There are a ton of legitimate reasons why you’d want to record a phone conversation. Maybe you want to create evidence against a business that scammed you, or maybe you want to keep a record of your interactions with a client to serve as a contract. You might even be trying to prove that your spouse is controlling or even abusive!
Whatever your reason, it’s important to be informed about the laws and regulations regarding recording conversations. You might find yourself in legal hot water, and any evidence you’re trying to secure could be dismissed as invalid.
So to clear things up, in this article, we answer the question: “Is it illegal to record someone without consent in Australia?”
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Is It Legal To Record A Phone Call In Australia
In general, it is legal to record a phone call in Australia if you inform the person on the other line that you’re recording them. ‘Recording’ in this case refers to using either an external recorder that listens in on the phone device, or a device that is physically attached to the telephone. Some states have unique exceptions to this rule.
Is Call Recording Legal In Australia Without The Other Party’s Consent?
In federal law, the Telecommunications (Interception and Access) Act 1979 says that you cannot listen to or record a conversation that’s conducted over telephone services without the consent of the parties involved. However, federal law doesn’t distinguish between whether both parties involved must be informed, or if it’s sufficient that only one party be informed.
What this means is that, at least at the federal level, it’s fine to record a phone conversation if you’re one of the parties in it. However, each state has different rules governing call recording. Here are a few of the state laws that are relevant to this discussion.
Victoria
In Victoria, the Surveillance Devices Act 1999 (VIC) applies. The Act states the following: “…a person must not knowingly install, use or maintain a listening device to overhear, record, monitor or listen to a private conversation to which the person is not a party, without the express or implied consent of each party to the conversation.”
No provisions are made for recording a call if you’re one of the parties, so you’re in the clear even if you don’t tell the other party. However, in Section 11, the law states, “a person must not knowingly communicate or publish a record or report of a private conversation or private activity that has been made as a direct or indirect result of the use of a listening device, an optical surveillance device or a tracking device.”
In summary, you can record a conversation that you’re participating in even without permission, but you can’t publish or share the recording. The maximum penalty for violating the law is 2 years in prison.
Queensland
In Queensland, the pertinent law is the Invasion of Privacy Act 1971 (QLD) is very similar, saying that you can’t record a private conversation, but it doesn’t apply if “the person using the listening device is a party to the private conversation.” You also may not publish a recording of your conversation with another party without their knowledge. You can get up to 2 years in prison for violating the law.
One important caveat is that the recording can’t be done with a device that’s physically attached to the telephone.
Northern Territory
The Northern Territory’s Surveillance Devices Act 2007 states the same as the laws in the above two states, and also carries the same penalty.
Other Regions
In Tasmania, NSW, the ACT, SA and WA, you must always inform the other party and get their consent before recording your conversation.
Are There Any Relevant Cases?
South Australia has a landmark precedent case that informs its laws about phone recordings. In Thomas & Anor v. Nash, it was the opinion of the court that “a telephone conversation with a friend is a private conversation, even though the friend is at liberty later to tell another about it.” This is one of the legal bases that makes it illegal in SA to record phone conversations.
In addition, while the court acknowledged that South Australia’s Listening and Surveillance Devices Act 1972 allows for recordings to be made to protect someone’s ‘lawful interests’, it also determined that ‘lawful interests’ did not include the “desire to gain advantage in civil proceedings”. Therefore, recording a conversation without consent in order to create evidence is illegal, at least in SA.
How To Record A Phone Call
Recording a phone call made on your mobile phone is relatively easy today. You can use a call recorder app to record any phone call you make without the other party’s knowledge. These apps are easily accessible on all major app stores, including the iPhone App Store and the Google Play Store.
You can also get a Google Voice number and use it to make and record your calls. Note that Google Voice only allows recording of incoming calls and will very explicitly announce that it’s recording the minute you start.
For computers, you can use software with screen recording capabilities, such as VLC, and then make the call from your PC with Skype or a similar messaging service with phone call features.
Conclusion
It can be tricky to navigate the legality of recording phone calls in Australia – even if you’re in one of the states that allow recording without the other party’s consent, you’re limited as to what you can do with the actual recording. When in doubt, it may be best not to make any call recordings to prevent any liability. Use this article as your guide to avoid any problems with the law!
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