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When Australians are unwelcome in their own country ...

By Ross Barnett - posted Friday, 9 July 2010

Monday of this week, July 5th, marked the tenth anniversary of the introduction of the federal government’s Environment Protection and Biodiversity Conservation (EPBC) Regulations. Signed into law by then Governor-General William Deane and the Environment Minister of the time, Robert Hill, the EPBC Regulations probably sound like a motherhood statement. After all, who would oppose regulations that are there, ostensibly, to protect our environment and biodiversity?

But buried inside these regulations are many rules which have nothing to do with either “environment protection” or “biodiversity conservation” but a lot to do with control of citizens. These particular regulations are what I would call “public service law”: they are rules that have come into being without any popular demand or support. All too often, they are ill-conceived regarding how they might impact on those who fall under their provisions and are ill-conceived as to how they might actually be applied and enforced.

The EPBC Regulations were already 182 pages long when they arrived back in the year 2000 and are now 273 pages long. Tack them onto the Environment Protection and Biodiversity Conservation (EPBC) Act from 1999 - which now runs to 990 pages - and you have over 1,250 pages of government legislation that deals with wildlife, World Heritage and a handful of national parks. Yet most other countries can do this in one-tenth of the page length. Canada’s National Parks Act for example, which also dates from the year 2000, is only 108 pages long and the section on regulations, enforcement, offences and punishment is only eight pages long. Ah, those wacky Canadians!


A significant part of the EPBC Regulations relates to “Activities in Commonwealth Reserves” - in fact there are 44 pages devoted to regulations that fall under this ambit. Commonwealth Reserves are Federal national parks such as Booderee (Jervis Bay in New South Wales), Kakadu and Uluru-Kata Tjuta in the Northern Territory, and other sites such as the Australian National Botanic Garden in Canberra.

It is in the proscription of certain “Activities in Commonwealth Reserves” where the EPBC Regulations display what might be described as Orwellian tendencies. For instance EPBC Regulation 12.40 makes it an offence to display a “flag, banner, promotional device or image” in a Commonwealth Reserve. Which for example, would make it an offense to display the Australian flag on your car if you drove around Booderee, Kakadu or Uluru on any day of the year, let alone Australia Day. The same, no doubt, would also apply if you displayed the Aboriginal flag on your vehicle as a bonnet attachment.

Another EPBC Regulation that relates to Commonwealth Reserves (12.31) makes it an offence to “organise or attend a public gathering of more than 15 persons in a Commonwealth reserve”. And on that basis two large family groups getting together in a Commonwealth Reserve are breaking the law … and hey, that’s a 10 penalty units ($1,100) offence if convicted. EPBC Regulation 12.27 makes it an offence to “intentionally throw or roll a stone or similar object” in a Commonwealth Reserve. Yes, you had better make sure that your kids don’t skim a stone across a pool of water at Kakadu or toss a pebble into the surf at Jervis Bay either because that’s against the law as well.

But it is the two EPBC Regulations that deal with filming and photography that are the most pernicious. One of them, EPBC Regulation 12.24 gives the Director of National Parks - an unelected official - the power to prohibit the “capturing of images” (and even the recording of sounds) in any Commonwealth Reserve. This can either be a temporary measure or one that might apply for all time. The other regulation that deals with filming and photography (12.38) makes it an offence to “use a captured image of a Commonwealth reserve to derive commercial gain”. It should be noted that this regulation deals with an image of a Commonwealth Reserve and not necessarily an image taken within a Commonwealth Reserve. At its most absurd extreme it means that the images taken from space by satellites which are displayed on Google Earth and show either the billabongs in Kakadu National Park or the magnificent domes of Kata Tjuta are in breach of this regulation.

It’s not surprising that regulations like these have managed to get a lot of Australian landscape photographers very offside. Which is why the leading panoramic photographer, Ken Duncan, set up a body called Arts Freedom Australia in 2004 to fight back against legislation like this as well as other rules that were affecting photography on council beaches and in the various state-based national parks. According to Duncan, Australia “must be the only country in the world where you could get a criminal record for taking a picture of a rock”. Which is what can happen at Uluru.

In 2003 for example, the children’s book authors Alan and Patricia Campbell, found themselves on the wrong side of these regulations with regard to their book Bromley Climbs Uluru. This book, which first went into print many years before the EPBC Regulations were proclaimed, contained some images that were thought to be in breach of the photographic guidelines for the Uluru-Kata Tjuta National Park.


Fortunately for the Campbells, the Environment Minister of that time (David Kemp) showed far more commonsense than the people who drafted the EPBC Regulations and abandoned any notion of pursuing a court case against the couple. In a statement to The Australian newspaper in August 2003, Kemp said that his department would not pursue a legal test case against the authors because court action was “not appropriate given the importance of principles of freedom of expression in our society”.

The principle of freedom of expression remains as valid now in 2010 as it did seven years ago. Yet while Australia has been a signatory to an international covenant on civil and political rights that guarantees freedom of expression since 1980, the bureaucrats within Parks Australia have found new ways to further restrict what photographers can do in the Uluru-Kata Tjuta National Park.

On a recent trip to Uluru I noticed that a No Photography sign on the base walk had been moved so that rather than referring to a small sacred site, tourists and others would be led to believe that the No Photography rule now applied to a whole stretch of the Rock - a massive and spectacular wall - that was hundreds of metres in length.

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About the Author

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

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