Sometimes a person will record conversations with another person to show they have committed acts of domestic and family violence . Wondering whether is it illegal to record someone without consent?

For examples a former partner may covertly record conversations during changeover of children or phone calls to show verbal abuse or inappropriate language regarding their parenting. 

If the recording tends to show a person is committing acts of domestic and family violence, it can be provided to the court during a hearing of a protection order application to support why an order must be made. Covert recordings can also be used to show that no acts of domestic and family violence have occurred. It depends on the circumstances of a case.

Is it legal to covertly record another person in Queensland?

Pursuant to Invasion of Privacy Act 1971 (Qld) (‘Privacy Act’) it is an offence to record a private conversation if you are not involved in that conversation. 

A person is involved in a conversation if they are directly a part of that conversation. Both examples provided above are situations when a person is directly involved in a conversation. It can include one on one or group conversations. 

It also not an offence if you unintentionally hear a private conversation over a phone. 

However, there are prohibitions on what a person can do with a recording if they are involved. You cannot publish the recording or communicate any part of the recording. If so, you could be liable of an offence. 

However, this prohibition does not apply if the recording is published (shown) in the court regarding legal proceedings or in the public interest or to protect the lawful interest of that order person. 

The Privacy act further notes that legal proceedings mean any civil (protection order application) or criminal proceedings in or before a court.

What about convert photographs or video recordings made in Queensland?

It is a criminal offence to take and/or distribute photos or videos of a person without their consent that is either in a private place or doing an act which one would reasonably expect privacy such as going to the toilet, being intimate or of their genital area even if covered by clothing. 

It is further punishable to share such photographs or recordings with another person or upload them to the internet. 

It is not illegal to take photos or videos where one would not reasonably expect privacy like at a park, doing changeover of children, exercising or seeing another person. 

This includes taking a photo of another person’s child. 

It can also include recording of a person at their home.

How can a recording be used in a protection order application?

As stated, a person who is going to make or has made an application may record the respondent to show to the police or to the court that their evidence is true and accurate and acts of domestic and family violence have occurred. 

Often a court will place weight on such recordings as it is independent proof of what acts have occurred. It may be possible to make submissions to the court why the recording is not accurate and should not be relied upon as proof. 

Elysian Law has first hand experience with covert recordings being used in applications for protection orders and provide advice based on your unique case. Contact our lawyers today for assistance.