Introduction

Recording strata meetings in New South Wales involves specific legal considerations under the Surveillance Devices Act 2007 (NSW). As strata committee meetings and general meetings are usually private conversations, the Act generally requires consent from all parties before a recording can be made. Understanding the rules around consent, particularly the complex area of implied consent, is necessary for owners corporations, strata committees, and individual lot owners participating in these meetings.

Uncertainty around what constitutes valid implied consent can lead to disputes and potential breaches of the Surveillance Devices Act 2007 (NSW). This article provides key information on the legal requirements to record a strata meeting, focusing on the distinction between express and implied consent, the necessity of awareness for consent to be valid, and best practices for strata managers and owners corporations to follow. Adhering to these guidelines helps ensure compliance and fosters clearer communication within the strata community.

Understanding The Law on Recording Strata Meetings in NSW

The Surveillance Devices Act 2007 (NSW)

In New South Wales (NSW), the recording of conversations is primarily regulated by the Surveillance Devices Act 2007 (NSW). This legislation governs various surveillance technologies, including listening devices commonly used to record audio. The Act aims to balance the needs of law enforcement with protecting individual privacy regarding conversations.

Section 7 of the Surveillance Devices Act 2007 (NSW) establishes a general prohibition against knowingly using a listening device to record a private conversation. This applies whether the person recording is a party to the conversation.

Key points about the Act include:

• A “listening device” includes devices like smartphones that can record audio
• Breaching this prohibition can lead to significant penalties
• These penalties may include fines and imprisonment

Determining If Strata Meetings Are Private Conversations 

The Surveillance Devices Act 2007 (NSW) restrictions apply specifically to “private conversations.” “The Act defines a private conversation as one where the circumstances suggest the participants intend the words spoken to be heard only by those present, or by others with the consent of all involved parties. It excludes situations where parties should reasonably expect to be overheard.

Strata meetings, including Annual General Meetings (AGMs), Extraordinary General Meetings (EGMs), and strata committee meetings, are generally considered private conversations under the Act. Although owners and committee members have the right to attend, these meetings are not open to the public.

Participants typically discuss matters such as:

• Finances
• Disputes
• Property management

These discussions come with an expectation that the full conversation, beyond formal decisions recorded in minutes, remains confidential among attendees. Therefore, the rules regarding consent for recording under the Surveillance Devices Act 2007 (NSW) usually apply to strata meetings in NSW.

What is Implied Consent for Strata Meeting Recordings?

Discuss Implied Consent Versus Express Consent

Under the Surveillance Devices Act 2007 (NSW), consent is crucial for lawfully recording a private conversation, such as a strata meeting. This consent can take two forms: express or implied.

Express consent is a direct and clear agreement given either verbally or in writing. It leaves no room for doubt about a person’s willingness to be recorded. In contrast, implied consent is not explicitly stated but is inferred from a person’s actions or the person’s circumstances.

Here’s a comparison based upon the Surveillance Devices Act 2007 (NSW):

• Express Consent:
  • Nature: Direct, explicit agreement (spoken or written)
  • Clarity: High, unambiguous
  • Proof: Easier to demonstrate (e.g., signed form, recorded verbal agreement)
  • Legal Risk: Low
  • Recommendation: The preferred and safest approach
• Implied Consent:
  • Nature: Inferred from conduct or actions within a specific context
  • Clarity: Lower, potentially ambiguous and dependent on the situation
  • Proof: More difficult; requires showing awareness, opportunity to object, and continued participation
  • Legal Risk: High, due to uncertainty and potential for challenge
  • Recommendation: Generally discouraged due to the risks involved

Examine If Implied Consent Can Arise in Strata Meetings

Implied consent is judged objectively: would a reasonable person understand that recording was occurring and that continued participation indicated agreement? Several scenarios in a strata meeting might lead to an argument for implied consent:

• Clear Announcement: The chairperson announces at the start, “This meeting is being recorded for minute-taking purposes. Please state any objections now.” If attendees continue participating without objecting after this clear statement, their consent might be implied.
• Visible Recording Device: A recording device, like a microphone or phone actively recording, is placed openly and obviously on the table. If attendees see the device, understand its purpose, and continue the meeting without objection, implied consent could potentially be inferred.
• Agenda Notification: The meeting agenda, properly circulated beforehand as required by the Strata Schemes Management Act 2015 (NSW), explicitly states that the meeting will be recorded. Attending and participating after receiving this notice could be argued as giving implied consent.
• Clear Signage: A prominent sign stating the meeting is being recorded is displayed. An attendee seeing the sign and proceeding to participate without objection might be considered to be implying consent.

