April 29th, 2010
Dear Mr Garrett
I am a Sydney-based writer and have been commissioned by ********** *********** magazine to do a feature story on photographic rights in Australia. This story will examine various legislation and regulations around the country and asks the question: Do these governmental regulations breach our freedom of expression?
My questions to you as the Minister responsible for the regulations that govern filming and photography at Uluru-Kata Tjuta National Park – which have been described variously as “world-leading” regulations, or by some others as “draconian” and “shameful” regulations – are as follows:
1. Are you aware that Australia is a signatory to the International Covenant on Civil and Political Rights, which is a legally binding United Nations document? (The Office of the United Nations High Commissioner for Human Rights states that “covenants, statutes, protocols and conventions are legally-binding for those States that ratify or accede to them” – see http://www2.ohchr.org/english/law/)
2. Are you aware that Article 19 (2) of this Covenant states that:
Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice?
3. Given that both filming and photography are forms of media isn’t the sub-regulation of EPBC Regulation 12.24 that gives the Director of National Parks the power to prohibit or restrict the capturing of images at all times and in all or part of a Commonwealth Reserve in direct conflict with Australia’s legal obligation to ensure freedom of expression under Article 19 of the UN Covenant?
4. Additionally, isn’t the sub-regulation of EPBC Regulation 12.24 that gives the Director of National Parks the power to prohibit or restrict the capturing of images in a Commonwealth Reserve either generally or by “a class of persons” in direct conflict with Australia’s legal obligation to ensure freedom of expression under Article 19 of the UN Covenant?
5. Further, aren’t the Filming and Photographic Guidelines at Uluru-Kata Tjuta National Park in breach of Australia’s legal obligation to ensure freedom of expression under Article 19 of the UN Covenant? These guidelines place great restrictions on what can be captured of the park’s natural environment by what is deemed to be “commercial” media, yet such restrictions are not placed on tourist visitors to the park.
6. In the Final Report of the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999, the author notes the following on Page 192:
DEWHA advises that the Anangu want commercial image capture and use to be controlled and actively managed because they are concerned:
- that wide dissemination of images through commercial use may lead to images of sacred sites being seen by people who in accordance with Anangu custom should not view them; and
- images of their country may be used in ways that are culturally insensitive.
How valid is this as a rationale given that many of the sacred sites that commercial image-makers are told that they cannot either film or photograph (such as the features of the north-east face of Uluru) can be seen by all Anangu as they exit the Mutitjulu Community by road and as such have probably been seen by all Anangu repeatedly over the past 10 years since the passage of the EPBC Regulations?
7. Additionally, the rationale for the severe restrictions on “commercial” filming and photography at Kata Tjuta are no doubt due to the fact that this is a site of “religious significance to Anangu men”. This may be so but how are photographers from a secular background supposed to feel ‘comfortable’ about this aspect of the guidelines given that this restriction is solely intended to prevent Anangu women from seeing the sights of Kata Tjuta in art, film, or print format? Doesn’t this aspect of the guidelines effectively breach the long-established concept in Western governance of separation of church and state, or of belief and state by allowing a religious precept to be used as a basis for law and regulations? (Reading between the lines in the park document, “Filming and Photography: A Matter of Respect for the Park and its People”, it is fairly evident that some Anangu regard the publication of “inappropriate” images as being akin to blasphemy. But why should Anangu be given such blasphemy protections by government when in the case of the Melbourne exhibition of Andre Serrano’s Piss Christ in 1997, such a protection for Roman Catholics was refused by the Victorian Supreme Court?)
8. How comfortable are you as a person who does take a keen interest in photography, with regulations that have the potential to criminalise someone for taking pictures of a natural formation, i.e. a rock? And how “democratic” are these regulations given that at the time of their introduction and most likely today as well, that the vast majority of Australians would regard them as absurd and totally over-the-top?
9. Ultimately, aren’t EPBC Regulations 12.24 and 12.38 unenforceable as stand-alone cases for prosecution? And wasn’t this clearly indicated when former Environment Minister David Kemp backed away from any attempt to prosecute the authors of Bromley Climbs Uluru back in August 2003?
I look forward to your considered response.
On May 19th, 2010 I received an email from Ben Pratt, the Minister’s media spokesperson. I only think I got this communication because I made a complaint to Roger Price, the Chief Government Whip in Canberra, about the so far pathetic responses that I had received from Peter Garrett’s office to my initial set of questions. (Which by the way remain unanswered.)
This is what Ben Pratt had to say:
Ross, I am aware that you remain dissatisfied with the responses you have received from this office in the past as well as from the Director of National Parks regarding your ongoing inquiries about film and photography regulations in place at Uluru-Kata Tjuta National Park.
Please find following a restatement of the position of the Government.
Filming and photography regulations in place at Uluru-Kata Tjuta National Park accord, amongst other things, with Australia’s international obligations under the World Heritage Convention to protect both the natural and cultural values of the park. This same respect for the cultural significance of locations around the world, both built and natural, means that many places cannot be filmed or photographed without permission.
While the complaints of some commercial photographers about restrictions in place at Uluru-Kata Tjuta are well-known, these regulations incorporated into the EPBC Act over a decade ago, seek to strike an appropriate balance between respecting the cultural significance of Uluru-Kata Tjuta to its traditional owners, Anangu, the commercial needs of others and basic principles of freedom of expression. They are guidelines developed and approved by the Board of Management in consultation with photography and film representatives. That Board is made up of Traditional Owners, tourism experts and other appointees.
The EPBC Act is currently the subject of review. An independent panel, led by Dr Allan Hawke, reported to government late last year on proposals to reform the Act.
The views of a broad range of stakeholders will be taken into account, along with the recommendations of the Hawke Review, when the Government responds in full to the recommendations.