Frequently people ask about their ability to record other individuals when gathering evidence for various types of legal disputes. Most people are likely to be unaware that there is legislation which controls lawful recording of individuals.
The current legislation dealing with this issue is the Listening and Surveillance Devices Act 1972 (SA), although this Act is in the process of being repealed and replaced with the Surveillance Devices Act 2016 (SA). For the average person’s purposes however, the Acts are not too dissimilar.
Both Acts make it a criminal offence to record a private conversation whether or not the person is a party to the conversation, with a maximum penalty of a $15,000 fine or imprisonment for 3 years. The exceptions to this are when all principal parties to the conversation consent to the device being used or the use of the device is reasonably necessary for the protection of the lawful interests of that person. Courts in the past however have interpreted the legislation and have said that recording without consent is still prohibited even in circumstances where a person is wanting to obtain an advantage in civil proceedings; this would not meet the test of the exceptions. Other exceptions arise in the course of investigations, such a police or the holders of investigation agent’s licences.
In essence, if you do not have the consent of parties involved in a conversation, you should not record the conversation. This includes meetings with your employer, phone conversations, lectures and the like. Parties who do accumulate evidence through unlawful recording are likely to find that a Court will not consider any of this unlawful evidence if they attempt to rely on it.
If you need advice regarding any criminal or any civil matter, call us on 8523 8400 (Gawler) or 8211 6500 (Adelaide) to arrange an appointment for an initial no obligation consultation with one of our Lawyers. Alternatively, send an email to firstname.lastname@example.org and we will contact you.