Should Strata Committee Meetings Be Recorded?

One year ago, on 24 March 2020, the share price for Zoom Video Communications, Inc closed at US$135.18. On 19 October 2020, the price peaked at $568.34. I played a small part in that when I subscribed to its Pro licence a few days after our office closed in response to the developing COVID-19 pandemic in late March 2020.

There was an obvious need for remote conferencing with my colleagues and clients. At the height of the restrictions imposed in response to the pandemic, no more than two people could ‘gather’. Every strata manager and committee I worked with quickly shifted to holding meetings electronically.

While these restrictions have been reduced, electronic meetings have now become the norm. Across Australia, legislation was introduced to relax the usual rules for how meetings could be called and held to enable electronic attendance and participation.

But electronic meetings have raised new challenges. Should these meetings be recorded, and what happens with that recording?

The Legislation Has Adapted

The drafters of strata legislation were accustomed to important meetings being held in person. Most legislation requires the strata community to introduce a by-law or decide in general meeting to permit electronic meetings, rather than making it the norm. Could those drafters of that legislation have anticipated the rise of video conferencing in the near future?

In 1993, Sylvester Stallone starred in the blockbuster movie ‘Demolition Man’. Stallone’s character was punished for causing collateral damage while trying to take down a criminal mastermind by being cryogenically frozen in 1996. He was thawed to reawaken in 2032. The movie eventually showed a scene of a video conference being held in the distant future. It must have blown the 90’s audience away to see an important board meeting being held in which all participants were shown on a video screen.

Perhaps the drafters of strata legislation were not avid Stallone fans, or maybe they underestimated the creative industry’s ability to predict the future?

The strata industry has settled into this new way of holding meetings. However, the legislation still carries with it the hallmarks of the expectation that all meetings would be held in person.

To Record or Not to Record

In past decades, committee meetings involved the members all sitting together in the same room and greeting each other with a friendly handshake. Now, the handshake has been replaced with confused looks as attendees attempt to figure out why they are muted.

Electronic meetings offer a more convenient way of working around the busy schedules of committee members. Videoconferencing software programs allow meetings to be recorded in their entirety with the simple press of a button. With that ease, many committees and strata managers have started to record these meetings to improve the quality of the meeting minutes.

However, recording meetings may result in committee members “censoring” themselves during the debate on motions. Understandably, if attendees know that their words will be recorded, they may be more careful with how they express their views. This can limit the potential for frank and candid discussion amongst committee members, which may not be in the best interests of the strata community in the long term.

Who Owns the Recording?

Whether the recording of a committee meeting is a body corporate record is central to determining who owns, and therefore who can access, that recording. In Queensland, the recording is a body corporate record. This can apply even if the strata manager takes the recording for their own purposes.¹

Who May Access a Recording?

Lot owners and other interested people may be entitled to inspect or receive a copy of a recording of a meeting, subject to the usual exceptions as to why a record may be withheld, including that it contains defamatory material or privileged information (legal advice, or even a discussion of such advice that discloses its content).

In Queensland, the regulation modules outline the circumstances in which a committee can decide that a non-voting committee member or a non-member (lot owner) cannot be present for discussion on certain issues at a committee meeting, such as during discussion on disputes, caretaking agreements, by-law breaches and legal proceedings.

Any part of the recording that deals with those sensitive matters may be privileged if legal advice was discussed. But if there was no privileged information discussed, the person who would otherwise have to leave the meeting at that point in time may be entitled to the recording of the discussion.

Does a Meeting Have to be Recorded?

Unless self-imposed, there is no requirement to record a meeting. Some committees may prefer not to have their meetings recorded to foster frank and open discussion and debate. But the other side of the coin is that some lot owners want meetings recorded in the interests of transparency and accessibility.

In Queensland, an adjudicator has also found that a committee could refuse to allow anyone in attendance to record the meeting as well.²

Section 43 of the Invasion of Privacy Act 1971 (Qld) provides that it is an offence for a person to use a listening device to record a private conversation, but this rule does not apply to a person who is a party to the private conversation. Similar rules apply in Victoria³ and NSW⁴ (where the parties to the private conversation must consent to its recording).

Some confuse this provision by arguing that it entitles them to record a meeting even if the committee decides to prohibit recordings. A committee or general meeting is not a private conversation, so the provision simply does not apply.⁵

Recommendations

If a strata manager or committee intends to record a committee or general meeting for the purpose of using that recording to assist with the preparation of meeting minutes, then they should: 

• Ensure that the participants are aware that the meeting will be recorded; and 

• Only record the parts of the meeting where the motion is read out, what is resolved by the committee/body corporate, and the number of votes for and against the motion.

By not recording those parts of the meeting involving discussion and debate, committee members can take the comfort of having frank and candid discussions without fear of having every word subject to intense scrutiny. It also removes the risk of others getting access to the discussion of sensitive matters that they otherwise may not be entitled to hear if they attended the meeting.

About the author

Jason Carlson is a partner of Grace Lawyers in Queensland. He is also a director of Strata Community Association (Qld) and has been a member of its legislation committee for many years.

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

1 The Astor Centre [2014] QBCCMCmr 345 at [21].
2 Coomera on the Park [2013] QBCCMCmr 204.
3 Section 6 of the Surveillance Devices Act 1999 (VIC).
4 Section 7 of the Surveillance Devices Act 2007 (NSW).
5 Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266 at paragraphs 31 and 32, considering different but similarly worded legislation.