Images courtesy of Tim Hixson

As next week's Arts Freedom rally gets closer Ross Barnett has written an article about council permits.

Are Sydney Councils That Require Photography Permits Acting Illegally?

The issue of photographers' rights and access to public open spaces has been in the news again over the past week. On Tuesday (August 10th) the Wentworth Courier ran a story about the upcoming Arts Freedom Australia rally against "out of control bureaucracy", while on Thursday (August 12th) The Sydney Morning Herald ran a similar feature which was complemented by an item on Channel Ten's news bulletin that evening.

In response to The Sydney Morning Herald article - at http://www.smh.com.au/nsw/photographers-draw-a-line-in-the-sand-over-picture-permits-20100811-11zqb.html - the paper published a very interesting letter the following day. This was from photographer Debbie Osterhage. I have reproduced it in full below:

Your article says Manly Council does not charge for permits for low-impact photography shoots. This is incorrect. The council does not charge for low-impact filming, but low-impact photography shoots cost $554 for half a day (up to four hours). Why this is so beats me, but it certainly puts strain on photographers and is hard to explain to our clients.

Reading this made wonder how the policies of both Manly Council and Waverley Council (also mentioned in The Sydney Morning Herald article) stack up against some very relevant pieces of New South Wales government legislation. These are the Local Government Act of 1993 and the Filming Related Legislation Amendment Act of 2008.

According to the Local Government Filming Protocol of 2009, the Filming Related Legislation Amendment Act 2008 and the Local Government Act 1993 specifically exclude still photography, and it doesn't require council approval or attract fees unless it involves additional activity such as blocking streets, constructing a set or requires additional parking. So if Manly Council has been charging fees for low-impact commercial photography such as that done by Debbie Osterhage isn't the council then in breach of these pieces of legislation? Or is Manly Council somehow above the law?

I'm not a lawyer but the wording of the Local Government Filming Protocol of 2009 is pretty straightforward. You can find this document here;

http://www.dlg.nsw.gov.au/Files/Information/Local_Government_Filming_Protocol_-_2009.pdf 

The relevant section is on Page 8 of the PDF. Under a heading of THE NEW LOCAL GOVERNMENT FILMING PROTOCOL, this is what it says:

"Amendments to the Local Government Act 1993 provided that the Director General may issue a filming protocol which is binding on local councils in relation to the approvals and services provided to location filming production."

This revised protocol, is binding on local councils (my emphasis - RB), and spells out the dynamic of the relationship between the screen industry in NSW and local government under these new arrangements. ... This Protocol does not cover stills photography - the Filming Related Legislation Amendment Act 2008 and the Local Government Act 1993 specifically exclude still photography, and it does not require council approval or attract council fees unless it involves additional activity such as blocking streets, constructing a set or additional parking. In these cases, the Protocol can provide guidance for councils in processing high impact stills shoots. Those contemplating still photography should approach councils for further information."

My reading of this suggests that councils have no legitimate role in processing low impact photographic shoots and therefore no right to ask for photography permits and charge fees. Yet Waverley Council, for instance, mandates an application fee of $150 for low/medium impact photography and on top of this there is a further charge of $75 per hour that applies for this type of still photography. That's in "public open spaces". If you want to do still photography in one of the Council's cemeteries a fee of $306 per hour applies. And you can only do that type of still photography during business hours. Of course, it's even more expensive if you want to do some filming in one of the Council cemeteries. That charge is a hefty $538 per hour. So much for "freedom of expression".

It would be very interesting to get a legal opinion on this situation. Are those Sydney council which require permits and charge fees for low/medium impact "commercial" photography in breach of New South Wales legislation? And if they are in breach, do photographers such as Debbie Osterhage have grounds to claim back the money that they have paid these councils in recent times?

Ross's article was orginally posted at here

 

Author: Ross Barnett