A number of clients of the CSA have indicated they would benefit from accessing copies of all call recordings related to their case. It has been alleged in some cases, clients have asked for these recordings under an FOI Request, and have been advised the call recordings have gone missing. Therefore, it is possible you could benefit by making and storing your own recording of all calls, if you are legally entitled to do so. This will allow you to review all advice, information and instructions provided to you by CSA, and allow you to seek fairness and consistency in their dealings with your case.
CSA Recording a Phone Call
You are probably aware, as a client of the Child Support Agency, your calls are often recorded by CSA. When calling their main number, a recorded announcement normally advises your call will be recorded. Some clients have reported not being told a call is being recorded when they receive an incoming call from CSA. If that call was in fact being recorded, and you were not advised, the staff member involved is most likely in breach of the law.
The CSA is governed by the principles outlined on the Office of the Australian Information Commissioner website :
“The Telecommunications (Interception and Access) Act 1979 makes it an offence for a person to intercept or access private telecommunications without the knowledge of those involved in that communication.”
“Under the Privacy Act 1988, an organisation must tell you at the beginning of your call if your call is to be recorded or monitored. This is so you have the option of either ending the call or asking to be transferred to another line where monitoring or recording does not take place, if this is available.
Reasons organisations may monitor or record conversations could include:
- to protect you in your dealings with the organisation
- to provide a record in the event of a dispute about the transaction
- to improve customer service.”
You Recording a Phone Call
Some clients of CSA have advised they were told they are not permitted to also record the phone call. This is inaccurate or incomplete advice.
The first legislation governing this activity is the Telecommunications (Interception and Access) Act 1979, which states you cannot lawfully intercept a communication passing over a telecommunications system. The term “passing over”is a key point, because if a phone conversation is recorded after it is accessible to the recipient, then it’s not passing over a telecommunications system (refer Privatei Blog)
The Privatei Blog explains passing over with examples of ways you might record a phone conversation:
- Using a speakerphone and making a recording in same room. As soon as the sound exits the speaker, it is available to you, and is therefore no longer passing over the telecommunications system, so it’s no longer covered by Section 7.
- Using a software device on your own computer, a digital recording of the call is made within your computer. Once the call enters your computer it is under your control, so it is no longer passing over the telecommunications system. Even if you hear the sound slightly after the recording is made, it was under your control from the moment it entered your system, which was obviously before you recorded it.
- Using recorder plugged into a phone such that the sound is diverted both to your ear and to the recorder – once the sound was under your control (after all, you had control enough control to divert it to your recorder), it’s no longer passing over a telecommunication system.
State Based Legislation
Having dealt with the above, you then need to consider the relevant surveillance legislation in your state or territory.
As a general rule, if a person is not a party to a private conversation, that person is prohibited from secretly recording or using a device to listen to that conversation.
If a person is a party to a private conversation, the law differs between states and territories. In Victoria, Queensland and the NT, a person who secretly records a private conversation to which that person is a party does not appear to be in breach of surveillance legislation. Whereas, legislation in WA, SA, ACT, NSW and Tasmania expressly prohibits such conduct.
|State/Territory||Relevant Surveillance Legislation||Lawful to secretly record a private conversation to which you are a party?|
|Victoria||Surveillance Devices Act 1999 (VIC)||Yes|
|Queensland||Invasion of Privacy Act 1971 (QLD)||Yes|
|NT||Surveillance Devices Act 2007 (NT)||Yes|
|WA||Surveillance Devices Act 1998 (WA)||No|
|SA||Listening and Surveillance Devices Act 1972 (SA)||No|
|ACT||Listening Devices Act 1992 (ACT)||No|
|NSW||Surveillance Devices Act 2007 (NSW)||No|
|Tasmania||Listening Devices Act 1991 (TAS)||No|
Refer MST Lawyers article for further detail.
See also Corrs Chambers Westgarth Lawyers :
- Is it illegal to use a smartphone app to ‘tape a call’
- Am I allowed to record a call in my State (cheat sheet)
Use of Call Recording
Even if you are legally able to record a phone call to which you are a party, note you cannot publish that recording. You may however be able to rely on it in Court proceedings.
Other useful links about recording phone calls :