Surveillance Devices Law

Telephone Conversations and Network Interception

Section 7 of the Telecommunications (Interception and Access) Act 1979 (Cth) is the main operational provision for our purposes. It is applicable to any person and states that a person shall not intercept a communication passing over a telecommunications system. The definition of interception in section 6 reinforces this rule. It also prohibits anyone from authorising, allowing or permitting another person to do so, or to perform any act enabling interception by themselves or by any other person....

 

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Allowance to Record at Own End

It has long been the accepted practice that a party to a telephone conversation is required to obtain the consent of the other party to record it even acoustically at their own end. Where a recording is done electronically and not acoustically – as would be the case when a telephone conversation is held with a corporate call centre – this is absolutely necessary. However, as noted by the New South Wales Law Reform Commission,[1] judicial authority states that the word, ‘intercept’ refers only to tapping the signal between parties, not recording it by normal means (such as acoustically) at one end. The distinction lies in the fact that once a message has reached its intended recipient, it has finished its journey and the concept of interception is no longer valid.[2]...

 

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Application of State and Territory Legislation

What remains then is the legislation of the States and Territories in which the recording is made. Some will permit a party to record solely at their own initiative, while others are more restrictive. Thus it is imperative to understand the laws of the jurisdiction in which one is proposing to make the recording.

 

A person may, subject to State and Territory legislation, record their own telephone or video conversation by situating a normal listening or optical device nearby, even without the knowledge of the other party, given specific circumstances. In those states or territories a person may record a threatening or harassing telephone call without further ado or excuse. Some State and Territory jurisdictions make an allowance for where a party needs to make a recording or report on such for protection of their lawful interests and other equivalent circumstances. In other situations the consent of at least one other party is required.

 

If the other end of the conversation is being conducted in a public place or in circumstances where overhearing by another person is a possibility, then the party at that end has given implied consent to be overheard, and the conversation has ceased to be private. This is consent sufficient, for purposes of section 7, for recording to proceed....

 

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[1] New South Wales Law Reform Commission, Report 108, Surveillance: Final Report, Sydney, 2005, p 13.

 

[2] T v Medical Board of South Australia (1992) 58 SASR 382, 398-399; Green v The Queen (1995) 124 FLR 423, 430-433; (1995-6) 85A Crim R 229; Violi v Berryvale Orchards Limited (includes corrigendum dated 14 June 2000) [2000] FCA 797, [7]-[8]. See also Molomby, Tom, Could Monica Lewinsky and Linda Tripp do it here? (1998) 36 Law Society Journal (NSW, Australia), 51.

Written by Andrew Pingree. All copyright, 2014-2016 vests in Civilaco Pty Ltd.

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