Today’s correspondent asks about disciplinary processes within Victoria’s Country Fire Authority.  My correspondent says:

  1. CFA regulations allow the chief to appoint an investigator to investigate disciplinary matters. After the investigation report is delivered the CFA have up to 60 days in which to lay a charge. In my case 6 months have elapsed with no advice that a charge would or would not be laid. Throughout the process I was under strict instructions not to discuss the investigation with anyone. I understood this as necessary to protect the integrity of the process. I would like to know what my right are now in relation to confidentiality? I have nothing to hide and am considering going public with what I believed to be a frivolous allegation designed to intimidate me. Am I within my rights do that?
  2. A secret tape recording of a meeting which I was present at was made by another person who passed it on to me. That recording would support my position regarding complaints made against me. I chose not to use it at the investigation for ethical reasons, but could I use this in a court of law if I were to allege the investigation against me was malicious? The meeting was a meeting that any brigade member could attend and which I would consider a public meeting. As I am sure you would be aware the laws in Victoria allow recording of conversations you are a party too?

I’m always reluctant to stray too far into the specific and clearly there are significant and real issues here.  I will speak in general principles but warn my correspondent to get specific legal advice from a practitioner who can be instructed with all the necessary details before doing anything.

The investigation

The Country Fire Authority Regulations 2014 (Vic) r 13 says:

(1)       The Chief Executive Officer or the Chief Officer may appoint an employee or other person as an investigator to gather information concerning the circumstances which may have given rise to an offence under regulation 11.

(2)       Without limiting subregulation (1), the investigator must, as soon as practicable after commencing an investigation, give a written report on the circumstances to the person responsible for determining whether a charge should be laid in relation to those circumstances.

Regulation 14 says:

(1)       A senior employee, other than the Chief Executive Officer or the Chief Officer, may lay a charge for an offence under regulation 11.

(2)       A charge for an offence must be laid against an employee within the prescribed period after the day on which the written investigation report is given under regulation 13(2)…

(4)       In subregulation (2), “prescribed period” means—

(a) 30 days; or

(b) any other period not exceeding 60 days that the Chief Executive Officer or Chief Officer determines.

(See also r 48 for similar provisions with respect to volunteers).

Six months is well past the prescribed 60 days so subject to any argument that may exist as to why that time limit doesn’t apply or when the final report was served we can assume with some confidence that no charge will be laid as a result of this particular investigation.

There are no express regulations about confidentiality in either the Country Fire Authority Act.  The Country Fire Authority is an authority separate from the Crown (see Country Fire Authority Act 1958 (Vic) s 6; see also Report on discrimination, sexual harassment and victimisation in the CFA and MFB to be withheld (October 5, 2018)).  Employees are employed by the Authority by virtue of s 17.  I infer therefore that the Public Administration Act 2004 (Vic) does not govern the employment of CFA firefighters.

Subject to general laws and in particular one would have to have regard to the specific terms of one’s employment that may well have confidentiality clauses and the law of defamation there is no need to maintain secrecy over the allegations.  At least there is nothing in the CFA Act or its regulations to impose that obligation.

The audio recording

In Victoria the relevant Act is the Surveillance Devices Act 1999 (Vic).   Section 6(1) says:

Subject to subsection (2), a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.

A listening device is defined in s 3 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

There is no relevant exemption in subsection 2.  Therefore recording a meeting is only unlawful if what is being recorded could be considered a ‘private conversation’ to which the person doing the recording was not a party.

A ‘Private Conversation’ (s 3)

means a conversation carried on in circumstances that may reasonably be taken to indicate that the parties to it desire it to be heard only by themselves, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it may be overheard by someone else;

A ‘party to a private conversation’ is any ‘person by or to whom words are spoken in the course of the conversation’ (s 3).

If the meeting was ‘a meeting that any brigade member could attend’ and what was recorded was the meeting with everyone talking and the various reports then it does not sound like the recording of a private conversation and is therefore not prohibited by the Surveillance Devices Act 1999 (Vic).

Even if it was prohibited that does not mean it is inadmissible in court.  Illegally obtained evidence may still be used where the value of the evidence exceeds the value in communicating the need to obey the law (Bunning v Cross (1978) 19 ALR 641).   That position has been confirmed in legislation.  Section 138 of the Evidence Act 2008 (Vic) says:

(1)     Evidence that was obtained—

(a)        improperly or in contravention of an Australian law; or

(b)       in consequence of an impropriety or of a contravention of an Australian law—

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Assuming that the conversation was illegally recorded it can still be used if the probative value is high, the nature of the proceedings is sufficiently serious to warrant overlooking the breach and various other factors listed in s 138(3).

Conclusion

Remember this is only general advice looking at first instance at the CFA Act and its regulations.  There is nothing there to compel a maintenance of confidentiality after the prescribed period to lay a charge, but my correspondent would want to carefully review his or her contract of employment and consider the law of defamation before running off to the newspapers or radio.

With respect to the recording of a meeting it is only unlawful to secretly record a private conversation that you are not a party too.  Recording a meeting that is reasonably public (even if it is restricted to CFA members) would not appear to meet that definition.  Even if it does, a party to the ‘conversation’ can record that conversation.  Prima facie, given my correspondent’s description, what was recorded was not a private conversation so the prohibition in the Surveillance Devices Act 1999 (Vic) s 6 doesn’t apply. Even if it does that does not mean that the recording cannot be used in court.  Even if it was illegally or improperly obtained in may be used where ‘the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained’.

For a related discussion see Listening devices – New South Wales (July 16, 2018)

See also Liam Byrne ‘Admission of evidence obtained in breach of laws‘ (2007) 78 Precedent pp. 21-25.  Note that this article written in 2007, before the current evidence Act in Victoria was in force. The Evidence Act 2008 (Vic) is based on model legislation that had been adopted by the Commonwealth, New South Wales and Tasmania before 2007.  It follows that the discussion in this paper on the law in those states will be more applicable to Victoria today, than the discussion on 2007 Victorian law.  I also note that I have not discussed the privacy laws as I don’t see that they apply in this situation as the recording was not by the CFA or an agency collecting private information. However as a general discussion on the use of evidence that may have been improperly obtained it may be of interest.