Posted on February 17, 2016 by
Can parking inspectors ‘record’ abuse from drivers?
The safety of council parking inspectors is a matter of increasing concern across New South Wales as officers are faced with aggressive and abusive drivers when issuing parking tickets. Councils keen to protect their staff are considering equipping officers with audio recording devices to record conversations had with drivers, particularly when the driver becomes abusive or threatening, so that it may be used as evidence to have the driver charged and convicted of an assault offence.
In this blog we consider some of the legal issues that arise with the use of recording devices. This blog does not consider the implications of the Privacy and Personal Information Protection Act 1998 (NSW), which may be the subject of another blog.
Surveillance Devices Act 2007 (NSW)
The Surveillance Devices Act 2007 (NSW) (the Act) regulates the installation, use, maintenance and retrieval of surveillance devices, including a data surveillance device, a listening device, an optical surveillance device or tracking device.
A ‘listening device’ means ‘any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation’, but does not include a hearing aid or similar device (s4). Any audio recording device such as an audio recorder or recording function on a mobile phone will be a ‘listening device’.
Generally, it is an offence under the Act to ‘knowingly install, use or cause to be used or maintain a listening device to record a private conversation’, whether or not the person is a party to the conversation (s7).
A ‘private conversation’ is defined to mean words spoken by one person to another ‘in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only’ by themselves, or by a person with consent of all the parties to the conversation.
Whether a conversation is ‘private’ will turn on the facts of each situation, but it should have a degree of informality and not be a ‘public’ conversation. A conversation between a parking inspector and a driver may be a ‘private conversation’ for the purposes of the Act, particularly if there is no reasonable expectation that the conversation will be heard by others.
When can a recording device be used?
The Act provides some exceptions to the above prohibition.
It is legal to use a listening device to record a private conversation to which a person is a party to if all parties consent, expressly or impliedly, to the listening device being used.
It may also be legal to record a private conversation if a principal party to the conversation (e.g. the party recording the conversation) consents to the listening device being used and the recording of the conversation is ‘reasonably necessary for the protection of the lawful interests of that principal party’.
Whether a recording is ‘reasonably necessary’ to protect a person’s ‘lawful interests’ is objectively determined and will turn on the particular facts of the case.
There is some uncertainty in the case law as to what is sufficient for a ‘lawful interest’.
Relevantly, where the recorded conversation relates to a serious crime or an allegation of a serious crime, or to resisting such an allegation (e.g. a person in need of protection against an assault covertly records the assault), the court is more likely to find that the recording of a conversation relating to the crime could be made in the protection of the person’s ‘lawful interests’ (Alliance Craton Explorer Pty Ltd v Quasar Resources Pty Ltd  SASC 266; R v Coutts  SADC 50).
As to whether the recording is ‘reasonably necessary’ to protect the person’s lawful interests, the NSW Court of Criminal Appeal has found that the recording of a conversation must be ‘reasonably appropriate’, rather than essential, for the protection of the lawful interests of the principal party (Sepulveda v R  NSWCCA 379; 167 A Crim R 108 at ).
The onus of proof in establishing these exceptions is on the party seeking to establish the exception, and must be established on the balance of probabilities.
The Act also provides other exceptions in relation to law enforcement officers.
Use of a recording in court proceedings
A recording made in contravention of the Act will be considered to be illegally obtained evidence and not admissible in court proceedings. However, where a party is seeking to rely on such evidence a court may still allow the admission of the evidence under s138 of the Evidence Act 1995 (NSW) where the desirability of admitting the evidence outweighs the undesirability of doing so.
Again, whether this provision is available will depend on the circumstances of an individual case.
Although it may be appealing for parking inspectors to record conversations that could be used in the future, including in reporting the matter to the police or in court proceedings against abusive drivers, there are strict rules on when such recordings can be made and tendered as evidence.
Councils need to carefully consider whether their proposed use of audio recording devices are covered by the exceptions under the Act, both to ensure compliance with legal requirements under the Act and to ensure that any recordings can be used in evidence in any future court proceedings.
This post was prepared with the assistance of Anna Sinclair.