This article discusses how a body corporate can address resident complaints about inappropriate pool attire, outlining legal avenues from public indecency laws to by-law enforcement and emphasising the importance of objective criteria and community consensus in setting dress standards.
Question: A lady in our complex wears an extremely brief bikini around the pool. She has been asked not to wear it, but she has refused to do so. Due to the diverse cultures and religions in our building, we’ve had resident complaints. What do we do?
Can the body corporate regulate swimwear in common areas? We have a lady in our complex who wears an extremely brief bikini around the pool. It hides nothing. Referring to by-law 18 inappropriate attire, we have asked her not to wear the bikini. She has refused. Other than going to the Commissioner’s Office, is there another way we could approach this? Due to the diverse cultures and religions represented in our building, we’ve had resident complaints.
Answer: The correct processes can lead to the formation and adoption of a community ‘norm’ of behaviour about pool attire.
Let’s face it, everyone has their own idea of what’s “appropriate” when it comes to swimwear, which can lead to some interesting (and occasionally awkward) situations in strata complexes.
In Queensland, the most certain rule is that a person in a public place, or who is so near a public place that they can be seen from the public place, must not wilfully expose their genitals unless they have a reasonable excuse; per Section 9 of the Summary Offences Act 2005. Doing so deliberately to offend or embarrass another person is an aggravating circumstance, which can escalate the fine from a maximum of $322.60 (2 penalty units) to $6,452 (40 penalty units) or up to a year in prison! The body corporate can prosecute a breach of Section 9 in the local Magistrates Court.
If the swimwear is not that revealing, then the next question is whether the wearing of it interferes unreasonably with the use and enjoyment of the common property or another lot in the scheme, by the offended owners or occupiers; see Section 167(1) of the Body Corporate and Community Management Act 1997. The ‘unreasonable interference’ does not have to be substantial, but it does need to be of such a nature or frequency so as to interfere unreasonably with another person of ‘ordinary sensitivity’; see Norbury v Hogan [2010] QCATA 27 which, despite being 15 years old, remains good law and is frequently cited by Adjudicators, such as in Proud’s Landing [2025] QBCCMCmr 115. The ‘unreasonable interference’ test is, therefore, an objective one and not based on the particular sensitivities of the person/s offended. A breach of Section 167(1) can be the subject of an Adjudication Application under Chapter 6 of the BCCM Act, typically to seek orders that the breach not be repeated.
If Section 167(1) does not go far enough, as far as this particular body corporate is concerned, then by-laws are usually the next port of call. By-laws are not allowed to be oppressive or unreasonable, having regard to the interests of all owners and occupiers of lots included in the scheme and the use of the common property for the scheme, per Section 180(7) of the BCCM Act. One way of complying with this limitation is for the by-law to refer to another standard or rule that is accepted in the community, preferably one where the community titles scheme is located. That is what occurred in Dewsbury Park [2003] QBCCMCmr 150 when the Adjudicator upheld a by-law that provided, in part, that the dress standard for the common property pool was the same as for Brisbane City Council Public Pools, from time to time, unless altered by the committee.
If local council dress standards are either unavailable or unhelpful, then the standards used by some clubs may assist as a starting point; for example, the Masters Swimming Australia – Swimwear Rules 2020 provide, amongst other things, that members swimwear must be ‘in good moral taste’ and ‘non-transparent’. The ‘non-transparent’ criteria are objective, while the ‘in good moral taste’ criteria are more difficult to determine.
Putting all of this together, a good by-law, having good chances of being upheld, would contain objective criteria, preferably founded in local community standards, and based on observable facts (i.e. all swimwear must be non-transparent, and, for example, thongs, micro-bikinis, mankinis and similar attire are not permitted), coupled with a (severable!) additional criteria that, in addition to, and without derogation from, any of the other criteria, the swimwear, or the wearing of it, must not be of a nature which is likely to offend a person of ordinary sensibilities.
If the by-law is breached, orders can be sought from a Departmental Adjudicator, or the offence of breaching the by-law can be prosecuted directly in the local Magistrates Court.
The issue of cultural or religious discrimination is beyond the scope of this short answer but is worthwhile digging into.
However, before taking any action, it is wise first to ensure that the behaviour is outside the community’s expectations and not just the expectations of a small section of the community. To ‘kill two birds with one stone’, the body corporate might first commence consultation about a new pool by-law, which addresses pool attire more comprehensively. At the end of meaningful consultation, a draft of the by-law could be released for further comment and then, after amendment, put to the vote to be adopted. The strength of the vote adopting the by-law indicates how well-accepted the new standard is. When enforcing the new by-law, warning notices could be given during a ‘phase in’ period, rather than jumping straight to the body corporate issuing a notice of contravention of the by-law.
Following these sorts of processes can often lead to the formation and adoption of a community ‘norm’ of behaviour in relation to pool attire, which is both useful in and of itself and which some legal theorists will say is an essential pre-requisite to meaningful enforcement of the by-law that reflects it.
Michael Kleinschmidt and Evelyn Hearn
Bugden Allen
E: [email protected]
P: 07 5406 1280
© Bugden Allen Group Legal Pty Ltd. All information contained in this article is of a general nature only and you should obtain specific legal advice in relation to any property-related affairs on any of the topics mentioned.
This post appears in the July 2025 edition of The QLD Strata Magazine.
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