Bowen Buchbinder Vilensky

Can I Record my Telephone Conversations for Use in Court?

By Leslie Buchbinder, Director at Bowen Buchbinder Vilensky Lawyers

11 February 2014

A recording of a telephone conversation can be useful to help to resolve a dispute in Court.  Are there any restrictions on me doing so?

There are only a very limited number of occasions when a private telephone conversation can be secretly recorded lawfully .

An article in the West Australian Newspaper on February 11 2014 referring to criminal charges against Perth Lawyer Lloyd Rayney accusing Mr Rayney of aiding or abetting in interfering with his late wife’s telephone lines before her death highlights this question.

There are both Federal and State laws which control the recording of telephone conversations.

At a Federal level, recording a telephone conversation may contravene the Telecommunications (Interception and Access) Act 1979.  This Act expressly prohibits the interception, without the knowledge of the person making the communication, of a communication passing over a telecommunications system.

At  State level, in Western Australia the Surveillance Devices Act 1998   regulates the use of listening devices, optical surveillance devices and tracking devices. Under this Act it is an offence to use, install or maintain:

  •  listening devices to record or listen to a private conversation;
  • optical surveillance devices to record visually or observe a private activity; or
  • tracking devices to determine the geographical location of a person.

This Act does not prevent employers, for example,  from using surveillance devices in the workplace, as long as they are not being used to record private conversations or private activities.

A breach of the Federal or State laws may amount to an offence and result in prosecution action being taken against the person or persons recording the conversation (and those knowingly participating in doing so) by the relevant Federal or State authorities and the imposition of significant fines and the recording of a criminal conviction against the person.

Additionally, a breach of these laws may (depending on a variety of considerations including the particular Court jurisdiction concerned)  render the recording itself inadmissible into evidence and therefore unable to be relied upon in Court.

The temptation to secretly record telephone conversations for later use as evidence must be resisted. Failure to do so can not only result in the whole exercise becoming futile (because in the end the recording may be excluded for being considered by the Court) but it may well leave you exposed to being prosecuted and fined a significant sum for a breach of the Federal and/or State laws controlling the recording of telephone conversations.

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One Response to “Can I Record my Telephone Conversations for Use in Court?”

  1. Useful and technology related info. Love to hear it.

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