NSW Recording Private Phone Calls - Evidence in Civil Proceedings?

[faustus]

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:

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.

However, under s 7(3)(a) this is lawful if there is implied consent:

(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?

 

[Scruff]

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?

No. Each call is a different conversation and consent must be obtained separately for each call (if consent is required - but given your other questions, your argument here would be that consent was not required).

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)

I'm not 100% clear on what you're asking here, but I' assuming it's about the other party reading their case notes and therefore being aware of statements you made previously that you record all calls. If that's correct, then the answer to question 1 makes this question redundant, because you would need to obtain consent individually for each call.

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?

No. In NSW you must always have grounds for recording a private conversation. In some states, you can record any conversation that you are a party to, but not NSW. Basically, what you describe here would be akin to trying to circumvent s7(3)(b)(ii) (recording for your own purposes) by applying s7(3)(b)(i) (protecting your legal interests) after the fact. But you can't do that.

These two exceptions exist for different reasons and if you muddy the waters by mixing them, trouble will definately follow. To figure out how the law applies here, start off by thinking about why you recorded the calls in the first place, and proceed step by step...

You stated that you record your calls because "I can't stand liars." If you deal with government departments regularly, then I fully understand exactly where you're coming from. (If you want the ultimate definition of "say one thing, do another", then try dealing with Housing NSW on the phone or face to face.)

Your personal view regarding liars doesn't have anything to do with "personal use" when it comes to recording calls, but it is at least related to "protecting your legal rights", even if it is not sufficient grounds on it's own to justify recording for that purpose. What I mean is that you are recording in order to protect youself against deceipt. But because of this reasoning, there is a clear intent to dislose the recordings to other parties (a tribunal or a court) if the need arises. This therefore rules out personal use altogether as a way to justify making the recordings.

So your focus therefore needs to be on s7(3)(b)(i). The problem is that under s7(3)(b)(i), the recording must be "reasonably necessary" for the purpose of protecting your rights. Recording will only be "reasonably" necessary if there is some apprehension of a legal issue, which means that there must be an existing factor that gives you reason to believe that there is a potential problem. Only then do you have grounds to record. This can be explained with a simple analogy:

Let's say you don't have a drivers licence. You're at home, jump in the car and drive to RMS. Once there, you go inside and get a nice shiny new drivers licence. You then come out, jump in the car and drive back home.​

In this analogy, the full trip (from home to RMS and back home again) is the recording. The grounds for making the recording is the point in time when your new licence is issued. So what has happened is that you broke the law by driving without a licence, even though you did so in order to get the licence. But the fact that you obtained a licence in the middle of the trip doesn't negate the offence at the start of the trip.

Recordings are the exactly same. If you hit the record button, then during the conversation someone says something incriminating, that doesn't mean that you had grounds to start recording when you did. Those grounds must exist at the time you started the recording, which was obviously before the incriminating statement was made. This means that there must be a pre-existing issue to justify pressing the record button. In short, you can't obtain grounds to do something after the fact - the law simply doesn't work that way.

Given your other threads on here that I'm familiar with, I'm pretty confident in assuming that you have plenty of documents and other information that should make this next part really easy. What you need to do, is determine exactly when you first became aware that there was a potential legal problem, and make sure that you can explain in detail how this came about. This will be a single item or event that first aroused your suspicions - and marks the point in time from which you have grounds to record any future phone calls relating to that issue.

Any calls you recorded from that point forward, you shouldn't have any problem with. If there are any calls prior to that date however, I wouldn't try to introduce those as evidence, because if you fail to show cause, all your recordings may be ruled out - not just the ones you couldn't justify.

So the main thing is to be prepared for strong opposition to the recordings being admitted, and be prepared to fight off that challenge by being able to show exactly how and when you believe you first aquired grounds to make the recordings.

Once you establish that you had grounds to record under s7(3)(b)(i), then you won't have any issues under s11 and your other questions and concerns relating to recordings will all become irrelevant.

