Can You Legally Record Phone Calls In Australia?

It's a familiar phrase when you're stuck on the phone to a call centre: "This call may be recorded for quality or training purposes." But what happens if you decide to turn the tables and record the call yourself?

Picture by lwr

There are plenty of reasons why recording a phone call might be useful, ranging from having an exact record of what was said in contentious battles with a service provider through to making notes on work projects afterwards (a common plight for journalists). The Internet is awash with conflicting advice on whether recording calls is legal, in part because of the confusing situation in the US where state laws often collide.

In Australia, it's actually a bit less complicated. The Office of the Privacy Commissioner site offers a useful summary of the law that applies to companies recording calls with customers (and, by extensions, customers recording calls with companies):

If a call is to be recorded or monitored, an organisation must tell you at the beginning of the conversation so that you have the chance either to end the call, or to ask to be transferred to another line where monitoring or recording does not take place if this is available.

In other words: if you don't ask permission, you might be breaking the law, and if permission is denied, you shouldn't continue. (The one very partial exception is telephone companies, who can sometimes record calls as part of troubleshooting and quality measurement, but only under very tightly defined circumstances.)

Presuming the material isn't going to be heard in a courtroom at some point, that legal status might not matter much, but simple good manners suggest it's worth pointing out to your caller that you've making a recording. Lifehacker is not a lawyer, so if you're concerned about a specific situation, seek legal advice (and don't try surreptitiously recording your partner during a messy custody dispute). However, it appears pretty clear that the easiest way to avoid problems is simply to seek permission.


Comments

    AFAIK the regulations for QLD are quite different to this:

    http://www.austlii.edu.au/au/legis/qld/consol_act/iopa1971222/s43.html

    The important bits:
    (1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.

    (2) Subsection (1) does not apply--
    (a) where the person using the listening device is a party to the private conversation;

      That's about bugging a phone call.
      I'd assume there'd be extra legislation about recording a phone call.

      My question is: can you record a conversation between yourself and another person to insure that the other person does not lie about the content of your conversation to a higher body. and do you have to advice them that the conversation is being recorded?

    "your call may be recorded etc etc"
    why, thank you.

    the way that this phrase is structured, it is legally giving you permission to record the call.

    I like when they start out with "this call may be recorded", I take that to mean I have their permission. :)

    Omegatron - that's more in relation to bugging a phone and listening to someone elses conversation, which is, as Subsection 2 says, totally different to you taping your own conversation - I don't believe Lifehacker suggested spying on other peoples conversations as being ok :P

      That said, there doesn't appear to be anything in the QLD legislation that requires you to inform the person on the other end.

        Yes, but I would suggest there is some form of Federal Legislation on the matter.

    When I read the telecommunications act although it basically said recording conversations is illegally, it gave a VERY CLEAR CLAUSE that stated if for your own legal purposes you need to record someone you may do so (i am obviously paraphrasing).

    for example, if somone punched you in the head but then denied doing it to the police, if you were able to later record this person admitting to you that he punched you in the head and you desrved it, that would be a clear legal reason you have permission to record yourself and therefore any person you were talking to who was a party to a legal reason you may wish to record them.

    I think people need to read this for themselves, I have never come across so much bad advice regarding one particular subject.

      Peter D,

      Just to clarify, the Telecommunications Act you have referred to (I am assuming you are referring to Part 13 - PROTECTION OF COMMUNICATIONS) doesn't apply to normal persons.

      Although the Act states person, the definitions section lists person to include
      For the purposes of this Part, an eligible person is a person who is:

      (a) a carrier; or

      (b) a carriage service provider; or

      (c) an employee of a carrier; or

      (d) an employee of a carriage service provider; or

      (e) a telecommunications contractor; or

      (f) an employee of a telecommunications contractor.

      Therefore the sections you read, dont specifically apply to indivuduals so your interpretation is incorrect.

      Further more "for your own legal purpose" is not synonymous to "to provide evidence in your favour". Rather it would mean to comply with the various record keeping requirements under the Telecoms Act and the Corporations Act etc...

        FRob, the relevant Act is the Telecommunications (Interception and Access) Act 1979, not the Telecommunications Act 1977.

    Journalists can do it for personal research, so why can't any one else ? It's probably only the ABC that tell their staff they must inform an interviewee.

    Frankly I wouldn't give a stuff about the legality. I wish I could have recorded the telephone call where a police sergeant was abusive to me and finally hung up, THEN in his report stated the reverse, putting the misbehaviour on me!
    I will record anything I think I need to and to hell with those idiot pollies who think they know what is good for me. Also the Centrelink "Officer" who told me one thing then denied it all..........typical Centrelink behaviour.

      So using a dash cam is the same. We don't ask other road users if we can film them.

        Technically dashcams are used illegally all the time. EVERY video you watch on youtube of dashcam footage is a breach of privacy laws. Of course thats only because they distribute it like morons. Keeping things for personal and private records is mostly legal.

