Is It Legal To Secretly Record Phone Calls In Australia?

There are numerous reasons that you might want to secretly record a phone conversation. It could be as serious as getting someone to admit to a crime, or as innocuous as making a prank call for a podcast. But is it legal? The answer depends on the Australian state or territory you live in.

Phone picture from Shutterstock

Telemarketers don't waste valuable time explaining that your conversation might be recorded for training purposes out of the goodness of their heart — to refrain from doing so is usually a breach of privacy law.

As the Office of the Australian Information Commissioner (OAIC) explains on its website:

Recording of telephone conversations is a matter tightly controlled by law. The federal Telecommunications (Interception and Access) Act 1979 and State and Territory listening devices laws may both apply to this activity. The general rule is that the call may not be recorded. There are exceptions to these rules in very limited circumstances including where a warrant applies.   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.

The above excerpt relates specifically to organisations, but it can also apply to individuals. However, the actual rules differ from state to state. Currently, it is not strictly illegal to record private phone conversations without consent in Victoria, Queensland or the Northern Territory.

In the ACT, NSW, South Australia, Tasmania and Western Australia, the rules are much stricter. As we have mentioned in the past, you can't even use a security camera to surreptitiously record conversations in NSW: consent must always be given. Interestingly, while it is legal in Queensland to secretly record a phone conversation to an external device (such as a portable dictaphone), it is illegal to do the same thing using a device physically attached to the telephone.

These laws start to get murkier when you introduce factors like "public interest" and implied consent. It's the sort of offense that tends to be assessed on a case-by-case basis. For example, secretly recording a politician just to embarrass them will probably land you in hot water, but doing it to successfully uncover fraud would be less likely to end in a conviction.

Of course, the above examples aren't going to apply to most people reading this. Simple good manners suggest it's worth pointing out to your caller that you've making a recording. In short: if you don't ask permission, you might be breaking the law, and if permission is denied, you shouldn't continue.

If you're concerned about a specific situation, the first step is to seek actual legal advice. We would advise against secretly recording your spouse during a messy divorce: even if you get them to admit to something it probably won't hold up in a court of law.

Did you just catch yourself wondering if something was legal or not? Let us know and we may be able to answer it in our next Is It Legal? feature.


Comments

    so would that make any calls you did record ineligible in court if you were trying to prove something, i'm talking small time things like a company telling you one thing and then doing another causing you a hit to the wallet or such worth going to court?

    Would strongly advise anyone wanting to do this to investigate further, as the conditions for recording a conversation without notice differ.
    For instance, I believe it used to be (and may still be) that it was legal to record a telephone call, if you were the initiating the call and also recording the call.
    If however, you call another party and they are recording, then there is a legal obligation for them to notify you of this fact.
    Basically, whoever initiates the call must know that the call is being recorded, however this may have changed in the years that I last had to look into this, and I freely admit being too lazy to look for it again.

    Fun fact: Despite verbally presenting you with an option to not have your phone conversation recorded, a lot of companies do not have a process in place, should you object.
    Often, they have to ring you back using a team leaders cellphone or a desk phone not connected to the voice recording server. Or they tell you that they can't talk with you.

      When it's corporate:
      Either party must declare if a call is being recorded. However, if it goes to court, it is up to a judge to decide if the call is admissable due to the content etc etc and the situation.

      When I worked at GE Money at Stones Corner doing debt collection around 09, I had to, every time, ringing people say:

      "Hi, my name is Steve calling from GE, I have to let you know in advance this call is being recorded for training and quality purposes before we proceed, is that ok?"

      If people said no, I would advise them to ring back in, where they could opt to have the recording turned off (outbound calls from GE, stupidly, did not have the option to turn off recording (there's reasons this protects customers... many dodgy collections agents trust me).

      Fun fact: SO many customers would tell me they were recording too. GE told me to hang up if that happened. I asked why? I mean, it's not like we're doing anything illegal right?

      I NEVER, ever got a truly satisfactory answer, just got told to hang up.

      But when it comes to private citizens it can really depend and that's where the judge comes in. If your personal safety is at risk, if you're doing it due to that, the judge will not likely hold it against you and you won't be charged. But if you're doing it to spy/stalk/intrude, well, you'll get hauled over the coals.

      Last edited 28/09/15 6:30 pm

        Hmm I think you may have called me looking for my Brother who owed GE a lot of money. :D

        I was told by the police when somebody was calling me to issue death threats, that I was allowed to record that call with an external device. Something along the lines of if I was being called I could record it, if I was making the call I could not. I've also heard that as long as one of the parties knows their is a recording happening than it is legal. This is in Queensland BTW.