As for whether or not the Tribunal will allow your recordings as evidence, they will most likely only consider two things:
1. if the recording was legally obtained, and
2. if the recording is material to the case.

Even if a recording was not legally obtained, like any evidence, a Tribunal or Court can still allow it to be introduced. If it is allowed however, you could still face an offence under s7(1).

If the Tribunal or Court is of the opinion that a recording is not material to the case, then it won't be allowed into evidence regardless of any other factors.

In regard to transcripts:

Having a transcript certainly makes things easier to follow and much easier to move back and forth in the conversation to identify and highlight relevant facts while you're making your case. BUT...

Typing a transcript from an audio recording is a very tedious task, and can be extremely frustrating if the recording is not really good quality, the parties are not speaking clearly, or there is a lot of crosstalk. You must be absolutely certain that every single word is correct, and never try to guess want any unintelligble words are. If you can't make out a word or phrase, type [unintelligble] in it's place, or if you're pretty sure what the word is but not 100%, type something like [unintelligble: assumed "word or phrase here"]. If you make any assumptions at all in a transcript which is to be used as evidence, it is paramount that it is very clearly indicated as such. If you don't do this and you get the word or phrase wrong, it could be viewed as a deliberate attempt to manipulate the evidence, resulting in an offence under the Crimes Act. So never leave yourself open to that kind of action.

Also, don't forget that even if you submit a transcript, you must always submit the audio recording itself. You can't submit a transcript on it's own.

Finally, NCAT has some requirements when submitting recordings:
1. Recordings must be burned to a CD (I think WAV or MP3 formats are okay). USB thumb drives and the like WILL NOT be accepted. You also need to provide at least one copy that the Tribunal can keep for it's records.
2. There are specific details that need to be supplied with each recording.
3. You may have to provide your own playback equipment at the hearing.

Full details about the requirements are on the NCAT website. For playback equipment, you can check with the relevant office beforehand. (Make sure you tell them the correct format of the audio files.) They can tell you over the phone if they can accommodate your needs, or if you need to bring your own equipment.

 

[faustus]

Phew

Thank you for your reply, you saved me a lot of embarrassment and headaches.

My understanding is that you're saying:

Section 7(3)(b)(ii) may make records for personal use lawful, but don't ever invoke it if I wish to submit it as evidence. The only real means by which a phone recording will be accepted into evidence is via s 7(3)(a) - express or implied consent - or via s 7(3)(b)(a), relating to protection of lawful interests.

Aside from my first recording, I think can argue both.

But regarding implied consent to record a phone conversation, I will clarify my argument:

No. Each call is a different conversation and consent must be obtained separately for each call (if consent is required - but given your other questions, your argument here would be that consent was not required).

You have read my post; it states that I record all my phone calls. Now, if you were to call me today, you would do so knowing that I record my calls. My argument is that this is sufficient to have implied consent. Your implied consent is bound to the fact that you called me up, which is something you did not need to do.

Is that a cogent claim? This is more of a personal curiosity, because the agency has acted in such a weird manner that a reasonable person would have the suspicion that this is a matter of corrupt conduct.

Main problem

My phone automatically records all calls. Most of the time I am oblivious to the fact that my calls are recorded; through habit, I have learned to never say anything I shouldn't and I tell my friends likewise. But on other occasions, when I realise that something that is amiss, I will be conscious that the call is being recorded.

Can one actually claim that an incoming call from a private number -- well after the first 15 seconds it took to establish it was someone from the government agency, I think I'll invoke the exemption under 7(3)(b)(a) for that one?

Or to put it another way, does the fact that I record all my phone calls weaken any claim that one specific call was special and a specific exemption applies?

Typing a transcript from an audio recording is a very tedious task

LOL I am coming to realise that. In fact, that's my main reason why I don't want to submit it into evidence.

