Is making a secret recording of conversation against the law?

secretly-Recording-conversations

More and more workers, including injured workers and allegedly bullied or discriminated workers, are secretly recording conversations in the workplace and, for example, during their independent medical examinations. But isn’t making a secret recording against the law?

Workers may want to secretly record a conversations) in the workplace or during an independent medical examination for a variety of reasons. Some believe think their boss is trying to set them up (i.e. for dismissal); others may be trying to secretly record or film perceived bullying or discriminatory behaviour; and more and more injured workers secretly record their independent medical examinations/impairment assessments in order to demonstrate (potential) bias, rushed & superficial examinations, the IME’s ‘behaviour’ etc.

Diary of a workcovervictim continues to receive many queries from injured/ill workers, asking whether they are ‘legally’ allowed to secretly record.

Is making a secret recording of conversation against the law?

Whether or not making a secret recording is against the law depends on the state you are located in.

In Summary

It is NOT against the law to secretly record a conversation in Victoria, South Australia and Queensland, and, we believe, the Northern Territory as long as the recorder is part of the conversation. Generally speaking, the secret recording is to be made in order to protect the worker in any (ensuing) dispute, i.e. about their job/employment. This is a strict requirement in South Australia.

In all other Australian states (NSW, ACT, TAS, WA), it is against the law for a worker to secretly record a conversation without first seeking permission (approval) from the other people/parties to the conversation. However, in each state (and territory) there are exceptions. Generally speaking if a person consents to a recording by a second person in order to protect the first person it is allowed.

In Detail – The Surveillance Devices Act

Each Australian state and territory has its own set of rules and regulations that apply to secret recordings of private discussions. Most of these laws apply generally and are not specific to the employer-worker relationship (although there are exceptions, such as the Workplace Surveillance Act 2005 (NSW)). Nevertheless, the general rules apply to the workplace setting.

As an example, the Victorian legislation (the Surveillance Devices Act 1999 (Vic) (SD Act)), prohibits a person from using any device (including a smartphone) to record a private conversation to which the person is not a party, unless the person has the consent (express or implied) of each of the parties to the conversation to record it.[Surveillance Devices Act 1999 (Vic) s 6(1)].
The maximum penalty for recording a private conversation without consent is 2 years’ jail and a hefty fine.

Additionally, even if a private recording is lawfully made, the Surveillance Devices Act prohibits the communication or publication of that recording without the consent of each of the participants to the conversation (with limited exceptions).

The other Australian states and territories have legislative schemes broadly similar to that in Victoria. Although in some jurisdictions (for example, Western Australia) [Surveillance Devices Act 1998 (WA) s 5(1)(b)] , it is unlawful to record a conversation, even if a person is party to it, without the consent of all participants.

Are secret recordings admissible as evidence?

In quite a few recent Fair Work cases, workers have attempted to have their secret recordings of conversations with -for example- their boss/employer admitted as evidence.

The Fair Work Commission (FWC) has actually a wide discretion whether or not to admit a secret recording as evidence. The FWC is not bound by the rules of evidence that ordinarily apply in a court of law.

Generally speaking a secret recording will be admitted as evidence where:

  • the secret recording is lawful i.e. it is against State or Territory legislation. Secret recordings made in Queensland, Victoria or SA are more likely to be admissible as evidence
  • there is no objection by the boss/employer (eg. in cases where the boss/ employer is aware of the contents of the recording or thinks the secret recording is not likely to prejudice their case)
  • the admission of the secret recording is actually desirable or useful with re to the subject of the proceeding
  • the secret recording is the best evidence available (of what transpired), and
  • where the secret recording will significantly help the worker’s claim.

However, as we have discussed previously (eg.”Using secret recording devices may be a pointless exercise; “Does a secret recording of a discussion with your boss offer you any protection in termination or bullying cases?“), having your secret recording admitted as evidence may NOT always be in your best interest because it the secretive nature of making a covert recording can raise issues of trust and confidence (with for example the employer/boss).

It’s also important to know that some employers have an actual policy about the use of recording devices in the workplace. For example the policy may explicitly state that the recording of conversations is only allowed with the consent of all parties to the conversation, and that making secret recordings may be a breach of trust and confidence- which would lead to dismissal/termination)

Case example

Thomas v Newland Food Company [2013] FWC 8220 (21 October 2013). The applicant worker had, during his employment, secretly recorded conversations he was having with senior management. He was later dismissed and made an unfair dismissal claim seeking reinstatement. He relied, in part, on his secret recordings.

Deputy President (Sams) found that the employee had been unfairly dismissed. However, whilst the worker’s secret recordings were legal (in Queensland), the act of recording was found to have breached the trust between the parties. DP Sams consequently ruled out reinstatement as a remedy.

The laws surrounding the use of listening devices and secret recordings vary between each of the Australian States. In Victoria, Queensland and South Australia, covertly recording a conversation to which you are a party is legal. In some jurisdictions, a party to a private conversation can secretly record the conversation where the party is protecting their lawful interests. Otherwise, for the most part, recording requires consent from all the parties participating in a private conversation.

