It’s usual to require a permit for disruptive activity in a public reserve

The case of the photographer being banned from photographing Sydney’s foreshore reserve, Barangaroo, has intrigued me. The story is that landscape photographer Ken Duncan was taking photos of landscape work at the parkland, when he was stopped by rangers. He was told that as he had a tripod, his work was commercial and therefore not permitted without a permit. Duncan was in fact taking the photos for friends, for no charge. However it appears that taking photos is itself prohibited activity in the reserve.

This raises some interesting questions.

Commercial activities

Barangaroo Delivery Authority is empowered to make directions relating to the use of the Barangaroo Reserve. Its web page lists prohibited activities, such as fishing, swimming, diving etc, and activities that require a permit. The latter include ‘commercial activities’ and ‘filming or photography’.

The reports of Ken Duncan’s experience are a little unclear as to whether he fell foul of the commercial activity prohibition, or the photography prohibition. This is relevant, in my view, because of what the regulations themselves say.

The regulations list prohibited conduct in Part 3. This conduct is also listed on the web page. Part 4 lists conduct for which a permit is required. It includes ‘carrying out commercial activities and raising money’ (s19). Subsection (f) is relevant to the Ken Duncan experience. It prohibits:

(f) use any broadcasting equipment or a camera (whether photographic, cinematic or video) for a commercial purpose

Was Ken Duncan using a camera for a commercial purpose? ‘Commercial’ is used a few times in the regulations, but is not defined. Duncan said that he was taking pictures, for free, of his friends’ landscaping work. His work then, is not commercial on a reasonable interpretation of the word. I wonder, however, if his friends put those pictures in advertising or promotional material for their business, the photos might become commercial. But where does one draw the line? And how could an enforcement officer determine this downstream commercialisation of Duncan’s work?

(There are other problems with the restrictions on commercial activity within the reserve. For example, taking a work phone call while in the reserve, is a commercial activity. Could it be that the rangers could exclude a person taking such a call? Visiting the Reserve for the purpose of writing about the experience in a paid essay is a commercial purpose. Could this be restricted?)

Photography

Despite the mention on the Barangaroo web page of constraints on ‘photography and filming’, there is nothing in the regulation prohibiting photography unless it is used for a commercial purpose. The implication from the web page however, is that no photography or filming is permitted without licence.

It is unclear under what authority this restriction is made.

If this restriction is carried out, it means that no one can take pictures of the view, of their friends and family, while they are in the reserve. This is particularly what struck me about the reports of Duncan’s experiences.

No property in a spectacle

The classic Australian decision in Victoria Park Racing v Taylor found there to be no property in a spectacle. In this case the neighbour of a race track allowed a radio broadcaster to build on his land, a high platform that could overlook the race track. The broadcaster could then broadcast the races and people could listen to the broadcast, instead of attending the races in person.

The race track owners sued, claiming their property rights had been breached by the broadcaster. The court ruled against them.

This is not directly applicable to the purported restriction on photography in Barangaroo. But it does bring to my mind the rationale behind such a ban. Is the Barangaroo Delivery Authority attempting to preserve its rights in the visual representation of the reserve area? Is it attempting to constrain the publication or sharing of images? If it is, can this be considered to some kind of claim on rights over not the images, but the ‘spectacle’? Or the ‘visual outlook’?

There may be other reasons to constrain photos and filming. For example, preserving public safety from stalkers or those who would use images of people for ill. But this does not seem to be the case here, particularly in light of the unequivocal statement constraining the conduct. (Eg: the website does not say ‘please do not take photos of children unless you are their parent’.)

In Europe, many iconic landmarks are protected by copyright and tourists must technically, seek permission before publishing (sharing) images. I wondered if the Barangaroo restrictions are purporting to bring this concept to Australia – though this is probably a far-fetched notion.

Accessible reserves

Regardless of whether the Barangaroo Delivery Authority has validly imposed restrictions on photography and filming, it is concerning that in a place deliberately set aside for public use and enjoyment, that such activity might be constrained.

There have been concerns also in Brisbane over proposals to charge for large gatherings even where they are not a commercial undertaking. Children’s birthday parties, for example, would be required to lodge a deposit and get a permit or risk a fine. This is another example of constraining what might ordinarily be seen as a valid use of public space by the community.

Reserves should by their nature remain accessible, including for ordinary purposes which these days, include photography and filming, and sharing our experiences through these digital formats.