Gunning, Patrick --- "When is a recording an interception" [2001] PrivLawPRpr 22; (2001) 8(1) Privacy Law and Policy Reporter 12

When is a recording an interception?

Patrick Gunning

GREEN v R

(1996) 124 FLR 423 (Supreme Court of Victoria)

R v EVANS & DOYLE

(1999) 152 FLR 352 (Court of Criminal Appeal of Western Australia)

Green v R

Green v R is a decision of the Court of Criminal Appeal of WA. In that case an undercover police officer recorded a conversation to which the officer was a party. The recording was not authorised by a warrant. The accused discovered that the tape recording existed and issued a subpoena for its production. The prosecution resisted, arguing that s 63 of the Telecommunications (Interception) Act 1979 (Cth) (the Act) prevented any use of the tape because it was ‘obtained by intercepting a communication in contravention of s 7(1)’. The Court held that the tape should be produced by the prosecution, holding that there had not been any ‘interception’ within the meaning of s 6(1), and hence there was no contravention of s 7(1). The reasoning of Franklyn J, with whom the other members of the Court agreed, was this:

It is obvious that each party to a telephone communication is aware that the other party is or may be listening to what the first party says in that communication. Section 7(1) aside, there is no prohibition in the Act upon either or any party to the communication recording, by taking notes or otherwise, information received by him or her in that communication. Indeed such recording of information is an incident of everyday life and essential to the conduct of many commercial operations. A construction of s 6(1) which accepts that a communication over the telephone, listened to by its intended recipient in the ordinary course of the use of the telecommunications system, may be lawfully recorded by the recipient without the knowledge of the caller, but renders illegal the recording of the same communication by the same intended recipient if it is listened to or recorded in the fragment of time during which it so passed over the system, solely because the listening to and or recording of it occurred without the knowledge of the caller while it was passing over the system, is in my view absurd and without point. It does nothing to protect the privacy of the communication, it being received and/or recorded by the person to whom it is directed. It does nothing to protect the system from the use of equipment not installed by Telecom, as, provided the listening and/or recording is done with the knowledge of the caller, there is no sanction against it, whatever be the device used. I agree with Matheson J and with the New South Wales Court of Criminal Appeal in R v Edelsten (1990) 21 NSWLR 542 that the Act is concerned to protect the privacy of communications passing between users of the system established by the Commission. As such there is nothing to be protected as between the caller and the intended recipient who receives the call. The intended protection is against a third party invading the privacy of that communication by an interception within the meaning of s 6(1). Consequently, I am of the view that there was no interception within the meaning of s 6(1) and no contravention of s 7(1).

R v Evans & Doyle

R v Evans & Doyle is a decision of McDonald J in the Supreme Court of Victoria. In that case the charges were of ‘insider trading’. The prosecution’s case was that Mr Evans, in a telephone conversation with Mr Doyle, placed an order to buy the relevant shares. Mr Doyle was a dealer employed by Were Stockbroking Ltd. As is common in the broking industry, Weres recorded all telephone calls to which their employed dealers were a party. The prosecution wished to rely on the recording made by Weres of the conversation. McDonald J stated:

In many, many fields of modern commerce, commercial transactions are negotiated and entered into by oral communications had by means of the telecommunication system. On authority, as I have referred to and particularly R v Green, if one person to such a telephone conversation tape recorded such a conversation, even without the knowledge of the other person who was speaking and listening on the telephone during the communication, the recording would not be an interception within s 6(1) of the Act and would be admissible in evidence in a court proceeding.

Applying this reasoning to the case at hand, McDonald J held:

By the telecommunication recording equipment situated at its business premises, Weres recorded the telephone conversations from the desks of a number of its employees who in the course of their employment with Weres were dealing with clients of Weres who placed orders with them and sought and received advice as part of the business of Weres. The telephone conversations had with clients by employees of Weres would be part of Weres transacting its business which would be done by its employees acting in the course of their employment. Weres as a corporation could only act through its agents and employees. There could be no privacy in such a telephone conversation which was private from the dealers or advisor’s employer, their principal, the corporation Weres. The conclusion that I have reached is that by recording the subject telephone conversations Weres was not a third party to such and invading the privacy of the telephone conversations had between Doyle and Evans ... The recording of the subject telephone conversations by Weres do not constitute interceptions within the meaning of s 6(1) of the Act. Accordingly, the provisions of s 6(1) of the Act do not prevent the tape recordings of the conversations being admitted in evidence on this trial.

Comment

There is no doubt that an important purpose of the Telecommunications (Interception) Act is to prohibit ‘eavesdroppers’ from listening to or recording telephone calls to which they are not a party. However, it is quite another thing to interpret the Act in such a way that its provisions should be read only to achieve this purpose. The Act does, albeit in an unsatisfactory way, attempt to address the question of what has become known as ‘participant monitoring’. Section 6(2) provides that it is not an ‘interception’ ‘where a person lawfully on premises to which a telecommunications service is provided by a carrier, by means of any apparatus or equipment that is part of the service, listens to or records a communication passing over the telecommunications system of which that service forms part that is being made to or from that service’. Everyone agrees that s 6(2) is very poorly drafted and difficult to apply to the competitive telecommunications environ-ment established by the Telecommun-ications Act 1997. But however bad the drafting, the courts must interpret the Act in such a way that s 6(2) has a role to play.

The problem with the approach of the Court in Green is that the plain words in s 6(1) have been interpreted so as to render s 6(2) almost irrelevant. If it is only possible for an ‘interception’ to take place if a communication is listened to or recorded by a stranger to the comm-unication, the only persons who could take advantage of s 6(2) are those who are ‘lawfully on the premises’ to which the relevant service is supplied but are not parties to the communication. Invitees are likely to be the only persons who fall into this category.

Furthermore, the decision in Green appears to be inconsistent with The Queen v Migliorini [1981] TASRp 8; (1981) 53 FLR 221. The facts of Migliorini were similar to those in Green, in that the intended recipient of the telephone calls recorded them (using apparatus provided by the police). But in Migliorini the Court reached the opposite conclusion and held that the conversations had been ‘intercepted’. In Green, Franklyn J discusses Migliorini in some detail, but does not distinguish the case. Although Franklyn J was not bound to follow Migliorini, the decision had some persuasive authority and it would be usual for a court to either expressly disagree with the result or explain why the reasoning is not applicable to the case at hand.

Migliorini highlights another purpose of the Act, namely the preservation of the technical integrity of the telecom-munications network. In Migliorini (which was decided when Telecom was the monopoly provider of telecommunications services) it was said that ‘the mischief contemplated by the Act is recording by means of an apparatus not supplied or controlled by the Telecommunications Commission (Telecom)’. Although the Australian Communications Authority (ACA) now plays the role of setting the technical standards for equipment to be connected to the public switched telephone network, the policy objective identified in Migliorini continues to be relevant. If the words of s 6(1) are given their ordinary meaning, it would be necessary for organisations to rely on the exception in s 6(2) in more situations and this would have the result of ensuring that only equipment provided as part of a telecommunications service (which, presumably, would satisfy the approp-riate technical standards) could be used to lawfully record communications. But by adopting a narrow interp-retation of s 6(1) (as the Court has in Green), this objective is not furthered by the Act.

The decision in Evans & Doyle was inevitable once the Court decided to follow Green and adopt the narrow interpretation of an ‘interception’.v

Patrick Gunning, Senior Associate, Mallesons Stephen Jaques, Sydney.