Today’s correspondent wants to know why emergency call centres are not required to notify callers that phone calls are being recorded. My correspondent says:
Under the Privacy Act 1988, an organisation must declare at the beginning of the conversation if this call is to be recorded or monitored. They can do it by a simple announcement or by interjecting a tone signal every 30 sec. into the call.
Some emergency command or security dispatch centres are excluded from this requirement. This is understandable during a crisis situation as we may not have the time to listen to the announcement and “opt out”.
However, during regular operations they are still not required to advise that the call may be (or as a matter of fact, is) recorded.
I am interested on which piece of legislation, such command / dispatch centres, can seek exclusion from the Privacy Act. Secondly, is there a publicly available list of all companies who obtained such exclusion?
The Privacy Act 1988 (Cth) is not the Act that requires people to be advised that a telephone call is being recorded. That obligation arises under the Telecommunications (Interception and Access) Act 1979 (Cth) s 6. That section says (emphasis added):
For the purposes of this Act, but subject to this section, interception of a communication passing over a telecommunications system consists of 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.
By telling a person that their call is being recorded and giving the person to hang up, or opt out, is to avoid the prohibition on telecommunication interception.
Emergency services are however exempt. The Act says
(2A) An emergency service facility is premises that are declared by the Minister, by written instrument, to be an emergency service facility.
(2B) The Minister may declare premises to be an emergency service facility if the Minister is satisfied that the premises are operated by:
(a) a police force or service of the Commonwealth, of a State or of the Australian Capital Territory; or
(b) a fire service of a State or of the Australian Capital Territory; or
(c) an ambulance service of a State or of the Australian Capital Territory; or
(d) a service for despatching, or referring matters for the attention of, a force or service referred to in paragraph (a), (b) or (c);
to enable that force or service, or another force or service, to deal with a request for assistance in an emergency.
…
(2F) If a person who is lawfully engaged in duties relating to the receiving and handling of communications to or from an emergency service facility listens to or records a communication passing over a telecommunications system to or from the emergency service facility, the listening or recording does not, for the purposes of this Act, constitute an interception of the communication.
With respect to the Northern Territory the definitions section (s 5) says that for the purpose of this Act, ‘State includes the Northern Territory’ so the references to ‘a State’ in s 6 includes the Northern Territory.
Further
(4) If:
(a) a person makes a call to a publicly-listed ASIO number; and
(b) another person who is lawfully engaged in duties relating to the receiving and handling of communications to that number listens to or records a communication passing over a telecommunications system in the course of that call;
the listening or recording does not, for the purposes of this Act, constitute the interception of the communication.
Details of declarations made under the Act can be found at https://www.legislation.gov.au/Browse/Results/ByTitle/LegislativeInstruments/InForce/Te/0/0/principal. For example the Telecommunications (Interception and Access) (Emergency Service Facilities — Australian Capital Territory) Instrument 2015 declares that the Australian Federal Police at Barton, Belconnen, Greenway, Hume, Majura is an emergency service facility whilst the ACT Emergency Services Agency and Airservices Australia – Aviation Rescue and Fire Fighting Service are ‘Service[s] for despatching, or referring matters for the attention of, a force or service’. See also:
- Telecommunications (Interception and Access) (Emergency Service Facilities — Northern Territory) Instrument 2013
- Telecommunications (Interception and Access) (Emergency Service Facilities — South Australia) Instrument 2013
- Telecommunications (Interception and Access) (Emergency Service Facilities – Tasmania) Instrument 2012
- Telecommunications (Interception and Access) (Emergency Service Facilities – Victoria) Instrument 2012
- Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015
- Telecommunications (Interception and Access) (Emergency Services Facilities – Queensland) Instrument 2015
- Telecommunications (Interception and Access) (Emergency Services Facilities — Western Australia) Instrument 2015
(See also The Telecommunications (Interception and Access) Act 1979; Annual Report 2015–16 , p. 30).
The section does appear to exclude the various state and territory emergency services. In some states the State Emergency Service is part of a bigger fire and emergency service (eg Queensland) or call taking may be coordinated within a central agency such as ACT’s Emergency Services Agency or Victoria’s Emergency Services Telecommunications Authority. Those combined call taking centres can be declared an emergency service facility as they are a facility described in s 6(2B)(d).
But what of say NSW SES where calls are received at a dedicated state headquarters? The NSW SES has also been declared to be an emergency service facility as a ‘Service for despatching, or referring matters for the attention of, a force or service’ – Telecommunications (Interception and Access) (Emergency Services Facilities — New South Wales) Instrument 2015.
What follows is that subject to a declaration under s 6(2D) calls to the emergency services may be recorded without prior notification to the person making the call.
Australian Emergency Law 
We have an ongoing problem in Mental Health units, where all inpatients must have access to a pay phone …. and means 000.
Patients call police and ambulace, that the nurses are trying to kill them !!
Would you believe, the Services are obligated to attend ??
What a waste of valuable resources ….
This question came via email from a person who prefers to remain anonymous.
The Telecommunications (Interception and Access) Act 1979 (Cth) s 6(1) says:
The critical step is that the message is intercepted ‘in its passage over that telecommunications system’. It is ‘well-established that a recording made through a microphone external to the telephone after the sound of the voice has left the telecommunications system is not an “interception”’ (R v Bloodsworth; R v Errington (No 2) [2017] NSWSC 1483, [11] (Adamson J) see also Clyne v Bowman (1987) 11 NSWLR 341; R v Oliver (1984) 57 ALR 543; R v Migliorini [1981] Tas R 80 but cf R v Curran [1983] 2 VR 133).
To intercept is to create the impression of someone (or some device) between the caller and the call taker. In an emergency service facility the recording devices are connected to the network and record a conversation that occurs between the caller and the call taker. Where a call taker holds a recorder next to the ‘phone and records a conversation by recording the sounds coming out of the phone that would appear not to be an interception. Some other hypotheticals would make the point. It would not do justice to the term ‘intercept’ to consider that if ASIO have planted a listening device in a room and hear a telephone conversation that takes place in that room, that they are ‘intercepting’ the telecommunication. Equally if you are listening to talkback radio and record what is being said you’re recording the communication between the caller and the host, but again it would be a stretch to say you are ‘intercepting’ their telephone call.
What follows is that if the person receiving the call can record using a device that is not connected to the network, but simply records the sound that comes out of the ‘phone, that would appear not to be an offence contrary to the Telecommunications (Interception and Access) Act 1979 (Cth).
A QFES member would have to consider the implications of the Invasion of Privacy Act 1971 (Qld) s 43. That Act says ‘(1) A person is guilty of an offence against this Act if the person uses a listening device to overhear, record, monitor or listen to a private conversation and is liable on conviction on indictment to a maximum penalty of 40 penalty units or imprisonment for 2 years.’ That does not apply however where the person doing the recording ‘is a party to the private conversation’ (s 43(2)(a)).