We suspect that strata manager’s would, on a regular basis, field questions about CCTV cameras and whether a body corporate has a right to install them or on the other hand, challenging an owner installing its own.
It is a sensitive issue as often it is balanced with privacy concerns and usually comes on foot of certain events transpiring within the Scheme e.g. thief, nuisance, parties etc. Accordingly, we have prepared this newsletter to provide a quick rundown of the laws surrounding CCTV in bodies corporate in Queensland.
Both bodies corporate and owners are at liberty to install CCTV cameras either within their lot or on common property, however on the following strict conditions.
For a body corporate it would likely be deemed an improvement to common property. Therefore, and pending on the Scheme size, the Committee would need to give consideration to the expenditure and level of resolution required to approve same.
The second important consideration is who is going to monitor and keep the recordings of the CCTV footage. If there is a Caretaker at the Scheme, however no existing CCTV then we doubt there would be a duty within the Caretaking Agreement to obligate the Caretaker to monitor and maintain records. Further, there are numerous adjudicators decisions which hold that CCTV footage is deemed body corporate records and accordingly, if installed, there is an obligation on the body corporate to maintain the records and provide access to those records by any valid requesting interested person. Consequently, the body corporate would need to either reach an agreement with the Caretaker to vary the Caretaking Agreement to include such a duty or see whether the strata manager would be in a position to hold same. In furtherance, the Body Corporate must have a facility available to an interested person to access the footage, meaning a PC or similar device. It is not enough to have the recordings stored on a hard drive and saved away in the cloud, they must be able to be accessed.
For owners or occupiers, it is a little bit different as it will depend on where they wish to install the camera e.g. on the exterior of the building, which, if a building format plan, would be considered common property or within an occupier’s window. The location of the camera will determine whether body corporate/committee approval is required.
Location of the Camera
While CCTV is permitted within bodies corporate it is only permitted where the cameras do not:
- Film a private space, individual doing a private act e.g. not in place where an individual would reasonably expect privacy – a bathroom, bedroom etc.
- Record private conversations that they are not involved in. If a camera is positioned in a way where it is likely to capture a private conversation that the person is not involved in e.g. into someone’s backyard or balcony, the audio should be turned off. This also extends to cameras being positioned in a way to avoid lip-reading.
- Finally, CCTV cameras are not permitted to cause a nuisance. Yes, we hear you, but nuisance is such a broad issue however, it is well established that a person (or their camera) will cause a nuisance if it is unreasonably interfering with another person’s use or enjoyment of their lot or common property. Evidence is the key!
If any of the above are contravened by an occupier or a body corporate there are serious ramifications including however not limited to, contraventions of the Criminal Code, Invasion of Privacy Act and could wind up with a complaint to the QLD police services.
Rule of Thumb
Our rule of thumb when it comes to CCTV cameras is as follows:
- Make sure the body corporate or occupier has the required approval to install;
- For a body corporate, prior to seeking approval and installing ensure there is a proper and feasible process for storing and monitoring the recordings;
- Make sure there is a by-law regulating the use of the cameras;
- Place the cameras in locations where they cannot be tampered with;
- Make sure the cameras are not directed to any private locations within the Scheme e.g. focus them to the entrances and exits of the Scheme, the basement or garage, mailbox, or places where the Scheme often has incidents or crimes occur; and
- For bodies corporate to pass a committee resolution when it comes to installation which goes to why the cameras are being installed, where they are being directed to and why. As always, it comes down to a question of reasonability. While there may not be an occupier who challenges the cameras now, there may be in the future, therefore, if the committee goes to passing a resolution about the reasons and grounds for the cameras, it shows the committee has acted reasonably and the body corporate can use that minute in the future should it need to do so.