‘Is it legal to record a conversation?’ is a question that we are hear increasingly from our clients.
This regularly comes up in the context of family law and domestic violence matters. A person may record another without their knowledge in order to gather evidence. This also occurs in a wide range of matters including, neighbourhood disputes, partnership disputes and increasingly employee employer disputes.
When is it legal to record a conversation in Queensland?
Under the Invasion of Privacy Act 1971 it is legal for a person involved in a conversation to record that conversation.
It does not matter whether the conversation is in person, on the phone or via some other electronic means like Skype or Facetime.
There is no requirement that the person being recorded be made aware that this is occurring.
Can you use the recordings as evidence in a dispute?
Whether the recording may be permitted as evidence in a court matter is less clear. Without boring you with an in-depth analysis of the various rules of evidence in the many different courts that deal with family law, domestic violence, employment, commercial and other disputes, generally recordings are going to be looked at suspiciously by any court when a party to the recording is not aware that they are being recorded.
What are the issues that may arise in court from recording a conversation?
A common issues that arises when recordings are tendered as evidence is that only part of a recording is provided. Without the court being provided with a full recording that accurately shows all interactions between the parties during the conversation, the court may deny a party the right to rely on the recording. Similarly, courts take a dim view of parties that use recordings in situations where they may be seen to be selectively recording another party without their knowledge and actively provoking conflict with the view to relying on the recording later.
With advances in technology, digital recording through phones and other devices provide parties with a tool to gather evidence that has not been available in the past.
Digital recordings may be the only way that a party is able to establish their case beyond the traditional “he said, she said” that a court needs to deal with.
So, while you may have a right to record a conversation that you are a party to, care should always be taken in doing so and it should not be assumed that any recording produced will be able to be relied upon.
We strongly recommend that parties obtain independent legal advice before they:
- record a conversation; or
- exhibit any recordings to affidavit material.
If you would please like further information regarding your personal situation, call us today on 1300 663 236.