A correspondent writes:

Watching an episode of ‘Bondi Rescue’ shot on Australia. In the episode a lifeguard confiscates the camera of someone that was found taking photos of women sunbathing topless.

The lifeguard:

a) Seizes the camera

b) Proceeds to look at the photos and after telling the person he is not allowed to take these photos, starts deleting them

c) Decides there are too many such photos and removes the memory card from the camera,

d) Uses sheers to destroy the memory card

My understanding is that the lifeguard had no authority to do any of the aforementioned and should have called the police.

It is my understanding that the lifeguard could expose him and Bondi SLS to criminal damage.

Absolutely, but first my understanding of ‘Bondi Rescue’ is that the lifeguards depicted there are employees of Waverley Council, not volunteers with Bondi Surf Lifesaving Club so it would be the council that would have some liability, not Bondi SLS.

There is no property in a spectacle (Victoria Park Racing & Recreation Grounds Co Ltd v Taylor (1937) 58 CLR 479) that is you can photograph what you can see so anyone can go to Bondi Beach and take photos even if you are taking photos of women sunbathing topless; in fact it would be completely bizarre if people couldn’t take photos at Bondi! If there’s an objection to taking photos on Bondi, how could they film Bondi rescue?

There are offences relating to ‘child abuse material’ which includes ‘material that depicts …  the private parts of a person who is, appears to be or is implied to be, a child’ (Crimes Act 1900 (NSW) s 91FB).  ‘Private parts’ means a persons genital area or the breasts of a female person so that could be relevant if the person photographed was a child.  But it’s only an offence if the depiction is what ‘… reasonable persons would regard as being, in all the circumstances, offensive’ so that might be a photo where the child is the clear subject of the photo, but not a photo of the beach where the child is one of many persons on the beach.

There are also offences related to voyeurism but they won’t apply here as bathing topless on one of Australia’s most popular beaches is hardly being engaged ‘in a private act’ (as defined in the Act).  It is an offence to film a persons ‘private parts’ but in the context of that section, ‘private parts’ means “”means a person’s genital area or anal area, whether bare or covered by underwear”, not a woman’s breasts (Crimes Act 1900 (NSW) ss 91I and 91L).

So the assertion that  the person ‘is not allowed to take these photos’ is wrong; but let us assume that it’s right, eg that it constitutes ‘offensive conduct’ (Summary Offences Act 1988 (NSW) s 4) so what?

I assume that Bondi’s lifeguards are not ‘special constables’ (under the Police (Special Provisions) Act 1901 (NSW)) so they have no special law enforcement powers.  As citizens they could detain a person they thought had committed an offence (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 100) but that requires the citizen to ‘take the person, and any property found on the person, before an authorised officer to be dealt with according to law’, not to destroy the property.

The lifesavers may be council rangers but that would give them power to enforce council by-laws and there are no relevant by laws on the council’s website.  There are provisions requiring a permit for commercial photography (see http://www.waverley.nsw.gov.au/business/regulations,_policies_and_permits/filming_and_photography) but I infer that the photography here was not ‘commercial’ and even if it was, it still wouldn’t authorise the lifeguard to seize and destroy the memory card.

Even a police officer would not have lawful authority to seize and destroy the card.  If the officer believes an offence has been committed then she or he could seize the card to use as evidence and present it before a court where the court could make orders as to what is to happen to the card.

So neither the life guard, nor a police officer, would have the authority to take the action described and yes, they would be exposing themselves to criminal and civil liability (if anyone could be bothered for the price of a memory card).