Recording staff interviews during formal investigations
During the course of their official duties, certain departmental staff may be responsible for carrying out formal investigations in connection with the administration, management and operation of the Department of Education, Training and the Arts.
These investigations are managed by the department's Ethical Standards Unit, and are carried out in accordance with relevant departmental policies and guidelines and the Crime and Misconduct Commission's Facing the Facts guidelines .
Investigations often include the gathering of oral evidence, and the guidelines encourage the use of contemporary investigative practices and promote the use of electronic recording devices to accurately capture oral evidence.
Legality of recording
The Invasion of Privacy Act 1971 makes it an offence to use a listening device to overhear, record, monitor or listen to a 'private conversation'. However, the Act provides that a person who is party to a private conversation is lawfully permitted to record the conversation with a listening device.
This Act only applies to a 'private conversation', which is defined to mean:
- any words spoken by one person to another; or
- in circumstances that indicate that they want the conversation to be heard only by themselves, or only by themselves and some other person.
The term does not include circumstances in which either of those persons ought reasonably to expect the words may be overheard, recorded, monitored or listened to by some other person (and that person does not have consent of either person to do so).
Interviews of staff that take place during official departmental investigations would not be classed as a 'private conversation' under the Invasion of Privacy Act 1971, because departmental staff being asked to partake in a formal interview of this nature would reasonably expect that their words would be recorded.
Please note that the Invasion of Privacy Act 1971 provides that it is an offence for a party to a private conversation, who has recorded the conversation, to communicate or publish any record of the conversation to others, unless one of the listed exceptions applies.
There are additional restrictions that apply to intercepting and recording communications over a telecommunications system contained within the Telecommunications (Interception and Access) Act 1979.
The recording, storage, use and disclosure of personal information of departmental employees must be in accordance with the State Government's Information Standard 42 (Information Privacy).
IS42 requires that the individual being interviewed is told why the information is being collected, the legal authority (if any) to collect the information and to whom the department usually gives the information obtained from the interview, preferably prior to the recording commencing.
Staff should note any tapes, digital recordings or notes made in the performance of their official duties are documents of the department and property of the Director-General. They are subject to the provisions of the Public Records Act 2002 and the Evidence Act 1977 and could potentially be subpoenaed by a court or made available to others under Freedom of Information procedures.
If an employee is involved in an investigation and is unclear about the process that should be followed, they should seek advice from the Ethical Standards Unit by phoning 3237 0255.
Information supplied by the Legal and Administrative Law Branch.