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Business / Philosophy of Photography Taking pics is one thing, but understanding why we take them, what they mean, what they are best used for, how they effect our reality -- all of these and more are important issues of the Philosophy of Photography. One of the best authors on the subject is Susan Sontag in her book "On Photography."

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Photographer guilty of “disorderly behaviour causing offense” for street photo
Old 06-27-2013   #1
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Photographer guilty of “disorderly behaviour causing offense” for street photo

Story via Reddit and Imaging-Resource. A Perth, Australia, photographer who took a picture of a woman during New Years Eve celebrations on the street has been found guilty by a magistrate of "Disorderly behavior causing offense by taking photographs without consent". The woman's boyfriend had confronted the photographer, snatched his iphone and taken it to a nearby police officer. He was taken into custody "for his own protection" and then charged.

The magistrate acknowledged that it was lawful for the photographer to take photos of people in public places and CCTV images confirmed he was not acting suspiciously at the time.

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However... and this is where it becomes scarey for us photographers. Some members of the public did object to him taking photos without permission and one photo in particular, even though he did not try to disguise what he was doing and the subject was quite happy to be in public dressed in the manner that she was. As a result his behavior did cause offense and so could be considered disorderly, so (he was) found guilty as charged.
- Julian Tennant on Facebook, via Reddit. Julian was with his friend Al (the man later convicted) during the incident.
The magistrate's comments left the door open for legal clarification via appeal, however the report indicates this is unlikely due to lack of funds. So a precedent in West Australian courts has now been set. Other States may now feel inclined to follow.

The magistrate's decision reinforces the community belief that they have the right not to be offended by street photography. The report does not mention whether the magistrate questioned if it was reasonable for the complainant to feel offended in the first place. If so, I think that's a serious oversight - it's perhaps the central question: after all, a person could claim to be offended after the fact if s/he decided s/he didn't like the photographer; or if s/he demanded the photographer show or delete the images and was refused. Most people don't realise that some of us use film - or even that film still exists!

The recent PetaPixel article "Beware the Coming War Against Photography" also discusses this issue. Confrontational street photography like this report is also not making it easy to convince people that street photography can be an innocuous pastime or project.

Personally I find this judgment disturbing. Any person with a bullying state of mind or a chip on the shoulder can now feel more assured the courts will back them up. Sooner or later, we will all come across someone who finds street photography offensive. Even if we approach it with gentle intention.

The irony is, almost everyone with a cell phone is now a street photographer during public events like New Years Eve. If a complaint was made about every picture taken with a cell phone during these events, the police and courts would soon start to question what is offensive and what is not.
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Old 06-27-2013   #2
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Quote:
Originally Posted by Sejanus.Aelianus View Post
"Some members of the public did object to him taking photos without permission" sounds close enough to "behaviour likely to cause a breach of the peace" to be a candidate for a police caution.

The bottom line is that we all have to coexist with our fellow citizens, regardless of what the law says otherwise. What's more, the law has to evolve with our changes in perception.
Makes me wonder what the "general public" was doing that was interesting enough to photograph and why some objected to photographs being taken. Geez I wonder how many of those "girls gone wild" wished they wouldn't have signed a release? Maybe something even more salacious was involved in this particular circumstance.

Even more interesting to me in light of this "court ruling" is something that Xpanded said in another recent thread...

"I think the simple answers are alienation, lack of personal courage and disbelief."

Perhaps personal responsibility for ones actions should be included...which means if you or your drunk girlfriend does something really stupid and get photographed while doing it than tough crap...it happened you brought it upon yourself dimwit.

Funny how those with governmental power can fly a drone over somewhere anywhere and take pictures to their heart's delight...amongst other nefarious activities.
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Old 06-27-2013   #3
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Hard to know what he should've done without more detail on the circumstances. From what I gather from the report the complaint was made after the boyfriend noticed he'd taken the photograph i.e. no prior warning there would be a problem. The article does mention that the people seemed inebriated - and therefore more likely to be impulsive, aggressive and emotional - understandably, being NYE!

