The Victorian Liberal Party’s turmoil surrounding Moira Deeming’s expulsion has unsurprisingly captivated the public with its allegations of defamation and neo-Nazi affiliation.
The latest twist in the intraparty quarrel concerns a secret recording made by Liberal MP David Southwick during a crisis meeting following Ms Deeming’s attendance at the Let Women Speak rally in March 2023.
Mr Southwick admitted to recording the conversation as an “insurance policy,” fearing political fallout from any perceived association with Neo-Nazis.
As enthralling as the unfolding drama may be, it raises broader questions about the practice of secretly recording workplace conversations. Although employees may see covert recording as a form of protection, the legal and ethical implications make it far less of a safety net than you might think.
Regulating covert recordings at work
Regulation of covert recordings of face-to-face meetings varies from state to state.[i] In New South Wales, for example, the Surveillance Devices Act 2007 (NSW) prohibits a person from using a listening device to record a private conversation, even if they are a party to it. However, in Victoria, the laws surrounding covert recordings are more nuanced. Under the Surveillance Devices Act 1999 (Vic), an employee can legally record a private conversation at work if they are a participant, but the use of that recording is restricted. It can only be published or shared if all parties consent, or if the disclosure is for legal or disciplinary proceedings, in the public interest, or aligns with the recorder’s lawful interest.
Whether a recording can be relied upon is ultimately up to the Court or Commission, which will weigh the probative value of the evidence against the impropriety or illegality of the way in which it was covertly recorded. Simply put, even if the recording is legal, its admissibility is not guaranteed.
Valid reason for dismissal
The interpretation of the “lawful interest” exception has been when a party produces the evidence for protective purposes rather than to gain an advantage (e.g. building a bullying case). The Commission has often looked unfavourably upon such recordings, and considered them to be a valid reason for termination of employment, even when the employee could be perceived as seeking to safeguard themselves.
In 2022, Dylan Thomas, a dog handler at Clarence Correctional Centre (CCC), Australia’s largest prison, used his smart watch to secretly record a disciplinary meeting held so he could respond to allegations raised against him.
Serco presented evidence that People & Capability Manager at the CCC had stated “this meeting will not be recorded…if you want to take your own notes for your own reference, Dylan, you can.” Serco’s evidence suggested Thomas said his partner would be taking notes, but did not make any reference to him having any device or recording equipment on him. The FWC found Thomas’ secret recording was a valid reason for his dismissal.
Deputy President Saunders said that “unless there is a justification, the secret recording of conversations in the workplace is highly inappropriate, irrespective of whether it constitutes an offence in the relevant jurisdiction.”
The recording, DP Saunders emphasized, puts the recorder at an unfair advantage. Adopting the observations made by Deputy President Coleman in Gadzikwa v Australian Government Department of Human Services, the surreptitious recorder was seen as being able to meticulously choose their words, plan their actions, and present their best case, while the unsuspecting party is denied that same opportunity. This imbalance creates a deep sense of mistrust and unease once the recording is revealed, leading to strained relationships and damaged workplace dynamics.
Similarly, in Schwenke v Silcar Pty Ltd, a Full Bench of the Commission found on appeal that his secret recording was “contrary to his duty of good faith and fidelity to the employer and undermined the trust and confidence required in the employment relationship.” The Full Bench also found in that case that the recording in itself was grounds for summary dismissal.
In the Moira Deeming case, David Southwick’s recording, which surfaced shortly before legal proceedings, underscores the fragile nature of covert recordings as an “insurance policy.” The lateness with which the secret recordings in both the Deeming and Thomas cases surfaced is perhaps telling of their inherent unreliability, even in the eyes of the covert recorder.
Ultimately, the law may allow for secret recordings under certain conditions, but they rarely come without consequences. Employers and employees alike should be cautious of resorting to such measures, as it risks undermining workplace relationships and trust.
What to do instead
Instead, Employers should implement clear policies that meetings are not to be secretly recorded, and emphasise this at the start of a meeting.
An alternative is that an Employer could take the initiative in important meetings and openly record the meeting with the consent of all parties and ensure that the employee receives a copy of the recording or transcript. In this way, everyone is clear that the meeting is on the record and everyone has a copy of what was said.
In either case, open, honest and above-board communication is the key.
In the case of Moira Deeming, the recording may have been intended as a shield for one of the parties, but instead highlights how such actions further undermine trust and can quickly escalate into legal disputes and public controversies.
[i] It’s worth remembering that, regardless of which state you are in, recordings that are made over the telephone are an offence under the Telecommunications (Interception and Access) Act 1979 (Cth)
