Can I Record a Phone Conversation? When Is It Illegal To Do So?

“Can I record a phone conversation?” you asked yourself as you were talking to one of your friends over the phone. The answer to this depends on the type of call you’re in. Is it a casual conversation? A drug bust operation? What if you want to expose your ex who lied about their whereabouts or their true intentions to you?

Recording phone conversations can be a useful tool for many people, whether it’s for personal or professional reasons. However, it’s important to understand the legalities surrounding recording phone conversations in Australia.

In general, it is illegal to record phone calls in Australia without the express or implied consent of all parties involved. Phone conversations are private conversations, and the law protects the privacy of individuals.

Now, the next question you might have in your mind is “When can I record a phone conversation?”

Recording a Phone Call for Business Purposes

When answering the question “When can I record a phone conversation?”, it’s important to note some valid reasons for doing so. Recording phone conversations has become a common practice for many people, especially in the business sector. However, the person calling must inform them that they consent to recording the phone call.

Here are some scenarios where one can lawfully record private conversations:

1. Employers commonly record interviews to pool potential employees. They rewatch and relisten to these interviews to see if the interviewee is a good fit for them.
2. Call recording allows you to determine which problem areas in your processes and conversations are negatively impacting your business.
3. Customer service departments also ensure that they can revisit calls from their customer service representatives. They may use calls that went well for trainees and coaching sessions for employees who need improvement.
4. “Can I record a phone conversation for training purposes?” Yes. As an employer, you can record calls to track the progress of newly hired employees. 
5. Knowing what happens in a call between both sides can help with accountability on certain matters.

What About Recording a Phone Call for Other Purposes?

If not for business matters, recording a phone call would pose a lot of risk. Employers and interviewers can justify that it’s okay for them to record phone calls. The purpose of their calls or meetings is for professional and business purposes. However, recording casual conversations without the other party’s consent is illegal.

Let’s look at some laws that back up illegal and non-consensual phone call recording.

The Surveillance Devices Act 2007

So what are the laws surrounding the question “Can I record a phone conversation?”. Section 7 of the Surveillance Devices Act 2007 (NSW) makes it illegal to install, use, or maintain a listening device to overhear, record, monitor, or listen to a private conversation to which you are not a party, or to record a private conversation to which you are a party.

A listening device is any device capable of being used to overhear, record, monitor or listen to a conversation or words spoken to or by any person in conversation. This definition is contained in Section 4 of the Surveillance Devices Act 2007.

However, it does not include a hearing aid or similar device used by a person with impaired hearing to overcome the impairment and permit that person to hear only sounds ordinarily audible to the human ear.

The maximum penalty for violating this section is 500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).

There are, however, several exceptions to this section, including:

• If you are using the listening device under a warrant, an emergency authorisation, a corresponding warrant, or a corresponding emergency authorisation.
• If you are using the listening device under the Telecommunications (Interception and Access) Act 1979 or any other Commonwealth law.
• If you unintentionally overhear a private conversation using a listening device.
• If you are using a listening device to record a refusal to consent to the recording of an interview by a member of the NSW Police Force in connection with the commission of an offence by a person suspected of having committed the offence.
• If you are using a listening device and any enhancement equipment about the device solely for the location and retrieval of the device or equipment.
• If you are using a listening device, which is a device integrated into a Taser issued to a member of the NSW Police Force, to record the operation of the Taser and the circumstances surrounding its operation.
• If you are using body-worn video under Section 50A of the Surveillance Devices Act 2007 (NSW).

Can I Record a Phone Conversation With a Disclaimer?

This is good practice for people who want to record a phone call even though it’s for business purposes. Expressing a disclaimer and getting consent from the other party to record a call can help foster mutual understanding. Disclaimers and consent can either be written, expressed, or implied.

For example, let’s say you call a company and hear a message saying that the call may be recorded for training and quality control purposes. If you continue with the call, you are giving implied consent to the recording. However, it is good practice for businesses to have an option for customers who do not want their conversation recorded. Businesses and companies may simply state the following:

• “Please let us know at the beginning of the call if you do not want the conversation to be recorded”
• “Can I record a phone conversation for our initial interview later with another recording device or program? We assure you that the recording will be used only for hiring purposes”.

These statements can help give customers or applicants a choice to agree to the phone recording or not. Now, if they don’t agree to a phone recording, then you must refuse to do so. Doing so will lead to a criminal charge.

Can I Record a Phone Conversation: FAQs

Q: Can I record a phone conversation with my abusive ex?

A: Generally, you could. After all, it’s good evidence against someone guilty of domestic violence and abuse. Just make sure that the abuser clearly shows and states how they are abusive. If not, courts might think you are making false claims about domestic violence or abuse.

The recording of a private conversation can be used as evidence in court if the provisions of Section 138 of the Evidence Act are satisfied. The court has a “discretion to exclude improperly or illegally obtained evidence”. Unlawfully obtained evidence is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Q: What bout police officers? Can they record a phone conversation?

In some serious cases, yes. Undercover police officers can lawfully record private conversations if they are for the purpose of investigating criminal activity. Police can use listening devices in these situations:

1. With a warrant, police can obtain a warrant from a judge to use a listening device if they have probable cause to believe that evidence of a crime will be obtained.
2. To prevent serious violence or property damage, police can use a listening device without a warrant if they have a reasonable belief that it is necessary to prevent an imminent threat of serious violence or substantial property damage.
3. To investigate a serious narcotics offence, police can use a listening device without a warrant if they have a reasonable belief that it is necessary to obtain evidence of a serious narcotics offence.

Q: What should I do if I think someone has recorded me without my consent?

A: If you think someone has recorded you without your consent, the first thing you should do is to confront them about it. If they admit to recording you without your consent, you can ask them to delete the recording. If they refuse to delete the recording, or if you are not sure whether they have deleted it, you can seek legal action. 

We Value Your Privacy, Lawful Interests, and Basic Rights

Recording private conversations is a violation of one’s privacy. Unless it’s for work or business purposes or investigation, phone calls and private conversations should remain between the two callers. If a person breaches this, the person recording can be charged with a crime.

This crime carries hefty fines and penalties since it breaches basic data privacy. JB Solicitors have criminal lawyers who can help people who need legal action for illegal phone recording matters. We strive to protect and represent the lawful interests and rights of our clients. 

Contact us today if you need help with illegal phone recording and other criminal offence matters.