Australia

The nature of the Australian legal system (being a Federation of States) is similar to the US one. This involves complying with both Commonwealth and various State laws. In Australia there are certain legal restrictions on listening to and recording telephone calls according to interception and listening devices laws. These laws do not themselves set clear boundaries and as a result Call Centres are often in a state of confusion about how far they may go when undertaking listening and recording.

The Telecommunications (Interception) Act 1979 (http://www.aca.gov.au/licence/tir.pdf) prohibits a person from listening to or recording, by any means, of a communication in its passage over a telecommunications system without the knowledge of the person making the communication. A communication includes conversation and a message, and any part of a conversation or message, whether in the form of speech, music or other sounds, data, text, visual images, signals or in any other form or combination of forms. This law does not attach so much to the recording of a telephone call but more the interception. It is the act of interception that creates the offence not the recording. Naturally recording can form part of interception, but it is not the key element of the offence.

The Courts have generally made a distinction between:

• listening or recording using equipment which is electronically connected into or which intercepts radio signals transmitted by a telecommunications system. In this case, the Interception Act applies and the State Listening Devices legislation does not apply; and
• listening or recording using equipment which is external to the telecommunications system. In this case, the State Listening Devices legislation applies.

Therefore, listening to or recording of telephone conversations without both party's knowledge using devices such as:

• "double jacking";
• a bug within the telephone mouthpiece;
• a wire attached to the telephone line; and
• an interception device used to intercept car telephone waves,

fall within "interception" prohibited under the Telecommunications (Interception) Act.

However, there is an exception to the prohibition in the Interception Act which provides that the listening or recording does not, for the purposes of the Act, constitute "interception" of the communication if:

• a person is lawfully on premises;
• to which a telecommunications service is provided by a carrier or a carriage service provider;
• by means of any apparatus or equipment that is part of that service;
• who listens to or records a communication passing over the telecommunications system of which that service forms a part;
• being a communication that is either made to or from that service or being received at that service in the ordinary course of operation.

Listening Devices legislation only applies to private conversations. Each State and Territory prohibits the use of a listening device to record a private conversation to which you are not a party. In some States and Territories, a party to the conversation may record the conversations without the other party's consent. In all States and Territories, a party to the conversation is prohibited from communicating or publishing a record or a report of that conversation except in very limited circumstances.

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