Photographing private property and trespass

Australia inherits the common law of trespass to land. Entering or remaining on private property without permission, or beyond the terms of an implied licence to enter, is the wrong. The photography is incidental but may aggravate damages.

Lincoln Hunt v Willesee

Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 (Young J) is the leading Australian authority. A 60 Minutes television crew entered the premises of a Sydney company to confront its directors. Young J held that the crew were trespassers from the moment they entered without an invitation, and granted relief restraining broadcast of the footage. The court treated the trespass and the proposed use of the resulting footage together.

What counts as 'private property'?

Most retail premises, shopping centres, restaurants, residential land and corporate offices are private property. There is an implied licence for the general public to come on to premises operating publicly, but it can be revoked by the occupier at any time. Once revoked, remaining is trespass.

Photographing from a public place into private land

Photography from a public footpath, road or vantage point of activity inside private property is not trespass, because the photographer is not on the land. It may engage one of the privacy-adjacent doctrines if the activity is genuinely private. See breach of confidence and the state surveillance device statutes.

Drones and the airspace question

There is no settled Australian authority that flying a drone over private land at low altitude is automatically a trespass. Bernstein of Leigh (Baron) v Skyviews & General Ltd [1978] QB 479, an English case often cited in Australian commentary, drew the line at the height ordinary use of land would extend. CASA's airspace rules and the state surveillance device laws are usually a more direct source of restriction in practice. See the Drone photography article.