There are occasional media reports of problem public binge-drinking and street fights in Perth, so it wouldn't surprise me that this could happen. All the more reason for the photographer to be, as you said, more circumspect.
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Old 06-27-2013   #4
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Coming war against photography? Does the person writing this crap for Petapixel actually READ?

The war is well under way, and we are not winning...
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Old 06-27-2013   #5
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By that magistrate's reasoning, conduct that is otherwise legal, like taking photos in a public place, can become illegal just by virtue of having someone take offense.

If that's the case, I'd advise the photographer to claim he's offended by the magistrate's ruling and the complainant's (woman who was photographed) complaint. According to the reasoning employed in the initial case both the magistrate and the complainant would then be guilty of criminal conduct.

Sounds absurd I'll agree, but no more absurd than the logic behind the magistrate's original ruling.

Last edited by brusby : 06-27-2013 at 20:56. Reason: change judge to magistrate
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Old 06-27-2013   #6
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Quote:
Originally Posted by brusby View Post
...taking photos in a public place, can become illegal just by virtue of having someone take offense.
Political correctness knows no bounds!

Is that like an oxymoron or something???
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Old 06-27-2013   #7
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Someone suggested in a thread a while ago that Australia being the 'nanny state' it is, will quite likely be one of the first countries in the world to take away our rights to photograph freely in public places.

It's obviously been a long time since 'Eureka Stockade' and Australians in general seem quite willing to succumb to dumb authority!
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Old 06-27-2013   #8
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Quote:
Originally Posted by brusby View Post
By that magistrate's reasoning, conduct that is otherwise legal, like taking photos in a public place, can become illegal just by virtue of having someone take offense.

If that's the case, I'd advise the photographer to claim he's offended by the magistrate's ruling and the complainant's (woman who was photographed) complaint. According to the reasoning employed in the initial case both the magistrate and the complainant would then be guilty of criminal conduct.

Sounds absurd I'll agree, but no more absurd than the logic behind the magistrate's original ruling.
I'd agree except for one small problem - you might have logic and common sense on your side, but the magistrate has power on his side, so he wins. The only thing that can be done about this is to appeal the matter in the hope that a real judge will overrule the decision, which is quite likely as long as there's no actually-legislated absurdity involved. But you'd best be sure of winning, because calling a magistrate's ruling "absurd" then losing will land you in hot water - perhaps officially or, worse, unofficially where there are many ways for revenge to be taken for damaged pride. (I've suffered from the latter, on a matter entirely unrelated to photography, and can assure you that exposing embarrassing mistakes by a magistrate leads to very substantial pain.)

...Mike
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Last edited by mfunnell : 06-27-2013 at 21:17. Reason: inserting an indefinite article
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Old 06-27-2013   #9
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I completely agree Mike. I often use exaggerated examples like this just to clarify issues and to make a point, not seriously suggesting them as the proper course of action.

That's what appeals courts are for -- to correct the many nonsensical rulings of magistrates and trial courts. Unfortunately appeals are costly in time and money.
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Old 06-27-2013   #10
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Many years ago, my wife and I took a plane from Sydney to Cairns. I had a camera bag and a very small backpack but was told I could carry only one onto the plane. So, I removed the contents of the backpack and put those items into the camera bag, leaving a small empty backpack sack, just a little larger than I could fit in my closed hand. I was told that the backpack sack had to be checked since I started off with two items and was only allowed to take one of those on the plane. It was such a hilarious application of "rules", especially when the tiny backpack came off the checked luggage along with proper luggage.

Moral of the story - carry a large enough camera bag!

