Street performers or buskers have existed all over the world since ancient times delivering accessible entertainment to the masses. It is an opportunity for undiscovered talent and the fearless and creative artisans of theatre to strut their stuff for a coin in the hat. However, a hat is not the only consideration for a street performer.
Laws regulating street performances vary between states. If your performance contains possibly offensive dialogue and or conduct, you will need to be aware of the Summary Offences legislation. This includes legal constructs of what is considered to be “offensive” and who is the “reasonable person” in the 21st Century!
Street performers are often advocates of free speech and may use edgy and outrageous conduct or offensive language in order to engage and stimulate reactions from their audience. Some audiences may be shocked and offended while others lap it up. In such situations the Summary Offences legislation may need to be considered.
What constitutes a summary offence varies from state to state and covers a broad range of actions, but in most jurisdictions it includes offensive behaviour and language. There have been a number of prosecutions encompassing offensive language. The NSW Court of Appeal, using the Oxford dictionary, noted in Smith’s Case that “offensive” means displeasing, annoying or insulting, although not one of those words is a precise alternative to the word offensive.
What is offensive language or conduct?
Most offensive language cases in particular appear to relate to circumstances where common swear words are directed at police or other members of the public, usually in an abusive manner. This makes it difficult to assess the approach the courts may adopt in relation to street performances.
The accepted test for “offensive” is whether the language was ‘calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.’ It is said that, ‘the mere expression of political view contrary to those probably held by the majority of the community, even when made in the proximity of the offices of those whose views are attacked, does not amount to such offensive behaviour’.
The test described above has been endorsed in the relevant case law, including in NSW. So, you may need to consider whether the performance can be argued as being calculated to wound any feelings or to outrage reasonable people.
A recent street performance involving the re-enactment of William James Chidley’s monologues by ABC Radio National is an interesting example in applying such a test. In this dramatised re-enactment the performance was designed to test the public’s reaction to 100 year old literature, not to arouse anger, resentment, outrage or disgust.
The author, William James Chidley, in addition to being a sex reformer, was also a dress and food reformer. To combat the human misery he saw all around him, he prescribed vegetarianism, fresh air, sunlight and unrestrictive clothing. But it was his street performances critiquing conventional sex that led him into trouble. The public reaction to the re-enactment performance can be seen here.
The 1966 case of Ball v McIntyreis cited frequently as an authority on offensive behaviour. It involved the conduct of a student who, in the course of a political demonstration against the Vietnam War, hung a placard upon and squatted on the pedestal of a public memorial to King George V outside Parliament House in Canberra. It was said in that case that ‘conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section.’
A recent example of a street performance that was stopped by police involved two performers presenting their act, Gender Fractions as part of the Art in Odd Places Festival in Manly in September 2013. The performers wore nude suits made from fabric with artificial genitals depicting the opposite sex and invited viewers to “bend their gender” by swapping clothes with someone of the opposite sex in a change booth. The fake genitals donned by the performers proved too confronting for residents and police stopped the show after a complaint from the public. Despite the show having approval from the Manly Council some three weeks earlier, the complaint prompted the council to threaten to “incarcerate” them if they continued to perform the show in their nude suits. For more see the article ‘Manly display too coarse for The Corso’.
The “reasonable person”
The reasonable person has been described as ‘reasonably tolerant and understanding and reasonably contemporary in his reactions.’ Depending on the precise words used in street performances, it may be arguable that no offence has been committed with reference to contemporary community standards.
In 1962, the comedian Lenny Bruce was banned from a Sydney venue because of an “obscene” performance littered with swear words. In 2008, an artist put together a script based on his work to be delivered at the Biennale of Sydney. The show was called ‘Just Because Everything Is Different, It Does Not Mean That Anything Has Changed’. In 2008 community standards were more tolerant and the performance was not censored! For more see the article ‘Lenny Bruce Bites Back From the Grave.’
What is a “reasonable excuse”?
