Introduction
There are a number of Australian laws that impact how businesses in Australia record calls. It is important that you understand what they are.
The information provided in this blog post is for general informational purposes only and does not constitute legal advice. Telecommunications laws, including those related to call recording and surveillance, can be complex and vary depending on your specific circumstances and location. If you require legal advice tailored to your situation, you should consult a qualified legal professional or seek guidance from your organisation’s legal counsel.
What is a call recording?
Call recording is the process of capturing and storing audio from phone and VoIP calls for purposes that include:
- Quality assurance,
- Supporting training, and
- Improving customer service[1].
What is a listening device?
A listening device is any equipment that can listen to, overhear, monitor or record a conversation[2]. It includes all words that are spoken by each individual in the conversation.
What are the relevant laws impacting call recording in Australia?
Australia does have a primary federal law governing call recording in Australia. This is the Telecommunication Interception and Access Act 1979. In section 107D, this Act specifies that this Act is not designed to “exclude or limit” state and territory laws but rather it is designed to work concurrently with state and territory laws[3].
In addition to this, there are laws around businesses doing call recording that vary between each Australian state and territory. Here is the relevant legislation that may impact you:
- Listening Devices Act 1992 (ACT),
- Surveillance Devices Act 2007 (NSW),
- Surveillance Devices Act 1999 (Vic),
- Surveillance Devices Act 2016 (SA),
- Invasion of Privacy Act 1971 (QLD),
- Surveillance Devices Act 2007 (NT),
- Listening Devices Act 1991 (Tas), and
- Surveillance Devices Act 1998 (WA)
Generally, the Act that will apply depends on where the person was when they engaged in the questionable conduct[4]. For example, if a person A from NSW gets on a call with person B from WA and hits record, it would generally be the Surveillance Devices Act 2007 (NSW) that would apply as person A from NSW has hit record.
The federal and state laws must be complied with concurrently[5]. The federal law (Telecommunications Interception and Access Act 1979) generally focused on addressing the interception of telecommunications. State and territory laws generally govern the use physical surveillance devices. An important rule of thumb is if there is a conflict, the stricter law should always prevail.
In addition to this, the Privacy Act provides a legal framework for the collection and storage of personal information. Personal information is any information that can identify a person and may include[6]:
- A person’s name, number, date of birth or address
- Sensitive information such as racial or ethnic origin or health/genetic information
- Credit card information
You can and should give clients the option to stop the recording while sensitive information is given and start it again once the sharing of sensitive information is complete.
The Australian Taxation Office and the Fair Work Act 2009 also have some rules for retention of call recordings that impact on calls specifically related to certain financial information or employment information. This is expanded upon in the section, “How long do I need to retain a call recording for?”.
How will these laws impact my business?
Listening to a call
At the federal level, it is illegal to use a listening device to listen to a phone call or call recording without the consent of one or both parties.
In all states and territories, it is illegal for a person within a business to listen to a call they were not a part of unless consent has been given.
Call recording and consent
At the federal level, all clients must be made aware that their call is recorded and give their consent for this to occur.
It is also illegal for businesses to record a private conversation without consent in the Australian Capital Territory, New South Wales, Victoria, South Australia, Northern Territory, Tasmania, and the Western Australia[7].
Queensland is an exception to this rule. In Queensland, it is legal to record a conversation without the other person’s consent if you are a part of that conversation.
How do I get consent from the caller?
Many businesses cover the consent requirements through a call recording disclaimer script such as “this call may be recorded for training and quality purposes”[8]. Consent to a disclaimer can be explicit or implied.
An example of implied consent is if a client decides to proceed with a call after hearing a call recording disclaimer. This decision to proceed is classified as a valid form of consent. However, it is best practice to give the client the option of not having their call recorded rather than leaving them with no choice other than to hang up.
What are the requirements for storing a call recording in Australia?
Under the Privacy Act, an entity that holds personal information must take reasonable steps to protect that information “from misuse, interference and loss; and from unauthorised access, modification or disclosure”[9]. To align with these legal requirements, call recordings should be[10]:
- Stored securely by using encryption and storage solutions that protect the recording.
- Only accessible to a handful of authorised personnel.
In addition to this, you should conduct regular audits to monitor for vulnerabilities.
How long do I need to retain a call recording for?
The Privacy Act does not have any requirements around retention periods for personal information. However, businesses should only retain a call recording for as long as it is needed[11].
The exception to the above is with some financial and employment information. The Australian Taxation Office (ATO) requires you to retain all transactions relating to “tax, superannuation and registration affairs as you start, run, sell, change or close your business”[12] for a period of 5 years.
Under the ATO[13], you must retain a recording for a period of 5 years if a call recording includes any of the following information:
- Invoicing or payment instructions
- Client or supplier agreements
- Tax deductions or liabilities
- Transaction approvals or authorisations.
The Fair Work Act 2009 requires that employers make and keep employee records for 7 years. Under the Act[14], you must retain a recording for a period of 7 years if a call recording includes any of the following information:
- Employee details (name, commencement date, employment type)
- Pay records (rate of pay, gross and net amounts, deductions)
- Hours of work and overtime
- Leave entitlements and balances
- Superannuation contributions
- Termination details
It is highly recommended to have policies for both the retention and disposal of recordings.
Summary
- There are federal and state or territory laws that impact how you record calls.
- In most states and territories, you must seek consent to listen to or record a call. Queensland is the exception to the rule.
- Call recordings should be stored securely and have encryption.
- Generally, there are no requirements regarding retention of call recordings other than to keep it as long as needed. However, there are specific rules for the retention of certain financial and employment information.
Where can I go to for more information on legal requirements around call recording?
If you are wanting more information on the legal requirements, we recommend that you click on the hyperlinks throughout this blog post. If you are still unsure, we recommend you chat to a legal professional.