Today, July 5th, marks the tenth anniversary of the introduction of the Australian government’s Environment Protection and Biodiversity Conservation (EPBC) Regulations. Signed into law by then Governor-Governor William Patrick Deane and the Environment Minister of the time, Robert Hill, the EPBC Regulations are a prime example of what I would call public service law. That is law and regulations that are driven by public servants without much thought of the law’s good in relation to the wider community, or how this law or regulation might impact on those who fall under the new provisions. Or even how they might actually be applied and enforced.
On the surface any set of regulations calling themselves ‘Environment Protection and Biodiversity Conservation’ are probably going to be good. They’re like a motherhood statement. 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.
A large part of the EPBC Regulations have to do with “Activities in Commonwealth Reserves”. In fact there are 44 pages devoted to regulations that fall under this ambit. Mind you the EPBC Regulations were already 182 pages long when they first arrived back on this day in the Year 2000 and are now 273 pages long. Tacked 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!!
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. And it is in the proscription of “Activities in Commonwealth Reserves” where the EPBC Regulations display what I might describe as Orwellian tendencies. Or even Orwellian teeth. 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 instance, would make it an offense for instance to display the Australian flag on your vehicle if you drove around Booderee, Kakadu or Uluru on any day of the year, let alone Australia Day. The maximum penalty for this ‘horrendous’ offence is a fine of five penalty units, or $550. The same no doubt would also apply if you displayed the Aboriginal flag on your vehicle as a radio antennae 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. While 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 either because that’s against the law too.
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 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 quite 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 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 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 Campbell’s, the Environment Minister of that time (David Kemp) showed far more commonsense than the people who drafted the EPBC Regulations and he abandoned any notion of pursuing a court case against the couple. In a statement to The Australian newspaper in August 2003, Kemp said 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 and one can only hope that at sometime in the near future there will be an Environment Minister with enough ‘nous’ and political will to overcome the mischief of the bureaucrats within Parks Australia and set in place a mechanism for the repeal of the more insidious sections – such as Regulations 12.24 and 12.38 – of the Environment Protection and Biodiversity Conservation Regulations 2000.
But of course, that minister is not going to be Peter Garrett.