I will preface my post by stating the following: I think it's immoral to record private conversations. Nowithstanding, I record all my phone calls automatically. Why would I do something that I think is immoral? It has to do with liars. I can't stand liars.
That aside, I have proceedings against a government agency scheduled before the NCAT. I would like to submit evidence obtained through recorded phone calls, but only if necessary. Ideally I'd prefer not to, but I'd like to know that if I needed to, I could.
Although the Tribunal is not bound by the rules of evidence, and therefore could accept such evidence, I would prefer like to assert various exemptions under the Surveillance Devices Act instead of relying upon their discretion.
My questions relate to whether or not my interpretation of the legislation is correct.
As I would prefer to clarify this before possibly embarrassing myself at the NCAT, any feedback on this would be great!
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In stating I record my phone calls, I have implied consent to record the calls in subsequent incoming calls from the government agency
Recording a private phone conversation is unlawful under s 7(1)(b) of the Surveillance Devices Act:
Now, this is the funny thing. In one of my complaints to the agency, I stated the following:
This was a joke statement. However, that go me thinking:
1. In making a statement that I record all my phone call, can I argue that I had implied consent to record any phone conversation with the agency after this date?
2. Am I correct in believing that the validity of this claim is premised on the presumption that the person who is calling me has read that complaint? (I am certain they reviewed the complaint, not sure if they explicitly read that part of the the complaint)
As a party to the conversation, I can lawfully play back a recording to myself and then a submit a transcript of the conversation as evidence.
Normally, s 11(1) of the Act prohibits me from publishing or communicating information that's come to my knowledge through the use of a recording device:
However, it would appear that s 11(2)(a)(i) of the Act allows me to lawfully play back a recording to myself:
Moreover, s 11(3) allows me to communicate or publish knowledge obtained lawfully, even if it is also obtained unlawfully through s 11(1):
This got me thinking: as a party to the private conversation, what's stopping me from repeated;y playing the recording back to myself pursuant to s 11(2)(a)(i), thereby informing myself of information that would have otherwise been acquired unlawfully. I could then prepare a transcript of the phone conversation, thereby bypassing the prohibitions in s 11(1) of the Act.
3. Am I correct in believing that one can record private phone conversation to which they are a party, lawfully play the recording back to themselves, and then submit a detailed account of that conversation?
4. If the abovementioned is lawful, can that detailed account also be a transcript of the private conversation?
Surely I must be missing something?
That aside, I have proceedings against a government agency scheduled before the NCAT. I would like to submit evidence obtained through recorded phone calls, but only if necessary. Ideally I'd prefer not to, but I'd like to know that if I needed to, I could.
Although the Tribunal is not bound by the rules of evidence, and therefore could accept such evidence, I would prefer like to assert various exemptions under the Surveillance Devices Act instead of relying upon their discretion.
My questions relate to whether or not my interpretation of the legislation is correct.
As I would prefer to clarify this before possibly embarrassing myself at the NCAT, any feedback on this would be great!
---
In stating I record my phone calls, I have implied consent to record the calls in subsequent incoming calls from the government agency
Recording a private phone conversation is unlawful under s 7(1)(b) of the Surveillance Devices Act:
However, under s 7(3)(a) this is lawful if there is implied consent:7 Prohibition on installation, use and maintenance of listening devices
(1) 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.
(3) 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
Now, this is the funny thing. In one of my complaints to the agency, I stated the following:
People like [deceptive person from agency] are the reason why I may record every phone call I have by default. I resent that fact. I want to be able to trust people. What’s that I hear… it’s illegal? Something about consent? Oh, I thought whenever public servants phone you, they are giving implied consent.
This was a joke statement. However, that go me thinking:
1. In making a statement that I record all my phone call, can I argue that I had implied consent to record any phone conversation with the agency after this date?
2. Am I correct in believing that the validity of this claim is premised on the presumption that the person who is calling me has read that complaint? (I am certain they reviewed the complaint, not sure if they explicitly read that part of the the complaint)
As a party to the conversation, I can lawfully play back a recording to myself and then a submit a transcript of the conversation as evidence.
Normally, s 11(1) of the Act prohibits me from publishing or communicating information that's come to my knowledge through the use of a recording device:
11 Prohibition on communication or publication of private conversations or
recordings of activities
(1) A person must not publish, or communicate to any person, a private
conversation or a record of the carrying on of an activity, or a report of
a private conversation or carrying on of an activity, that has come to the
person’s knowledge as a direct or indirect result of the use of a listening
device, an optical surveillance device or a tracking device in
contravention of a provision of this Part.
However, it would appear that s 11(2)(a)(i) of the Act allows me to lawfully play back a recording to myself:
(2) Subsection (1) does not apply to the following:
(a) if the communication or publication is made:
(i) to a party to the private conversation or activity, or
(ii) with the consent, express or implied, of all the principal
parties to the private conversation or activity, or
(iii) for the purpose of investigating or prosecuting an offence
against this section, or
(iv) in the course of proceedings for an offence against this Act
or the regulations,
Moreover, s 11(3) allows me to communicate or publish knowledge obtained lawfully, even if it is also obtained unlawfully through s 11(1):
(3) A person who obtains knowledge of a private conversation or activity
in a manner that does not involve a contravention of a provision of this
Part is not prevented from communicating or publishing the knowledge
so obtained even if the same knowledge was also obtained in a manner
that contravened this Part.
This got me thinking: as a party to the private conversation, what's stopping me from repeated;y playing the recording back to myself pursuant to s 11(2)(a)(i), thereby informing myself of information that would have otherwise been acquired unlawfully. I could then prepare a transcript of the phone conversation, thereby bypassing the prohibitions in s 11(1) of the Act.
3. Am I correct in believing that one can record private phone conversation to which they are a party, lawfully play the recording back to themselves, and then submit a detailed account of that conversation?
4. If the abovementioned is lawful, can that detailed account also be a transcript of the private conversation?
Surely I must be missing something?