Legislation cited: Australian Capital Territory (Self-Government) Act 1988 (Cth) s 28

Privacy Act 1988 (Cth) ss 3, 6, 15, Australian Privacy Principles

Unit Titles (Management) Act 2011 ss 113, 114, 115, 116, 119, 120, 121

Subordinate

Legislation cited: Unit Titles (Management) (Fees) Determination 2021 DI2021-84

Cases cited: Neal v The Queen [1982] HCA 55

1. The first respondent is to give the applicant access to the Corporate Register in accordance with section 119 of the Unit Titles (Management) Act 2011 forthwith.

If the applicant wishes to pursue the issue of the first respondent's past failure to provide access to the Corporate Register as required by law, she should lodge a complaint with Access Canberra.

1. On 20 July 2021 I ordered the owners corporation - Units Plan No 1475 (the first respondent) to provide Marion Joyce Davidson (the applicant) with access to the corporate register, forthwith. Following are my reasons for that decision.

2. On 7 May 2021 the applicant lodged an application with the tribunal seeking orders to review a decision of the owners corporation's executive committee in relation to reimbursement for replacement of windows in her unit. That matter came before me on 9 June 2021 for a directions hearing.

3. At the first directions hearing the applicant represented herself with assistance from her husband, the respondents were represented by Ms Steffen from the Executive Committee and Ms Buchan, an employee of the strata manager.

4. During the first directions hearing, the applicant raised her concerns that the owners corporation, through the managing agent, was refusing to give her access to the corporate register. She said that she sought access so as to write to the owners in relation to an upcoming general meeting. That order was not expressly sought in the current application, although it could have been. She said that she had made that request in writing as required by the Unit Titles (Management) Act 2011 (the UTM Act), but the request had been refused.

5. The respondents' representatives confirmed that access to the corporate register had previously been refused, because the owners corporation had received legal advice that it did not have to provide the applicant with access.

6. I went through the relevant provisions of the UTM Act with the parties. Section 113 provides that a corporate register must be established and maintained:

_(1) An owners corporation for a units plan must establish and maintain a register (the corporate register) that includes - _

(a) the information mentioned in section 114 (1) for each unit; and

(b) the information mentioned in section 114 (2).

(2) The corporate register may be kept in electronic form.

Note The corporate register contains personal information as defined under the Privacy Act 1988 (Cwlth). The Australian Privacy Principles under that Act apply to the owners corporation in relation to the collection, use, disclosure and storage of personal information.

7. Under section 114 of the UTM Act the information for each unit includes the name of the owner and the owners address for correspondence. Section 115 requires a unit owner to give the owners corporation written notice within 14 days of a change in the name of the owner or their address for correspondence.

8. Section 116 is the first part of the UTM Act dealing with access to the corporate register:

_(1) On request by an eligible person for a unit or the common property, the owners corporation for the units plan must allow the person, within 14 days after the request is received, to inspect, and take a copy of - _

(a) for a request by an eligible person for a unit - the information on the corporate register about the unit and any easements with which the common property is benefited or burdened; or

(b) for a request by an eligible person for the common property - the information on the corporate register about any easements with which the common property is benefited or burdened.

(2) On request by an applicant for a court order under this Act, the owners corporation must allow the applicant to inspect, and take a copy of, the names and addresses for correspondence recorded on the corporate register of each unit owner and anyone else with an interest in a unit, or the common property, that is recorded on the register.

Note This is to enable the applicant for the order to comply with the requirements for service under this Act.

(3) A request must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount prescribed by regulation.

(4) The corporate register must be kept in a way that ensures that a person who is entitled to inspect the register does not have access to any information the person is not entitled to inspect.

1 if the register is kept in a book, the information could be kept on a separate page for each unit and for the common property

2 if the register is kept in a computer database, the information could be stored so that information for each unit and the common property can be separately displayed, printed out or emailed

Note The corporate register contains personal information as defined under the Privacy Act 1988 (Cwlth). The Australian Privacy Principles under that Act apply to the owners corporation in relation to the collection, use, disclosure and storage of personal information.

9. Section 119 deals more broadly with access by an owner of a unit to the records of the owners corporation, and includes in subsection 119(4) a further right of the unit owner to access the corporate register:

119 Unit title certificate and access to owners corporation records

_(1) An eligible person for a unit or the common property in a units plan may request the owners corporation give the person - _

(a) a certificate stating information about the unit or the common property suitable for disclosure to a potential buyer (a unit title certificate); or

(b) a certificate updating information in the unit title certificate (a unit title update certificate).

(2) The owners corporation must, within 14 days after receiving a request under subsection (1), give the person the requested certificate.

(3) The Minister may determine the information that must be included in a unit title certificate or a unit title update certificate.

_(4) On request by an eligible person for a unit or the common property to inspect the records of an owners corporation, the corporation must, within 14 days after the day the request is received, allow the person - _

(i) the information on the corporate register; and

(ii) any other records held by the corporation; and

(5) If a dispute exists, the owners corporation may withhold from inspection documents subject to legal professional privilege in relation to the dispute.

