There are times when recording what people say during a phone call sounds like a great idea. Maybe you want to memorialize something being promised to you by someone else. Recordings can resolve “he said/she said” disputes. Recorded phone calls can help prove guilt or innocence in a court of law, or they can simply be used as a tool to jog your memory later on about who said what in a given conversation.
But recording a phone call in Australia is not always legal, and the laws that govern recording phone calls can not only be complex but can even differ from territory to territory.
National and Territory Laws Differ
National Australian law deals with recording phone calls by regulating the intercepting of phone signals. As a general rule, it is illegal for businesses to record phone conversations in Australia without obtaining consent from the other person. The act also makes it criminal to do anything “that will enable” wiretapping phone lines, meaning even those who install listening devices, or who assist others in recording calls in Australia, could be liable under the law.
The requirement that the parties have knowledge that a call is being recorded is why large companies that call you will often start with a disclosure, stating that your call is being recorded (sometimes for “quality control purposes,” but more likely, so that the company doesn’t run afoul of the law).
But the laws get more varied depending on which Australian territory you are in when you’re recording calls between private individuals, and when dealing with the law regarding listening devices.
Some Australian territories allow individuals to record phone calls whenever they want. For example, in Queensland, you can record a phone conversation with the consent of only one party — the other person doesn’t even have to know the phone call is being recorded. Other territories in Australia are more restrictive. New South Wales and Tasmania, for example, require that all parties give consent before a private conversation can be recorded.
Some territories have their own unique exceptions and definitions. For example, South Australia allows one-party consent recording if the recording is done on the course of someone’s “duty” or if the recording is in the “public interest.” In Australia’s Northern Territory, it is legal to record unless you have actual express knowledge that the other party does not want to be recorded.
How the Calls Are Recorded
Even in parts of Australia where recording phone calls is legal with only one party’s consent, the legality of recording phone calls often turns to how the calls are being recorded.
In Queensland, even if you are recording legally, you can only do so with a recording device that is not attached to the telephone. This means that a Dictaphone or a recorder unattached to the phone, or any other device that captures the sound as it leaves the phone — including a video camera — would need to be used to be legal. Victoria and Northern Territory have the same rules as Queensland.
Exceptions to Prohibitions on Call Recording
In some territories, the law forbids recording “private conversations.” The meaning of “private conversation” in Australian phone recording law is not very clear. Both the intent of the parties, and the circumstances of the conversation will be considered in determining when a conversation is private or not. If the conversation is not private, the recording laws may not apply and the recording may be legal however it is done.
But again, the law of your territory may differ slightly. For example, in Tasmania, a “private recording” is defined more subjectively. To be private, it must be reasonably assumed that the participants wanted the conversation to be private. That’s different from asking whether it’s objectively reasonable to expect that a conversation is private.
Some Australian territories have laws that allow the recording if recording the call is necessary to protect legal interests.
There are differing court opinions on what kind of interests meet this “legal interest” exception. Generally, the interest must be related to property disputes, or to memorialize a commercial or business transaction.
Simply recording because it is your policy, or just to make sure that someone else upholds their word, or just to keep your own private record of what people say in a conversation, does not meet the exception. That includes recording someone “just in case” they decide to break their word later on.
Putting the court decisions together, a general rule of thumb arises: If you are recording for your own convenience or to gain some kind of advantage, it will not meet the legal interest exception. Rather, the recording must be to protect a legal interest. The line between these two is not so clear, which is why it is always best to get legal advice before recording phone calls in Australia.
Other Laws and Exceptions to Consider
These laws deal with someone who is a part of the conversation doing the recording. It is almost always illegal for someone who is not a party to the discussion to record any private conversations in any way.
These laws also do not prohibit law enforcement from recording phone calls, after obtaining a proper warrant from an Australian court.
And remember, even if recording a call in your part of Australia is legal, that doesn’t mean that it’s legal to publish the recording or share it with the public. Being legally allowed to record is not the same as being legally allowed to use a recording however and whenever you want.
Recordings made in violation of the recording laws in Australia usually will be inadmissible in court. So even if you don’t get yourself in legal trouble for recording calls, the purpose of the recording may end up being useless to you, no matter how valuable what you recorded may be.
Many violations of Australian phone call recording laws carry criminal penalties, so you should do your homework and maybe even get professional legal advice before recording someone on the telephone. The last thing you need is to find yourself in deep legal trouble for doing something that was intended to help you.