Michael Lawler’s secret recording ‘could send him to jail’

Michael Lawler’s belief he acted lawfully when he secretly recorded a phone call could still send him to jail.

Fair Work Commissioner ­Michael Lawler.

Fair Work Commissioner ­Michael Lawler’s belief that he was acting within the law when he secretly recorded a telephone conversation with his boss has been flagged by legal experts as a mistake that could send him to prison.

And because the ABC’s Four Corners rebroadcast one of the ­secret recordings, the public broadcaster is also on the hook.

If Mr Lawler is convicted of breaching the NSW Surveillance Devices Act, the ABC will be too.

Although the maximum penalty for Mr Lawler would be five years in jail and an $11,000 fine, the ABC is a corporation and therefore risks a fine of $55,000.

The legal risk confronting the ABC and Mr Lawler is the result of Monday’s Four Corners episode in which the FWC vice-president ­explained how he made secret ­recordings of telephone conversations, one of which the ABC broadcast.

Mr Lawler recorded FWC president Iain Ross in an attempt to protect himself as he battles a sick leave controversy that has left him at risk of being removed from his job.

He used the same technique as his partner, disgraced union official Kathy Jackson, who has made her own secret recording of a telephone conversation.

Mr Lawler was correct to assert that he was entitled to secretly record a telephone conversation if such a move were necessary to protect his legal interests. However, legal experts said yesterday he had made two mistakes.

GALLERY: Lawler-Jackson — the key players

The first was that he seems to have made his secret recording in NSW instead of one of the states that take a more lenient approach.

Media lawyer Peter Bartlett, of Minter Ellison, said: “In Queensland, Victoria, South Australia, the Northern Territory and Western Australia, you can tape-record a private conversation ... which you are a party to even if the other party to the conversation does not know that the recording is being made.”

However even in those states that liberal approach to secret ­recordings did not apply to telephone conversations, he said.

This point seems to have ­escaped Ms Jackson, who claims to have been in Victoria when she made her secret recording.

In an affidavit filed in the Federal Court in June, Ms Jackson ­revealed she had recorded a conversation with Chris Brown, an ­official of her union.

“I made a recording of that conversation using a digital ­recorder, in Victoria, to record the sound of Mr Brown’s voice after it had left the speaker on my mobile phone and was in the air,” her affidavit says.

Another legal expert said Mr Lawler also had overlooked the fact that in NSW the exception, or defence, to the ban on making ­secret recordings has been applied narrowly by that state’s highest court.

After watching Mr Lawler ­re-enact how he had recorded a telephone conversation with Mr Ross, media lawyer Mark O’Brien said Mr Lawler’s actions would not meet the requirements of the defence. “You can do it if it is reasonably necessary for the protection of your lawful interests,” he said.

This has been interpreted by the NSW Court of Appeal to mean that a secret recording would have to be the only way a person could protect their lawful interests.

“Lawler’s argument would be that his lawful interest is to ensure that his sick leave is something he is entitled to take, and he has ­obtained approval and that has been confirmed,” said Mr O’Brien, of Mark O’Brien Legal.

“But that is not a lawful interest that can be protected only by ­recording a conversation.

“He could have confirmed his entitlement to sick leave by putting in a form, or making a formal approach like anyone else when they want their entitlement ­acknowledged. I think it is a clear breach.”

He based this view on a unanimous ruling by the NSW Court of Criminal Appeal in a 2006 case known as Sepulveda.

It concerned the Listening Devices Act, which was the precursor to the Surveillance Devices Act, and contained an identical defence. In the Sepulveda case, a man secretly recorded a confession by someone who admitted engaging in underage sex. However, that recording was still found to have been unlawful.

In that case, the court found that the man who made the recording could have gone to the police, the police could have obtained a warrant and then given him a concealed device to record the confession lawfully.

The court had also “read down” the meaning of the second limb of the defence — the existence of a lawful interest — because the primary purpose of the statute was to protect privacy.