Photographing in public places

There is no general statutory or common law prohibition on photographing in public places in Australia. That has been the position since at least Victoria Park Racing and Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479, where the High Court refused to recognise a property right in a 'spectacle' that would have prevented a neighbour from broadcasting horse races held on the racecourse.

The Lenah Game Meats clarification

In Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199, the High Court considered whether Australian law recognised a tort of invasion of privacy. The Court declined to decide the question on the facts, but Gleeson CJ noted that the common law in Australia had not developed a general tort of privacy of the kind found in the United States.

Since Lenah, lower courts have recognised remedies in specific factual settings (see Giller v Procopets [2008] VSCA 236, dealing with the distress caused by distributing intimate images), but no general tort of invasion of privacy by photography in public has been established.

Specific statutory limits to be aware of

Surveillance device laws

Each state and territory has its own surveillance devices legislation. These laws are usually stricter for audio recording without consent than for visual recording. The Surveillance Devices Act 2007 (NSW), the Surveillance Devices Act 1999 (Vic), and the Surveillance Devices Act 1998 (WA) are the major examples. The provisions vary and should be read in their current form.

Recording certain private acts

Several jurisdictions have specific offences targeting photography of intimate or private activity without consent. Section 91L of the Summary Offences Act 1988 (NSW) creates an offence of filming a person engaged in a private act, and section 91M creates an offence of filming a person's private parts. Similar provisions exist in other jurisdictions.

Public land managed by a body

Parks, beaches, foreshores and reserves often sit under a managing body whose by-laws or conditions of entry restrict commercial photography or filming. For example, commercial filming in many NSW national parks requires a permit under the National Parks and Wildlife Act 1974 (NSW). Local councils impose similar conditions for foreshores and parks. These conditions are normally aimed at commercial production, not casual personal photography.

What about a photo of an identifiable person?

There is no general 'right of publicity' in Australian law. The exposure usually comes from one of three other doctrines: defamation, the consumer-law prohibition on misleading or deceptive conduct in trade (Australian Consumer Law section 18), or breach of confidence. See the Photographing people article for detail.