NSW Not Allowed to Use a Recording Device at Centrelink Appointment?

[Sophi]

A Centrelink officer informed me that the Telecommunications (Interception and Access) Act 1979 does not allow using recording devices at appointments with Centrelink.


I explained to the officer that the Listening Devices Act 1984 (NSW) allows me to record my conversations under three different circumstances: 1) where both/all parties agree to do so, 2) when one party’s legal interests are affected 3) where the recording will not be published (Point 5 Clause 3); and I asked the officer to provide the clause of the Telecommunications (Interception and Access) Act 1979 which prohibits me to record my conversations with Centrelink. The officer refused to specify the clause, and stated that Centrelink could stop my payments if I used a recording device during appointments.


Please advise me whether by law I am prohibited to record my conversations with Centrelink. If yes, please specify the clause of the Telecommunications (Interception and Access) Act 1979 (or other Act) which overrides my rights granted by the Listening Devices Act 1984 (NSW).

 

[Sophea]

Don't quote me but I thought the Telecommunications (Interception and Access) Act 1979 related to conversations intercepted over the phone or other telecommunications network - not in person.

 

[AllForHer]

The Listening Devices Act 1984 (NSW) was repealed several years ago.

 

[Tim W]

I agree with @Sophea - that act applies to the phone system.
Which means that the Centrelink worker is partly right - recording conversations
had on the phone with workers in the Centrelink call centre can be a problem.

For in-person conversations, in NSW, the Surveillance Devices Act 2007 (NSW)
is more relevant.*
That act contains a general prohibition on recording conversations,
and provides for offences in respect of making the recording, and for publishing it.

The modern act does not give you any rights.
Rather, it simply provides for certain circumstances where making a recording is not an offence.
It would be a matter for you to convince the court that one of those exceptions applied to you.

----------------------------------------
* The Listening Devices Act 1984 (NSW) is no longer in effect - it was repealed in 2008.

 

[AllForHer]

I agree with Tim W. I'm not sure if this is how Centrelink applies it, but this is what I see as their case.

Section 7 of the Telecommunications (Interception and Access) Act 1979 prohibits a person from doing anything that will enable another person to intercept a communication passing over a telecommunication system.

Section 6 defines 'interception' 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'.

Basically, if the Centrelink employee allowed you to record the conversation in a place where they know other phone calls may be occurring (as is most often the case for Centrelink), they would essentially be 'allowing another person' to potentially 'record communications in its passage over the telecommunications system without the knowledge of the person making the communication'.

 

[evaharry]

Really interesting legal angle. Speaking of rules, landlords in Victoria should stay aware of their legal obligations — especially when it comes to a gas safety check, which is now mandatory.

 

[Scruff]

Section 6 defines 'interception' 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'.

Basically, if the Centrelink employee allowed you to record the conversation in a place where they know other phone calls may be occurring (as is most often the case for Centrelink), they would essentially be 'allowing another person' to potentially 'record communications in its passage over the telecommunications system without the knowledge of the person making the communication'.

Incorrect.

As your quote from section 6 clearly states, interception only occurs if you intercept a communication while "in its passage over that telecommunications system". That means "wire tapping" etc, not someone overhearing someone else nearby who is talking on the phone. If it did include that, then every time anyone in Australia uses a mobile phone in a public place, they'd be comitting an offence - which is a ridiculous interpretation.

The TIA applies to telecommunications networks. It has nothing to do with face-to-face conversations or what someone overhears.

As for the NSW Surveillance Devices Act 2007:

7 Prohibition on installation, use and maintenance of listening devices

(1) A person must not knowingly install, use or cause to be used or maintain a listening device—​

(a) to overhear, record, monitor or listen to a private conversation to which the person is not a party, or​

(b) to record a private conversation to which the person is a party.​

Maximum penalty—500 penalty units (in the case of a corporation) or 100 penalty units or 5 years imprisonment, or both (in any other case).​

...​

(3) Subsection (1)(b) does not apply to the use of a listening device by a party to a private conversation if—​

(a) all of the principal parties to the conversation consent, expressly or impliedly, to the listening device being so used, or​

(b) a principal party to the conversation consents to the listening device being so used and the recording of the conversation—​

(i) is reasonably necessary for the protection of the lawful interests of that principal party, or​

(ii) is not made for the purpose of communicating or publishing the conversation, or a report of the conversation, to persons who are not parties to the conversation.​

There's all kinds of reasons that would enable you to record under s7(3)(b)(i), but you don't really need it.

As long as at the time you make the recording, there is no intention to provide the recording (or a transcript of it) to anyone else, s7(3)(b)(ii) allows you to record any conversation that you are a party to. You don't need anyones consent and you don't even need to inform anyone that you are recording - you can record covertly if you want to.

Lastly, the Surveillance Devices Act only applies to private conversations - and for that, you have the definition in Section 4:

private conversation means any words spoken by one person to another person or to other persons in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only—

(a) by themselves, or​

(b) by themselves and by some other person who has the consent, express or implied, of all of those persons to do so,​

but does not include a conversation made in any circumstances in which the parties to it ought reasonably to expect that it might be overheard by someone else.

Unless everyone else is out to lunch at the time, that definition rules out any conversation that takes place in an "open" office environment - such as Centrelink.

I've never had a conversation in Centrelink that meets that definition, so unless the conversation takes place in a private interview room, the Surveillance Devices Act won't apply either.