Secretly recording conversations – is it legal in NSW?
In 2020, one of the top detectives in NSW ran afoul of the law by illegally recording conversations; an act that led him to leave the police force in the middle of a major investigation.
Former Detective Chief Inspector Gary Jubelin lost an appeal in the District Court against his conviction and $10,000 fine for illegally recording conversations with someone he considered at the time to be a “person of interest” in the investigation into the disappearance of three-year-old William Tyrrell in 2014.
Jubelin found guilty of covertly recording four conversations
Mr Jubelin, who had led the investigation, quit the force in 2019 after the illegal recording charges were brought against him. In April 2020, Mr Jubelin was found guilty in the Local Court of secretly recording four conversations with a man who lived next door to the missing boy.
Mr Jubelin told the court he made the recordings because he feared the person might commit suicide and any statements he made would be lost.
Unlawful to record a conversation without consent
Even though police had a warrant for installing listening device surveillance on the person in question, this did not include Mr Jubelin’s own phone, which he used to record three conversations in person with the man, and one on the phone.
Jubelin did not ask the man’s permission to record the conversations or notify him that the conversation was being recorded.
The police officer was found to have breached section 7 (1) of the NSW Surveillance Devices Act 2007, which states it is against the law to record a private conversation without the consent of the other person.
Harsh penalties for breaching laws around recording conversations
Even though the judge in the Appeal Court agreed that the officer’s motivation was to help the investigation, he ruled his action breached the law.
The judge said: “In a democratic society, those placed in a position of authority have an obligation to exercise their power lawfully. This, the appellant failed to do.” (See Gary Jubelin: former detective loses appeal over illegal recordings in William Tyrrell case, The Guardian, September 2020.)
The decision shows police are not above the law. Recording conversations without permission carries a heavy penalty – a maximum of five years in jail and an $11,000 fine. This law aims to protect privacy. (Please see also When our walls turn to glass – the end of privacy.)
Is it ever legal to record a conversation without the other party’s knowledge?
There are some exceptions to the laws pertaining to recording conversations.
These include situations where police have a warrant, where the recording unintentionally captures a private conversation, where a police officer has body-worn video footage, or where listening devices are being used in accordance with Commonwealth law, such as the Telecommunications (Interception and Access) Act 1979.
Section 7 (3)(b)(i) of the NSW Surveillance Devices Act also gives the broad defence that the laws do not apply if a principal party to the conversation consents to a listening device and the recording of the conversation is “reasonably necessary for the protection of the lawful interests of that principal party.”
It is also an offence to use a tracking device to locate another person or object such as a car without that person’s consent. (Please see Spy phone apps: privacy protection or illegal surveillance?)
Installing a camera secretly inside a vehicle or using a camera within premises without the consent of the owner or occupier is also an offence. (Please see Photography and the law – when is it illegal to take a photo?)
For more information please see also “The court has to listen to this secret recording, it proves I should get my fair share of the estate!” Which case won?
If you have any concerns regarding a conversation that has been recorded without the consent of all parties, it’s wise to seek legal advice, so you know where you stand.