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Old 06-27-2013   #11
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How the world sees us ... well Monty Python at least!
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Old 06-27-2013   #12
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Quote:
Originally Posted by Keith View Post
Australians in general seem quite willing to succumb to dumb authority!
Americans have been thinking, acting, and voting en masse for this type of thing for a long time now...it is beginning to catch up to us and the rest of the world now!
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Old 06-27-2013   #13
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Quote:
Originally Posted by brusby View Post
I completely agree Mike. I often use exaggerated examples like this just to clarify issues and to make a point, not seriously suggesting them as the proper course of action.

That's what appeals courts are for -- to correct the many nonsensical rulings of magistrates and trial courts. Unfortunately appeals are costly in time and money.
I quite take your point, and I believe the photographer in this case is probably being very sensible by not further entangling themselves in the legal system (which, I guess, was the point of my cautionary tale). The only 'good' side of the story is that it's unlikely a magistrate's ruling (especially an absurd one) will be taken as a precedent. The bad side, of course, is the "chilling effect" left by the uncertainty over what a magistrate might do in the absence of precedent from a higher court or from clearly applicable black-letter law.

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Old 06-27-2013   #14
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Sounds like a job for a 'flash mob' of a few hundred photographers descending on this this municipality and photographing just everything in public.

And then take "strong offense" at any action the police take. Make sure the national news media covers this event.
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Old 06-27-2013   #15
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Sounds like a job for a 'flash mob' of a few hundred photographers descending on this this municipality and photographing just everything in public.

And then take "strong offense" at any action the police take. Make sure the national news media covers this event.

Civil disobedience is a great way to get the attention directed to this sort of nonsense IMO.
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Old 06-27-2013   #16
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In the UK, walking around in public, in the nude, is legal. If someone is 'offended' by it, then it becomes an offence. I guess street photography is similar, it's only offensive if someone is offended by it.
I think it comes down to the details, for example, was the subjects privacy invaded?

Some girls will walk the streets in skirts, going 'commando', nothing wrong with that, but there is a line between taking that girls photo (fine), and sticking your camera between her legs (not fine), and it's up to magistrates to draw where that line is, when you have humans involved, mistakes will be made.

BTW, I'm not suggesting the photographer did any of these things, from the article, his behaviour seems perfectly acceptable.
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Old 06-27-2013   #17
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Some girls will walk the streets in skirts, going 'commando', nothing wrong with that
I wholeheartedly agree...until my ten year old son says dad look at that squirrel!!! LOL

I wouldn't make a very good magistrate I think.

Sorry I couldn't resist.
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Old 06-27-2013   #18
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Want to take "street photographs"? Invest in a CCD security system. Obviously, these are innocuous and your Leica (or favorite rangefinder) is a weapon of unethical malice.

I am absolutely floored by public opinion. In the US, in cities, people are completely aware that they are perpetually being "filmed" while in public by so-called security cameras in nearly every public space. These cameras are not owned by some upstanding government agency, but by private entities, just like your average street photog. Obviously, its the act of being "out there" and actively composing your photographs that is criminal. I wonder if it would be more acceptable if I installed a CCD security camera on a helmet, and walked around with it. I would, of course, mount the camera so that the lens pointed in the direction I face. Actually, isn't that the premise for these "Go Pro Hero" cameras? Funny that an extreme sports camera is most appropriate for street photography now.
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Old 06-27-2013   #19
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Some time ago - a few years I think - I noticed a proposal to the national camera clubs association (or whatever its called) in Australia, to produce identity cards for camera club members to carry. This was in response to rent-a-cops and other safety and security apparatchiks harassing members. The ID cards would verify that they are registered members of a camera club and are undertaking photography in public places as a hobby.

I wrote to them asking if they really wanted to support the perception that some sort of authority was required just to take photographs in public places. I never received a reply.

Australia's wealth was built on the sheep industry. Seems it had a lasting effect.
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Old 06-27-2013   #20
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Quote:
The magistrate's comments left the door open for legal clarification via appeal, however the report indicates this is unlikely due to lack of funds.
Justice may be blind, but definitely has a nose for cash.
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Old 06-27-2013   #21
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You must remember this one Lynn. The Bondi Council tried to have photography banned on their beach ... luckily a New South Wales magistrate set them straight and told them where to go.

