Once the domain of private detectives, dictaphones and recording devices are now much more widespread. They've long been a tool of trade for journalists but increasingly human resources consultants, accountants, social workers, lawyers, researchers and therapists are also deploying them – and in the digital age where ''lifelogging'' is taking off, recording the minuatae of our lives can easily extend to recording our interactions with others.
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They are also becoming more common in family law cases, according to criminal and family lawyer, Mark Woods, who warns that in Victoria even Facebook chat is legally a conversation.
"We spend a lot of time concerning ourselves with the legality of the recorded conversation," Woods, who is also the chairman of the Law Institute of Victoria's access to justice committee, said.
"It used to be obvious if someone had a tape recorder, it was a brick, and there was little opportunity to say you didn't know you were being recorded. Now it not so obvious."
The issue of taping came explosively back into Victorian media, political and legal circles this week in the fallout from The Age stolen-dictaphone affair.
To recap: The Sunday Age's state political editor, Farrah Tomazin, dropped her dictaphone at the ALP state conference in May. The dictaphone included a conversation between her and former Liberal premier Ted Baillieu in which Baillieu was critical of Liberal factions and the role they'd played in the heated Kew by-election.
Political reporters regularly have these kinds of off-the-record conversations, in person and by phone, sometimes taped, sometimes not. Usually they remain private which is why politicians allow them to happen. But this one didn't remain private.
The dropped dictaphone was handed into lost property where it was taken by an ALP staffer and listened to by others including assistant state secretary Kosmos Samaras and staff from Opposition Leader Daniel Andrews' office. After obtaining legal advice that it would be illegal to distribute the contents, Samaras and others say they destroyed the digital recorder – rather than return the recorder to its owner.
Somehow a copy of the Baillieu conversation ended up being emailed to hundreds of Liberal MPs and members by someone claiming to be a Liberal Party member, causing strife within the Coalition until the ALP's role was revealed this week, creating havoc within Labor.
In Victorian politics it seems the spectre of the 'tape', the intercepted call or the leaked recording is a recurring headache for all sides. An infamous early example was the interception of a poisonous phone call between former Victorian premier Jeff Kennett and then shadow minister Andrew Peacock about fellow Liberal John Howard, in 1987.
Last year secret tapes revealed deep divisions within the state government – in the bitter aftermath of the Victoria Police leadership battle around then-chief commissioner Simon Overland – and helped end Baillieu's premiership.
Then last weekend it was revealed state Liberal director Damien Mantach had been secretly recorded telling party members about how to ''legally'' hide campaign donations. ( Mantach had earlier been caught up in the Overland affair as well).
But what are the legal and ethical questions at play in taping others? The legal answers are complex and in some cases very subtle.
Mark Pearson, professor of journalism and social media at Griffith University and co-author of The Journalists' Guide to Media Law says a 1979 Commonwealth lawdeems interception of a phone call an offence but appears to say a digital recorder attached to the phone is not an interception.
Ethically it is a difficult area, according to media academics. Journalists routinely tape phone calls for accuracy and shift between on-the-record and off, especially in political reporting. The Media, Entertainment and Arts Alliance code of ethics advises not to "exploit a person's vulnerability or ignorance of media practice". The Fairfax Media code of ethics does not prohibit taping but does value protection of sources and "sensitive information".
State and territory laws differ, and are less to do with hardware and more to do with privacy and consent. In simple terms it is not illegal in Victoria, the Northern Territory or Queensland to record without consent a phone call you make or receive or a private conversation you are having. However in New South Wales, South Australia, Tasmania, Western Australia and the ACT it is illegal to record without consent that phone call or conversation.
The states and territories have exemptions around the notions of public interest and also 'express' and 'implied' consent.
When journalists are speaking to and recording politicians, Pearson said, legality and 'implied consent' were mired in the "murky territory of the flow of an interview with someone who might be media literate or in high office and someone who you may have banter with or a friendship with in some way."
The repercussions from The Age tape affair, meanwhile, continue.
Andrews' chief of staff John McLindon, Samaras and ALP state secretary Noah Carroll admit listening to the dictaphone. and Andrews had denied that McLindon offered to resign over the issue. The Liberal Party has called in forensic auditors to find computer breaches that led to its distribution.
