The legal loophole that meant a young reporter could record a private conversation at work.

Editor’s note: The content below is to not be taken as legal advice. For information about your rights at work, contact a legal representative or the Fair Work Ombudsmen.

Amy Taeuber is used to reporting the news, but this week the cadet journalist found herself the subject of it, after an audio recording of her 2016 suspension from Channel Seven was made public.

According to the clip aired by the ABC‘s 7.30 program, the 28-year-old Adelaide woman was called into a meeting where she was presented with claims that she’d bullied a fellow cadet. She was denied a support person, then told her phone and ID pass would be revoked and that she was to exit the building without touching her computer. She was later dismissed from the company.

The case first attracted media attention in October when it was revealed that, just days before the network’s bullying investigation into her alleged actions began, Taeuber had made a harassment complaint about a senior male reporter, whom she claimed had made disparaging remarks about her marital status and had called her a lesbian. Seven has vehemently denied the two investigations are connected.

But it’s back in the headlines now because of the release of the recording, which was taken by Taeuber herself on her mobile phone – according to the ABC – in order to “protect her legal rights”.

The case has viewers asking: are you legally allowed record a conversation like this at work?

Having subsequently gone through a mediation process with the Seven network in which she had legal representation, it’s likely that Taeuber would have obtained expert advice about the clip.

And while it’s very important to note that recording a workplace conversation isn’t generally advisable from a legal perspective, we sought to answer some burning questions around why, in certain situations, recording a conversation at work is not an offence.

Is it legal?

It depends on which state the conversation occurs in, as each has different laws on the subject.

As a general rule, express or implied consent of all parties is required before a meeting or conversation is recorded. If that’s not obtained, if the recording happens covertly, that’s where the states begin to diverge.

As Sarah Jones of Hickson Lawyers explained: “As a general proposition, any recording made of a private conversation without the consent of those party to it has the potential to be a breach of relevant surveillance or listening device legislation.”

Exceptions do exist. In Victoria, for example, it’s permitted to secretly record a private conversation, but restrictions exist on the communication or publication of the audio.

In South Australia, meanwhile, the use of a listening device by a person during a private conversation is considered unlawful unless it’s obtained “for the protection of the lawful interests” of that person.

Jones notes, however, that the presence of a witness or support person may be considered enough to override that protection.

Can secret recordings be used in mediation or court?

When it comes time to use the audio, that’s when things can get difficult. If the matter reaches the Fair Work Commission or the courts, be aware that both tend to take a ‘dim view’ of secretly recorded conversations.

As Commissioner Williams described it during a previous unfair dismissal case: “Members of this Commission and Judges of Courts that have dealt with similar situations have variously described secretly recording a meeting as an act which strikes at the heart of the employment relationship shattering the trust and confidence necessary to maintain that relationship, an extreme impropriety, sneakiness that is abhorrent to ordinary persons, behaviour that is deceptive and purposefully misleading and, finally, as an action that displays an intention to entrap the employer.”

Speaking of HR issues, a specialist explains your rights relating to maternity leave. (Post continues below.)

How should you document a meeting?

As Michael Byrnes, special counsel at Clayton Utz, explained via Human Resources Director Australia, “If you feel the need to have a conversation recorded, you should either ask that the conversation be recorded or make it clear at the outset of the meeting that you are recording the conversation.”

Best practice, however, generally involves taking written notes during or immediately after the meeting. If a witness or support person is available, this task may be completed by them.

The above is to not be taken as legal advice. For information about your rights at work, contact a legal representative or the Fair Work Ombudsmen.