Secretly recording your spouse, is it legal?

In today’s modern age of smartphones, smartwatches and other electronic devices, recording audio and video in real-time is ever easier. The cost of installing recording devices in the home and business premises has also gone down. Given the prominence of such devices in our daily lives, questions about privacy and the limitations of their use come into question. For example, can we record private conversations? Can we use them as evidence in a dispute?

A recent example is the sexual assault case involving Brittany Higgins and a parliamentary staffer, in which she recorded a number of private conversations with ministers and other parliamentary staffers. She did so due to concerns that she would not be believed.

This article looks at the current legal framework and how the courts have treated evidence obtained by secretly using recorded devices, including in the family law context.

Use of Surveillance Devices in NSW

When altercations arise between spouses it can be difficult to convey your own side of the story properly. One might be tempted to record these altercations to avoid your spouse manipulating the story in their favour. You might think it is reasonable, right? The legality of using such recording devices depends on which state you live in.

In NSW, the use of listening devices to record private conversations is governed by the Surveillance Devices Act 2007 (NSW) (“NSW Surveillance Act”). Subject to some exceptions – such as those afforded to police – a person must not knowingly install, use or maintain a listening device to record a private conversation whether they are a party to the conversation or not - section 7(1).

If found guilty of such offences, penalties include fines up to $11,000.00 and five-years imprisonment.

In other states, the legislation differs. In Queensland, the Invasion of Privacy Act 1971 (Qld) applies, where it is lawful for a party to a private conversation to record that conversation without the consent of other parties.

Regarding telephone conversations, the Telecommunications (Interception and Access) Act 1979 (Cth) (“the TIA Act”) regulates access to telecommunications content and data across Australia. The TIA Act makes it an offence for a person to intercept or access private telecommunications without the knowledge of those involved in that communication. There are exceptions for law enforcement agencies and for national security purposes. In many cases the authorities need to obtain a warrant before intercepting such communications.

Courts admitting recordings into evidence

The courts have considered the admissibility of such evidence depending on the circumstances of each case. They have been guided by whether the secret recording was reasonably necessary to protect someone’s lawful interests.

In the case of Sepulveda v R [2006] NSWCCA 379, an alleged sexual assault victim (JD) met with the alleged offender. JD then secretly recorded the alleged offender admitting to having sex with under-aged boys. The Court held that the recording was not reasonably necessary as the complainant could have contacted police who then could have applied for a warrant to record the alleged offender.

In the ACT Supreme Court, if was found that to protect the legal interest of the alleged victim, it was necessary for her to record a conversation between her and the alleged offender, who had threatened to circulate intimate images of her unless she had sex with him - R v EP [2019] ACTSC 89 (4 April 2019) (“the R v EP case”).

In that case, the Court also considered the interaction between Listening Devices Act 1992 (ACT) (“the ACT Act”) and section 138 of the Evidence Act 2011 (ACT). His Honour reached the conclusion that if the recordings were unlawful under the ACT Act, he would have nonetheless allowed the evidence to be admitted under to section 138 of the Evidence Act (ACT) given factors such as the probative value of the evidence.

The proceedings in the Brittany Higgins case are currently on foot in the ACT. It will be interesting to see how the Court will treat the secret recordings and those who are now in possession of the recording.

Admissibility in Family Law proceedings

Whilst the law in NSW clearly states that no recording devices can be installed or used in secret to monitor any private conversation – including that with a spouse – the Family Court has discretion to admit such a recording into evidence, as it is governed by Federal Law (except WA) and the Evidence Act 1995 (Cth) (“the Evidence Act”).

Under section 138 of the Evidence Act, evidence that was obtained improperly or in contravention of an Australian law should not be admitted. However, there is an exception. The evidence may be admitted if the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in an illegal manner. The desirability of the evidence depends on its probative value and the importance of the evidence in the proceedings.

There are examples where secret recordings have been admitted in family proceedings, especially where domestic violence was involved. In Corby v Corby [2015] FCCA1099, the Court allowed secret recordings by the mother as evidence of domestic violence. The Court said that the mother’s recording of the father’s abusive behaviours was reasonably necessary to protect her lawful interest. In that case, the Court said:

“No reason can be found to infer that the recording was not made for the purpose of [the mother] having some evidence which she could use to convince others to believe her… or to protect herself from further such behaviour [26].’

In Nagel v Clay [2020] FamCA 326, the mother provided evidence of digital and audio recordings demonstrating the father’s behaviour at changeovers and at separation. The evidence was not admitted because the Court was concerned the recording may unfairly prejudice the father and be misleading. 

So, should you record the conversation?

Not only is recording your partner secretly illegal in NSW and subject to serious penalties, but it might also not be admissible in court, including in family law proceedings. A safer option would be to make detailed notes after a conversation or incident and then send it to your own email as a contemporaneous record of the incident.

Not only does this avoid any criminal prosecution but can also help to maintain trust between the parties if they eventually do reconcile.

However, if you are subject to abuse or violence, please contact police immediately.

To learn more about installing recording devices, click here.

This article is general in nature and is not legal advice. If you need help with a Family Law matter, Voice Lawyers hear you. We help people navigate the complexities of the Family Law system with confident, practical advice.

Give us a call at 02 9261 1954 or email us at voice@voicelawyers.com or use the link on our website to book a consultation to speak with one of our lawyers – Kathryn Lewis (Managing Director) and Cevdet Basiacik (Senior Lawyer).

By Cevdet Basiacik