It is increasingly common for separated spouses to record
conversations involving their former spouse. This is often done in
the hope that the other party will make certain disclosures that
will assist the recording party's family law matter.
However, it is only legal to record conversations in certain
circumstances. Before recording conversations, you should first
consider whether it is legal and second, whether there is likely to
be any benefit to do so.
What is a listening device?
Any instrument, apparatus, equipment or device capable of being
used to overhear, record, monitor or listen to a private
conversation at the same time it takes place (section 4 of the
Invasion of Privacy Act 1971 (Qld)).
The definition is very wide and captures obvious devices, such
as tape recorders, through to devices that might only record as an
ancillary purpose, such as mobile phones.
When is it legal to record a conversation in Queensland?
It is legal for a person involved in a conversation to record
that conversation (section 43(2) of the Invasion of Privacy Act
It does not matter whether:
the conversation is face to face, telephone or via any other
electronic means; or
any other parties involved in the conversation are aware it is
When is it illegal to record a conversation in Queensland?
It is illegal for a person not involved in a conversation to
record that conversation (section 43(1) of the Invasion of
Privacy Act 1971 (Qld)).
For example, if a child is having a phone conversation with
their mother, it is illegal for their father to leave a mobile
phone nearby recording that conversation.
Interestingly, despite the broad definition of a listening
device, it is illegal to record a telephone call with a device
physically attached to the telephone (Telecommunications
(Interception and Access) Act 1979 (Cth)). This includes
bugging or intercepting a phone conversation.
When can I communicate to a third party or publish a recorded
conversation in Queensland?
Although it may be legal for a conversation to be recorded in
certain circumstances (subject to the above limitations), it is an
offence to communicate to any other person or publish that
recording unless it is made:
with the consent of the other party or parties to the
to another party to the conversation;
in the course of legal proceedings;
as reasonably necessary in the public interest, in the
performance of a duty of the person making the communication or
publication, or for the protection of the lawful interests of that
to a person who is reasonably believed to have such an interest
in the private conversation so as to make the communication or
publication to them reasonable in the circumstances; or
by government officers in certain limited circumstances.
When should I record a conversation?
You should not record a conversation unless you are certain it
is legal to do so. If you are unsure, you should obtain independent
legal advice before attempting to record a conversation.
Once you are certain it is legal to record a conversation, you
should consider whether you are likely to obtain any useful
evidence by doing so. For example, a victim of family violence may
record telephone calls with their former partner if they reasonably
suspect the partner may commit further acts of family violence
during those discussions.
Parties in litigated family law matters often exhibit recordings
to their affidavit material as evidence supporting their version of
events. However, in our experience, most of these recordings do not
provide useful evidence that will assist the to judge determine the
key issues in their case.
Exhibiting unhelpful recordings to affidavit material may
adversely affect the judge's perception of your position or
We strongly recommend that parties obtain independent legal
advice before they:
Cooper Grace Ward is a leading Australian law firm based in
This publication is for information only and is not legal
advice. You should obtain advice that is specific to your
circumstances and not rely on this publication as legal advice. If
there are any issues you would like us to advise you on arising
from this publication, please contact Cooper Grace Ward
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