    I worked in commercial radio for 9 years. Under FEDERAL LAW, you must tell a person at the start of the call you are recording them. If you fail to tell them, you can be charged. You must keep their consent on record if you wish to use this in any public matter (gotcha call or legal). If you don't have their permission on the recording, you cannot use the evidence in court and you can be charged for recording the conversation.

    From what I was told, the only time you can record a call without permission is if your life is in danger.

    Hope this helps.

      what about calls from centrelink??

    I remember a version of answer which I got while listening to a radio question-and-answer program in Melbourne a couple of years back which I would like to check here:
    It is illegal to record a phone conversation by using a planted device without the other party's permission but it is legal to record it using a separate voice recorder.

    Check it out with a lawyer if you like, but here is the ducks guts on you secretly recording a phone conversation in Australia without the knowledge of the other party.

    Telephone law is commonwealth business. It applies right across the continent, and overrides State law to the extent of any inconsistency.

    The relevant law is the Commonwealth Telecommunications (Interception and Access) Act 1979. http://www.austlii.edu.au/au/legis/cth/consol_act/taaa1979410/

    Secns 5,6, & 7 pretty well cover it. There are some exclusions and exceptions listed, eg police with a lawful warrant, and there are lots of definitions, but basically this is what applies to well over 95% of us --

    7(1) A person shall not:
    (a) intercept;
    (b) authorize, suffer or permit another person to intercept; or
    (c) do any act or thing that will enable him or her or another person to intercept
    … a communication passing over a telecommunications system.

    “Intercept” is defined as -- listen to or record without a party’s knowledge.

    State legislation allows the secret recording of a conversation by one party to it without the knowledge of other parties, but only in certain circumstances, and these vary from State to State. In NSW, there is a “reasonable legal interest” requirement that must be met, and in ALL cases, State law does not, I repeat, does NOT authorise the secret recording of ANY telephone conversations without the knowledge of all parties.

    If you intend to routinely use a call recording app, then you must warn the other party each time it’s being recorded right at the start.

    The OP's original question would be dealt under State law, because it is on a terminating device.

    What I have seen is a whole bunch of people quoting Federal Law, which covers communication across the telecommunications networks.

    So, to summarise - you stick the phone on speakerphone and start recording, or you listen in on a headset, or have a recording device on your PABX - State law
    You attach a monitoring device on the pit in the street or in the exchange ie- interception of the call - basically monitoring before it arrives at it's destination, and you are not party to the conversation - Federal law (TIA)

    However, it gets quite a bit more complicated when you also start to consider:
    - the Surveillance Act may also be invoked
    - some parts of the TIA will take priority over the State laws
    - if you do record a phone call you are unable to utilise any of that data without further permission from the caller.
    -there are certain requirements depending on whether you are the originator of the call, or the receiver of it.

    I would suggest the OP actually contact a legal professional, than wade through the hits and misses of the comments section, as the interpretation of the courts is most likely going to be quite different to our readers, no matter what laws they quote.
    For those who are unclear, the Privacy Act is not the law on this, but a guide. Refer to your appropriate state and federal laws instead.

    That said, if you record a call, do not use it as evidence or let anyone else know you have recorded it, who is to know ?

    Edit: It is only after I hit Submit, I realise I am three years too late to this convesation... doh

    Last edited 30/04/13 6:30 pm

    It is not illegal to record a conversation between yourself and another party on the phone provided you do not attach a device to the phone. You may not, however be able to use the recording in a court of law.

    You can use the recording to make your own detailed notes (which by the way, is also a form of recording).

    In lower courts of law you may be able to produce the recording in the advent the other party makes false or misleading statements. In such situation you can quote your notes verbatim and refer to the recording used to make sure your notes were correct. I wouldn't rely on being able to present the recording.

    A and B are not organizations. A and B are flatmates, and A runs away into hiding leaving huge unpaid rent being paid by B due to he is the head tenant and duped to believe that A hads difficulty. Calls are unanswered and when B emails A of reporting it to the police, A does phone in. How anyone with the right set of mind would ask A's permission first before recording the call? Probably, B should use a separate recorder without A's permission and then play it back to jot down the content and leave the recording as backup in the event that A misleads the court.

    The thing is, call recording is legal when a warning is given. So when you hear that prompt "this call will be recorded..." and you continue that conversation, that's you agreeing. if you don't want the call recorded, then your only option is to hang up. It's actually a good thing -- it's usually done for training and coaching to give callers a better experience, and also for things like dispute resolution. Call recordings don't lie! maybe have a read of this: http://www.recordretrieve.com/phone-tapping-vs-call-recording-a-match-of-titans/

    If a person or business records a phone call with me, with my permission, do I have the right to ask for a copy?

    Actually, taking pictures or filming in a public location is not a breech of the privacy laws.

    69.111 As with other forms of personal information, the coverage of images is limited by the scope of the Privacy Act. For example, an image is not covered by the Privacy Act if it was taken by an individual who is acting in their private capacity.

    Nor does the law prevent the photography of car number plates.

Join the discussion!

Trending Stories Right Now