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Landscape photographers, including you, are losing rights

By Ross Barnett - posted Monday, 29 March 2010


Landscape photography in Australia has had a long and proud history of supporting the conservation and preservation of our natural environment.

In 1859 some of the very earliest Australian photographs were taken in the Grose Valley of central New South Wales. That area is now preserved as part of the World Heritage-listed Blue Mountains National Park.

Images that the Lithuanian-born photographer Olegas Truchanas created of wild places such as the original Lake Pedder in Tasmania, remind us of what has been lost of our natural environment, while the photography of his protégé Peter Dombrovskis played a vital role in the ultimately successful campaign to save the Franklin River in the early 1980s.

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All of these images were made by photographers who were able to access natural areas without the hindrance of red tape or bewildering regulations that have now been imposed in increasing numbers of national parks across our country.

In the United States, the country which pioneered the concept of national parks, landscape photographers enjoy much greater freedoms than their Australian counterparts. In the US, landscape photographers whose work does not involve the use of either models or props brought into a national park or similar location, have rights that were put into law by Congress in May 2000. These photographers do not have to pay fees, obtain permits or hold public liability insurance.

Yet in Australia, landscape photographers can find themselves in breach of the law and potentially subject to fines which can run into the thousands of dollars.

In New South Wales, for instance, a landscape photographer could be slugged with a $3,300 fine for undertaking “commercial photography” without a permit in a National Parks Wildlife Service (NPWS) reserve. According to NPWS’ Filming and Photography Policy, endorsed in October 2001, commercial filming and photography means “any filming or photography principally intended for public viewing which may or may not be undertaken for financial gain”.

This definition is so broad it would include photography done by keen amateurs who wanted to upload their images to photo-sharing websites such as Flickr or Ipernity, or even to Facebook. And it is not a definition of “commercial photography” that is used by the photographic industry itself. Here commercial photography is considered as work that is carried out for corporate clients and is largely done for advertising usage.

To test how ill-thought-through the NPWS definition is, I contacted the Commercial Permits Officer for the NSW NPWS about the following scenario. I have ancestors who lived in the town of Hill End during the Gold Rush-era of the 19th century. Today, Hill End is an Historic Site that is administered by the NPWS. So would I need a permit and have to pay substantial fees if I wanted to take pictures around the town, even though they were only going to appear in a family history book?

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The answer was yes, even including making a payment to the NPWS for taking pictures of my great-great-grandfather’s grave site. Needless to say, I did not go ahead with that project: the licence fee alone was $275 with the need for a security deposit of $220 - public liability insurance costs would have seen the total outlay push well past an amount of $1,000 for what was supposed to be a very limited edition.

Similar policies on “commercial photography” can be found in the national park bureaucracies of Queensland, South Australia and Victoria. In South Australia for instance, the annual charge for a commercial photography permit within their national parks appears to be $265. In Victoria what is described as an “Annual Landscape Photography Licence Fee” costs $335 and applies to anyone whose photography might be used in public displays, journals, magazines, postcards, textbooks and websites.

Of course, such regulations do not apply to journalists and writers when they visit Victoria’s national parks in a professional capacity. This is no doubt because newspapers like The Age would take up a campaign against Parks Victoria if such a policy was introduced. Yet Article 19 of the Universal Declaration of Human Rights, to which Australia is a signatory, states that: “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.”

It is not just some of our state-based national park bureaucracies which have policies on filming and photography that run counter to Australia’s commitment to human rights vis-a-vis the right to freedom of expression. Waverley Council, in Sydney’s eastern suburbs, requires photographers to obtain a permit for any filming and photography which is carried out within the boundaries of that municipality. And whether a photographer has any intention of carrying out a "commercial activity" would seem to be totally irrelevant as far as Waverley Council is concerned.

The most absurd thing about this policy is that it is probably being breached hundreds of times every day by people who take “happy snaps” of themselves, their friends or their family at play in places like Bondi Beach, Bronte Park or along the dramatic coastal walk that links Bondi to Bronte. And just how it can be enforced in an age in which nearly every mobile phone has an inbuilt camera simply defies belief.

But the prize for Australia’s most insidious controls on photography must go to Parks Australia, the federal body that manages our best known natural icon, the Uluru-Kata Tjuta National Park. Under regulations that have been in force since mid-2000, the Director of National Parks has the power to ban all filming, photography and even sound recording in all Commonwealth Reserves - these include Kakadu National Park and Uluru-Kata Tjuta National Park.

Parks Australia justifies these regulations on the basis of “respect for Anangu”, who are the traditional owners of the Uluru-Kata Tjuta National Park. According to Parks Australia, Anangu wanted commercial “image capture” and use to be controlled and actively managed because they were concerned that widespread dissemination of images through commercial use may have lead to images of sacred sites being seen by people who in accordance with Anangu custom should not view them, and that images of their country could also be used in ways that are culturally insensitive.

