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Privacy And the Recording of Conversations

With the increasing prevalence of smart phones and other electronic devices, the recording of conversations in the workplace or school yard is becoming common practice.

In many cases, it is legal for private conversations to be recorded without the knowledge of all participants.

There is no obligation to obtain the prior consent of the other parties to the conversation. The secret recording may potentially be used in subsequent legal proceedings.

As a general rule, it is legal in Queensland:

  • for a telephone call to be secretly recorded by an external device (e.g. a Dictaphone) by a person who is a party to the conversation – Section 43, Invasion of Privacy Act 1971 (Qld);
  • for a face to face conversation to be secretly recorded by a person who is a party to the conversation – Section 43, Invasion of Privacy Act 1971 (Qld).

Generally, it is illegal in Queensland:

  • to record a telephone call with a device physically attached to the telephone – Telecommunications (Interception) Act 1979 (Cth);
  • for a person who is not a party to the conversation to record a conversation (whether by telephone or face to face).

Who should be concerned about the risks of secret recordings?

There is no one group. However, based on our experience, we believe schools in particular ought to be alert to the risk of secret recordings. Students recording other students or teachers, parents recording teachers (or even students!), or teachers recording conversations with school management.

In any workplace, an employer may find him or herself being recorded by an employee particularly during a performance review.

The legal decision of Barbara Roman v Mercy Hospitals Victoria Ltd [2022] FWC 711provides a recent finding by the Fair Work Commission on the recording of workplace conversations.  

In this case, an employee of a healthcare facility in Victoria was directed to follow the lawful and reasonable direction to provide evidence of vaccination status in October 2021. Following the employee’s failure to comply, the employee completed an online conference with their employer to discuss this non-compliance. During this discussion, the employee secretly recorded the conversation. Although the employee was dismissed based on their failure to comply with the lawful and reasonable direction, the Commission also found that the secret recording was serious misconduct, and another grounds for termination. This case highlights that although it is legal to privately record a conversation, it may be inappropriate in employment settings. To read more about this case study, click here

What can you do to reduce the risk of secret recordings?

Even though it might be lawful under Queensland law for conversations to be secretly recorded, this does not mean you need to tolerate secret recordings taking place in your school or workplace.

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