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Is it legal in queensland australia to record conversations

in the following circumstances. 1. The...
Is it legal in queensland australia to record conversations in the following circumstances.

1. The person who is recording the conversation is a participant (so is only recording a conversation that they are a part of)

2. The conversations are in the form of either
a. A face to face conversation in the state of Queensland
b. A telephone call between the person recording the conversation and the other party/parties (The calls are between Brisbane and Sydney)

3. The recordings are recordings of discussions between an employee (the recorder) and their employer and employers.

4. The recordings commenced so the employee could keep a record of discussions during the course of written warnings that had been issued upon him and the hearings and conversations relating to the review process as the employer was bullying the employee by abusing the power of their position as well as directing threats towards the employee and falsifying the full and true points of discussions.

Please respond
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Answered in 5 minutes by:
7/16/2010
Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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In Queensland, it is only legal if all parties know the conversation is being recorded at the commencement of the conversation. If that criteria is not met, then it is not legal to use the recording.

I realize that this answer may not be entirely to your liking, and I regret being the bearer of information that you really don’t want to hear. But it would be unfair to you and unprofessional of me if I were to provide you with anything less than truthful and honest information. As such, if my answer has been helpful or informative to you, even if it wasn't necessarily what you wanted to hear, please hit the Accept button.



Edited by Alex on 7/16/2010 at 10:46 PM EST
Brisbane-Lawyer
Brisbane-Lawyer, Solicitor - Admitted 2005
Category: Australia Law
Satisfied Customers: 14,361
Experience: I did my law degree at the University of Queensland
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Customer reply replied 7 years ago

I am needing clarification / confirmation of my understanding of the Invasion of Privacy ACT 1971 in Queensland for the following Sections and Sub Sections

 

Do not all of these apply to my situation. From my understanding they would and is in opposition to the answer you provided me with the other day.

 

INVASION OF PRIVACY ACT 1971 - SECT 4

4 Definitions listening device means any instrument, apparatus, equipment or device capable of being used to overhear, record, monitor or listen to a private conversation simultaneously with its taking place.

 

INVASION OF PRIVACY ACT 1971 - SECT 42

42 Reference to listening devices and private conversations (2) A reference in this part to a party to a private conversation is a reference--

(a) to a person by or to whom words are spoken in the course of a private conversation; and

(b) to a person who, with the consent, express or implied, of any of the persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words.

 

INVASION OF PRIVACY ACT 1971 - SECT 43

43 Prohibition on use of listening devices Subsection (2) (a) where the person using the listening device is a party to the private conversation; and

 

INVASION OF PRIVACY ACT 1971 - SECT 45

45 Prohibition on communication or publication of private conversations by parties thereto Subsection(2)(b),Subsection (2)(c)(iii) & Subsection (3)(c)&(d)

 

Please respond and confirm if my thinking is correct.

 

Regards Daniel

I don't think my answer is in opposition to these sections at all. The heart of the Invasion of Privacy Act is that conversations cannot be recorded unless there is consent by the parties involved. For instance s. 44(2)(a)(i).

You haven't yet mentioned whether it was you who recorded this provate conversation, nor whether all parties agreed to it being recorded.
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Customer reply replied 7 years ago

Hi Alex,

 

All sections below refer to the Invasion of privacy act 1971

 

Yes I am the person who made the recordings and as per section 42 (2) (a) & (b) I was a party to a private conversation as per subsection (2) (a) & (b) I am "of any persons by or to whom words are spoken in the course of a private conversation, overhears, records, monitors or listens to those words.

 

The recording device I used fits the definition in Section 4

 

As per section 43 (2) (a) the person using the listening device is a party of the private conversation. Again as per Section 42 (2) (a) & (b) above I am a party as per the definition.

 

As per section 45 (2) (c) (iii) and more so Section 45 (2) (e) recordings were made for the protection of the lawful interests of that person "me" which then ties into Section 45 (3) (c) & (d)

 

I hope this clarifies everything. The recordings were made as my employer was abusing their position of power "bullying in the workplace" and because they were issuing warning letters on me which were being served on me outside of company policy time frames. Also because I was threatened by senior management during the review process of the warning letters and because the company set up a situation which resulted in my constructive dismissal. These recordings can disprove the inaccuracies in their statements as the employer is denying that they constructed the dismissal.

