9 May 2023
Recently, the ABC program Media Watch reported that controversial social media political commentator Jordan Shanks, better known as FriendlyJordies, obtained recordings of former New South Wales Deputy Premier John Barilaro that were made without his knowledge or consent and published them online.
The recording involved Barilaro’s candid discussion of ‘pork barreling’. It was published by ‘Jordies’ just before the New South Wales State election.
Unless you are a Media Watch fan, you may not have heard about this story. It wasn’t reported by ‘mainstream’ media outlets, despite its apparent newsworthiness. The media were probably deterred from reporting by surveillance laws that deal with recording someone without their permission.
As the Australian Law Reform Commission recognised in its 2014 inquiry into privacy laws, the legislation regulating the recording and publication of audio or video of somebody without their permission varies across each Australian jurisdiction. This can lead to markedly different outcomes nationwide for the same conduct.
The implications for FriendlyJordies could be different depending on whether he made or published the recordings in Western Australia or another State or Territory.
This article explores the prohibition on recording someone without their consent, some of the exceptions to this prohibition, and the consequences of publishing a secret recording.
Generally, you cannot record someone without their permission
The applicable law in Western Australia is found in the Surveillances Devices Act 1998 (WA) (‘the Act’).
It is an offence under section 5 of the Act to use an audio listening device to record, monitor or listen to a ‘private conversation’ to which that person is not a party, or to record a private conversation to which that person is a party. Section 6 similarly creates an offence for using an optical surveillance device such as a camera to record a ‘private activity’.
This essentially means that the law does not permit someone to record a private conversation without the consent of all parties.
This position is the same across most other Australian jurisdictions, however Victoria1, Queensland2 and the Northern Territory3 require the consent of only one party, such as the person making the recording.
As the High Court recently explained in Farm Transparency International Ltd v New South Wales (2022) 96 ALJR 655, the position in New South Wales is a little different. Recording with optical surveillance devices is generally prohibited if on private property, without the consent of the owner or occupier. But with respect to listening devices, whether a recording is prohibited generally turns on whether the conversation was ‘private’, like the position under WA law: Surveillance Devices Act 2007 (NSW) ss 7, 8.
Can a ‘private’ conversation or activity be held in public?
Section 3 of the Act defines ‘private conversation’ and ‘private activity’.
For a conversation to be a ‘private conversation’ requires two elements:
- the conversation is carried on in circumstances that may reasonably be taken to indicate that any of the parties to the conversation desires it to be listened to only by themselves; and
- the conversation is not carried on in any circumstances in which the parties to the conversation ought reasonably to expect that the conversation may be overheard.
The Supreme Court of WA has held that if any one or more of the parties desired the conversation be heard only by the parties to that conversation, then the first element of this definition is satisfied: Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246, [19] (Owen J).
In relation to the second element, the Supreme Court of WA has recognised that private conversations routinely occur in public places such as restaurants or cafes even though it is possible that others may hear part of such a conversation: Poland v Hedley [2019] WASC 403, [37] (Le Miere J). It is expected that others will not eavesdrop in these circumstances, and so the second element of the definition can still be satisfied where a conversation is held in public.
This definition captures a wide range of conversations held in public such as a business meeting, a job interview, or potentially a conversation with a former New South Wales Deputy Premier.
Essentially, if you feel sneaky or dishonest in recording a conversation held in public then you will likely be recording a private conversation for the purposes of the Act.
Whether an activity is a ‘private activity’ depends on whether the circumstances ‘may reasonably be taken to indicate that any of the parties to the activity desires it to be observed only by themselves’ but not if the circumstances are such that the parties ‘ought reasonably expect that the activity may be observed’.
If it looks like its private and no one should really be watching then it’s a private activity. For example, a person sunbathing would probably be engaged in a private activity if they did so in their backyard but not if they did so at the beach.
What if I am protecting my own lawful interests?
Sections 5(3)(d) and 6(3)(b) of the Act create an exception to the general prohibition on recording without consent if that recording is “reasonably necessary for the protection of the lawful interests” of a party to the conversation. This exception is significant as it is seemingly becoming increasingly commonplace to secretly record conversations with mobile phones for the purpose of collecting evidence, particularly in family law disputes.
But what exactly does this exception cover?
How this question is determined by the courts will depend on the circumstances of the particular case: Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S) [16] (Allanson J).
For example, a recording made in anticipation of a disagreement over different versions of events in the course of serious dispute may give rise to the lawful interest exception: Chao v Chao [2008] NSWSC 584, [8] (Brereton J). A recording of a conversation intended to create an oral contract would be recorded in protection of the lawful interests of a party, as would the recording of a party attempting to threaten or blackmail the recorder: Violi v Berrivale Orchards Ltd (2000) 99 FCR 580, [32] (Branson J).
It is important to understand that the protection of a lawful interest is not necessarily related to the protection of a legal interest, such as a legal right or duty: Georgiou Building Pty Ltd v Perrinepod Pty Ltd [2012] WASC 72 (S) [16] (Allanson J).
