Can I Record a Conversation with a Client in New South Wales?
If you are a Psychologist, Counsellor, Occupational Therapist, Social Worker, Psychotherapists or another related Allied Health Professional, you may be considering the use of software that records your client sessions for the purpose of either:
- Keeping an audio/video recording of the session;
- Transcribing the whole session; or,
- Using AI to generate a summary of the transcript.
Given the wide proliferation of transcription and artificial intelligence powered session summarisation software, practitioners should be aware of the relevant laws of their state and ensure that any steps to record or transcribe a client session is done lawfully and minimises risk. Given that all transcription software involves making a record of the conversation, care should be taken that no laws are inadvertently breached.
This series will look at the laws in each of the relevant states and territories for the recording of client sessions.
What is the law on Recording Sessions with a Client in New South Wales?
In NSW, the Surveillance Devices Act 2007 (NSW) (the SDA Act) prohibits recording private conversations without consent.
Section 7 of the SDA Act makes it an offence punishable by up to five years’ imprisonment and/or $55,000 for a person to knowingly install, use or cause to be used or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, or to record a private conversation to which the person is a party.
A ‘listening device’ is defined by the Act as “any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation, but does not include a hearing aid or similar device…”. This includes a mobile phone or any other digital device.
A ‘private conversation’ is defined “as any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only by themselves, or by themselves and by some other person who has the consent, express or implied, of all of those persons to do so, but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.”
Relevantly, Section 7 clarifies it is not an office if the parties consent either expressly (that is, written) or impliedly (that is, they continue after notification that the conversation is being recorded). Notwithstanding flexibility in understanding consent, it would be prudent in all cases to ensure consent is express and recorded in case the giving of the consent is later contested.
Consequentially, in NSW consent must be sought before any conversation can be recorded or transcribed.
Additionally, practitioners should be aware of Commonwealth legislation which similarly impacts the lawfulness of recording conversations.
Can I Record a Conversation with a Client in Australia?
Recording telephone conversations is subject to additional federal regulations under the Telecommunications (Interception and Access) Act 1979 (Cth Act). This law prohibits the use of devices to “intercept” communications transmitted over a telecommunications system. Section 6(1) states:
(I)nterception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.
A “communication” includes conversations or messages in any form—speech, data, text, images, or otherwise. It is considered to be passing over the system until it becomes accessible to the intended recipient. A “communication” for the purpose of this Act would also include conducting any sessions over a videoconference call. Recording is defined in the Cth Act to include ‘transcribing’ a conversation.
The prohibition under the Cth Act applies unless the person to whom the communication is directed has consented to the recording (Section 7(5)(a)). Notably, the Cth Act would likely not apply to recording a phone conversation where the recording device is separate to the communication, for instance a phone or separate recording device as this is likely not an ‘interception’.
Consequentially, to the extent that any practitioner relies on an inbuilt app or software to make a recording of a communication (including a transcription), then consent would need to first be received. For instances, features such as Zoom’s AI summarisation function or any other similar inbuilt software function may breach this law.
Conclusion
It is important to note that if you are treating a client that is out of your state (or territory) you may be caught by the laws of that other state. With this in mind, in any event, if you are planning to use any software tool to record a client conversation, we recommend that you ensure your intake process sets out a clear process for obtaining informed consent to ensure your process and records remain lawful
Therapas provides a template set of terms for insertion into your client agreement to ensure that your practice records informed consent from your clients on engagement.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.
