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Exceptions to the rule – Who’s listening?

S 7(1) of the Surveillance Devices Act 2007 (NSW) sets out a general prohibition to a person using a listening device to record a private conversation to which the person is a party. Section 7(3) of the Surveillance Devices Act sets out exceptions to the operation of s 7(1), so that the general prohibition does not apply on particular conditions.

In a recent case, a mother’s lawyers sought to have a recording admitted as evidence and relied on one of the exceptions.  They argued the mother was a principal party to a conversation and consented to the listening device recording the conversation because it was reasonably necessary for the protection of her lawful interests. The reason for the material was that it was evidence of family violence in circumstances where the father denied such family violence, and where family violence often occurs largely behind closed doors and in this particular instance, on an isolated property.

The judge found that the substantiation of private violence may be key to determining not only what occurred during the isolated incident, but more broadly in the context of what followed the incident. The importance of substantiation of such claims meant that it was reasonably necessary for the mother to make the recording in the particular circumstances of her case, because it protected her against the inadequacy of proof which might otherwise be available to her, particularly in circumstances where it is proof of a contested factual incident. Without substantiation there was the potential denial of her lawful interests for protection against violence, which meant that the step of recording was reasonably necessary.

The judge therefore determined that the recording was not unlawfully obtained.

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