A2 At present a participant has a legal right to record conversations to which he or she is party. It is obvious that there are many completely legitimate reasons that such a person might have for so doing. To require that person to first obtain permission from the State on pain of criminal prosecution is a substantial interference with his or her legal rights. It is true that some persons might wish to make such a recording for illegal purposes, but they will not be deterred by sanctions of the type envisaged in the recommended legislation. On the other hand, there is no general right to privacy or confidentiality in our law, either civil or criminal. Nor is it appropriate for the Commission to make any recommendations about this question. The Commission is considering the question of surveillance. Where one person is in the presence of another, he or she is necessarily aware of the fact. It is obvious that the parties to the conversation consent, or even desire, that the others should be aware of what is said. I am unable to see how the mere covert recording of what is said within the hearing of the recording party can reasonably be seen as surveillance, let alone as activity that should be regarded as criminal.

A3 Nor do I see what real issues of privacy or confidentiality are raised by a participant recording a conversation which takes place in his or her presence.

A4 To take the question of confidentiality first, it is not proposed by the majority – nor could it be – that a mere breach of confidence, however outrageous or destructive of reputation or other private interest, should be a criminal offence. Many conversations that might be covertly recorded. moreover, would not be regarded as confidential in the sense that a party would reasonably suffer a sense of grievance by one of the participants conveying the content of the conversation to another or others. I do not see how an assumption about confidentiality is a safe or even reasonable basis for creating a criminal offence, not for breaching the confidence but for doing so in a particular way, namely, by making a record which is capable of being replayed to another person. The criminal law should not depend upon such unreal distinctions and is brought into disrepute by punishment which depends on them.

A5 Even where there is an agreement (which, of course, might be implicit or explicit) that no recording is being made of a conversation, the mere fact that one party – even deceitfully – is in breach of that agreement has nothing to do with confidentiality, since disclosure of the matter recorded is not involved. Yet this is the activity that the majority consider should be criminal unless permitted by a warrant obtained from a relevant designated person. Upon the assumption that the matter is disclosed, what is proposed to be prohibited is not the disclosure as such, but the disclosure by a particular mode, namely by reliance on a particular mode of recording. Thus, if what is disclosed (say, from memory or notes made shortly afterwards) is the same as that which might have been disclosed by the recording, this is nevertheless permitted.

A6 So far as privacy is concerned, it is self evident that the communication is not kept private from the individuals who are present. Thus the occasion is not, in its very nature, a private one so far as they are concerned. Even if there is an explicit agreement that each of the participants is to keep the communication secret from others not present and this undertaking is broken, no crime will be committed and the majority do not suggest that the protection of privacy is so great a value as to justify creation of such an offence. Again, merely recording the conversation cannot, of itself breach the privacy of the occasion. That can only happen when the recording is conveyed to another.

A7 I cannot see that there is a difference in substance between, on the one hand, relaying a conversation by means that do not involve a recording and relaying it by means that do. The only practical difference is that the latter is both irrefutable and more accurate. Thus, dealing with this issue realistically, the other Commissioners on this Reference consider that it is necessary to make criminal both the secretive making and subsequent disclosure of an accurate record of an event by one of the parties to it, whilst conveying it by means that might be inaccurate and might plausibly be denied (as by relaying a recollection, perhaps supported by notes) should not be subject to such a sanction. The breach of confidence, as such, is not prohibited.

A8 In reality, therefore, what is sought to be made criminal here is potential disclosure without the permission of the State of an accurate and undeniable record, leaving untouched the right to make an inaccurate and deniable disclosure. And what is sought to be protected is the right of the other parties to a conversation to falsely deny or lie about the conversation should its occurrence or content ever become an issue. It is important to emphasise that that the matter recorded has already been disclosed to the person making the recording. Thus, surveillance is not really the issue. I do not agree that the criminal law should be used to qualify the right to make a record or to protect the right to lie.

A9 Accordingly, I agree with the majority view of the Australian Law Reform Commission as expressed in its report on Privacy which is cited in the Report.¹

A10 It may be that recording the particular event is dishonest and relaying it to others completely vile but not every dishonesty or every vile act is or should be subject to a criminal sanction. Righteous indignation is not a basis for criminal law reform. There must be a clearly discernible public interest involved. With respect to the Commissioners forming the majority on this issue, they have not enunciated such a public interest: Reasonable expectations do not, of themselves, create such a public interest. The rights of a person to make such recordings at present is a substantive legal right. There is no convincing reason given as to why this right is less important than the interest of the other individuals in controlling the mode of recording a particular event in which he or she is a participant.

A11 It should be clearly understood that we are not here considering the use by a participant of a transmitting or recording device pursuant to an agreement to relay information to others not present. So far as they are concerned, it is clear that surveillance is being undertaken and can only be lawful if it is permitted by an appropriate warrant. Moreover, in the absence of a warrant, not only do the “outsiders” commit an offence but the participant is clearly their accomplice and hence liable to prosecution even if, had been no transmission but, say, only a recording made by him or her. Again, if there is a recording that is made pursuant to a prior agreement by the participant with “outsiders” for the purpose of giving those “outsiders” information, then I think there is a relevant monitoring and its lawfulness will depend upon a warrant. This simply follows from the law of accessorial criminal liability.