Recording Conversations in Queensland: Can They Be Used as Evidence?
Recordings often become important in criminal and domestic violence matters. A person may record a phone call, argument, meeting, threat, apology, admission, or conversation because they want proof of what was said. In other cases, someone may discover that they were recorded without knowing and want to understand whether that recording can be used against them.
Queensland’s recording laws are commonly misunderstood. Many people assume that secretly recording a conversation is always illegal. Others assume that if they were part of the conversation, they can record and share it freely. The reality sits somewhere in between.
In this article, we explain when it may be lawful to record a conversation in Queensland, the risks of publishing or sharing recordings, and whether recordings can be used as evidence in criminal proceedings.
Is it illegal to record a conversation in Queensland?
In Queensland, it is generally not illegal to record a private conversation that you are part of, even if the other person does not know they are being recorded. Legal Aid Queensland explains that it is not illegal to simply record a conversation you are involved in, whether over the phone or face-to-face, without the consent of the other people in the conversation. However, there are restrictions on what you can do with the recording afterwards.
This is different from some other Australian states and territories, where recording laws can be more restrictive. It is also why advice you find online can be confusing: the legal position depends heavily on the state or territory involved.
The key point in Queensland is participation. If you are part of the conversation, recording may be lawful. If you are not part of the conversation, recording is much more likely to be unlawful unless a specific legal exception applies.
What if you are not part of the conversation?
Queensland’s Invasion of Privacy Act 1971 (Qld) restricts the use of listening devices to overhear, record, monitor or listen to private conversations. Section 43 sets out the prohibition and exceptions, including where the person using the listening device is a party to the conversation or has consent from a party.
In practical terms, this means secretly placing a device to record other people’s private conversation, where you are not involved, is legally risky and may be unlawful.
This can arise in situations such as:
- placing a recorder in a room before leaving
- recording a partner’s phone call with another person
- using a device to capture conversations between employees or family members
- leaving a phone recording in a car, home or office where you are not part of the conversation
If you have obtained a recording this way, get legal advice before using, sending, publishing or relying on it.
Can you share or publish a recording you made?
This is where many people get into trouble.
Even if it was lawful to make the recording because you were part of the conversation, that does not mean you can freely share it. Section 45 of the Invasion of Privacy Act 1971 (Qld) prohibits a person who was party to a private conversation and recorded it from later communicating or publishing the recording, or a statement prepared from it, except in certain circumstances.
The legislation includes exceptions, including communication made in the course of legal proceedings.
This distinction is important. Recording something for your own protection is one issue. Sending it to friends, posting it online, using it to embarrass someone, or sharing it outside a legal context can create serious risk.
If you have a recording you think may help your case, do not publish it online or send it around. Speak with a lawyer first.
Can recordings be used as evidence in court?
Sometimes, yes. But admissibility depends on how the recording was obtained, what it proves, whether it is relevant, and whether any legal restrictions apply.
If a recording was made lawfully and is relevant to the issues in dispute, it may be capable of being used in proceedings. For example, a recording may be relevant where it captures threats, admissions, abuse, consent, a denial, a contradiction, or context for an alleged incident.
However, evidence is not automatically admissible just because it exists. The court may need to consider issues such as:
- whether the recording was lawfully made
- whether the recording has been edited or taken out of context
- whether the voices can be identified
- whether the recording is complete
- whether it is relevant to the charge or issue
- whether using it would be unfair or prejudicial
The Invasion of Privacy Act also provides that, where a private conversation has come to someone’s knowledge as a result of the use of a listening device used in contravention of section 43, evidence of that conversation may not be given in civil or criminal proceedings.
This is why the way a recording is obtained matters.
Recordings in domestic violence and protection order matters
Recordings often arise in domestic violence and protection order matters. A person may record arguments, threats, contact after separation, conversations about children, or conduct that they believe shows harassment, intimidation or coercive control.
These recordings can sometimes be relevant, but they can also create risk. For example, repeatedly provoking someone in order to record them may be viewed differently from capturing a genuine threat or incident. Sharing recordings publicly may also create legal or strategic problems.
If you are subject to a protection order, temporary protection order, police protection notice or bail condition, you should be particularly careful. Recording someone does not give you permission to contact them, approach them, or breach an order. If contact is prohibited, an attempt to obtain “evidence” may still place you in breach.
Recordings in criminal defence matters
Recordings can be important in criminal defence cases. They may support a defence, undermine a complainant’s version, show the broader context, or reveal what was actually said.
For example, a recording may be relevant in:
- word-against-word allegations
- assault or threat matters
- stalking or harassment allegations
- extortion or blackmail allegations
- fraud or dishonesty cases
- domestic violence-related charges
- police interview or complaint evidence disputes
However, recordings should be handled carefully. If you alter, delete, selectively edit, or publish recordings, you may weaken their value or create new problems. A lawyer can advise how to preserve the material, disclose it appropriately, and use it strategically.
What if a recording is taken out of context?
This is common. A short audio clip or screenshot may not show what happened before or after the relevant exchange. It may omit provocation, sarcasm, humour, intoxication, mutual argument, or earlier messages that change the meaning of the words.
If a recording is being used against you, your lawyer may ask:
- Is the recording complete?
- Who made it and when?
- Are there missing sections?
- Has it been edited?
- Can the voices be identified?
- What happened immediately before and after?
- Are there other messages or records that provide context?
In some cases, the best evidence is not the recording alone, but the full surrounding history.
What should you do if you have a recording?
If you have a recording that may be relevant to a legal matter, preserve the original file. Do not edit it, rename it repeatedly, compress it unnecessarily, or send it widely. Keep the device if possible, and note when, where and how the recording was made.
You should also avoid publishing the recording online or sending it to third parties. Even where a recording was lawfully made, sharing it may be unlawful or strategically damaging.
Take the recording to your lawyer and get advice about whether it can be used and how it should be handled.
What should you do if someone recorded you?
If you discover someone recorded you, do not assume the recording is either automatically lawful or automatically inadmissible. The legal position depends on the circumstances.
You should get advice about:
- whether the person was part of the conversation
- whether the conversation was private
- whether the recording was shared or published
- whether it can be used in proceedings
- whether the recording is complete or misleading
- whether there are legal steps available in response
If police are relying on a recording, it should be carefully reviewed before you enter any plea or participate in any interview.
Speak with Cridland & Hua
If a recording is part of your criminal, domestic violence or protection order matter, get advice before using it, sharing it, deleting it or responding to police questions about it.
Cridland & Hua can help you understand whether a recording is lawful, whether it may be used as evidence, and how it affects your case strategy.
Call Cridland & Hua on (07) 3211 3177 or contact us online for confidential advice.
Disclaimer: This article is general information only and does not constitute legal advice. For advice about your circumstances, please speak with a qualified criminal defence lawyer.
