New South Wales – Not Photographer Friendly

On March 30, 2009, the New South Wales government brought into force a new Local Government Filming Protocol.  You can access this protocol here … http://www.dlg.nsw.gov.au/Files/Information/Local_Government_Filming_Protocol_-_2009.pdf

This protocol was part of a process that was intended to make New South Wales “film friendly.” Or as the St George & Sutherland Shire Leader noted in an article dated May 27, 2009 (http://www.theleader.com.au/news/local/news/general/protocol-curbs-filming-fees/1523434.aspx), it was a means to curb filming fees that were being charged by local councils.  

However somewhere in the creation of this new filming protocol the bureaucrats who put it together forgot about the ongoing gouging of small-scale “commercial” photographers by some local councils within the Sydney area.

I have been intrigued about the “legality” of this extortion racket by both Manly Council and Waverley Council for some time, as my reading of the relevant section of the Local Government Filming Protocol of 2009 strongly suggested that in imposing fees and permit requirements upon small-scale photographers that these two councils were both operating against the spirit of the filming protocol.

You can see my post where I discussed this matter at … https://rossbmedia.wordpress.com/2010/08/15/are-sydney-councils-that-require-photography-permits-acting-illegally/

However I have today received an email from the Chief Executive, Local Government in New South Wales, telling me that I am wrong. And as his first name is Ross also, I just have to bow down to that superior advice.

Anyway, this is what that other Ross has told me:

“I can confirm that stills photography is excluded from the Local Government Filming Protocol. However, commercial stills photography and associated fees continue to fall within the following provisions of the Local Government Act 1993:

  • Section 68 (D)(1) – approval to engage in trade or business on community land
  • Sections 35 and 36 – plans of management for community land
  • Sections 80, 608, 610D and 610F – council fees
  • Sections 124-153 – orders
  • Section 626 – failure to obtain approval.

The provisions should be considered in the context of the Act as a whole. You may wish to obtain independent legal advice on their interpretation. You can access the Local Government Act online at: http://www.legislation.nsw.gov.au/maintop/view/inforce/act+30+1993+cd+0+N

I have noted the additional issues you have raised regarding the definition of commercial photography, low impact stills photography and aerial photography. As previously advised, councils are established as autonomous bodies with rights and powers under the Local Government Act. The Act does not give the Minister for Local Government, or the Division of Local Government, [or the] Department of Premier and Cabinet, the power to direct councils in matters such as these.

However, given the apparent inconsistencies between the fees charged by some councils for stills photography and the provisions of the Local Government Filming Protocol, the Division will be considering these issues further in conjunction with a review of the Protocol that is currently underway.”

________________________________________________

So there you have it. Local councils can act like complete prats – they can impose ridiculous charges upon small-scale photographers and can ride roughshod over concepts of freedom of expression – and the various state government departments will turn a blind eye to it.

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About rossbmedia

Journalist ... interested in the truth not public service spin.
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18 Responses to New South Wales – Not Photographer Friendly

  1. Harry Phillips says:

    If the Protocol is currently under review we need to find out and contact the people involved so photographers have some input.

    I still don’t understand how they have powers to curb the councils greed on filming but can do nothing about them gouging photographers.

  2. rossbmedia says:

    Hi Harry – yes, that would be good but the process of this “review” may be a long and very drawn-out one. After all the current Local Government Filming Protocol from 2009 replaced one which dated from the year 2000. On that basis a future, “new” filming protocol might see the light of day in … um, 2018. Maybe?

  3. Rob Walls says:

    Meanwhile, we will continue to break the law. I think Arts Freedom Australia should flash-mob Bondi Beach. If even half the 750 plus photographers who turned up at the Opera House would do the same on Bondi it would certainly highlight the issue.

  4. Harry Phillips says:

    @Rob: It’s not a law we would be breaking, it’s just a council regulation.

    I just read the entire Filming protocol and the councils hitting photographers is even worse than I initially realised:

    Page 18:
    Councils are able to recover an application fee and direct expenses …… but are not permitted to charge any additional fees.

    Page 23:
    The only council fees and charges that apply to filming are for recovery of specific council costs.

    Page 25:
    If an approval is required, and no other services are required then no fees, other than for the application, may be imposed.

