assistance to help navigate the challenging and complex issues of workplace misconduct, contact WISE today.

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