CCTV IN A STRATA COMMUNITY: THE BLURRED LINE BETWEEN SECURITY AND PRIVACY

There are many security measures that strata communities can take, and one of the most popular is Closed-Circuit Television (CCTV).

There are many factors to consider if a body corporate intends to install security devices, such as CCTV, in strata buildings. The concerns most commonly raised are:

  • The installation of a CCTV device is an invasion of privacy.
  • An occupier installs a CCTV camera without body corporate approval.
  • Someone wants access to the CCTV footage.

I explore these in more detail.

Invasion of privacy

The starting point for what a body corporate can and cannot do is the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) and the BCCM regulation module that applies to the scheme.  But that isn’t always the finishing point.  A body corporate is also subject to many other laws.

The BCCM regulation modules empower a body corporate to make improvements to its common property, and the installation of CCTV equipment would constitute an improvement.  But that does not mean the power can be exercised without restraint.

Section 227A(1) of the Criminal Code 1899 (Qld) provides that:

A person who observes or visually records another person, in circumstances where a reasonable adult would expect to be afforded privacy—

  • without the other person’s consent; and
  • when the other person—
  • is in a private place; or
  • is engaging in a private act and the observation or visual recording is made for the purpose of observing or visually recording a private act;

commits a misdemeanour.

Penalty—

Maximum penalty—3 years imprisonment.

Example—

1 A person changing in a communal change room at a swimming pool may expect to be observed by another person who is also changing in the room but may not expect to be visually recorded.

2 A person who needs help to dress or use a toilet may expect to be observed by the person giving the help but may not expect to be observed by another person.

I won’t be giving a detailed analysis of where CCTV cameras can be positioned so as to avoid exposure under the Criminal Code.  Each building is different.  But I will illustrate some of the difficulties that can be encountered.

A unit, townhouse, etc, can be a private place.  But that isn’t to say that a CCTV camera positioned in such a way as to have an incidental view of an open-air, unfenced front garden forming part of a lot would contravene section 227A(1).  But a CCTV camera positioned at height to view down into a fenced, private courtyard area would, in my view, be intruding in a private place.  Similarly, justifiable objections will be raised if a CCTV camera has been positioned towards the door of a lot to monitor its coming and goings.

Conventional thinking about common property would have most consider that it is not a private place because it is accessible to everyone.  But the example given above shows that this conventional thinking can be perilous.  If there is a common property change room, any resident or guest using it would absolutely expect privacy.  It doesn’t matter that others could be using it at the same time. 

CCTV cameras are an increasingly common feature of strata developments.  Many object to them on privacy grounds because they simply don’t want to be monitored.  But a key feature of the test is whether the CCTV is capturing footage in circumstances where a reasonable adult would expect to be afforded privacy.  That expectation could not be reasonably held in, for example, a common reception or foyer.

An occupier installs the CCTV camera without body corporate approval

Why does the occupier need body corporate approval?

If they are installing the CCTV camera on common property, then they need body corporate approval because they are making an improvement to the common property and the BCCM regulation module requires it in those circumstances.

But the BCCMA and the BCCM regulation modules say nothing about improvements to a lot.  So, an owner or occupier will only need body corporate approval to establish CCTV equipment wholly within their lot if the by-laws require it. 

Without an empowering by-law, an owner or occupier may use their lot so long as it does not cause a nuisance or hazard, or interfere unreasonably with the use and enjoyment of another lot or the common property – see section 167 of the BCCMA.

A neighbour who establishes a CCTV camera wholly upon their lot, but then positions it to record what is happening on another lot may very well contravene section 167 of the BCCMA.  If it is positioned towards a private place in a neighbouring lot, then spare the time and resources of the Commissioner’s Office and consider contacting the Queensland Police Service instead.

Access to the CCTV footage

Herein lies the double-edged sword of establishing and maintaining CCTV equipment on the common property. 

Adjudicators have consistently held that CCTV footage captured and stored by electronic means falls within the definition of a body corporate record: see Plantation at Rainbow Accommodation Scheme [2020] QBCCMCmr 533 at [34], particularly footnote 14. 

If the body corporate owns the equipment, then it will not matter that the caretaker / building manager is the only one permitted to use it – the footage remains a body corporate record.

Going one step even further, in The Astor Centre [2014] QBCCMCmr 345 an adjudicator determined that an audio recording taken of a body corporate meeting is a body corporate record even though the recording device was owned and operated by a body corporate manager. 

Interested persons, which includes lot owners, are entitled to inspect body corporate records so long as the requirements of section 205 of the BCCMA are met. 

Sometimes lot owners will not be interested in trawling through hours, if not days, of CCTV footage.  They may be looking for the footage from a very particular time and date, so will ask for a copy of that.  The BCCMA sets a fee of $0.65 per page supplied.  That fee isn’t practicable when a copy of electronic footage is being requested.  Adjudicators have instead taken a pragmatic approach of requiring the lot owner to supply a digital storage device to hold the record, and even allowing the body corporate to request that its reasonable costs of downloading the footage be paid.

Closing remarks

Security equipment, such as CCTV cameras, is often established with the best intentions: to deter crime, to monitor appropriate use of common property, and to give residents a sense of security.  Sometimes, CCTV cameras are put in place to provide evidence of by-law breaches in the hopes of finally catching that persistent offender “in the act”.

But the means does not always justify the end.  Careful thought needs to be given to where these devices are positioned and to the expectations of ordinary occupiers. 

By Jason Carlson, Partner

 This information is intended to provide a general summary only and should not be relied on as a substitute for legal advice.