          If one party knows and consents then it is 100% legal indeed. If there's threats etc made, then that trumps a lot of minor things as your personal safety is at stake indeed.

        Hey! Nice, I also worked in that same office in debt collection starting back in '11. I wasn't even aware that the recording could be disabled if they called in though.

        I never got an answer on the 'why do we need to hang up if THEY'RE recording?' question either. I was told that I had to let the customer know I was going to end the call though. That led to some interesting conversations as to why it was OK for us to do it and not them..

          Yeah the calls could only be disabled on inbound calls, but not outbound. So dodgy. I had SO many customers hang up on me due to recording etc. Was utterly ridiculous.

            The funny part about that is that I worked in the inbound collections dept. :P

            I had the same issue though with customers hanging up and stuff. If only it could have just been disabled easily.

              Yep, spent a little time myself there as well as collections and Hardship. Amazed you never got shown how to do it??? They were using some really, really shitty system called 'Excalibur' when I was there, was so bad. Not to mention, no locally hosted PC's. They all were remote 'drones' that networked down to Melbourne. Was such a bad setup lol.

                Yeah, when I was there we were still using XCalibur. I have a feeling something may have changed which meant that we could only request the calls to be deleted after the call was completed. I remember people saying we used to be able to disable it but that changed.

                Our systems also changed. I saw the thin clients sitting around but they were using local systems by the time I was there. They still networked down to Melbourne though, they just weren't thin clients.

        Fun fact: SO many customers would tell me they were recording too. GE told me to hang up if that happened. I asked why? I mean, it's not like we're doing anything illegal right?

        Nothing illegal, but I suspect it is a tactic to try and protect GE.

        For example, if GE has the only recording and I'm not happy with my treatment, they can and dodge court proceedings by erasing part or all of the recording.

        But if the person on the other end has a recording, that takes control away from GE.

        And truth be told, I'm sure others do the same. Years back, there was an uproar over how a little girl was left crippled after food poisoning from a KFC.

        KFC went to extreme lengths to prove she was never there, even wiped closed circuit camera recordings but the absence for the recordings proved their undoing.

          Oh for sure, the recording of calls does indeed. I got into trouble in my final second year there, before I left to work in IT. I was abused by a customer, and they caught me at the end of the call stupidly muttering 'get f***ed'. Not good, I was put under severe workplace performance restrictions for a month, including 100% on all call monitoring for a month (ask Blitzhedgie, they go SO anal on those seeking out every, every possible thing to critique). Anyhow, if the customer ever asks to hear that, they'll hear me saying it and the company (thankfully not me) may end up being held liable. *oops*.

            Ouch, yeah they would have had a field day with that. They'll find absolutely anything they can to fault you on.

    I really should record all calls to any utility or service company. The amount of times they've outright lied to me to get me signed up to something, and then I've found out later, and whoops, they don't record ALL their calls, and there were no job notes, so my problem, not theirs.

    Or staff at stores who outright lie to get people signed up on extended warranty, know a few people caught out by this. Either the staff aren't trained, or they just don't care to get their commission.

    Last edited 29/09/15 9:24 am

      I really should record all calls to any utility or service company. The amount of times they've outright lied to me to get me signed up to something, and then I've found out later, and whoops, they don't record ALL their calls, and there were no job notes, so my problem, not theirs.

      Sure, they don't record all their calls. And their keyboard don't have "delete" keys.....

    pity i paid for the full verison of this
    https://play.google.com/store/apps/details?id=com.globaleffect.callrecord&hl=en
    i used it when i had to make a call to a woman who served me up a legal notice during a subdivision altercation and i wanted make sure i didnt forget anything. i never notify anyone im on the phone to that i have a call recorder installed.

    My phones at home go through a little Asterisk system on a Raspberry Pi. I hadn't realised at first, but it's configured to record all calls, incoming and outgoing. Never listened to any though (apart from when I was wondering what all those wav files were).

    What if you have a recorded conversation and you carefully remove all identifiers, names etc, and you post it purely for public interst, to demonstrate to other parents that school leaders are being negligent, no school is mentioned? Have since screwed the audio more so voices are completely unrecognisable but yeah??

    The federal constitution prohibits state governments from making laws associated with telecommunications, so by default the federal government statute of the Telecommunications Act 1979 becomes applicable to all states and territories. Read Section 51 & 52 of the constitution. if your doing it secretly you are in breach of the legislation.

    Interestingly, while it is legal in Queensland to secretly record a phone conversation to an external device (such as a portable dictaphone), it is illegal to do the same thing using a device physically attached to the telephone.

    So where would a smartphone ap that records all calls on the device it's installed on fall in this dichotomy?

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