This article about recording strata meetings in NSW has been supplied by Sophia Jiang, Omega Legal.
In NSW, the Surveillance Devices Act 2007 (Act) prohibits the recording of a “private conversation” without the consent of all parties in the conversation.
What is a private conversation?
A “private conversation” is defined in the Act as words spoken by one person to another “in circumstances that may reasonably be taken to indicate that any of those persons desires the words to be listened to only” by themselves, or by a person with consent of all the parties to the conversation.
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Is a strata committee meeting a “private conversation”?
It is arguable whether a strata committee meeting can be considered a “private conversation”, given the attendees are generally limited to the elected strata committee members and the managing agent. On the other hand, given it is a meeting that is convened to discuss matters including financial and legal issues of the owners corporation which concerns all owners not just those present in the meeting, and that all owners or their nominees are free to attend a strata meeting may lack the necessary degree of “privacy” for it to be considered a private conversation. Further, a committee meeting may be held in a public area rather than in an enclosed office environment and that meeting minutes are generally produced to record the meeting which are in turn usually available for inspection.
On balance, one would err on the side of caution and treat a strata committee meeting as a private conversation, although it may very well be possible that depending on the particular circumstances, some strata committee meetings are not private conversations.
What if the private conversation is recorded to protect one’s legal interests?
Aside from certain operations involving law enforcement officers, there is one main exception to when a recording of a private conversation can be used, without the consent of all parties to the conversation.
The Act allows for a “private conversation” to be used in circumstances where a principal party to the conversation (being a person by whom words are spoken and can be the person using the recording device) consents to the recording, and where “it is reasonably necessary for the protection of the lawful interest of that party”.
Therefore if you need to rely on a recording of a strata committee meeting despite it was obtained improperly then you will need to demonstrate that your recording was necessary to protect your lawful interests. However what constitutes a valid exception to the rule will depend on the facts of each case, not simply because you want to use it against the person you are recording.
What to do if you intend to record a strata committee meeting:
It is best that you obtain the consent to record from everyone who attends the meeting. Further, you could propose a motion to have a new by-law that allows all meetings to be recorded to ensure the accuracy of meeting minutes. How do you change a bylaw? You will need a special majority resolution for proposing a new by-law or changing an existing by-law.
This post appears in Strata News #304.
Have a question about recording a strata meeting in NSW or something to add to the article? Leave a comment below.
Sophia Jiang
Omega Legal
E: [email protected]
P: 0402 990 108
Are you interested in more information about recording strata meetings or other strata information particular to NSW? Visit Strata Committee Concerns OR NSW Strata Legislation
Read next:
- NSW: Proxies and participation at general meetings
- NSW: Q&A Can we hold Electronic Meetings and have Electronic Voting?
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SD Act dictionary:
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.
So there is nothing private about a conversation at a SC meeting as it is intended to be heard by all present.
The issue is then s 7 of the SD Act.
35. It is clear that the nature of the communications which take place at the meetings are of a confidential nature and are private in the sense that they are “not public”.
ALLIANCE CRATON EXPLORER PTY LTD v QUASAR RESOURCES LTD [2010] SASC 266 (27 August 2010)