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[Jimmy-T]

The discussion of invasions of privacy, imagined or otherwise, started on another topic HERE.  But I’ve decided to hive off the the issue of invasion of privacy to a separate section which I will kick off with this letter from strata lawyer Suzie Broome at our sponsors Makinson & d’Apice.

Dear Jimmy,

 The general public’s understanding about the protection of privacy is, frankly, somewhat overdone – principally because of a misunderstanding as to what is private information and what is to protected under the Privacy Act and, generally, what is intended to be protected.

 There are two pieces of legislation designed to protect private information: the Privacy Act 1998 (CTH) and the Privacy and Personal Information Act 1988 (NSW). 

 You can generally forget about the NSW legislation – it refers to public authorities and agencies such as Government departments, Local Government departments, hospitals etc. etc.

The Commonwealth Privacy Act has much wider implication and includes within its ambit “organisations” which are defined to include a body corporate.  On that basis an Owners Corporation is an organisation that is bound by the Commonwealth Privacy Act. 

Having said that the aim of the Act is to protect the National Privacy Principles. 

 Broadly speaking, those principles protect the way in which and the purposes for which, and the disclosure of, personal information including sensitive information.  Personal information has a very wide definition as being information or an opinion about an individual whose identity is apparent or can be reasonably ascertained from the information or opinion.  I think that the address of a person is probably personal information.

Sensitive information is much more strictly defined as meaning information about an individual’s racial origin, political opinion, member of political association, religious beliefs etc. etc.  An address of an individual is not sensitive information.

It seems to us that what the Privacy Act restricts in relation to personal information constituted by an address of an individual, is an obligation on the organisation to take reasonable steps to protect that personal information from misuse and loss from unauthorised access, modification or disclosure.

So, it would be a breach of the National Privacy Principles for a strata managing agent to provide a direct marketing organisation with a list of names and addresses taken from the strata roll.  That would clearly be a misuse of information and probably also unauthorised. 

However, section 108 of the Strata Schemes Management Act 1996 requires that an Owners Corporation (which would be the organisation in question) must make available for inspection by an owner, mortgagee, or covenant chargee of a lot, or a person authorised by any of them, upon their request, the strata roll.  The obligation on the Owners Corporation carries through to its agent, the strata managing agent. 

The strata roll will contain the lot numbers, the names of the owner or owners and address for service.  That address, of course, may be either the lot itself or, in the case of tenanted lots, is usually the address of the real estate managing agency. 

So, in summary, it cannot be an offence for an owner to access the strata roll and obtain the names and addresses of all of the owners of lots in the strata schemes.  Similarly, it cannot be an offence for owners in a strata scheme to communicate directly with other owners about matters that concern, or should concern, other owners in the strata scheme.

Obviously, if the content of the communication itself is defamatory, that is another matter.  That may be actionable under different laws.  But the simple act of obtaining names and addresses of owners of lots in a strata scheme and communicating directly with those owners is not, in our opinion, a breach of the privacy legislation or any other law of which we are aware. 

Yours sincerely,

 

Suzie Broome

Partner

Makinson & d’Apice

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