Understand the Critical Role of Awareness

For implied consent to be legally valid under the Surveillance Devices Act 2007 (NSW), the individual must have genuinely known that the recording was taking place. Consent cannot be given unknowingly or “without realising it.”

Awareness is the absolute foundation upon which implied consent rests. This principle was highlighted in Brown v Etna Developments Pty Ltd [2025] NSWSC 218. The court found implied consent existed because the person knew they were being recorded – it was obvious, and they were told why. They accepted being filmed as a condition of continuing the conversation and did not object.

Therefore, simply attending a strata meeting is not enough to imply consent. If a recording device is hidden, or if announcements are unclear or missed, there is no reasonable opportunity for awareness. Without awareness and a genuine chance to object, any argument for implied consent fails, making the recording potentially unlawful.

What Are the Key Legal Insights on Implied Consent?

Highlight Lessons from Brown v Etna Developments Pty Ltd [2025] NSWSC 218

The NSW Supreme Court case of Brown v Etna Developments Pty Ltd [2025] NSWSC 218 provides important insights into how implied consent can be established under the Surveillance Devices Act 2007 (NSW). In this matter, a conversation was being video recorded using a mobile phone, and one participant even stated it was being recorded.

Another participant, who later objected to the recording being used as evidence, did not object then and continued the conversation. The Court found that this person had given implied consent to the recording.

Key factors leading to this decision were:

• Knowledge: The person knew the conversation was being recorded, as they could see the phone and were told about the recording.
• Acceptance: The person accepted that continuing the conversation meant being filmed.
• Lack of Objection: At no point did the person object to being filmed as a condition for continuing the discussion.

Because of these factors, the Court ruled that the recording was made with implied consent and was admissible as evidence, not breaching section 7 of the Surveillance Devices Act 2007 (NSW).

Define the Meeting’s Power to Prohibit

Even if recording a strata meeting might be lawful under the Surveillance Devices Act 2007 (NSW), for instance, if consent is arguably present, the meeting retains the power to regulate its proceedings and prohibit recording. The chairperson is responsible for maintaining order and ensuring the meeting is conducted correctly.

If someone announces an intention to record the meeting and objections are raised, the chairperson has the authority to:

• Direct the person to stop recording.
• Ask the person to leave the meeting if they refuse to comply.
• Adjourn the meeting.

Furthermore, the meeting attendees collectively have the inherent power to govern the meeting is run. If there is disagreement about recording, the matter can be put to a vote. A majority decision by those entitled to vote at the strata meeting can preclude anyone from recording the proceedings, even if consent might otherwise be implied or expressed under the surveillance legislation, as supported by Alliance Craton Explorer Pty Ltd v Quasar Resources Ltd [2010] SASC 266.

What are the Risks of Recording Without Clear Consent?

Outline Possible Legal Penalties 

Recording a private conversation, such as a strata meeting, without the required consent breaches the Surveillance Devices Act 2007 (NSW). Section 7(1) of the Act outlines significant penalties for unlawful recording by a party to the conversation.

These penalties can include:

• Fines: Individuals may face fines up to $11,000 (or 100 penalty units). Corporations face substantially higher fines, potentially up to $55,000.
• Imprisonment: The maximum term of imprisonment for breaching this section is 5 years.

Furthermore, separate offences exist under sections 11 and 12 of the Surveillance Devices Act 2007 (NSW) for knowingly communicating, publishing, or possessing an unlawfully obtained recording, carrying similar penalties. These legal ramifications of obtaining proper consent before recording any strata meeting.

Challenges in Proving Implied Consent

Relying on implied consent rather than express agreement presents considerable challenges and legal risks. If a recording is contested, the burden falls on the person who made the recording to prove that valid implied consent was obtained from every principal party to the conversation.

Proving implied consent involves demonstrating several key elements, which can be difficult:

• Awareness: It must be shown that all participants were genuinely aware that the recording was taking place, whether devices are inconspicuous or announcements are unclear.
• Opportunity to Object: Evidence is needed that everyone had a fair and reasonable chance to object to being recorded.
• Continued Participation: It must be established that participants continued the conversation without objection after becoming aware of the recording.

The ambiguity surrounding these elements makes proving implied consent difficult. Failure to establish valid consent means the recording is unlawful and generally inadmissible as evidence in legal proceedings, such as those before the NSW Civil and Administrative Tribunal (NCAT) or courts.