(6) A request under this section must be in writing accompanied by a fee fixed by the owners corporation of not more than an amount determined by the Minister.

(7) A determination under subsection (3) or (6) is a disallowable instrument.

Note A disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.

eligible person includes a person who enters into a contract for sale of the unit in relation to which access to information is required.

10. Section 121 provides that it is an offence by each member of the executive committee if an owners corporation fails to comply with a request for information or a unit title certificate:

121 Failure to provide information or certificate - offence

(1) If an owners corporation for a units plan fails to comply with a request under this part for information or a unit title certificate, each executive member of the corporation at the time of the failure commits an offence.

(_2) It is a defence to a prosecution for an offence against subsection (1) if the defendant proves that - _

(a) the person requesting the information, when asked by someone acting for the owners corporation, did not give the corporation reasonable grounds to believe that the person was an eligible person; or

(b) the defendant took reasonable steps to ensure that the request was complied with; or

(c) the failure to comply with the request happened without the defendant's knowledge.

11. Having looked at the provisions, the representatives for the respondents were not able to explain the legal reasoning which led to the conclusion that the applicant was not entitled to access the corporate register under section 119. I suggested that the owners corporation take further legal advice, with particular reference to section 119 and section 121, and liaise with the applicant about meeting her outstanding request.

12. I advised the parties that if the matter remained unresolved, the applicant could apply to the ACAT to seek orders for access, as a part of the current application.

13. It transpired that the respondents did not give the applicant access to the corporate register, and on 15 June 2021 the applicant lodged an interim or other orders application seeking urgent orders for access to the corporate register. That application was listed before me on 20 July 2021.

14. When the matter came before me on 20 July 2021 the applicant again represented herself, and Ms Steffen and Ms Buchan continued to represent the respondents. The respondents confirmed that the applicant had not been given access to the corporate register, although information had been posted to owners on the applicant's behalf.

15. The respondents advised that the applicant had been denied access to the corporate register because:

(a) Section 116 of the UTM Act was worded differently to the provision for access in the NSW legislation.

(b) The respondent stood by its legal advice that in the ACT a strata manager could not provide a unit owner the names and addresses of other units except pursuant to section 116(2) of the UTM Act.

(c) Unit owners may have provided their information for the corporate register on the understanding that it was kept private and used only by the strata manager for managing the building such as sending levy notices, etc.

16. The respondents were unable to provide any submissions focussed specifically on why the applicant was not entitled to access under section 119 of the UTM Act, or why the owners corporation's obligations under section 116 were to be met but those under section 119 ignored. The respondents indicated that their legal advice did not canvas the application of section 119 at all.

17. The respondents did not suggest that the applicant had failed to make a request in written form as required by section 119 of the UTM Act. Nor was there any suggestion that the applicant had failed to pay a required fee. Indeed, it seemed that this particular owners corporation has not yet decided to impose any fee in relation to requests for access by an owner under section 119[1].

18. The respondents queried whether there was an allowance in section 119 for owners who had indicated that they didn't want their information shared. Much of the language used by the respondents' representatives touched on concepts under the Privacy Act 1988 (Cth) (Privacy Act), which applies to an owners corporation because it is a body corporate and thus an 'organisation' for the purposes of that Act.

19. Section 115 of the UTM Act requires an owner to provide their name and address for correspondence for inclusion on the corporate register within 14 days of a change in that information. Once provided, that information on the corporate register must be managed, stored, used and disclosed as required by the UTM Act and the Privacy Act.

20. Of course, the requirements of the Privacy Act as federal legislation take precedence over those of the UTM Act, in the event of inconsistency.[2] However, inconsistency in the relevant sense does not arise in this matter.

21. I note first that the Privacy Act is expressly intended to operate, as much as possible, concurrently with State and Territory legislation:[3]

It is the intention of the Parliament that this Act is not to affect the operation of a law of a State or of a Territory that makes provision with respect to the collection, holding, use, correction or disclosure of personal information (including such a law relating to credit reporting or the use of information held in connection with credit reporting) and is capable of operating concurrently with this Act.

Note: Such a law can have effect for the purposes of the provisions of the Australian Privacy Principles that regulate the handling of personal information by organisations by reference to the effect of other laws.

22. Second, while the owners corporation is required to comply with the Australian Privacy Principles (APP) in dealing with information on the corporate register,[4] there would be no breach of APP 6 in permitting access to this information under section 119 of the UTM Act.

23. Australian Privacy Principle 6.2(b) clearly permits an organisation to disclose personal information where that disclosure is authorised by an Australian law:[5]

6 Australian Privacy Principle 6--use or disclosure of personal information

6.1 If an APP entity holds personal information about an individual that was collected for a particular purpose (the primary purpose ), the entity must not use or disclose the information for another purpose (the secondary purpose ) unless:

(a) the individual has consented to the use or disclosure of the information; or

(b) subclause 6.2 or 6.3 applies in relation to the use or disclosure of the information.

