Out of order

Two police officers approached me as I stood on a street corner in Brisbane last week. They told me that they had received a complaint from a member of the public about me making photographs of them without their consent. 

The officers knew that I didn’t need consent to make photographs of people in a public place, but in their view, I may have interfered “with the peaceful passage through, or the enjoyment of, a public place by a member of the public”, an offence under s. 6 of the Queensland’s Summary Offences Act 2005. 

In their view my behaviour could so upset a person that it had the effect of depriving that person of their enjoyment of the public place. They also suggested that I may have impeded the passage of pedestrians on the street, also in contravention of the Act, by standing for longer than a few minutes at that corner. 

The officers referred to the current heightened fear of terrorism, and to the possibility that I might be a paedophile as further “reasonable” grounds for their concern about my behaviour. 

Given the tone of the conversation, I believe that had I kept making photos at that corner the officers would have have issued me with an infringement notice on one or both of the public order grounds they had mentioned. At the very least, they were demonstrating a willingness to invoke their public order powers to warn me off. 

Public order offences are on the books in all Australian States and Territories. They are designed to address disruption or offence to the general public. There is no implied right to privacy in public here, and it is troubling that those offences might used to effectively establish that right. 

Tania Panico is a street photographer and criminal lawyer who lectures in criminal procedure. According to Tania, police would be abusing their powers if they used an offence of public nuisance to specifically target street photographers who were merely taking photos in a public area. Unless the photographer had disobeyed a valid direction or was acting in an indecent way or in a way that offended community standards (such as making pervy photos of topless bathers) such a case would likely fail if it was brought to court. 

“Under s.6 of the Summary Offences Act 2005 (QLD), a prosecutor would have to prove that you had behaved in a disorderly way; or an offensive way; or a threatening way; or a violent way; AND that your behaviour interfered, or was likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public. There’s no way they could satisfy the first element of the offence if you were merely taking photos of street scenes.” 

Hurting someone’s feelings does not mean one has behaved in an offensive or criminal manner. And it is unreasonable that an individual’s feelings should override the right to make photographs in the street, which is what the police were suggesting. 

Some public order offences can be dealt with by way of infringement notices and on the spot fines, and they are often more trouble than it’s worth to defend. That makes them attractive to police, and open to all kinds of misuse. 

While it would have been inconvenient, I was kind of hoping that the police would issue me with an infringement under s. 6. For the reasons Tania suggests I was pretty confident that an infringement notice or charges would be withdrawn before they were tested in court. While not rising to the status of a test case, it would have at least demonstrated to Queensland police that they can’t use those powers to shut down street photography. 

I’d not previously heard of public order offences being used in this way, and asking around I can’t find anyone else who has faced the same issue, but Australian street photographers would be wise to be informed about their State or Territory’s public order legislation, and about the appeal process. There are plain English guides on the internet - just search around using your State or Territory name and the words “public order offences”. 

If police use or threaten to use their public order powers to stop you making photographs in a public place, (peacefully) stand your ground. If you are issued with an infringement notice or charged with an offence contact a local community law centre, or the Arts Law Centre of Australia, for advice and support. The Centre has produced a guide to street photography and the law (mostly NSW-focussed but also refers to other jurisdictions). 

Finally, although I disagreed with the officer’s reasoning about whether I had committed a public order offence, I agreed with another point they made. While some people are assertive (even aggressive) about having had their photograph taken, It’s important to acknowledge that some people may feel intimidated by a situation and be reluctant to complain directly to a street photographer, for fear of triggering an unpleasant or confronting interaction. 

We have a right to make photos in public, and we also have an ethical responsibility not to be a dick about it. If you are confronted, try to de-escalate the situation. Try to engage the person in a conversation. People believe that we have no right to make photographs of them, so calmly explain that you do have that right, but that you also understand they might have concerns about what you are doing. Rather than being defensive, listen to their concerns. If you feel you need to justify yourself, wait until after you’ve heard them out. If need be, offer to delete the images you have made. And whatever you do, please don’t persist in making photographs when you are causing obvious distress, just because you have a right to do so!