Gone are the days of the good old Dictaphone or tape recorder. In this modern age of technology, there are numerous smartphone APPs which will record phone calls (such as Google Voice and ACR) or can even be switched on remotely to record conversations (such as Spy Apps). This is becoming an increasingly popular weapon of choice in family and criminal law matters.
Is it legal? This partly depends on where you live – the laws differ between States.
You may be surprised to learn that Queensland is one of the most relaxed States when it comes to this. In Queensland, it is actually not illegal for a person who is involved in a conversation (either face-to-face or by phone) to record the conversation – even without the other party knowing or having consented to the recording!
However, it is illegal in Queensland to record conversations that you are NOT a party to. For example, if a child was chatting to their father, then it is not lawful for the mother to secretly record the conversation.
However, whilst you can record conversations, there are restrictions on what they can do with the recording. The general rule is that the contents of the recording CANNOT be published or communicated to anyone. However, if you are a direct party to the conversation, it can be communicated/published:
- to the other party to the private conversation;
- with the consent of the other party to the conversation;
- if it is made in the course of legal proceedings;
- in the public interest;
- in the performance of a duty of the person;
- for the protection of the lawful interests of that person;
- to a person who has an interest in the private conversation;
- by Government officials in certain circumstances.
If a party obtains a recording in contravention of the law, then it will not be “admissible” (able to be used) in a Court case.
Whilst disturbing, it was totally legal for Gable Tostee to secretly record his Tinder dates. The recordings of what occurred in the hours leading up to Warriena Wright’s death became a crucial part of the evidence used in the case.
Whilst I am a lawyer, even I believe there is often a ‘legal’ answer and a ‘practical’ answer. Whilst it is not strictly unlawful to record private conservations in Queensland, this does not necessarily mean that people should do so. Obviously it would depend on the circumstances of each situation.
Suzanne Brown is a Principal of McKays and Mackay’s only QLS Business Law Accredited Specialist. She can be contacted on 4963 0820 or sbrown@mckayslaw.com.
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