Note: Australian Privacy Principle 8 sets out requirements for the disclosure of personal information to a person who is not in Australia or an external Territory.

6.2 This subclause applies in relation to the use or disclosure of personal information about an individual if:

(a) the individual would reasonably expect the APP entity to use or disclose the information for the secondary purpose and the secondary purpose is:

(i) if the information is sensitive information - directly related to the primary purpose; or

(ii) if the information is not sensitive information - related to the primary purpose; or

(b) the use or disclosure of the information is required or authorised by or under an Australian law or a court/tribunal order; or

(c) a permitted general situation exists in relation to the use or disclosure of the information by the APP entity; or

(d) the APP entity is an organisation and a permitted health situation exists in relation to the use or disclosure of the information by the entity; or

(e) the APP entity reasonably believes that the use or disclosure of the information is reasonably necessary for one or more enforcement related activities conducted by, or on behalf of, an enforcement body.

Note: For permitted general situation, see section 16A. For permitted health situation, see section 16B.

24. It seems to me that not only is the disclosure of information on the corporate register authorised by law and thus permissible under APP 6.2(b), in addition when a unit owner purchases a unit and provides information as required by section 115 for the UTM Act, for the purposes of that Act, this would be the primary purpose of the provision of the information as contemplated by APP 6.1. Further, it would be assumed that at the time of provision of the information the unit owner is aware of the legal framework within which that information will be managed. Not only is that legal framework public information, but a notice to that effect should have been given at the point the information was provided. A use or disclosure of information by the owners corporation to meet its obligations under the UTM Act would thus be a use or disclosure that the owner could be reasonably likely to be aware of, as contemplated by APP 6.2(a).

25. For those reasons, I advised the parties that it seemed to me that the Privacy Act provisions did not operate to prevent the applicant being given access to the corporate register as required by section 119 of the UTM Act.

26. The respondents then sought that I delay making orders for the applicant to be given access to the corporate register, so that the owners corporation could write to all owners and invite them to update their details. I declined to hold off on making orders, for two reasons:

(a) the respondents had notice since the first directions hearing on 9 June 2021 of the relevant provisions, and that these orders were likely to be made if the owners corporation continued to refuse access; and

(b) a delay in making orders would have no effect on the owners corporation's continuing obligation to comply with section 119, and the potential for criminal sanction under section 121.

27. It is important that I record in these reasons that although I was satisfied on the evidence and submissions given to me orally on 9 June 2021 and 20 July 2021, applying the civil standard of proof, that the owners corporation had failed to comply with its obligation under section 119 of the UTM Act, such a conclusion is of no relevance to any future criminal proceedings under section 121. As the applicant is the person affected by the non-compliance and the key witness, in possession of the evidence of a written request for access to the register, I left it to the applicant to consider whether she wished to take the step of raising the matter with the relevant investigatory body.

28. Finally, I should note that the proceedings before me were imbued with a sense that the applicant could not be trusted with access to the owners names and correspondence addresses, because she might from time to time use those details to harangue, annoy or pester owners with her grievance of the moment. From the content and frequency of the applicant's email correspondence to the tribunal this is not an unrealistic concern.

29. However, a fear of having the unit owners' equanimity disturbed, of their being annoyed or pestered, is not a reason for an owners corporation to fail to comply with its legal obligations. On the contrary, sometimes uncomfortable communications in an owners corporation, as in a democracy, should be embraced:

That Mr. Neal was an "agitator" or stirrer in the magistrate's view obviously contributed to the severe penalty. If he is an agitator, he is in good company. Many of the great religious and political figures of history have been agitators, and human progress owes much to the efforts of these and the many who are unknown. As Wilde aptly pointed out in The Soul of Man under Socialism, "Agitators are a set of interfering, meddling people, who come down to some perfectly contented class of the community and sow the seeds of discontent amongst them. That is the reason why agitators are so absolutely necessary. Without them, in our incomplete state, there would be no advance towards civilisation." Mr. Neal is entitled to be an agitator.[6]

30. The UTM Act requires that a unit owner be allowed to know the names and addresses for correspondence of the other members of the corporation. One can only trust that persons thus made privy to these details use that information appropriately and frame their communications respectfully. As I reminded the parties at the hearing on 20 July 2021, if lawfully obtained information is used for a communication or conduct which is unlawful, the law has ways to deal with such behaviour and prevent its recurrence in the future.

[1] Such a fee, if decided upon by an owners corporation, cannot exceed the maximum fee determined by the Minister. That is currently $114 as set by the Unit Titles (Management) (Fees) Determination 2021.

[2] Australian Capital Territory (Self-Government) Act 1988 (Cth) section 28

[3] Privacy Act section 3

[4] See Privacy Act sections 6 and 15, definition of APP entity

[5] The UTM Act, as a law of a Territory, is an Australian law as defined by section 6 of the Privacy Act.

[6] Neal v The Queen [1982] HCA 55 per Murphy J, page 317