Certainly one can sympathise with the Anangu desire not to have pictures of Uluru used as backdrops for alcohol or fast food advertisements, but how realistic is it to put a prohibition on media use of images of the Valley of the Winds walk at Kata Tjuta when this area is tramped by hundreds of people on most days, virtually all of whom are carrying cameras?

Parks Australia faces a hefty problem here because, despite their regulations, widespread dissemination of images has been occurring on the internet from almost as soon as the day the Governor-General’s signature was dry on this piece of legislation. As of late March 2010, more than 90,000 images of Uluru can be viewed on the Flickr website. And many of these would breach guidelines that have been put in place by the park managers at Uluru as to what can and can’t be filmed, photographed or even painted.

The same happens on other websites across the internet. At the RedBubble website there are 639 images of Uluru that are available for sale and the vast majority of these would not have the necessary permit for them to be sold. Quite bizarrely one notable photographer even displays a close-up image of the domes of Kata Tjuta despite it having been specifically rejected by the park authorities for potential sale. While he isn’t commercialising this particular image, just by having it online it is reaching a widespread audience.

A Parks Australia document, Film and Photography: A Matter of Respect for the Park and its People, sets out the rationale for the severe restrictions on commercial photography at Uluru and Kata Tjuta. It says that in Anangu Law certain sites, ritual objects, designs and ceremonies are restricted to people who can “properly” view them. Because of this, artistic and photographic images of these secret, sacred areas are regarded by Anangu as wrong and immoral, no matter how beautiful that part of the landscape is.

However, this doesn’t explain why virtually all of the north-east face of Uluru is off-limits to commercial photography when Anangu who travel in and out of the Mutitjulu community, where many of them live, can see this area on a daily basis. Nor does it explain why it was appropriate for an Anangu artist to paint the north-east face of Uluru, and include the detail of two very sacred sites, while commercial artists and photographers are forbidden from including these same areas in their work.

The Uluru rules have also come under attack from civil libertarians. In 2002 the then-President of the NSW Council for Civil Liberties told The Sydney Morning Herald that the EPBC Regulations (which govern “image capture” at Uluru) were a “disgrace”, adding that the photography controls limit the media's freedom of speech. And in 2003 the Federal Environment Minister backed down from the legal pursuit of the authors of the children’s book, Bromley Climbs Uluru, because this would not have been “appropriate given the importance of principles of freedom of expression in our society”.

The Uluru rules also do not explain previous commentary about Anangu society by two authors who worked closely with the Mutitjulu community in the early 1990s. In his 1994 book, Uluru: Looking After Uluru-Kata Tjuta - The Anangu Way, the highly respected author and photographer Stanley Breeden noted that: “Anangu confided in Mountford (Charles P. Mountford - an anthropologist who first visited Uluru in 1935) and allowed him free rein with his camera. The result of the photography alone is a perceptive and wide-ranging view into traditional Anangu life”.

And in his 1994 book, The Rock: Travelling to Uluru, the prize-winning author and historian Barry Hill noted that the film and photography guidelines were one of the things that Anangu had to learn about from the “white fella” in the years after the Handback of 1985.

Nor do the Uluru rules explain what was said to me in 1993 in an off-the-record comment by the then park manager at Uluru. While I cannot repeat the specifics of what he told me it was clearly evident that the rationale for the Uluru rules was far more mundane than the cultural reasoning that he kept repeating when the interview was on the record.

Readers of this article may wonder why the issue of filming and photography at Uluru actually matters to them. Aside from the issue of freedom of expression it should matter to them as taxpayers.

In late 2009, a new “sunrise” viewing area, costing $21 million, was opened within the national park. Yet only four years earlier in August 2005, a traffic and parking study that was commissioned by park management suggested that a new sunrise viewing area - one which would have been consistent with the park’s infrastructure master plan - could have been built at perhaps one-tenth of this cost.

This potential viewing area would have used the site from which Stanley Breeden took the Anangu-approved cover shot for his 1994 book. Yet instead, citing cultural concerns related to photography which did not exist in the early 1990s or even when the park’s infrastructure plan was adopted in January 2000, Parks Australia allowed a reasonably minor project to become a massive undertaking.

A new road was built to access a viewing area on the southern side of Uluru, which is ultimately the wrong side of Uluru as far as winter-time photography is concerned. Meanwhile just a few kilometres away from where tourists are being bussed to this Talinguru Nyakunytjaku viewing area - dubbed the Peter Garrett Memorial Viewing Deck by one cynical commentator - Anangu children in the township of Mutitjulu remain without a swimming pool during the hot summer months.

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About the Author

Ross Barnett is a Sydney-based travel writer and photographer.

Other articles by this Author

All articles by Ross Barnett

Creative Commons LicenseThis work is licensed under a Creative Commons License.

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