When Australians are unwelcome in their own country ...

Monday of this week, July 5th, marked the tenth anniversary of the introduction of the federal government’s Environment Protection and Biodiversity Conservation (EPBC) Regulations. Signed into law by then Governor-General William Deane and the Environment Minister of the time, Robert Hill, the EPBC Regulations probably sound like a motherhood statement. After all, who would oppose regulations that are there, ostensibly, to protect our environment and biodiversity?

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. These particular regulations are what I would call “public service law”: they are rules that have come into being without any popular demand or support. All too often, they are ill-conceived regarding how they might impact on those who fall under their provisions and are ill-conceived as to how they might actually be applied and enforced.

The EPBC Regulations were already 182 pages long when they arrived back in the year 2000 and are now 273 pages long. Tack them 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!

A significant part of the EPBC Regulations relates to “Activities in Commonwealth Reserves” - in fact there are 44 pages devoted to regulations that fall under this ambit. 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.

It is in the proscription of certain “Activities in Commonwealth Reserves” where the EPBC Regulations display what might be described as Orwellian tendencies. 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 example, would make it an offense to display the Australian flag on your car if you drove around Booderee, Kakadu or Uluru on any day of the year, let alone Australia Day. The same, no doubt, would also apply if you displayed the Aboriginal flag on your vehicle as a bonnet 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. 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 at Kakadu or toss a pebble into the surf at Jervis Bay either because that’s against the law as well.

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 magnificent 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 very 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 the 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 many 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 Campbells, the Environment Minister of that time (David Kemp) showed far more commonsense than the people who drafted the EPBC Regulations and abandoned any notion of pursuing a court case against the couple. In a statement to The Australian newspaper in August 2003, Kemp said that 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. Yet while Australia has been a signatory to an international covenant on civil and political rights that guarantees freedom of expression since 1980, the bureaucrats within Parks Australia have found new ways to further restrict what photographers can do in the Uluru-Kata Tjuta National Park.

On a recent trip to Uluru I noticed that a No Photography sign on the base walk had been moved so that rather than referring to a small sacred site, tourists and others would be led to believe that the No Photography rule now applied to a whole stretch of the Rock - a massive and spectacular wall - that was hundreds of metres in length.

And in September 2009 I was refused permission by the park’s Media Office to publish an image of Uluru (that is derive “commercial gain”), which I had slightly tweaked in Photoshop to add some vignetting and a faint blue cast. My “alteration” of this previously approved picture may apparently have caused cultural upset to some of the park’s traditional owners but the far greater insult involved was that to my own intelligence. By doing this, the park service told me in one absurd moment that even an artistic interpretation of the landscape by photographers was verboten as far as Uluru was concerned.

Uluru Viewed from the Coach Parking Area in Mid-Afternoon

The author took this picture of Uluru from one of the two sunset viewing areas for Uluru in June 2001. The image has been used in a number of publications since then and was re-approved for usage by the park's Media Office in 2009.

Uluru Viewed from Coach Parking Area in Mid-Afternoon (tweaked in PS)

This is a variant of the original image made by the author in 2001 which has been tweaked in Photoshop via a Plug-In called Filter Forge. (It has been given a LOMO Effect.) The author was refused permission to publish this image by the park's Media Office in September 2009 on the grounds that "this treatment does not constitute enhancement of natural colours".

Plenty of other photographers have also fallen foul of the over-regulation at Uluru. Award-winning photographer Darren Jew posted this anecdote on an Arts Freedom Australia blog on July 2nd:

Uluru-Kata Tjuta National Park is a magnificent place. But on my last visit there I found the restrictions so frustrating that instead of experiencing the sense of reverence that I’d felt on previous visits, I just drove around with a heavy heart and left earlier than planned. As a photographer my skill is to interpret my subjects, not just snap pictures. The so-called “Ulurules” have taken away the ability of all photographers to create images with their own personal style.

Jew went on to recall how on that last visit he travelled the Lasseter Highway that links Uluru with the distant domes of Kata Tjuta. As he drove back along the sealed road on his final morning after a period of frustration on the “bouncing Kata Tjuta viewing platform”, he wondered how it was that he, as an Australian photographer, “could have become so unwelcome in my own country”.

“I was contemplating the ‘damage’ I would cause if I was to wander across the dunes with carefully chosen steps and my simple tripod.”

Then as he came around a bend on the road he encountered a herd of wild camels, feral animals, which were moving through the sand dunes chomping up fragile desert plants as they went along.

“I wondered if the camels had read the Environment Protection and Biodiversity Conservation Regulations; and more practically, why the heck the park rangers weren’t bothered to be seen protecting the national park from this blatant damage?”

Then a thought occurred to him. Perhaps the rangers would only act “if the camels carried tripods”.