The Australian Monetary Evaluation on Thursday morning reported the contents of a recording during which ASIC deputy chair Karen Chester tells former chair, James Shipton, that she might have “destroyed” his profession.
The fiery recording was supplied to the newspaper by Shipton and included a variety of allegations about his skilled conduct.
Within the audio, Chester additionally requested Shipton to reward her skilled efficiency whereas then treasurer Josh Frydenberg was deliberating on his successor as ASIC chair.
Legal professionals for Chester described the allegations as involving “governance and accountability issues”, which have been across the time of a 2021 inquiry into Shipton’s bills. That inquiry discovered Shipton away from any wrongdoing.
Chester’s attorneys additionally stated the quotes run by the AFR have been “selective” and from an unauthorised recording of a non-public name.
“What has been supplied is unbalanced and doesn’t replicate the true nature of the dialog,” they stated.
The story, in addition to Chester’s response, raises questions on people’ rights when being recorded, notably by journalists or in knowledgeable setting.
Sydney-based barrister and media legislation specialist Matthew Lewis stated, beneath NSW’s Surveillance Units Act, an individual should not “knowingly set up or use or trigger for use, or preserve a listening system to overhear, file, monitor or hearken to a non-public dialog”.
“The query goes to be whether or not or not normally, within the circumstances, whether or not or not the dialog is a non-public dialog,” Lewis advised Crikey. “And there could be a good bit of debate about that query.”
The place on recording non-public conversations is similar in all states and territories apart from Queensland, the place it isn’t an offence to file a non-public dialog if one is a celebration to that dialog.
Lewis says it’s a breach of privateness to file somebody.
“In Australia, there isn’t a basic tort for breach of privateness, however there’s the equitable treatment of breach of confidence. If one thing is obtained in confidence, there’s a question as as to whether or not that could be a breach if somebody goes to make use of that recording for some nefarious objective.
“In that regard, there are a selection of strands of inquiry {that a} recording would result in… whether or not or not the recording was held in a non-public room, for instance, or whether or not it was in a crowded restaurant, whether or not or not there was an inexpensive expectation between these concerned that it might be non-public, and if there’s some use of that by the one that made the recording, it might probably be a breach of confidence.”
Lewis says that as a basic rule, recordings obtained with out consent wouldn’t be admissible in court docket.
“Typically talking, if somebody doesn’t know that they’re being recorded, it might be inadmissible and the celebration could be struggling to tender that into proof.”
As to the shades of gray concerned within the admissibility of unlawfully obtained recordings, Lewis appeared to the latest determination within the ongoing Bruce Lehrmann matter, regarding a recording of Brittany Higgins’ lawyer Leon Zwier and her fiance, David Sharaz that was obtained by Sky Information.
In accordance with Lewis, there can usually be an argument as to what constitutes a non-public dialog, even whether it is held in ostensibly a public place, or be in reference to non-public issues.
“Justice Lee [in the Lehrmann matter] instantly and respectfully, accurately recognized whether or not or not it was a non-public dialog, as a result of it was in a lodge room foyer [thus it was considered public],” he stated.
Whereas journalists use surreptitious recordings in sure circumstances (certainly, the ABC publishes its editorial insurance policies on using secret recordings), Lewis stated journalists don’t have any totally different a place to the general public at massive and appeared to the 2010 case involving 2GB talkback host Ben Fordham when he was a reporter at A Present Affair.
Whereas Fordham averted conviction after illegally organising a sting operation the place he posed as a hitman, Justice Elizabeth Fullerton discovered he had displayed an “appalling lack of judgement” in breaching the Surveillance Units Act.
Lewis famous nonetheless, that a lot is determined by particular person circumstances when assessing the admissibility of proof of unlawfully obtained recordings, and that whereas the Telecommunications (Interception and Entry) Act offers with related issues, it’s “predominantly a state difficulty” and legal guidelines additionally differ from state to state.