Who polices compliance with COVID-19 public health directions in a strata community?

I had hoped that my reflections on change and resilience would be the last article I wrote on the topic of COVID-19.  However, it remains at the front of everyone’s minds with NSW coming out of lockdown, Victoria going into lockdown, and Queenslanders wondering if border restrictions will be eased by the summer holidays.

So I propose to answer a question many have asked over the last 18 months: whether a body corporate needs to police compliance with public health directives by occupiers of lots within its strata scheme.

Times have changed

Over the last year and a half, we have had restrictions that increase, ease then increase again, some amazing content on streaming services to help us through lockdowns  (hint: watch The Marvellous Mrs Maisel), and politicians and public health officers requiring us to figure out how to work from home even though they close day care centres and schools.

In June 2020 we wrote about the difficulties faced in trying to comply with directions that imposed onerous restrictions on the use of common property recreational facilities.  Committees and building managers were left scratching their heads wondering how they would ensure that a piece of gym equipment was wiped down after every use and was not used more than six times an hour.  We pointed out that by-laws would need to be introduced (after being approved in general meeting) to mimic these restrictions if a body corporate were to have anything it could enforce.

The State Government reacted by introducing the Justice Legislation (COVID-19 Emergency Response – Community Titles Schemes and Other Matters) Regulation 2020 in October 2020. This allowed committees to make decisions to change the rights, privileges, or obligations of lot owners about access to, or the use of, common property if reasonably necessary to ensure compliance with a public health direction.

These are unprecedented, fluid times.  Our behaviour continues to be tightly regulated.  Strata communities are dense environments, housing many people in close quarters all sharing the use of common facilities.  Does it fall upon the body corporate to police compliance with public heath directives within its scheme?

The committee’s role

Being a committee member was already a thankless volunteer role before the COVID-19 pandemic started.  Most committee members will have found themselves roped into a role that no one else nominated for.  Now, together with strata managers and building managers, they would be answering a barrage of calls, fielding emails and having conversations with disgruntled residents ‘dobbing’ in neighbours who are ignoring the closed signs placed around common property facilities, ‘forgetting’ their face mask, or walking around with a measuring tape to check social distancing.

Unlike the police, committee members are not allowed to walk around waving batons, handing out infringement notices and arresting those in breach of the public health directions. Instead, bodies corporate only have the powers given to them under the Body Corporate and Community Management Act 1997 (Qld) (BCCMA) and its regulation modules.  While the Regulation introduced in October 2020 allows committees to decide to change rights to use and access common property:

• that decision does not create a by-law;
• only by-laws are enforceable by issuing continuing and future contravention notices;
• it is an offence to fail to comply with a contravention notice; and
• the BCCMA does not make it an offence to fail to comply with a committee decision to change use and access rights to common property.

I am yet to see a body corporate file a dispute resolution application in the Office of the Commissioner for Body Corporate and Community Management seeking an adjudicator’s order to restrain an occupier from using the common property contrary to a committee decision made to ensure compliance with a public health direction.  An adjudicator may consider they have the power to make such an order to resolve a dispute about the exercise of rights under the BCCMA.  But it is taking between 6 – 12 months for adjudication applications to be finally determined now.  The direction may no longer be in force by the time the application is made, let alone finally determined.

If not the committee, then who?

It isn’t for building managers or strata managers to chase down the mask-less and enforce compliance.  Their engagement is determined by the duties set out in their caretaking or administration agreement.  I am yet to see any caretaking or administration agreement set a duty to monitor and enforce compliance with public health directions.

So whose job is it?

It is your job.  Yes, you.

If you reach into your pocket or handbag, you will probably find a phone there.  Within that phone is a portable camera and a connection to the internet.  Those two features used effectively together can give the Queensland Police what they need to fulfil their public duty to keep law and order in the state of Queensland.

There wasn’t a police officer patrolling the Manly beaches when the former PM Tony Abbott got caught without a mask.  A member of the public took a photograph and reported him.

Love thy neighbour

But have regard to Mr Abbott’s public comment in response to the controversy: “I never thought that dobbing and snitching was part of the Australian character…”

Public health is important, but so are good neighbourly relations.  You are a part of a community, after all.  Often absentmindedness can explain away a momentary slip for why a neighbour isn’t wearing a mask.  Remember that you haven’t run into a random member of the public.  That’s your neighbour, and probably will continue to be your neighbour when (if) normality returns to the world.

So I would suggest saying hello, enquiring about their day, and gently reminding them of the community’s expectations and rules during this difficult period.  In the meantime, committees can reinforce these expectations and rules by placing signage around the building.

 

This article was contributed by Jason Carlson, Grace Lawyers

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