This all started after the Rex Dupain fiasco when he was arrested for photographing a couple sleeping on the beach with his Hasselblad!
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Old 06-28-2013   #22
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Wow. Seems the dude with the IPhone should have charged the boyfriend with assault and theft. Stupid. That is what I would have done, at least in the US. Don't know what the law is like is Australia.
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Old 06-28-2013   #23
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Quote:
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Can't see this one flying in the UK, although the quote about "Some members of the public did object to him taking photos without permission" sounds close enough to "behaviour likely to cause a breach of the peace" to be a candidate for a police caution.
Just for the record, in the UK, to constitute a breach of the peace (or attempt, or "likely to..") the offenders behaviour must be judged to be about to become violent or near to causing criminal damage, so I'd argue that it wouldn't be behaviour likely to cause a breach of the peace and a Police caution would only be applicable if said "offender" admitted the offence.
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Old 06-28-2013   #24
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It would be nice to know what was the "one photograph in particular" that the boyfriend and magistrate found offensive ...
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Old 06-28-2013   #25
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Quote:
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I'm afraid you're not quite right there. I've checked with a reliable source (offspring and their partner, who are both coppers). The offence is much broader than that and there apparently is no need for the arrestee to be or likely to be violent. Indeed, the offence is exactly what it sounds like.

Wikipedia describes it well: "In England and Wales, constables (or citizens) are permitted to arrest a person to "prevent a further breach of the peace" which allows for the police or the public to arrest a person before a breach of the peace has occurred. This is permitted when it is reasonable to believe should the person remain, that they would continue with their course of conduct and that a Breach of the Peace would occur."

There's no requirement that the person themselves is likely to or even might be violent or destructive. In numerous cases, people are arrested in this manner, because their presence or behaviour is likely to cause other people to breach the peace. The classic example is rival football fans. When fans of the visiting team display their team's colours and chant their team's songs in front of the home team's fans, the police are well within their powers to instruct the visiting fans to cease and desist, and to arrest them if they fail to do so. The reason for the arrest is the likely behaviour of the (usually) more numerous home fans.

Okay. Couple of anomalies with what you have posted.

Preventing a further Breach of the Peace is a separate measure than the offence of Breaching the Peace.

Prevent a Breach of the Peace (hither to referred to as PBOP) is a preventative measure, where by there is a likelihood of criminal damage or violence if a situation is left to escalate.

A breach of the peace (BOP) is a summary offence whereby the offenders behaviour, being likely to escalate to criminal damage or violence is witnessed by a police officer and is ongoing.

I would never rely on Wikipedia in matters of criminal law. I would hope that most briefs, custody sergeants, magistrates and judges don't. And I know cops don't.

The example of the football fans is misleading, to say the least. Not only as there are separate and specific legislation for football matches, not withstanding that offences under Public Order would be more suitable, but more so that it is simply misinformed.

I appreciate that you have offspring who are "in the job", but either something has been lost in translation or they are mistaken. The only reason why I am so sure is that I have had to prosecute for a BOP (which is unusual in itself) and have had the points to prove hammered into my skull before the court hearing. I'm a serving cop, by the way.
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Old 06-28-2013   #26
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Any links to something more official than a forum post that says a website says someone's facebook page says someone in their town had a problem?
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Old 06-28-2013   #27
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I hate to say it, but welcome to the Commonwealth. This kind of thing is common in British style judicial systems. We have some tea over here for when you get tired of these abusive and overreaching laws.
... really? how do you explain this then
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Old 06-28-2013   #28
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Any links to something more official than a forum post that says a website says someone's facebook page says someone in their town had a problem?
Sure. The Police National Legal Database is the national guide for points to prove, definitions and legal prosecution guidance.

