Karen Chester and James Shipton secret call: Do you have a right to not be recorded?

The Australian Financial Review on Thursday morning reported the contents of a recording in which ASIC deputy chair Karen Chester tells former chair James Shipton that she could have “destroyed” his career. 

The fiery recording was provided to the newspaper by Shipton and included a range of allegations about his professional conduct. 

In the audio, Chester also asked Shipton to praise her professional performance while then treasurer Josh Frydenberg was deliberating on his successor as ASIC chair. 

Lawyers for Chester described the allegations as involving “governance and accountability concerns”, which were around the time of a 2021 inquiry into Shipton’s expenses. That inquiry found Shipton clear of any wrongdoing. 

Chester’s lawyers also said the quotes run by the AFR were “selective” and from an unauthorised recording of a private call. 

“What has been provided is unbalanced and does not reflect the true nature of the conversation,” they said. 

The story, as well as Chester’s response, raises questions about individuals’ rights when being recorded, particularly by journalists or in a professional setting. 

Sydney-based barrister and media law specialist Matthew Lewis said, under NSW’s Surveillance Devices Act, a person must not “knowingly install or use or cause to be used, or maintain a listening device to overhear, record, monitor or listen to a private conversation”.

“The question is going to be whether or not usually, in the circumstances, whether or not the conversation is a private conversation,” Lewis told Crikey. “And there can be a fair bit of debate about that question.”

The position on recording private conversations is the same in all states and territories except for Queensland, where it is not an offence to record a private conversation if one is a party to that conversation.

Lewis says it is a breach of privacy to record someone.

“In Australia, there is no general tort for breach of privacy, but there is the equitable remedy of breach of confidence. If something is obtained in confidence, there is a query as to whether or not that might be a breach if someone is going to use that recording for some nefarious purpose.

“In that regard, there are a number of strands of inquiry that a recording would lead to … whether or not the recording was held in a private room, for example, or whether it was in a crowded restaurant, whether or not there was a reasonable expectation between those involved that it would be private, and if there’s some use of that by the person who made the recording, it could possibly be a breach of confidence.”

Lewis says that as a general rule, recordings obtained without consent would not be admissible in court. 

“Generally speaking, if someone doesn’t know that they’re being recorded, it would be inadmissible and the party would be struggling to tender that into evidence.”

As to the shades of grey involved in the admissibility of unlawfully obtained recordings, Lewis looked to the recent decision in the ongoing Bruce Lehrmann matter, relating to a recording of Brittany Higgins’ lawyer Leon Zwier and her fiance David Sharaz that was obtained by Sky News.

According to Lewis, there can often be an argument as to what constitutes a private conversation, even if it is held in ostensibly a public place, or be in reference to private matters.

“Justice Lee [in the Lehrmann matter] immediately and respectfully, correctly identified whether or not it was a private conversation, because it was in a hotel room lobby [thus it was considered public],” he said.

While journalists use surreptitious recordings in certain circumstances (indeed, the ABC publishes its editorial policies on the use of secret recordings), Lewis said journalists have no different a position to the public at large and looked to the 2010 case involving 2GB talkback host Ben Fordham when he was a reporter at A Current Affair.

While Fordham avoided conviction after illegally setting up a sting operation where he posed as a hitman, Justice Elizabeth Fullerton found he had displayed an “appalling lack of judgment” in breaching the Surveillance Devices Act.

Lewis noted, however, that much depends on individual circumstances when assessing the admissibility of evidence of unlawfully obtained recordings, and that while the Telecommunications (Interception and Access) Act deals with similar considerations, it is “predominantly a state issue” and laws also vary from state to state.