    Charging $75 per hour for a low impact still photographer that has zero impact and no service requirements is perfectly fine though.

  5. rossbmedia says:

    Hi Harry – unfortunately it does appear to be a law as well. I have today slowly trawled through the sections of the Local Government Act 1993 that were highlighted by the very helpful Ross Woodward – God bless his little heart.

    Anyway, in Chapter 7 – What are the regulatory functions of Councils? (page 102), the following is noted: “Failure to obtain or to comply with an approval and failure to comply with an order are made offences under sections 626, 627 and 628.” Local councils such as those ultra-progressive types at Manly and Waverley regard small-scale “commercial” photography as a business and under Section 68 D (1) of the Local Government Act 1993, you need an “approval” (i.e. a permit) to engage in a trade or business on community land.

    So if a photographer starts clicking away at Bondi Beach or Manly Beach without the requisite approval and her/his intent is to sell, or possibly sell these images, that person is engaging in a trade or business on community land without approval, and is thus guilty of an offence under the Local Government Act. Or they are guilty of an offence if it can be proven in court. And the maximum penalty for a general offence under Section 626 of the Local Government Act is $5,500 for “failure to obtain approval.”

    Mind you, I think a local council would have a very, very difficult time proving a case in court that a small-scale photographer had committed an offence – or of even pursuing the case – given the wording of that section of the Local Government Filming Protocol 2009, which says that “still photography … does not require council approval or attract council fees unless it involves additional activity such as blocking streets, constructing a set or additional parking.”

  6. Rob Walls says:

    Seems to me, “law” or “regulation”, is kind of splitting hairs. I’ve had several pictures of Bondi Beach published in the last couple of years…so I guess I just have to wait for the photography police to knock. In the words of Paul Hogan, “Come and get me, you bastards.”

  7. rossbmedia says:

    Hi Rob – should we give out your address to the photography police, or will you come in and surrender yourself to the relevant authorities? By the way I think that your flash mob at Bondi Beach suggestion is a great idea. I think that these silly, silly bureaucrats need to be told that their laws are manifestly unfair and totally unenforceable.

  8. Harry Phillips says:

    So a writer that goes to Bondi sits down and writes is also a “business” because they intend to sell the script? A painter that visits Bondi needs a permit if they want to use the scenery they see in a painting they intend to sell? A musician that uses the sight sounds and smells of Bondi to inspire a song is also carrying on a business because they want to sell CD’s?

    A photographer at Bondi is no more carrying on a business than any of those examples. The business end is conducted elsewhere, the creation of the art might take place at Bondi but so what, Waverly Council does not deserve a cut from any of them.

  9. rossbmedia says:

    Harry – I agree with you totally. I am a writer too and get paid for that craft and the idea that I would need a permit to do so is grossly insulting – it would be totally against the notion of free speech. But equally the fact that many jurisdictions (such as Waverley Council) would require me to have a permit to do the photography side of my act of free speech is grossly insulting too. The justifications used by various branches of government such as Waverley Council, or the National Parks and Wildlife Service in New South Wales, or Parks Australia at a federal level as a rationale for “commercial” photographers requiring “approval” or permits are totally specious.

    Perhaps I should do a post about that as well?

  10. Harry Phillips says:

    Ross – I wasn’t having a go at you, sorry if it seemed that way, it was more pointing out the serious flaw in the “carrying on a business” logic they use. I just don’t get why they can’t see the gaping hole in their justifications. Rotnest Island in WA has got it right, why can’t these guys.

    If the permit system was purely about impact and access I would be right behind them all the way no questions asked. If a photographer, (or a writer or a painter) has more impact than a normal visitor then they should be required to get a permit.

    This attitude of “Oh, you’re going to make money from this, then we want some of it” is just too much.

  11. rossbmedia says:

    Hi Harry – no, I didn’t think you were at all.

    As for greater than normal impact, local councils – or some of them at least – charge personal trainers for the use of public open space when they conduct classes/sessions on such land. And while it can be argued that personal trainers bring a benefit to the community in keeping (some) people fit and healthy, there is a much greater case to be made that these people are conducting a business activity on public land when they hold their classes.