Re BOP, you could find associated topic and stated cases here: https://www.pnld.co.uk/docportal/content/@419.htm

One caveat, though: General members of the public can't access it

Note stated cases such as Bibby v Chief Constable of Essex and Foulkes v CC Merseyside - without even accessing the meat of the cases, from their summarised titles, you can kind of figure out what the main crux is.
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Old 06-28-2013   #29
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Don't think for a second that I think the incarceration rate of the US is something I agree with. I personally think it's deplorable. This isn't a black and white wave the red white and blue around we can do no wrong analysis - I'm simply pointing out that Commonwealth countries are known for their typical state nannyism and the people putting up with it.
I was once cautioned by a police officer in Philadelphia for crossing the road in an improper manner yet I still manage not to make sweeping statements about the USA's legal system or stereotype it's citizens
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Old 06-28-2013   #30
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mmm...Perth -night time - iphone- "photographer"? i doubt it.
Probably some detail missing in this story.
make that possibly
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Old 06-28-2013   #31
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I'm actually a criminal lawyer by trade and live in Perth.

I hadn't heard of this case - but Magistrates deal with hundreds of cases every week here.

It needs an appeal. Common sense tells me you have to apply a "reasonableness" test. You can't have a person convicted just because someone takes offense. It must be reasonable in the circumstances to take offense.

If anyone can actually locate this guy please send me a PM.
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Old 06-28-2013   #32
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I'm actually a criminal lawyer by trade and live in Perth.

I hadn't heard of this case - but Magistrates deal with hundreds of cases every week here.

It needs an appeal. Common sense tells me you have to apply a "reasonableness" test. You can't have a person convicted just because someone takes offense. It must be reasonable in the circumstances to take offense.

If anyone can actually locate this guy please send me a PM.
touting for business on a forum? I`m offended and i need a lawyer now
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Old 06-28-2013   #33
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I'd be prepared to look into it on a pro bono basis.
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Old 06-28-2013   #34
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I'd be prepared to look into it on a pro bono basis.
it was a "tongue in cheek "post
On a more serious note though, come on,you know Perth night life..bet there is more to this
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Old 06-28-2013   #35
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Yes, because being cautioned by a police officer is the same as a magistrate finding you guilty, right?
No clearly not, I don't see your point.

I was pointing out that legislating as to how one crosses the road would seem to fit a definition of nanny-state, no?
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Old 06-28-2013   #36
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I`ve always been concerned about how you cross the road.
I bet that you weren`t a member of the Tufty club.
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Old 06-28-2013   #37
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it was a "tongue in cheek "post
On a more serious note though, come on,you know Perth night life..bet there is more to this
It sounds a bit unusual.

On the other hand, where and when it occurred causes major policing problems. Maybe the police were too quick to arrest this guy to diffuse the situation. No doubt he was in the minority.
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Old 06-28-2013   #38
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I`ve always been concerned about how you cross the road.
I bet that you weren`t a member of the Tufty club.
I did explain the Green Cross Code to the officer concerned but he was unimpressed.
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Old 06-28-2013   #39
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has the photo he made been made public?
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Old 06-28-2013   #40
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Originally Posted by clayne View Post
Don't think for a second that I think the incarceration rate of the US is something I agree with. I personally think it's deplorable. This isn't a black and white wave the red white and blue around we can do no wrong analysis - I'm simply pointing out that Commonwealth countries are known for their typical state nannyism and the people putting up with it.
I'm not saying I agree or disagree with state nannyism, but I believe that it is an oversimplification to say that people 'put up with it'.

For every person who wants freedom at any cost, there is someone who likes the idea of a state being an auxiliary parent, ready to house you if you can't house yourself, feed you if you can't feed yourself, and treat your illnesses at no cost (other than to the taxpayer).

Again, I'm not stating a view one way or another on nannyism in government, only pointing out that I don't think it's anywhere near as simple as everyone 'putting up with it'.
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