The Facts

In a recent case in the United States, a mother became concerned about her elementary school son after he did not want to go to school and began claiming he was a "bad boy" which was "what his teacher was telling him." After not being able to determine the source of her son's distress, and feeling her complaints were not being dealt with appropriately by the school, the mother took the unusual action of planting a secret tape recorder in her son's backpack to record four days of her son's classes. Using the conversations recorded through the tape recorder, the mother accused her son's teacher of bullying and intentionally inflicting emotional distress on her son. She also contends that the recordings are legal because they were in a public school classroom with other children and people and therefore there was no expectation of privacy. The mother has asked for the teacher to be removed from the school, leading to the public coverage.

In Florida, as in some states and territories in Australia, it is an offence to record someone without their consent.

General Laws Regarding Listening Devices

A 'listening device' means any instrument, apparatus, equipment or device capable of being used to listen to or to record a private conversation, but does not include a hearing aid.

The federal laws on listening devices under the Surveillance Devices Act 2004 (Cth) are largely silent on the recording of audio conversations between individuals, as they mainly apply to federal law enforcement officers. However, in the age of smartphones, recordings of all kinds are becoming more commonplace among the average Australian, so it is important to note that laws about these kinds of activities vary between the states and territories. State and territory acts which cover the use of listening devices include:

• Listening Devices Act 1992 (ACT)
• Surveillance Devices Act 2007 (NSW)
• Surveillance Devices Act 2007 (NT)
• Invasion of Privacy Act 1971 (QLD)
• Listening and Surveillance Devices Act 1972 (SA)
• Listening Devices Act 1991 (TAS)
• Surveillance Devices Act 1999 (VIC), and
• Surveillance Devices Act 1998 (WA).

Generally, in Queensland, Victoria and NT, if you are involved in a face-to-face conversation you can secretly record it. If you aren't a party to the conversation, like the mother in our United States example, and you tape it, you can face imprisonment or fines for recording a private conversation.

The laws in the other states are more restrictive, requiring consent to make it legal.

For example, in most states and territories, including NSW, ACT, TAS, WA and SA, you can record conversations if you have the permission of everyone involved. In these states and territories, there are also some exceptions, for example:

• the recording is necessary for the protection of that party's lawful interests (ACT and NSW)
• circumstances were so serious and the matter was of such urgency that the use of the device was is in the public interest (NT)
• the recording is in the public interest (SA), or
• the recording of the conversation is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation (NSW).

When Can Listening Devices be Used?

A listening device can be used where the conversation is not private. Private conversations include those where the circumstances indicate either of the parties wanted it to be confined to the parties to the conversation. It does not include conversations where those involved should have reasonably expected that the conversation may be overheard, recorded, monitored or listened to by some other person. It is unclear whether a school classroom is considered a venue for private conversation and the Australian Privacy Commissioner has indicated in their guidance that it depends on the individual circumstances of the recording of the conversation.

Secret recordings that a court may accept as being for a lawful interest include those made:

• where there was an existing litigated property dispute and the property arrangements were discussed;
• during a commercial meeting to have an accurate record of conversations about commercial interests; or
• where a previous agreement tried to be rescinded and the principal party was concerned the other party was being irrational in a conversation, so a court accepted the recording was an accurate reflection of the events and discussion.

However, just because there may be legal permission in some states and territories to secretly hit record, this does not mean that the resulting audio recording can be used at will. In Queensland, Victoria, Tasmania and WA, if a secret recording is published or shared with anyone else, then the person who made the secret recording can face time in jail and huge fines.

Privacy Issues

As stated in our previous article, the Privacy Act (1988) (the Act) protects personal information that is held, or collected for inclusion, in a ‘record’. A record is defined within the Act to include any electronic or other device where an individual’s identity can reasonably be ascertained. This means the collection, use and disclosure of a recording where the individuals speaking (for example, a name may be mentioned) can be reasonable ascertained is covered by the Australian Privacy Principles (APPs). The APPs applicable to the collection, use and disclosure of personal information also apply to the recording and dissemination of audio files where the individuals in the audio file are reasonably able to be identified.

Schools can legitimately install surveillance cameras in and around school premises as part of their security systems and safety procedures to ensure that they provide a safe environment for students, staff and visitors. Under most circumstances this would constitute reasonable measures to address the risk of intruders, vandalism, and unauthorised student exits. These are all valid reasons under workplace health and safety legislation and student duty of care obligations. Each state and territory has requirements regarding the use of such systems, for example, having a clearly displayed sign telling people the devices are there. However, recording and storing audio files of conversations must also comply with listening devices laws in each individual state and territory.

What Should Schools Do in the Case of Listening Devices?

As a matter of risk-management, a school should not collect personal information, such as audio recordings, unless the collection and use of the information can be justified as reasonably necessary for, or directly related to, one or more of its core functions, activities, and obligations. Schools that use audio devices should consider these issues when creating the school’s privacy policy and make specific reference to the use of these devices within the school. In the case of audio files collected by parents through unauthorised secret recordings, the school should consider legal advice, especially if the matter becomes public.