In Australia, there is currently no legal rights that protects an individual’s from been photographed. Therefore, a person in the Australian society does not have a right to privacy and can be photographed without consent. The right to take photographs does not contravene any case law or statues and also does not constitute an invasion of personal privacy. However, Common law doctrines such as nuisance, trespassing, defamation, offensive behavior, and infringement of rights can still apply and impose onus of proof on the photographer.
"A person, in our society, does not have a right not to be photographed."
Justice John Dowd in R v Sotheren (2001) NSWSC 204
Public vs Private Property
There are no legal restrictions on taking photographs at public places in Australia and Photographers are encouraged to take photographs of the general public. In addition, there is no restriction on taking photographs of people on private property from a public property. (According to Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) there is no freedom from view, so people who are photographed on their property from a public location have no legal claim against you if what is captured in the photograph can be seen from the street. ) When taking photographs on private property, it is essential for the photographer to ensure he/she has permission for entry and photographing on private land. Otherwise, it may constitute trespass of land and Photography may be prohibited or restricted within that property.
Criminal Offence
· Summary Offences Act 1988 (NSW)
· Crimes Act 1900 (NSW)
· Surveillance Devices Act 1999 (Vic) & Surveillance Devices Act 1998 (WA)
There are a number of existing criminal laws that address the taking and use of unauthorised images for offensive purposes. Some of these include:
use of surveillance devices to record a ‘private activity’ without consent;[1]
filming for indecent purposes;[2]
making an image of a child engaged in a private act for prurient purposes;[3]
making indecent visual images of a child under the age of 16;[4]
committing indecent or offensive acts in a public place;[5]
child pornography offences;[6] and
using a telecommunications network or carriage service to facilitate certain offences.[7]
Commercial Use
Commercial use is commonly defined as use that is intended for commercial gain, which includes any commercial, promotional, advertising and merchandising purposes.
There are no law imposed on personal use of photographs, but it is necessary to obtain authorization for photographs that will be used for a commercial purpose. A Model Release form should be signed by the subjects to ensure appropriate authorization will be provided for the photographer.
I have included samples of Model Release Forms for both Adult and Minor, note that it does not necessarily address all legal issues or requirements of the photographer. Please download a model release form that best suit to your needs.
Getty Images Model Release Form
(Here is what I use for the authorization of my photos to grant permission to Sell on Getty Images)
https://contribute.gettyimages.com/producer/documents/Model_Release_English_Dec_2008.pdf
Government Property and Famous Landmarks
It is generally permitted to take and publish photographs of buildings, landmarks, sculptures and other craftsmanship: (Copyright Act 1968 (Cth))
However, photography for commercial use is restricted in some areas by councils or authorities:
Sydney Foreshore Area such as Darling Habour, Circular Quay, the Rocks and Luna Park (Sydney Habour Foreshore Authority Regulation 2006 (NSW))
Sydney Olympic Park prohibiting the use for commercial purposes and causing annoyance/inconvenience to others. (Sydney Olympic Park Regulation 2001)
Other areas that may raise public concerns: swimming pools, beaches, parks, cemeteries, etc. It is advisory for the photographer to check the relevant authority’s website beforehand.
Government may impose restrictions on certain government properties such as railway, power stations and military areas. It is illegal to trespass these areas and may lead to prosecutions. You should always check the relevant regulations for a location that you are not sure about.
Police Enforcement
Police Officers in Australia are generally friendly and do not mind their photos taken. However, when Police Officers are duty to conduct a mission then any intervention/interference to their duty should be prevented thus do not take Photos when officers are carrying out their duties.
When there is unnecessary physical conduct by the police that is unacceptable and/or unreasonable, there is always an option to file a complaint to the NSW Police Commission. Before a photographer files a complaint to the Police Commission, it is suggested to get all the details of the Police Officer/s that you are going to make a complaint along with plenty of evidence for the assault. For example, the identification number and full name from the Police Officer/s along with photos/videos/sounds recorded at the scene.
Here is the NSW Police Commission Complaint page:
http://www.police.nsw.gov.au/services/additional_services/complain_about_a_police_officer
In the case that Photographers is approached by the Police and the Police may ask for personal identification. However, in NSW that Photographer does not have to comply with this request excepted in the case of:
where you are in lawful custody, or the police suspect on reasonable grounds that you may assist in the investigation of an indictable offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW))
Power to Search and Detain
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Police do not have powers to stop, search and detain a Photographer without a warrant unless they suspect on reasonable grounds that:
you have in your possession or under your control anything stolen or unlawfully obtained, or to be used in connection with the commission of a relevant offence; or
you have in your possession or under your control in a public place a dangerous article that is being or was used in connection with the commission of a relevant offence.
Power of Seizure: Photographic Equipments
Under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), the Police do not have powers to seize and detain property without a warrant unless they suspect on reasonable grounds that the property:
is stolen or otherwise unlawfully obtained; or
may provide evidence of a commission of a relevant offence; or
is a dangerous article; or
is a prohibited plant or prohibited drug under the Drug Misuse and Trafficking Act 1985.
[1] See, eg, Surveillance Devices Act 1999 (Vic) ss 6–7; Surveillance Devices Act 2000 (NT) s 5; Surveillance Devices Act 1998 (WA) ss 5–6. Not all of the surveillance devices legislation in Australia, however, has a general prohibition on the use of surveillance devices without authorisation or consent: see, eg, in South Australia the prohibition is limited to listening devices:Listening and Surveillance Devices Act 1972 (SA) s 4. [2] See, eg, Summary Offences Act 1988 (NSW) pt 3B. In some jurisdictions, however, the offence only applies where the indecent material is produced for the purpose of sale: see, eg, Summary Offences Act 1953 (Qld) pt 7. [3] See, eg, Criminal Law Consolidation Act 1935 (SA) s 63B. [4] See, eg, Criminal Code (Qld) s 210(1)(f) [5]See, eg, Ibid s 227(1); Summary Offences Act 1988 (NSW) s 4; Police Offences Act 1935 (Tas) s 13. [6] See, eg, Crimes Act 1958 (Vic) pt 1 div 13; Criminal Code Act 1924 (Tas) ss 130–130G. [7]See, eg, Criminal Code (Cth) s 474.14 (using a telecommunications network to commit a serious offence); s 474.17 (using a carriage service to menace, harass or cause offence); ss 474.19–474.20 (using a carriage service to intentionally access, transmit or make available child pornography material); ss 474.22–474.23 (using a carriage service to intentionally access, transmit or make available child abuse material).