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 is worded:

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...interception of a communication passing over a telecommunications system consists of listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.

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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. This creates not only an offence of commission, but also an accessorial offence, and places an onus on persons to prevent unlawful interceptions. The wording is sufficiently broad to incorporate prohibitions on the interception of not only telephone calls, but data calls, emails, faxes and SMS messages. A number of sub-sections follow, listing exceptions to this rule, but none are of relevance to civilian law enforcement.

 

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that once a message has reached its intended recipient, it has finished its journey and the concept of interception is no longer valid.[2]

 

To elucidate, a communication system is a network. To intercept is to listen or duplicate the signal somewhere along the line between sender and recipient. Interception is not achieved by listening or watching alongside the parties, as that is done outside the communication system. Neither does it necessitate that actual recording or monitoring be achieved, only that a connection is made to the circuit. Due to the non-involvement of any system in the simple propagation of radio waves to all possible recipients, the reception of radio and television broadcasts is excluded from the restriction. Mobile telephone networks are telecommunications systems because mobile telephones only receive what signals are addressed to them, meaning that mobile networks cannot be intercepted.

 

 

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.

 

Another point of interest is that if one party is already recording the conversation, as occurs sometimes (with pre-warning) when speaking to a person in a corporate office, then they are in effect consenting to recording of the conversation per se. The State and Territory Acts assume implicitly that only one recording is being made at a time, and so they follow a pattern where the person doing the recording needs to get consent from other parties for one thing or another. None of the legislation foresees any situation where a recording is started after another is already underway; neither does it specify that consent to record must take the form of consent for a particular party to record. Therefore there is no basis to exclude consent that is manifested in such a way. A recording made by the other party, let’s say the customer, then, is covered by the office worker’s consent without any need for the customer to make a special request.

 

 

 

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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.

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