VIC Am I Interpreting Australian Law on Voice Recording Correctly?

[Anonymous11]

I want to record my phone calls using a mobile app on my phone. My phone is a normal, commercially-available smartphone which has not been "jailbroken", "rooted", or otherwise tampered with to bypass any of the normal security functions. The application is a regular Android app.

I have found two pieces of legislation which may be applicable to voice recording. The Telecommunications (Interception and Access) Act 1979, and the Surveillance Devices Act 1999.

My understanding is that section 7 of the TIAA would not apply as it only applies to communications "passing over" a telecommunications system (ie. over the wires or radio transmissions).

Commonwealth legislation applies to the interception of telephone calls, commonly called “wire tapping” back when telephones needed to have wires.

With improvements in technology (such as the iphone) and new applications (“apps”); recordings often encountered in the family law arena are conversations between parties over the telephone, utilising technology built into the phone or device.

The Commonwealth Telecommunications (Interception and Access) Act 1979 makes it an offence to “intercept” a communication passing over a telecommunication system.[3] Before devices had in built recording functions, in the author’s opinion, the safest way to record a telephone conversation was to have the conversation on speaker, and record the conversation on a separate recording device. Thus the communication had been received, was not intercepted, and was not passing over the telecommunications system.

But what of modern devices with inbuilt recording functions? When does an “intercept” take place? Is the communication passing over the system, and can recording made this way offend the Telecommunications (Interception and Access) Act?

An interception passing over a telecommunications system is defined as:

“Listening to or recording, by any means, such a communication in its passage over that telecommunications system without the knowledge of the person making the communication.”[4]

Having regard to the above, the relevant question would seem to be: when is the communication“passing over that telecommunications system”?

For the purposes of the act:

“a telecommunications is taken to start passing over a telecommunications system when it is sent or transmitted by the person sending the communication; and is taken to continue to pass over the system until it becomes accessible to the intended recipient of the communication.”[5]

Thus it would seem with modern devices such as an iphone with built in recording capability, the communication would be “accessible” at the time of recording, and therefore not “passing over”or intercepted.

​

Section 11 of the Surveillance Devices Act seems to only be concerned with communicating it to someone else which I would not be doing.

It seems OK to do, at least in Victoria. Am I interpreting this correctly under Australian Law?

 

[Rod]

In Victoria, as long as you are one of the parties making or receiving the call, you appear to be correct. Note this is not the situation in some other states.

 

[kimbapuppy]

Just want to confirm my interpretation that it is not an offence to record phone conversation without the other party knowing using the mobile app.

If this is the case, is the audio recording admissible as evidence in court (specifically magistrate court on civil matters and family court)?

 

[Anonymous11]

Just want to confirm my interpretation that it is not an offence to record phone conversation without the other party knowing using the mobile app.

If this is the case, is the audio recording admissible as evidence in court (specifically magistrate court on civil matters and family court)?

I think that would be decided by the Magistrate. However, here is some other relevant information I have found on this issue:

T may consider using an App to record telephone conversations with her ex’s without his knowledge as evidence of his abuse. She should seek legal advice about doing this.


Common scenario:

A woman has been getting constant calls from a private number, she picks up and recognises the voice to be her ex-partner who threatens to harm her. The woman installs an App on her smartphone that records telephone conversations so the next time the private number calls, she records the incoming call and his direct threats to her safety. The woman was protecting her lawful interest and can use this recording for police assistance.


The bottom-line seems to be that you are only in violation of the TIAA if you have intercepted (ie. listened-to or recorded) any communications between they have been sent by one device and received by another (ie. while they are "passing over" the underlying phone network, such as Telstra's or Optus'). The communication ceases to be "passing over" the network when it becomes "accessible" to the recipient.

In the case of a smartphone/app, I would think all of those conditions would be met under (1) since you would not be tampering with the network - the communication has been received by the phone and you can then do as you please with it, including recording it.

However, you might still be in violation of the state surveillance devices legislation, so it would be best to check in which circumstances you are permitted to do so and in which circumstances you can disclose that information.

As Rod said though, in Victoria, using an app to record appears to be perfectly fine.

 

[Rod]

If this is the case, is the audio recording admissible as evidence in court (specifically magistrate court on civil matters and family court)?

Yes, a recording can be admitted as evidence. If it is unclear, a transcript can be made available although a court is not obliged to admit the transcript.

However, unless there is extremely strong reasons for recording the conversation, the Family Court may well consider the recording against you. They have had years of experience dealing with people baiting their partners and then capturing the response and they have put a mark against the person bringing that kind of evidence to court. It would help more than hinder if you begin by declaring to the other party that the recording is being made. That puts the other party in the same position as you and doesn't give you an unfair advantage. Think 3 times before taking something like this into the Family Court.

 

[Tim W]

I'll call it - "No".

What's different about your question here, compared to the other day?

 

[Anonymous11]

There was a recent Federal Court hearing related to this some people may want to read.

Furnari v Ziegert [2016] FCA 1080 (2 September 2016)

Despite there still being no decision specifically on whether using an app contravenes the TIAA, Judge Murphy implies that it does not, and that the TIAA is concerned with third parties invading the privacy of a conversation, but not a party recording the conversation itself. As a result, state listening device legislation applies.

 

[Tim W]

There was a recent Federal Court hearing related to this some people may want to read.

Furnari v Ziegert [2016] FCA 1080 (2 September 2016)

Despite there still being no decision specifically on whether using an app contravenes the TIAA, Judge Murphy implies that it does not, and that the TIAA is concerned with third parties invading the privacy of a conversation, but not a party recording the conversation itself. As a result, state listening device legislation applies.

An interesting, but ultimately irrelevant decision.
Implication does not determine a point of law.

 

[Anonymous11]

I've found something interesting - some apps work sufficiently differently from one another. It turns out there are some which provide you with recordings, but in doing so very likely would constitute interception.

There's one phone app in particular I've found which records the conversation, but does so by merging the call (ie. conference calling) with a third party - the recording service - which answers and automatically begins recording, presumably without informing the second party of the conversation. The recording made by the service is then sent to the person who invoked the service to begin recording after the call is completed.

[you] -----------------------+---------------------[other person]

|​

[service]​

This is almost definitely interception.

My interpretation of this would be that you - the person who has invoked the service to begin recording:

- has not informed the other person of the call being merged (and recorded);
- has intercepted the communication while it was passing over the telecommunications system between you and the person you were speaking to (or vice-versa) via the merged party (recording service); and/or
- has recorded a communication which you were not the recipient of.

So if you're going to use an app, make sure it operates by recording locally on the device itself. That way you will have recorded it both as the intended recipient and also when it was accessible to you.

 

[Timnuts]

An interesting, but ultimately irrelevant decision.
Implication does not determine a point of law.

I'm in SA Adelaide and have an open/ closed case of breach of privacy act and telecommunication act. Myself and my friend were GPS tracked and our conversation was recorded and then transferred to another person.

I need some help but need a lawyer to take this and run with this case.

We already have an AVO in place due to this matter.

In summary, I also have a letter from the courts with this person of interest declaring to the court stupidly that I still have this in my possession.