Surveillance Device Acts (and other Privacy laws) can be found here

 

 



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5 Responses to “Is making a secret recording of conversation against the law?”

  1. Funny how there are exemptions for some, like private investigators. Seems like when it is to the benefit of employers it allowed. When I ring up any company and get the ‘this phone call may be recorded for training purposes..’ I tell them I am doing the same even when I am not. However in the situation of an IME I leave the tape at home (when in doubt, don’t). It is far, far better to take a support person with you who quietly sits and take copious notes on what is happening, there are no laws against that and as you are being examined there is no way you can write what is going on, so a complaint by an IME would appear unfair. Don’t risk your case for any reason.

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  2. If you want to record a conversation with your Case Manager (and the likes) you do NOT require the other side’s authorisation or consent, what you do require is their KNOWLEDGE that a recording is being made. That’s how they are allowed to record conversations (simply by stating something alone the lines, ‘this conversation may be recorded for quality and training purposes)

    So long as you tell them that you intend on recording a conversation and it is in clear terms then you are covered. If they choose not to have a conversation with you AFTER you have told them you intend on recording the conversation that is their prerogative. If they say, “I don’t want it recorded” and you reply, “Well that’s too bad I am still going to record any conversation we have,” and they continue talking with you and you record the conversation you are covered.

    This very useful information was provided by Atlas Legal AU – see http://aworkcovervictimsdiary.com/2012/03/on-recording-telephone-conversations-and-defamation-atlas_legalau-advice/

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    • My partner was speaking with my insurer on my behalf and after an intense conversation the CM announced at the end of the conversation that she had recorded the call. There was no mention of the recording and it seemed she was saying it to be threatening about what my husband had said on the phone. I don’t believe it is legal in NSW to record in this way without informing first not after. The CM then made a complaint to her supervisor that I, not my partner had abused her over the phone and I was accused of yelling at her over the phone. I didn’t even speak with her let alone yell at her. However it all worked for me to some extent because I requested a copy of the recording which I did obtain. Not only does my partner sound rational and reasonable when speaking the recording gave us proof the insurer had lied about another matter. However, we then made a complaint to the insurer’s state manager who basically sent us a letter saying p— off. We then complained to the compliance manager who defended the insurer again just ignoring the recording and any evidence of their wrongdoing. Not only do they all tell lies, their compliance officer defended their dishonest actions even when the evidence is very clear. I am taking this further. All this goes to show is the insurer basically does whatever it likes and they just go on being deceitful to the end. Just a warning though for others that the insurer may be recording the calls without your permission so be careful of what you say and at times just ask for a copy of the recording of such and such a phone call on a certain date just to see if they provide it and if they do then make a complaint to WorkCover. My case is in NSW and the insurer is one of our favourites (tongue in cheek!).

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      Bashed and bullied February 26, 2015 at 9:25 am
      • I had sustained a shoulder injury at work, my supraspinatus tendon had torn almost completely of the bone, called a high grade tear. Days before I had my IME, workcover ( Qld ) phoned me up stating they had just spoken to my orthopaedic surgeon and my surgeon said there is nothing wrong with my shoulder. Funny thing was when I received a copy of my surgeons report, after my IME of course, it said in simple terms that my shoulder was a mess, a complete write off.

        I did record my IME incase I pursued a common law claim later. During the assessment I said when my shoulder went it felt like I had been stabbed with a knife. I needed to change jobs as I could no longer preform my duties. I also said on 3 occasions that I could no longer go to the gym at all as it causes to much pain.

        The IME came back saying I had sustained a soft tissue injury which would remain stable for the foreseeable future. Also that I can no longer lift heavy weighs at the gym as it makes my shoulder sore and so on and so on.

        My common law claim never when ahead as I had chosen the wrong lawyers, that is another story in its self which I will write about another time, chose your lawyer very carefully

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        • Are you talking about the Independent Medical Examiner (IME) who examined you? If so I don’t think they are allowed any contact with the injured worker outside of the examination so it would be a good idea to make a formal complaint to WorkCover in your state as this is unacceptable particularly if the IME has deliberately reported your surgeon as saying opposite of what your surgeon actually stated in the report. If the IME has a copy of the report then this is outright misrepresentation and if this was used against you ie to deny your claim or treatment then report this as WorkCover fraud.
          If you are talking about your case manager who has stated the opposite of the report and has used this to deny liability of any sort then make a complaint to WorkCover. If false information is being used to deny claims thus provide a financial benefit to the insurer then it is fraudulent behaviour in my book and needs to be investigated. I don’t know the laws relating to you recording the conversation but unless the recording is published or used you probably don’t need to worry. You can however make notes from the recording to use as part of your complaint. Look up the laws relating to your state or ask a solicitor. Regardless, if the insurer or IME has the specialist report but has falsely referred to the information in it, not just saying the IME disagrees, then you need to follow up. How is your shoulder going now? Are you still on WC?

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          Bashed and bullied March 11, 2015 at 9:35 am