I now see what you are referring to.

To clarify, its not unlawful to tape a conversation you have with someone else. They don't need to be advised that you are recording the conversation. However, you cannot then use that recording without their permission. Basically, the recording is for your ears only.
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Customer reply replied 7 years ago

Yes that's what I understand. BUT! the way that I read it I also understand that I would be able to take these to court or in this case FWA arbitration as evidence to support the actions and conduct of my employer against me over the last year as it goes to support the repeated and systematic approach they have used and shows a history of not treating me fairly either via policy or procedures and for the fact it demonstrates that management and HR were advised several times of my objections to the way they were treating me and that I had several times stated that their actions affected the work relationship between my direct and senior managers and that I had several times requested a witness or support person and that they denied me one.

 

So is it as I read it, true that these tapes will be able to be entered as eveidence to support my case that I was wrongfully dismissed via constructive dismissal?

 

Thanks Daniel

I concur, the recording could be used in legal proceedings as per section 45(2)(b).

Edited by Alex on 7/19/2010 at 5:14 AM EST
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Customer reply replied 7 years ago

Thanks Alex for your replies as I thought that this was the legislation that would apply to my set of circumstances, as I was wanting and needing some clarity so that I can respond to my employer advising them of the the existance of this evidence so they know I can reputiate their false comments and claims.

 

Last question relating to this. In going back to the employer now or more so their lawyer, when I tell them of the existance of these I can use qoutes from the recordings to demonstrate some of the content correct? As it is only then being shared with the other person/s involved in the conversations and not an uninvolved third party. The reason I ask is that so of the qoutes and statements will make the lawyers realize that what they have been told does not truely reflect the actual content of the discussions and what was truely said and by whom.

 

Daniel

[QUOTE] when I tell them of the existance of these I can use qoutes from the recordings to demonstrate some of the content correct? [/QUOTE]
No, you can't. You can only use them in the course of legal proceedings, not negotiations which may or may not lead to legal proceedings. Until legal proceedings formally commence by filing the relevant documents, you should not make any mention of the recordings.
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Customer reply replied 7 years ago

Of their existance at all or just actual content. Because my former employer is a big big multi national and now that they have agreed to an open hearing they will not want to have this sort of information that I have against them to become public record, so I would have thought that as per Section 45 (2) allows ithe conversation to be communicated or published when section 45 Subsection (2)(a) applies "is made to another party to the private conversation" parties being refered to by definition in Section 42(2)(a)

 

Daniel

Customer reply replied 7 years ago
Sorry missed the other reply that was sent as I was typing my last response
My advice still stands.
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Customer reply replied 7 years ago

Section 45(2) says

 

Subsection (1) does not apply where the communication or publication -

 

(a) "is made to another party to the private conversation"

 

As their lawyer is instructed to act on their behalf then would not Section 45 (2) (d) apply

"is made to a person who has, or is believed, on reasonable grounds by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made"

 

Would this not make it possible for me to communicate it to the Lawyer through the FWA conciliator as this matter has already had a concilation hearing last Thursday.

 

By communicating the existance and or part of the content now to the respondants lawyer MAY! and I say MAY! allow a remedy or agreement to be made while still at a conciliation level before having to go to arbitration. Basically I asked for compensation but the respondent declined but that was without them having the knowledge that the recordings exist. Making their existance aware now could bring around a commercial settlement before arbitration is necessary.

What happened to:

Last question relating to this. In going back to the employer now or more so their lawyer, when I tell them of the existence of these I can use quotes from the recordings to demonstrate some of the content correct?


Edited by Alex on 7/19/2010 at 6:46 AM EST
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"As their lawyer is instructed to act on their behalf then would not Section 45 (2) (d) apply?"

No, it wouldn't necessarily. You'd be running a risk to devulge the recording's contents to their lawyer.


Edited by Alex on 7/19/2010 at 7:02 AM EST
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Customer reply replied 7 years ago

So don't devulge content but ok to advise them of existance of recordings?

 

 

Yes, I think that would be okay.
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Customer reply replied 7 years ago

Thank you for your patience and advise.

 

Regards

 

Daniel

You're welcome.
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