This article about recording strata meetings NSW has been supplied by Adrian Mueller, J. S. Mueller & Co Lawyers.
It is becoming increasingly common for strata meetings to be recorded. But is it legal to do so? The answer might surprise you.
An Increasingly Common Scenario
Have you enjoyed this article? If you would like to be kept informed about strata matters, click here to subscribe to our very popular weekly newsletter. You will not be disappointed.
At the outset of a strata meeting, a person present may occasionally announce that they intend to record the meeting. Sometimes that announcement will not cause any controversy. But often it does. Indeed, often the announcement is greeted with outright hostility.
So what happens when a person announces that he or she intends to record a strata meeting and some of those present object to the meeting being recorded?
The Law About Recording Strata Meetings
A strata meeting is a private meeting. This is because members of the public are not entitled to attend a strata meeting. And normally the discussions which take place at a strata meeting are private conversations. In NSW, the recording of private conversations is regulated by the Surveillance Devices Act 2007. Under that Act, a person must not knowingly use a listening device to record a private conversation to which the person is or is not a party.
There are limited exceptions to this prohibition. For example, if all of the principal parties to the private conversation consent, expressly or impliedly, to the listening device being used to record the conversation, the conversation may be recorded. So if a person uses a listening device, such as a smartphone, to record the discussion during a strata meeting without the consent of the participants in that discussion, the person will normally be breaking the law.
The chairperson of a strata meeting plays an important role in controlling the affairs of the meeting. Indeed the chairperson is the person who has control of the meeting and is responsible for preserving order and taking care that the meeting is conducted in a proper manner and according to law. For that reason, if a person at a strata meeting announces that he or she intends to record the meeting, the chairperson is entitled to direct the person to refrain from recording the meeting.
If the person refuses, the chairperson may ask the person to leave or alternatively adjourn the meeting: see Alliance Craton Explorer Pty Ltd -v- Quasar Resources Ltd  SASC 266.
It is generally accepted that a meeting itself should be governed and regulated by those present themselves with the assistance of the chairperson. This means that a strata meeting has the inherent power to regulate its own affairs subject to the applicable legislation and rules. This includes power to regulate the manner in which meetings are conducted such as whether or not the proceedings of a meeting can be recorded. Therefore, if there is disagreement among those present at a strata meeting as to whether or not the meeting should be recorded, that disagreement can be resolved by a vote of those entitled to vote at the meeting. And in that case, it is possible for a meeting to make a majority ruling to preclude a person from taking a recording of the meeting even if it would be lawful to record the meeting under the surveillance devices legislation: see Alliance Craton Explorer Pty Ltd –v- Quasar Resources Ltd  SASC 266.
By-Laws for Recording Strata Meetings
The rules regarding the right of a person to record a strata meeting are not well understood and can cause controversy. Often a person who intends to record a strata meeting insists that he or she has a right to do so after being told by the chairperson or others present at the meeting that a recording cannot be taken.
Perhaps the best way to overcome this problem is for an owners corporation to make a by-law clearly outlining the rules that it will apply concerning recording strata meetings. In that way there can be no doubt about what rules apply.
The right of a person to record a strata meeting is not unfettered. A strata meeting generally cannot be recorded without the express or implied consent of the participants at the meeting by virtue of the surveillance devices legislation. Even if the surveillance devices legislation does not operate to prohibit a person from recording a strata meeting, the chairperson may make a ruling, or the majority of those present at the meeting itself have the right to vote, to prohibit a recording of the meeting being taken.
If a person insists on recording a meeting after being told that he or she is not permitted to do so, the chairperson may ask that person to leave the meeting or alternatively adjourn the meeting.
This article first appeared on the J. S. Mueller & Co Lawyers website.
Disclaimer: The information contained in this newsletter is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
Are you interested in more information about recording strata meetings or other strata information particular to NSW? Visit our FactSheet: Strata Committee Concerns OR FactSheet: Strata Legislation NSW