Overview:
This article provides guidance on call recording laws in Australia. It includes the following sections:
Call recording law is a complex state-by-state issue. Before using Spoke Phone call recording, seek approval from your legal team. This article is intended for guidance only and does not constitute a recommendation or legal position offered by Spoke Phone.
Australia Telephone Recording Laws
The legality of recording a conversation in Australia depends entirely on the jurisdiction. Each state and territory has separate legislation which sets out the law on surveillance and listening devices.
Conversations in the workplace come under the same legislation, which means whether or not it is legal to make a recording depends on the jurisdiction. Covert recordings are against the law in New South Wales, Tasmania, Western Australia, South Australia, and the Australian Capital Territory. But employers in Victoria, Queensland, and the Northern Territory are permitted to record termination conversations, for example, without advising the employee that they are doing so. This recording can then be used to demonstrate that the employee was afforded due process prior to their termination.
It is also legal for an employee in these states to record a conversation they are having with a colleague. However, it is important to note that, even though the recording of such a conversation may not necessarily be a criminal act, it is certainly frowned upon in the workplace.
The Telecommunications (Interception) Act 1979 prohibits a person from listening to or recording, by any means, communication in its passage over a telecommunications system without the knowledge of the person making the communication. 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 offense, not the recording. Naturally, recording can form part of interception, but it is not the key element of the offense.
The Courts have generally made a distinction between:
- Listening or recording using equipment that 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, (Spoke Phone is such a solution connected into the telecommunications system); and
- Listening or recording using equipment that is external to the telecommunications system. In this case, the State Listening Devices legislation applies.
What is clearly not allowed, as they fall within "interception" as prohibited under the Telecommunications (Interception) Act, is 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,
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.
Relevant legislation:
- NSW – Surveillance Devices Act 2007 (NSW)
- Victoria – Surveillance Devices Act 1999 (Vic)
- Queensland – Invasion of Privacy Act 1971 (Qld)
- South Australia – Listening & Surveillance Devices Act 1972 (SA)
- Western Australia – Surveillance Devices Act 1998 (WA)