Can I Use Call Recordings in my Legal Disputes?

In Short

• Recording conversations is illegal in most states without consent, but there are exceptions.

• Businesses must seek consent and disclose the purpose before recording calls for dispute resolution.

• Courts may admit illegally obtained recordings as evidence depending on the circumstances.

Tips for Businesses

Before recording conversations for business purposes, ensure you have clear consent from all parties involved. Use a disclaimer at the start of each call to explain the purpose of the recording, especially for dispute resolution. Be aware of the legal risks and penalties associated with recording without consent, particularly in states other than Queensland.

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Table of Contents

• Recording a Phone Call
• Businesses Using Recordings for Dispute Resolution
• Using Recordings in Court
• Key Takeaways
• Frequently Asked Questions

With rapid technological developments, it is becoming increasingly easy to record conversations or interactions without the knowledge of the other person or persons. This can be especially tempting as it ensures an accurate record of events and can be evidence of an issue. However, laws surrounding recording telephone conversations or videos vary across states in Australia. In fact, there is much debate about whether these recordings can or should be used as evidence in a legal dispute, particularly as evidence admitted in court. Generally speaking, in most states, it is unlawful to record a phone call without the other person’s consent. However, there are exceptions. This article will show whether you can use call recordings in your legal dispute.

Recording a Phone Call

These exceptions include but are not limited to: 

• recording in accordance with a warrant or emergency authorisation;
• recording with the express or implied consent of the other party/parties to the conversation; or 
• where recording the conversation is reasonably necessary for the protection of the lawful interests of that party.

The relevant legislation for each state and territory is as follows: 

• Surveillance Devices Act 2007 (NSW);
• Surveillance Devices Act 1999 (Vic);
• Invasion of Privacy Act 1971 (QLD);
• Surveillance Devices Act 2007 (NT);
• Listening Devices Act 1992 (ACT);
• Listening Devices Act 1991 (Tas); and
• Surveillance Devices Act 1998 (WA).

In Victoria, South Australia, Western Australia, Tasmania, and the Northern Territory, it is also illegal to record a private conversation through a listening device without the other party’s consent. However, in Queensland, it is legal to record a private conversation as long as you are a party to the conversation. A breach of these laws can carry heavy penalties, including hefty fines or even imprisonment. 

The definition of a listening device is wide and varies between states and territories. However, a mobile phone or dictation device generally falls under each definition. Similar rules apply to optical devices, encompassing videos taken on phones or cameras. 

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Businesses Using Recordings for Dispute Resolution

Businesses will often record phone calls with their clients or customers for quality assurance, training, and complaint/dispute investigation purposes. Some businesses, such as airlines or medical centres, may wish to examine recordings of calls in an attempt to resolve a dispute or investigate a customer complaint. The same legislation as above will govern whether a business can record a phone call. Ultimately, a business will need the consent of the other party on the line to do so. 

If you run a business and would like to record your calls, you must have some sort of a disclaimer at the beginning of the call. The disclaimer should include the full scope of the intended purposes and uses of the recording, including for dispute resolution, and should then ask for the caller’s consent. If an individual states that they do not want the call recorded, it is illegal to record it in all states other than Queensland. 

Whether a business can store, share or communicate material from recordings for dispute resolution or complaint investigations also varies slightly across states and territories. However, it will be contingent on seeking the caller’s consent for the intended purpose at the beginning of the call. 

Using Recordings in Court

The admissibility of recordings as evidence in court is complicated and is governed by section 138 of the Evidence Act 1995 (Cth) in most jurisdictions, which states that evidence obtained illegally or improperly should not be admitted in a courtroom. However, the exception to this rule is if the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained illegally or improperly.

The courts will consider several factors when weighing the desirability of admitting such evidence. These include: 

• the importance of the evidence;
• the probative value, or strength, of the evidence;
• the nature and seriousness of the offence to which the evidence relates; and 
• the gravity of the impropriety or unlawful conduct used to obtain the evidence.

The party trying to admit illegally or improperly obtained evidence must seek permission to have it entered as evidence in Court.

Key Takeaways

There is no black and white answer regarding whether recordings can be used as evidence in a dispute. There are varying circumstances that must be looked at on a case by case level. It is important to remember that in most states, recording a conversation or interaction with a listening or optical device is illegal without the consent of the party/parties involved. Such an offence can result in fines or imprisonment in most states and territories. 

A Court may allow for illegally or improperly obtained recordings to be admitted as evidence under certain circumstances. You should seek legal advice if you plan to record a conversation in anticipation of a dispute or legal proceeding.

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Frequently Asked Questions

• the importance of the evidence;
• the probative value, or strength, of the evidence;
• the nature and seriousness of the offence to which the evidence relates; and 
• the gravity of the impropriety or unlawful conduct used to obtain the evidence.