When altercations arise between spouses it can be difficult to convey your own side of the story properly. One might be tempted to record these altercations to avoid your spouse manipulating the story in their favour. You might think it is reasonable, right? The legality of using such recording devices depends on which state you live in.
In NSW, the use of listening devices to record private conversations is governed by the Surveillance Devices Act 2007 (NSW) (“NSW Surveillance Act”). Subject to some exceptions – such as those afforded to police – a person must not knowingly install, use or maintain a listening device to record a private conversation whether they are a party to the conversation or not – section 7(1).
If found guilty of such offences, penalties include fines up to $11,000.00 and five-years imprisonment.
In other states, the legislation differs. In Queensland, the Invasion of Privacy Act 1971 (Qld) applies, where it is lawful for a party to a private conversation to record that conversation without the consent of other parties.
Regarding telephone conversations, the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIA Act”) regulates access to telecommunications content and data across Australia. The TIA Act makes it an offence for a person to intercept or access private telecommunications without the knowledge of those involved in that communication.
The courts have considered the admissibility of such evidence depending on the circumstances of each case. They have been guided by whether the secret recording was reasonably necessary to protect someone’s lawful interests.
Whilst the law in NSW clearly states that no recording devices can be installed or used in secret to monitor any private conversation – including that with a spouse – the Family Court has discretion to admit such a recording into evidence, as it is governed by Federal Law (except WA) and the Evidence Act 1995 (Cth) (“the Evidence Act”).
Under section 138 of the Evidence Act, evidence that was obtained improperly or in contravention of an Australian law should not be admitted. However, there is an exception. The evidence may be admitted if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in an illegal manner. The desirability of the evidence depends on its probative value and the importance of the evidence in the proceedings.
Not only is recording your partner secretly illegal in NSW and subject to serious penalties, but it might also not be admissible in court, including in family law proceedings. A safer option would be to make detailed notes after a conversation or incident and then send it to your own email as a contemporaneous record of the incident.