If a body corporate or individual lot owner wishes to install CCTV on the premises this can raise several questions surrounding what is being recorded and privacy issues.
What these cameras can legally record, who retains the footage and who has a right to view the footage are all important issues for bodies corporate that already have or are considering installing security cameras.
Body corporate legislation does not specifically provide for issues relating to CCTV surveillance in a body corporate.
However, if a body corporate or individual lot owner sets up CCTV surveillance on common property, it has a legislative obligation to do so reasonably and in compliance with legislative requirements.
Legal advice may be required before installation of security cameras, however, here are some facts to consider;
In Queensland, it is not illegal for someone to video you or your home, unless:
• they trespass on your land to do so
• they are videoing your private body parts or activities;
• they are recording a private conversation without your permission; or
• it amounts to stalking or domestic violence
Restrictions on CCTV Recordings
Recording private conversations:
In Queensland a person is not permitted to record private conversations that they are not involved in. if CCTV surveillance is likely to capture private conversations, the audio part of the recording system should be disabled. If possible, surveillance equipment should be positioned to avoid the conversation being lip readable.
Recording private body parts and activities:
If someone is in a private place or doing a private act in circumstances where they would reasonably expect privacy, it is a criminal offence to film them without their consent.
Private acts may include things like undressing, using the toilet, showering, bathing, or being intimate in a place where a person would reasonably expect privacy. It is also a criminal offence to film body parts without someone’s permission (this includes where underwear is covering their private body parts).
Common Property
When positioning CCTV cameras for surveillance purposes, the person positioning the cameras should consider the primary purpose of the surveillance. Security is the primary purpose of most surveillance, so cameras should be installed to maximise:
• coverage of the main entrances and exits to the area under surveillance;
• any special ‘target’ areas (e.g. walls that are often vandalised, or rooms containing valuables); and
• the opportunity to identify any offenders (e.g. to easily see their facial features, height, or vehicle registration).
Cameras should not be placed to maximise opportunities to ‘spy on’ residents or their guests, but should be positioned for legitimate, reasonable, purposes only.
Individual Lots
If an individual lot owner wishes to install CCTV cameras for their own purposes, they will need permission from the body corporate as this is an alteration of common property. Many schemes will also have specific by-laws concerning the installation of surveillance equipment.
It is important for lot owners to recognize potential difficulties in adhering to privacy laws and other legislation and must take great care when it comes to the installation of surveillance devices.
CCTV surveillance must not cause a nuisance
Lot owners have a responsibility to ensure that if they are allowed to install CCTV equipment on their property, it does not interfere with another lot owner’s use and enjoyment of their lot or common property.
If you believe cameras have been installed without approval or are causing a nuisance, you can make a complaint to the Body Corporate manager.
Disputing CCTV Equipment
If an owner or occupier in a scheme can demonstrate that a body corporate’s decision to install a camera in a place, or facing a particular location, is unreasonable, they may be able to dispute it.
Before doing so, it is a legislated requirement for the owner or occupier to make reasonable efforts to resolve the issue themselves with the body corporate before lodging an application with the Office of the Commissioner for Body Corporate and Community Management.
Accessing CCTV Footage
While Body Corporate legislation does not specifically make mention of video footage, adjudicators have held (provide link to decision) that the body corporate’s records include information stored or recorded on a computer such as CCTV footage.
An owner can access body corporate CCTV footage within seven days of making a written request and payment of the prescribed fee. Often the request to see CCTV footage is made following an accident or a confrontation, but no reason needs to be given with the request.
There is no need for a committee member to supervise the viewing. However, the committee should make sure the CCTV footage cannot be deleted by the viewer and should permanently retain a copy of the relevant CCTV footage so that there is no later argument about what was seen.
If there is a genuine concern about the request for the viewing, then legal advice should be sought.
Fake Cameras
Whilst there have been no court cases to-date in Australia, there is general agreement among legal professionals that creating a false sense of security would be considered “contributory negligence” were a situation to arise.
This means an individual or entity could hold a scheme partly responsible for damages they have suffered. There is also general agreement that criminals know how to identify fake cameras.
Costs
It is important for bodies corporate to consider the costs associated with the operation and maintenance of CCTV equipment as well as the cost of storing the resulting records.
The information contained in this article is general information only and not legal advice. Independent legal advice should be sought before you take any action or otherwise rely upon its contents in any way.
Author: Sam Aubrey