This means that even where recordings are made in relation to anticipated or ongoing legal proceedings, it does not necessarily mean that those recordings are made in protection of a party’s lawful interest. For instance, the Supreme Court of WA has held that even though a recording was obtained to verify the evidence to be provided to the court in the course of legal proceedings, based on the recorder’s ‘hunch’ that it may be required, this was not sufficient to engage the lawful interests exception: Farris v Boase [2013] WASC 227, [17] (Sanderson M).
What if I am acting in the public interest?
Sections 26 and 27 of the Act create another exception where a party to a conversation or private activity has “reasonable grounds for believing that the use of the listening device [or optical surveillance device] is in the public interest”.
Importantly, this exception does not require that the recording is made in the public interest, but just that the recorder has reasonable grounds to believe it is in the public interest. Naturally, people often consider that it is in the ‘public interest’ to record certain events. However, this test is not so easily satisfied.
Public interest is defined in section 24 of the Act as being “interests of national security, public safety, the economic well-being of Australia, the protection of public health and morals and the protection of the rights and freedoms of citizens”. For instance, the Western Australian case law has held that the free and effective reporting of the mistreatment of animals to an appropriate authority provides for reasonable grounds for believing that the use of the device is in the public interest: SAWA Pty Ltd v Australian Broadcasting Corporation [2017] WASC 349, [16] (Chaney J).
Unlike in WA, and for reasons that are unclear, the equivalent New South Wales legislation does not provide for a public interest defence. The New South Wales legislation was recently challenged in the Farm Transparency case on the grounds that it unjustifiably burdened the implied freedom of political communication, in part due the lack of a public interest defence, but this challenge was unsuccessful.
Depending on the person’s reasons for making the recording, the outcome of any prosecution for the recording of Mr Barilaro would depend on the existence of a public interest defence and the result to such a prosecution would differ under Western Australia and New South Wales law.
Publishing a secret recording
Section 9 of the Act also prohibits the publication or communication of the content of a private conversation or private activity that has been illegally recorded. The section prohibits the communication of details of a private conversation or private activity that a person becomes aware of due to a secret recording.
This is one such reason why the media is reluctant to report on the Mr Barilaro story as any journalist which reports on details of the recording is at risk of being prosecuted.
Section 31 provides the Supreme Court of WA with the ability to make an order allowing for publication or communication of a private conversation or activity where the court is convinced that doing so would protect or further the public interest.
The court has considered making such an order under section 31 on occasion; see, for example, Re Surveillance Devices Act 1998; Ex Parte TCN Channel Nine Pty Ltd [1999] WASC 246.
One such case involved an application on behalf of Channel 7 to publish a secretly obtained recording of an employee’s conversation with her manager on his decision to terminate her employment due to her pregnancy: Channel Seven Perth Pty Ltd v S (A Company) (2007) 34 WAR 325. In rejecting this application under section 31, the Court of Appeal considered that the scope of publication to the community at large was too broad to justify the making of an order and that the issue could have been raised by Channel 7 without the use of a covert listening device: [40].
In the case of Mr Barilaro and FriendlyJordies, although the media did not make the recording, they would likely have breached the law had they published it or reported on the substance of the recording, at least in New South Wales and other States and Territories with no public interest exception. If they had sought an order under section 31 of the Act, they could have lawfully published the story in WA.
What can I do if I have been recorded without my permission?
If your private conversation or private activity has been recorded without your consent, you should first ask the person to delete it.
If the recording has been posted to the internet, you should ask the site or page administrator, and the person who uploaded the recording, to remove it. The prospect of criminal proceedings for making or publishing the recording may be enough to stop the dissemination of the recording.
If this doesn’t resolve the issue, it may be best to lodge a Police complaint as the Act creates criminal offences. These offences must be prosecuted within 2 years of the offence. In so-called ‘revenge porn’ cases, better described as intimate image-based abuse, the Criminal Code (WA) creates additional offences with no such time limit.
Otherwise, you may be able to get an injunction to restrain the publication or communication of the private conversation or activity if you believe the recorder is likely to do so or to keep doing so.
The Supreme Court of WA has also upheld a civil claim for damages for the posting of intimate images and videos by a person of an ex-partner on the basis of breach of equitable obligations of confidence: Wilson v Ferguson [2015] WASC 15 (Mitchell J).
It might also be possible to seek compensation under tort; for example, unlawful means conspiracy, or a forthcoming statutory tort for serious invasions of privacy by intrusion upon seclusion.
Conclusion
Most of us carry and are exposed to surveillance devices on a daily basis. Apart from the obvious security cameras, ‘smart’ phones, watches, and home systems may each be captured by the laws regulating surveillance devices. Knowing your rights is vital. Given that those rights may vary between Australian jurisdictions, if you have an issue, it is important that you obtain advice tailored for the laws in force in your area.
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Footnotes
- Surveillance Devices Act 1999 (Vic) s 6.
- Invasion of Privacy Act 1971 (Qld) s 43.
- Surveillance Devices Act 2007 (NT) s 11.
Disclaimer: The information published in this article is of a general nature and should not be construed as legal advice. Whilst we aim to provide timely, relevant and accurate information, the law may change and circumstances may differ. You should not therefore act in reliance on it without first obtaining specific legal advice.
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