Australia Telephone Recording Laws
Legal Aspects of Recording Telephone Conversations: A Practical
Guide
Call Corder records telephone conversation in accordance with
legal regulations.
Australia
The nature of the Australian legal system (being a Federation of
States) is similar to the US one. This involves complying with both
Commonwealth and various State laws. In Australia there are certain
legal restrictions on listening to and recording telephone calls
according to interception and listening devices laws. These laws do
not themselves set clear boundaries and as a result Call Centres are
often in a state of confusion about how far they may go when
undertaking listening and recording.
The Telecommunications (Interception) Act 1979 (http://www.aca.gov.au/licence/tir.pdf)
prohibits a person from listening to or recording, by any means, of
a communication in its passage over a telecommunications system
without the knowledge of the person making the communication. A
communication includes conversation and a message, and any part of a
conversation or message, whether in the form of speech, music or
other sounds, data, text, visual images, signals or in any other
form or combination of forms. This law does not attach so much to
the recording of a telephone call but more the interception. It is
the act of interception that creates the offence not the recording.
Naturally recording can form part of interception, but it is not the
key element of the offence.
The Courts have generally made a distinction between:
- listening or recording using equipment which is electronically
connected into or which intercepts radio signals transmitted by a
telecommunications system. In this case, the Interception Act
applies and the State Listening Devices legislation does not
apply; and
- listening or recording using equipment which is external to
the telecommunications system. In this case, the State Listening
Devices legislation applies.
Therefore, listening to or recording of telephone conversations
without both party's knowledge using devices such as:
· "double jacking";
· a bug within the telephone mouthpiece;
· a wire attached to the telephone line; and
· an interception device used to intercept car telephone waves,
fall within "interception" prohibited under the
Telecommunications (Interception) Act.
However, there is an exception to the prohibition in the
Interception Act which provides that the listening or recording does
not, for the purposes of the Act, constitute "interception" of the
communication if:
- a person is lawfully on premises;
- to which a telecommunications service is provided by a carrier
or a carriage service provider;
- by means of any apparatus or equipment that is part of that
service;
- who listens to or records a communication passing over the
telecommunications system of which that service forms a part;
- being a communication that is either made to or from that
service or being received at that service in the ordinary course
of operation.
Listening Devices legislation only applies to private
conversations. Each State and Territory prohibits the use of a
listening device to record a private conversation to which you are
not a party. In some States and Territories, a party to the
conversation may record the conversations without the other party's
consent. In all States and Territories, a party to the conversation
is prohibited from communicating or publishing a record or a report
of that conversation except in very limited circumstances.
References
-
Telecommunication Journal of Australia (Vol. 48 No
2 - 1998), page 75. ”Who's Listening? - Recording and Monitoring
of Personal and Business Communications”
-
Guidelines On Voice Monitoring Or Recording Of
Telephone Services. Telecom (Australia), released by
Telecommunications Industry Ombudsman, 29 April 1994.
http://www.austlii.edu.au/au/other/plpr/vol1/Vol1No03/v01n03f8.html
-
Examining Call Monitoring Legalities and the
Development of Regulation.
Angus
Henderson, Partner and
Annemaree
McDonough, Lawyer September 1998
http://www.gtlaw.com.au/pubs/callcentres.html
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