Can I Record a Conversation with a Client in Queensland?

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 Queensland?

Queensland is somewhat of an outlier in relation to recording conversations. The Invasion of Privacy Act 1971 (Qld) (the Qld Act) prohibits under Section 43(1) the use of “a listening device to overhear, record, monitor or listen to a private conversation”. A conversation would not be private under the Act if the parties to the conversation could reasonably infer from their surroundings that their conversation would not be private. This almost certainly would cover a therapeutic session with a practitioner.

However, this offence does not apply if “the person using the listening device is a party to the private conversation” (under Section 43(2)(a)).

It should be noted however, that the Qld Act prohibits publication of any such recorded conversation , with carve outs for legal proceedings and other public interest grounds. These is likely irrelevant to practitioners however who would not be in the practice of publishing client notes.

Consequentially, there is no need to seek consent to record a client conversation in Queensland. However, practitioners should be aware that notwithstanding the apparent gaps int Qld law, there remains additional Federal level constraints.

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.