Recently, I asked a clean-cut commercial lawyer friend of mine what we planned to do the following day. I was surprised with the reply: he and his brother were cruising down to Torquay early in the morning to go surfing. A few months later I was dining at a Vietnamese restaurant in Melbourne with a senior QC. The conservation turned to what he liked to do on the weekends. The QC quickly jumped in with “go surfing down at Lorne”.
Both occasions highlight a situation which, until recently, I was unaware: as a pastime, surfing is becoming more and more popular. This summer, an increasing number of us will be reaching for the surfboard rather than the tennis racquet or cricket bat to take advantage of the blue skies and pleasant temperature. Indeed, my two lawyer friends are among the 900,000 Australians that surf regularly.
While the explosion of surfing as a popular pastime is certainly a good thing, with more Australians enjoying the buzz that a great wave can provide, those in the know appreciate that an escalation in the number of surfers also raises some problems. This is particularly the case at this time of year when Australians are in holiday mode, and place surfing high on their list of things to do.
The difficulty with having an increasing number of surfers is that the number of surf breaks available for surfers does not change. Unlike with cricket or tennis, where an increase in participants can be catered for by manufacturing more balls, bats and rackets, we cannot manufacture more surf breaks to cater for the increase in surfboards hitting the water. As surf law expert Daniel Nazer has written: “Surfers are at the mercy of geography and meteorology. The size and direction of swell and the physical features of the coast facing the swell determine the number and quality of waves available.”
The result is extra crowding at waves, which can lead to conflict breaking out among surfers (so-called “surf rage”) wanting access to the best breaks. Economists refer to this problem as a “tragedy of the commons”- individuals have an incentive to overuse so-called "common resources” which are open for public use.
The unique, and many would say positive, thing about surfing is that it is one of the only popular pastimes left which is not subject to formal state regulation. But there are increasing numbers of individuals, mostly lawyers, who argue that state intervention is required to avoid the conflict as more surfers compete for a constant number of surf breaks. One suggestion is for a specific law to determine how waves are to be distributed among surfers. Such a law has recently been proposed in California, to deal with the high level of conflict between surfers on Californian beaches.
According to Nazer, the proposed California Open Waves Act contains the following features: (i) a declaration that the “the surf belongs equally to everyone”; (ii) increased penalties for the existing crimes of battery and threatening “wherein the act was accomplished during an attempt to intimidate or prevent another person from exercising lawful use of ocean resources”; (iii) in relation to the battery offence, a minimum 30-day sentence for a first offence, and a 60-day sentence when a battery occurs in the water; and (iv) a declaration that a surfboard is a deadly weapon “when used in an attempt to injure another person”.
The California Open Waves Act has yet to gain the support of the California state legislature.
In response to this movement towards formal regulation, surfing groups have made a concerted effort to publicise the so-called “norms” which have been developed in the surf to determine behaviour in the water by surfers, and the priority over waves. A “norm” is legal jargon for an informal rule directing individuals who are part of a particular group (for example, surfers), or society more generally, to act in a certain way. A norm is distinct from a legal rule which is backed up by a state-imposed penalty if breached, and a simple “regularity” which is a routine way of acting, but without any sense that there is an obligation to act.
Surfing groups contend that if it can be demonstrated that these surfing “norms” are effective in preventing conflict among surfers, there is no need for formal legal rules to be imposed and potentially destroy the pure enjoyment of surfing. Surfing groups have been able to list some of the key cooperative of norms of surfing. These norms are common throughout the world. The norms are often referred to as the “Surfers’ Code” or “The Tribal Law of Surfing””. The Surfrider Foundation of Australia has even published a list of common surfing norms which are available on the Foundation’s website.
Nazer has identified three fundamental surfing norms, which govern priority and safety issues in the water. The three fundamental norms are: (i) one surfer should not “drop in” on another surfer (i.e. take over the wave which another person has priority (the person closest to the break of the wave has priority); (ii) the “paddle-wide” norm (i.e. surfers should paddle away from that part of a wave which another surfer is likely to ride to prevent collision); and (iii) the “don’t let go of the surfboard” norm (rather than letting go of their surfboard if forced to pass through a broken wave (which could potentially strike another surfer), surfers should “duck-dive” which requires holding onto the surfboard and pushing it under the wave).
According to Nazer, other common surfing norms include: give way to the surfer “paddling out”; indicate your intentions to other surfers; choose the surf spot which is appropriate for your ability; respect learners and beginners, and the “no snaking” norm (i.e. deliberately obstructing another surfer as they paddle for a wave).
Daniel Nazer has argued that “surfing norms are a success story as they help millions of people share a valued resource that is usually left completely open to the public.” For those of us taking to the surf over summer, or who have made it a New Year’s resolution to learn how to surf, it is important that we understand and obey these norms. Not only does this make for a more enjoyable surfing experience, but if the norms can continue to be effectively enforced through cooperative means between surfers, then there will be no need for formal legal rules to step in - which could harm the pure enjoyment of surfing.
This article draws upon research into surfing norms by Daniel Nazer in his paper “The Tragicomedy of the Surfers’ Commons”, published in the Deakin Law Review in 2004.