Yesterday a very kind injured worker shared some very useful information with us regarding the Surveillance Devices Act 1999 (VIC) which stipulates when you can and can’t secretly or not record conversations, particularly in the context of the dreaded independent medical examinations.
Following previous advise we have received from Atlas Legal AU, we’re taking the opportunity to summarise under which circumstances injured workers, and those who may be experiencing severe bullying and harassment may use a recording device to record for example an independent medical assessment, or a “work-related” meeting (with the bully), or a telephone conversation with for example, a “difficult”, inappropriate or even harassing workcover case manager.
Recording independent medical examinations and workcover telephone conversations
The injured worker’s story
I have been on Workcover (Victoria) for the last (x) yrs due to a [psychological] injury at my work and can relate to so many of the stories that I have read on your site.
Thank you so much. Its has been a tremendous support and validation.
I truly understand the powerlessness that workcover victims feel held hostage to a system that is so adversarial and schizophrenic.
I too have had IMEs that have misrepresented what I have said and much more in their reports.
So I looked into the Victorian legislation regarding this and have found something of interest that maybe useful to you and your audience.
Surveillance Devices Act 1999 – SECT 11
Prohibition on communication or publication of private conversations or activities
11. Prohibition on communication or publication of private conversations or activities
(1) Subject to subsection (2), a person must not knowingly communicate or 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.
Penalty: In the case of a natural person, level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both; In the case of a body corporate, 1200 penalty units. Note Section 32A applies to an offence against this subsection.
(2) Subsection (1) does not apply-
(a) to a communication or publication made with the express or implied consent of each party to the private conversation or private activity; or
(b) to a communication or publication that is no more than is reasonably necessary-
(i) in the public interest; or
(ii) for the protection of the lawful interests of the person making it;
Here is the link to the complete act…..
The injured worker, who shared this information, goes on to write that…upon reading this it seems reasonable to me that not only doesn’t one have to inform the other party that they are being recorded (although one can do that as an option) but that a conversation can be recorded secretly if one deems it reasonably necessary in the public interest and or for the protection of ones legal interest.
Seeing as Worksafe and their workings are of a public nature and these IME apps are made with the precise intention of making legal judgements about someones ability to either work, receive compensation etc, it seems to me that such recordings whether secreted or not are actually quite legal under this act.
This may come in helpful when challenging erroneous reports and decisions such hired guns make that insurers jump on to mitigate their liabilities.
If put into practice on a wider scale and it becomes known, it may have the effect of not only empowering very vulnerable workers but also keep the IMEs and the insurers accountable and maybe more honest.
Of course I am no lawyer. I am sick but I’m not dumb ( something that the insurers seem to equate) and have looked into my rights on this subject for a little while. I really hope this info can be of some constructive use but I would like your feedback if you want to pass it by Atlas or Shine or whoever you deal with. Remember this is just a Victorian Act so only applies here in Vic.
Please let me know what you find out about this.
Advise from Atlas Legal AU re recording conversations
Recording IME assessments, or recording your case manager on the phone
Obviously we, a workcovervictim, have asked this question quite a few times.
Note: Think about it- how often do you hear ” your call may be monitored and recorded for the purpose of quality improvement/whatever”, when you ring your workcover case manager, or ring the WorkCover Authority? Yeah, well, simple, all they’re doing is covering their a*rses by ensuring you are AWARE that you may be or are being recorded, simple as that.
More useful but general advise from Atlas Legal AU re bullying, harassment and collecting evidence
Work Place Bullying and Harassment still continues to this day even after “Brodie’s Law” has been implemented in the State of Victoria. We should not and will not forget that beautiful young lady (Brodie Panlock) and her loved ones. Especially after her young life was cut, so tragically short in the prime of her life, in an absolute tragedy, which should never have happened, and in one, which could and should have been prevented. The treatment by those less than human individuals (calling them animals would be an insult to animals) should never have happened.
Whilst those less than human individuals continue on with their lives, they have caused immeasurable pain and sorrow to young Brodie’s loved ones. Who will have a void in their lives until their last breath. They will always be questioning themselves, why didn’t we see the signs? Was there something we should or could have done? They will live lives of torment and torture for no other reason, other than that those less than human individuals just wanted to have some of their sick so called fun.
We do not have to tell the members of this web site, that even though Brodie’s law has been implemented, it appears to us that complaints regarding harassment and bullying are not effectively investigated and or enforced. Those Statutory Authorities that have been tasked, trusted and relied upon to investigate and enforce these laws must be held to account. They must be forced if not willing to undertake their statutory duties (on behalf of all citizens in the community) in a professional and effective manner, without adding insult to injury.
Psychological injury, whether it be clinical depression, anxiety, Post Traumatic Stress Disorder or any other injury of the mind, unlike physical workplace injuries, are difficult to investigate and even more difficult to prove in a Court of Law due to the Rules of Evidence, Statutory provisions and or case law. All workers need to be reminded of, and if not known, taught their rights under the law. It is all too late after the fact, that is, if the damage is done and then you later try to prove your case in court.
If you believe you are the subject of harassment or bullying, AND you suffer a psychological injury as a result of the harassment or bullying, you need to be able to prove your case in court. Now Court processes in Australia are in no way similar to what people see on American TV shows. You may believe that is a given and a stupid thing to point out, but you would not believe the amount of people we come across that ask us questions about things like, a right to a phone call and “Miranda Rights.” If you do end up in Court, you need to be able to prove your case in accordance with Australian laws and processes.
Having said that, proving your case in court is not a simple matter of sitting in a witness box, and trying to remember all the various incidents that caused your injury. Just YOUR WORD in the witness box may not and usually is NOT enough to establish your case.
Do not forget to include all the details of any witnesses to the incident and their contact details. Collating “Evidence” for Court purposes is NOT an easy task and must comply with certain restrictions. People need to be educated in the fundamentals of how to gain valuable information that can be used as “Evidence.” Not all information available to you can be used as evidence for various reasons. We don’t want to go into the nitty gritty and bore you with details, so we have given you a very basic method of collating information that may well be used as evidence, by way of keeping a detailed diary.
There may be rare occasions where you may be able to record a conversation without the other side’s knowledge. That is stepping into a dangerous area of the law, and you may risk criminal sanctions. As an example of a rare occasion where it may be permissible to record somebody without their knowledge is, if you believe that you will have criminal allegations made against you by a party and in order to protect yourself from incrimination, you may be entitled to record your conversation without the other side’s knowledge.
Atlas Legal Au made it also very clear that this message in general terms is to thank the administrators and persons responsible for this website and to provide some small element of guidance in relation to making sure you can prove your claims. Laws in relation to these matters, whether it be personal injury, court processes, or evidentiary change from State to State in Australia and again more so internationally. So in short make sure you have competent legal advisors in your home jurisdiction if you believe you are the subject of bullying and harassment. Moreover, to make sure you obtain the best evidence possible without contamination of that evidence.
So if you want specific legal advice on your specific situation, you will need to contact a legal advisor (lawyer) within your HOME JURISDICTION (your state) that has professional knowledge and competence in this area (i.e bullying, harassment and how to further collect evidence).
View all our articles related to recording>>
View our privacy law resource page>>
[post dictated by workcovervictim and manually inserted on behalf of workcovervictim]