Not sure what state your in, but in QLD,
http://lkagroup.com.au/news_news.aspx?view=28
Section 43 Prohibition on use of listening devices
(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for two years.
(2) Subsection (1) does not apply--
(a) where the person using the listening device is a party to the private conversation;
Section 43 (2)(a) basically states that if you are in a room with another person and you use a tape recorder to tape a conversation without their knowledge, you have not contravened Section 43 (1) because you were a party to the conversation. This obviously does not include placing listening devices in the room where a conversation occurs and you are not present or electronic interception of telephone conversations.
It gets interesting because Section 43 (2) (a) provides a mechanism to tape the conversation without the other parties knowledge, but that’s where it ends. Thus we come to Section 45.
Section 45 Prohibition on communication or publication of private conversations by parties thereto
(1)
A person who, having been a party to a private conversation and having used a listening device to overhear, record, monitor or listen to that conversation, subsequently communicates or publishes to any other person any record of the conversation made, directly or indirectly, by the use of the listening device or any statement prepared from such a record is guilty of an offence against this Act and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for two years.
(2) Subsection (1) does not apply where the communication or publication --
(a) is made to another party to the private conversation or with the consent, express or implied, of all other parties to the private conversation, being parties referred to in section 42(2)(a); or
(b) is made in the course of legal proceedings; or
(c) is not more than is reasonably necessary -
(i) in the public interest; or
(ii) in the performance of a duty of the person making the communication or publication; or
(iii) for the protection of the lawful interests of that person; or
(d) is made to a person who has, or is believed, on reasonable grounds, by the person making the communication or publication to have, such an interest in the private conversation as to make the communication or publication reasonable under the circumstances in which it is made; or
(e) is made by a person who used the listening device to overhear, record, monitor, or listen to the private conversation under section 43(2)(c) or (d).
This section is interesting and provides the mechanism for Section 43 to operate.
Section 45 (2) (a) allows all those taped conversations to occur where the consent, express or implied, had been obtained from the other parties to the conversation. Issues like records of interview or taped statements in general insurance matters where the Insured consents to being interviewed on tape are a perfect and clear cut example of this.
What happens though if you want to covertly tape the conversation?
Firstly, it would be sound advice to seek instructions from your instructing body, be that the general insurance company or WorkCover. Perhaps also consider firstly speaking with your Supervisor or Manager. However; this paper is not designed to be an ethics paper and is simply highlighting the legal mechanisms of the issue.
As we’ve already discussed Section 43 (2) (a) allows for covert taping of a private conversation to occur. So you’ve gone off and secretly taped a conversation with another party. So what are you going to do with the recording?
Section 45 (1) basically states that if you communicate or publish that recording to any other person you commit an offence. This is where Section 45 (2) (b) comes into play.
Section 45 (2) (b) basically states that you have not committed an offence under Section 45 (1) if the taped conversation is being used in the course of legal proceedings.
So what defines legal proceeding you may ask. Well this is defined in Section 45 (3) and states:
(3) In subsection (2)--
Legal proceedings includes--
(a) proceedings (whether civil or criminal) in or before any court; and
(b) proceedings before justices; and
(c) proceedings before any court, tribunal or person (including any inquiry, examination or arbitration) in which evidence is or may be given; and
(d) any part of legal proceedings.
Section 45 (3) appears to cover Common Law matters where a Notice of Claim for Damages is Lodged with WorkCover QLD or other matters before the Courts, however Statutory Claims are a different matter and these probably do not fall under the definition of legal proceedings as they are being presented to an assessor for a decision as to whether or not to pay benefits.
