AustraliaTelecommunications (Interception and Access) Act 1979, Prohibition on Interception and Civil Remedies
Telecommunications (Interception and Access) Act 1979 (Cth), ss. 6, 7, 105, 107A-107C
In force since .
An interception and recording consent rule binding public and private bodies.
- Obligation class
- Consent, Prohibition
What it requires
- Do not intercept, authorise or permit another person to intercept, or do anything that would enable interception of, a communication passing over a telecommunications system.NIST Privacy FrameworkCT.PO-P1
- Interception means listening to or recording the communication, by any means, in its passage over the system, without the knowledge of the person making it; give the person making the communication that knowledge, such as an advance recorded notice that the call may be recorded, before or as the recording starts, and the recording is not an interception under this Act.NIST Privacy FrameworkCM.AW-P1
These lines are LexLint's reading of the law's text.
In the frameworks
- NIST Privacy Framework
- CT.PO-P1Policies, processes, and procedures for authorizing data processing (e.g., organizational decisions, individual consent), revoking authorizations, and maintaining authorizations are established and in place.
- CM.AW-P1Mechanisms (e.g., notices, internal or public reports) for communicating data processing purposes, practices, associated privacy risks, and options for enabling individuals’ data processing preferences and requests are established and in place.
- FINOS AIGF
- AIR-PREV-005System Acceptance Testing
Our reading of where this law's duties sit in each framework, and in the NIST Privacy Framework, line by line beside each duty above. It never says that running a control meets the law. How we read a framework against the law
If you get it wrong
Criminal exposureYes
Private right of actionYes
Criminal exposure note
A contravention of the interception prohibition in subsection 7(1) is an indictable offence under section 105, punishable by imprisonment for up to two years; a court of summary jurisdiction may instead hear the matter, with the Attorney-General's or Director of Public Prosecutions' proceedings and the defendant's consent, and impose up to six months' imprisonment. Section 105 states no separate fine.
Who enforces it
Enforcement body
Public prosecution of the offence, brought by or with the authority of the Crown; separately, a party to the communication or a person on whose behalf it was made may apply to the Federal Court of Australia or a court of a State or Territory under section 107A for civil remedies, independently of any prosecution.
Settledness
- As of
- Open questions
- Does the knowledge of 'the person making the communication' that section 6(1) requires extend to who listens or records, such as a third-party recording or transcription vendor, or only to the fact that the call is being recorded?
- Does a recording or transcript made by a vendor after the communication 'becomes accessible to the intended recipient' under section 5F fall outside interception, because it is no longer 'in its passage over' the telecommunications system?
What this law does
Originally enacted as the Telecommunications (Interception) Act 1979 and commenced on , the Act was later renamed the Telecommunications (Interception and Access) Act 1979 and has been amended many times since.
Section 7 bars a person from intercepting, authorising or permitting another person to intercept, or doing any act that would enable interception of, a communication passing over a telecommunications system, subject to listed exceptions for network installation and maintenance staff, authorised network-protection duties, ASIO and warranted law-enforcement activity, none of which reaches an ordinary business recording its own customer calls.
Section 6(1) defines interception as listening to or recording the communication, by any means, in its passage over the system, without the knowledge of the person making it; a business that tells callers in advance that a call may be recorded gives that knowledge, so the recording is not an interception under the Act's own definition, which is why businesses that record calls announce it.
The definition turns on the knowledge that the communication is being listened to or recorded and does not say whether that knowledge must extend to who listens or records, such as a third-party recording or transcription vendor, or reach a vendor's later access to a recording once the communication has left the system.
Section 105 makes a contravention of section 7(1) an indictable offence punishable by up to two years' imprisonment on indictment, or up to six months' imprisonment if a court of summary jurisdiction hears it with the parties' consent; no separate fine is stated in the section.
Section 107A gives a party to the communication, or a person on whose behalf it was made, an independent civil action in the Federal Court or a court of a State or Territory for an unlawful interception, available whether or not any prosecution is brought: the court may declare the interception unlawful, grant an injunction, order damages (including punitive damages) the court considers appropriate, or order the defendant to pay an amount up to the gross income the interception produced.
When LexLint raises it
When your app profile says your app records calls, records text chat or processes voice recordings.
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