    But these are the charges made by Waverley Council in this 2010-2011 fiscal year for “Organised or commercial fitness groups and personal trainers” using Bondi Beach, Bondi Park, Bronte Beach or Tamarama Beach: 0-5 participants is $550 per year, 6-10 participants is $1,320 per year. Compare this to the hourly fee of $75 that the same council charges for low impact “commercial” still photography that is carried out in public open spaces, or the fee of $306 per hour for still photography that is carried out in one of the council’s cemeteries. (Waverley Cemetery has historic, interesting graves and is in a photogenic location).

    Personal trainers only use public open space when they have clients. However local councils can deem photographers to be “commercial” even when they don’t have direct clients except for themselves (such as in the case of Ken Duncan), or are working speculatively or on a freelance basis where the client does not pick up the tab for their expenses. What’s even worse about the whole situation is that by viewing “commercial” photographers as cash cows ripe for the milking, the local council rangers become imbued with an attitude in which they view everybody in a public open space who has “professional-looking” camera gear as someone who should have a permit and so these ‘pro-looking’ people then become targets for totally unjustified attention (aka harassment or hassling).

  12. Debbie says:

    The Local Government Filming Protocol starts with a foreword lauding praise on the Australian film industry, its great history, its means of increasing business investment in NSW and extolling the benefits of the film industry to NSW. It also pronounces the NSW Govt’s strong support of the film industry. How I would LOVE to hear such positive words from a Minister acknowledging the great history of Australian stills photographers on the world stage, the role of Australian stills photographers in the promotion of NSW locales (and the flow-on benefits to industries such as tourism), and the many other advantages of having stills photographers around (feel free to list more specifics – maybe we can get our own incentive for a protocol going!).

    The fact that some local councils, as autonomous bodies, decide that stills photographers should be subject to permits and charges when commercial film crews undertaking almost identical activities are not, feels a little discriminatory. Why don’t you like me Councils?..

  13. rossbmedia says:

    Exactly, Debbie! Thanks for your sage words!

  14. Debbie says:

    The real absurdity is that my camera, the Canon EOS 5D MKII, can also be used as a video camera (in fact, an entire season finale of the TV show “House” was filmed using the Canon EOS ED Mark II). When enquiring about photographing a model in Manly recently I was told I would require a permit and would need to pay fees totalling $554 for 4 hours. Out of curiosity I asked the Council – what if I decide to film this for my clients instead? And the reply was that there would be no charge – it would be free. So, using the exact same equipment and with the exact amount of people involved – when shooting at 30 frames per second (as a video) it would be free and when shooting single photographs I required a permit and fees totalling $554 for 4 hours.

  15. Harry Phillips says:

    @Debbie: They just love being consistent, besides 30 frames a second is soooo completely different than 1/300th of a second. The ranger will come look over your shoulder, as soon as you turn the dial to anything BUT the video setting they will fine you.

  16. Geoff says:

    If it is indeed necessary for anybody who is engaging in “trade or business on community land” to pay fees, then we need to understand the absurd extension of this. For instance, what about a dog walker, who is taking a client’s dog for a walk through a park (actually, I do believe this could have more impact than a landscape photographer, especially if the dog walker does not “scoop the poop”). What about an au pair who is taking her young charge to the park to play? What about the professional sportswoman who is using a local park to train, or going for a training swim at a beach? What about a psychologist who decides to hold a consultation with a patient on a park bench (I know I am stretching it a little)?
    If you take the response you got, and apply it absolutely to the letter, the outcome becomes absurd. There needs to be some return to reason, where councils are prevented from harrassing or extorting money from anybody who is having no more impact than any other member of the public.

  17. Rob Walls says:

    Geoff…I think you have hit the nail on the head…but of course, we all know that the main qualification for becoming a council apparatchik is the ability to suspend common sense and logic.

  18. Harry Phillips says:

    hmmmmm…. Do Waverly council have a definition of personal trainer?

    I think I will apply for a personal trainer permit, there will be 1 participant, me, I will be training myself on how to take and sell better photo’s. Total cost $700 per year, that would only get you 7 hours 20 minutes if you applied for a photography permit.

    They want to play fast and loose with definitions why can’t I?

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