Impact on Trust Within the Strata Community

Beyond the legal penalties and evidentiary issues, recording strata meetings without clear, unambiguous consent can significantly harm relationships within the strata scheme. Secretive or unclear recording practices often lead to suspicion and mistrust among lot owners and strata committee members.

This erosion of trust can have several negative consequences for the strata community:

• Discouraged Participation: Owners and committee members hesitate to speak openly and honestly during meetings if they fear their words are being recorded without proper consent or for unclear purposes.
• Increased Conflict: Disputes over whether consent was genuinely given or how recordings are used can create further conflict and division within the stratum.
• Damaged Relationships: The feeling of being recorded without explicit agreement can damage neighbourly relations and undermine the collaborative functioning of the owners corporation and its strata committee.

What Are the Best Practices for Recording Strata Meetings?

Prioritise Express Consent

The most secure and transparent method for lawfully recording a strata meeting in NSW is to obtain express consent from all participants. Express consent involves a clear, direct agreement, given either verbally or in writing, leaving no doubt about an individual’s willingness.

Seeking express consent significantly reduces the legal risks associated with recording private conversations, unlike relying on implied consent, which can be ambiguous and difficult to prove. Best practice favours this explicit approach to ensure compliance with the Surveillance Devices Act 2007 (NSW) and maintain trust within the strata community.

To obtain express consent effectively, consider these steps:

• Include recording as an agenda item for the strata meeting
• Formally move a motion at the start of the meeting to permit recording for a specified purpose (e.g., assisting with minute-taking ask all attendees if they consent or if there are any objections
• Record the resolution, including any noted objections, in the official meeting minutes

Implement Clear Communication and Announcements

Clear communication is vital when intending to record any strata meeting, whether it’s a general meeting or a strata committee meeting. If you plan to record, you should clearly announce this intention at the very beginning of the meeting.

This announcement should include:

• A statement that the meeting will be recorded using a listening device (e.g., audio recording)
• The specific purpose of the recording (e.g., “to assist the Secretary “in preparing accurate minutes)
• A direct request for objections from attendees

Allow a reasonable opportunity for participants to voice objections. Documenting the announcement, the stated purpose, and the response (consent given, objections noted) in the meeting minutes provides crucial evidence should the lawfulness of the recording be questioned later.

Use By laws to Clarify Recording Rules

An owners corporation can consider creating a specific by-law to establish clear rules regarding the record of its meetings. This requires a special resolution vote by the owners corporation under the Strata Schemes Management Act 2015 (NSW).

Such a by-law could outline:

• Whether recordings are permitted
• Under the specific circumstances under which recordings can occur
• Who is authorised to make recordings (e.g., the strata committee secretary or strata manager)
• The required procedures for notification and consent
• Protocols for the storage, access, and eventual destruction of recordings

However, it’s essential to understand the limitations. A by-law created by an owners corporation cannot override the requirements of the Surveillance Devices Act 2007 (NSW). It cannot compel an individual to consent to being recorded if doing so would breach the Act, nor can it automatically establish the consent needed under the surveillance legislation. 

Guide to Meeting Attendees Objecting to Record

If you attend a strata meeting and do not wish to be recorded. It is important to assert this right clearly and promptly.

Here’s what you can do if an order is announced or discovered:

• State Your Objection Clearly: Voice your objection immediately so it can be heard and noted. Request that your objection be formally recorded in the meeting minutes.
• Understand Potential Outcomes: If you object, the chairperson is entitled to direct the person to stop recording. The matter could also be put to a vote by the meeting attendees on whether to allow the recording to proceed.
• Consider Leaving: If the recording continues despite your objection and against the chairperson’s direction or solution, recording your participation may be unlawful under the Surveillance Devices Act 2007 (NSW). In such circumstances, you should leave the meeting to avoid being recorded further. The chairperson may also ask the person recording to leave or adjourn the meeting if they refuse to comply.

Conclusion

Recording strata meetings in NSW involves the Surveillance Devices Act 2007 (NSW), with consent being crucial as these are typically private conversations. Given the legal risks and difficulties in proving implied consent, seeking express agreement from all parties is the most reliable approach for an owners corporation or strata committee.

To navigate the complexities of consent and recording requirements for your strata meeting, seek specialised legal guidance from PBL Law Group. Contact our experienced strata law team today for trusted advice tailored to your owners corporation’s specific circumstances and ensure compliance.

Frequently Asked Questions (FAQ)