 

[Scruff]

My understanding is that you're saying:

Section 7(3)(b)(ii) may make records for personal use lawful, but don't ever invoke it if I wish to submit it as evidence. The only real means by which a phone recording will be accepted into evidence is via s 7(3)(a) - express or implied consent - or via s 7(3)(b)(a), relating to protection of lawful interests

Pretty much correct, because it's all about your intentions at the time each recording is made. Your specific problem exists because you are "blanket recording without consent" and it's possible that this could come up because you stated it in one of the calls. In a worst case scenario, it will result in three problems...

1. It's perfectly fine to blanket record for personal use, but as soon as you try to use those recordings for any other purpose, the legality of the recordings can be challenged by arguing that the recordings were not made for personal use at all, because there was always an intention to dislose their contents to a 3rd party "if the need arises". There is therefore a very strong case against you that s7(3)(b)(ii) (personal use) does not apply and that the recordings breach s7(1)(b) (prohibition on recording a private conversation that you are a party to). So by claiming personal use, you dig a massive hole for yourself and you now have to explain your actions.

If your explanation is that you are blanket recording because you want to be able to protect youself "just in case" something arises, then that does not qualify as "personal use" - it's more a case of protecting your legal rights and therefore there is always an underlying intention to disclose to 3rd parties if necessary. Your argument would therefore fail and would never hold up in a legal arena.

2. The second problem is that no-one has a right to blanket record for the purpose of protecting legal rights. This is because of the wording of s7(3)(b(i), which states that recording is only permitted if it is "reasonably necessary". Blanket recording is never "reasonable" in these circumstances, because you are also recording people and conversations that have nothing to do with any possible infringment on your legal interests. "Reasonably necessary" therefore means that prior to recording a conversation, you must have a "genuine apprehension of an infringment of your rights". Your right to record is therefore very much limited to a "call by call" basis, meaning that you only have a right to record conversations that relate to the potential legal issue in question - but you do not have a right to record any other conversation. It is therefore impossible to justify blanket recording for the purpose of protecting legal rights.

3. The third problem is how a court or tribunal is likely to view your conduct. At this point, the issue will no longer be the recordings you want to submit as evidence, but the fact that you have recorded countless people without any attempt to get their consent and that by attempting to submit some of those recordings as evidence, you have demonstrated that you are clearly willing to use those recordings against them if and when it suits you. That is how they will likely see it and if so, their conclusion will no doubt be that you are intentionally undermining the purpose and intentions of the Surveillance Devices Act. They will therefore more than likely take appropriate action against you because of the seriousness of the conduct.

On the bright side, the above can only occur if the tribunal becomes aware that you have been blanket recording without consent. It then gets much worse if you try to justify it as personal use. So you know up front that you can minimize the chances of this happening by steering clear of those two issues and focusing solely on s7(3)(b)(i) (protecting legal rights) which is also valid grounds in your case.

But regarding implied consent to record a phone conversation...

The Surveillance Devices Act only defines a "private conversation" - the point being, that "private conversation" is singular and therefore only relates to a single event. The definition itself also only relates to a single event, and the wording of the provisions are also singular in nature. So the bottom line is that there are no provisions or definitions that in any way relate to "multiple conversations" or "a series of conversations".

For a phone call, a private conversation would technically begin once two people have connected to the call and would technically end when there is no more than one person left connected. As the Act doesn't provide any provisions outside the scope of a single event when it comes to a private conversation, consent can only apply to a single event for the purpose of the the Act. Consent must therefore be obtained for each singular event, which in this case, is each individual phone call. This means that you can not use consent obtained during one call as consent to record subsequent calls.

Most of the time I am oblivious to the fact that my calls are recorded; through habit, I have learned to never say anything I shouldn't and I tell my friends likewise. But on other occasions, when I realise that something that is amiss, I will be conscious that the call is being recorded.

That's an example of what I mean by "obtaining grounds after the fact". There was nothing "amiss" at the time you started recording, therefore you had no right to record under s7(3)(b(i) (protecting legal interests) until something was "amiss" - at which time you only have a right to record "from that point forward".