Today’s question revisits the question of covert audio recordings (and for related posts, see https://emergencylaw.wordpress.com/?s=listening+devices).
Is it Ok for a Rural Fire Service (RFS)/Rural Fire Service Association (RFSA) member to covertly voice record meetings of either organisation?
The reference to the RFS and RFSA means that we’re talking about New South Wales. The relevant Act in NSW is the Surveillance Devices Act 2007 (NSW). A listening device is defined (in s 4) as:
…any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.
It includes a dedicated audio recorder but also your smart phone. So, is it ok to covertly or secretly record meetings? Prima facie the answer is ‘no’. Section 7(1) says:
A person must not knowingly install, use or cause to be used or maintain a listening device:
(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or
(b) to record a private conversation to which the person is a party.
There are exceptions and the most common one is in s 7(3) which says:
Subsection (1) (b) does not apply to the use of a listening device by a party to a private conversation if:
(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or
(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation:
(i) is reasonably necessary for the protection of the lawful interests of that principal party, or
(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.
What is a private conversation?
A private conversation is defined to mean
…words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only:
(a) by themselves, or
(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,
but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.
What sort of meeting are we talking about?
It follows that the answer ‘no’ is too simple. The first question to consider is whether what is being recorded is a private conversation? If the meeting concerned is a public meeting, say a meeting of the RFSA to discuss a constitutional issue or amendment, open to all members and subject to robust debate, it may be hard to say that is any sort of ‘private conversation’ in which case s 7(1) doesn’t apply. Equally a public meeting hosted by the RFS to discuss community engagement and preparedness is unlikely to be an example of a ‘private conversation’.
If the meeting in question is a private conversation and the person doing the recording is a party to the conversation, then the recording is permissible provided s 7(3) is met. Given we’re talking about a covert recording it follows that s 7(3)(a), everyone consents, does not apply so the answer has to be found in s 7(3)(b) and that requires consideration of the motive for making the recording and what the person intends to do with it once the recording is made. The obvious example where s 7(3)(b) may be relevant is where a member has been called to a meeting that the member understands is disciplinary in nature and the member wants an accurate recording, so they can obtain later legal advice on the process.
Even if covert recording is allowed, it’s better not to
Even if there is no breach of the Surveillance Devices Act it stands to reason that covert recording should be avoided whenever possible. It’s always best to advise people that they are being recorded and obtain consent where consent is necessary. Even where the person’s consent isn’t required, eg recording a public meeting, it is still better to tell people that it is happening.
It is illegal to covertly record a private conversation unless the person doing the recording is one of the participants in the conversation and the recording ‘is reasonably necessary for the protection of the lawful interests of that principal party’.