In 1994, in the case of Conners v Craigieit was said that a reasonable excuse ‘involves both subjective and objective considerations, but these considerations must be related to the immediately prevailing circumstances in which the offensive words etc are used, just as in self-defence or provocation the response of the accused must be related in some way to the actions of the victim and the particular circumstances.’
In the case, Jolly, Sean Graham v R the police had attended a brawl in 2007 and a number of charges were brought against the accused, including offensive language. During the course of events he was bitten by a police dog, and it was claimed that he used offensive language both before and after the bite, including common swear words and statements about police officers’ families having sex with each other. It was argued that there was a defence under s 4A(2) of the NSW Act because the accused was in pain from the dog bite. While Cogswell DCJ found the language used after the dog bite might well be justified, and form the basis of a defence, he said
‘to my mind the language when it went on to make references to members of the police officers’ families having sexual relations with each other was no longer such that it allowed Mr Jolly a defence under the section. I have the same view about the reference to animals in the expression “Dog c***”. The images conjured up by such language are obviously – in my opinion – very offensive to anyone who might overhear them. Indeed if that sort of language is not offensive language then it is difficult to imagine what is offensive language.’
Processes and Restrictions on Street Performers
The following outlines the process and restrictions that are in place for street performing in each capital city across Australia. Ensure that you check with the local council if you are busking outside the areas mentioned.
New South Wales – Sydney
The Sydney Council defines a busker as ‘a person who entertains in a public place by playing a musical instrument, dancing, singing, clowning, juggling, or performing acts of a similar nature with the intention of receiving donations from members of the public’.
To busk in Sydney the person must obtain a Busking Permit from the City of Sydney Council. There are three different types of permits available: Standard, Special and ACAPTA Accredited. Each permit has restrictions that relate to the type of the act. Standard and ACAPTA Permits are for those that do not involve dangerous materials or implements in their performance. The Special Busking Permits are for acts that do involve dangerous materials; however, these goods must pass a safety review completed by the local council. For group performances, each individual must hold a separate permit.
There are certain restrictions on the type of act that buskers can perform. Busking restrictions include that performances must not involve any animal, reptile or bird and that there must not be a fee paid for the performance. Buskers are however permitted to sell CDs and DVDs throughout their performance on the condition that the works are their own and complement the performance.
Buskers are only allowed in the certain areas in Sydney. There are several areas in Sydney that are controlled by different authorities. For example, if you wanted to perform in Darling Harbour you must apply for a Permit from the Sydney Harbour Foreshore Authority and not Sydney City Council.
Queensland – Brisbane
To busk in Brisbane, you must obtain a permit from the Brisbane City Council. To obtain the permit from the Brisbane City Council you must submit the Busking Licence application via email, mail or in person. Once the application is submitted you must attend one of the Busking Audition days. The audition is 5 minutes in length. After the audition you will be notified within ten days if your application is successful and you will then receive the permit.
There are several restrictions in relation to the busking performance. Brisbane City Council has three restrictions that buskers must follow. The restrictions outline that there is to be no abusive or offensive language, the use dangerous items is prohibited and that the busker cannot display items for sale. The Busker is allowed to keep any money they receive.
The permit allows for busking in limited areas of the city. These areas include Queens Street Mall, Reddacliff Place, King George Square or the Valley Malls.
Victoria – Melbourne
Busking in Melbourne is defined as, ‘sounding or playing a musical instrument, singing, reciting or performing conjuring, juggling, puppetry, miming, dancing or other entertainment or doing any of those things concurrently. Busking also includes the activity of drawing any message, picture or representation on a pavement, paper or canvas surface.’ Performers hired by a private organisation do not require a busking permit as they fall outside of this definition.
There are two options to obtain a busking permit from the Melbourne City Council. The first is to complete and pay for the application online. Once complete, you must attend a Safety, Amenity and Performance review. The second option is to download the form online and submit the hard copy in person at the Safety, Amenity and Performance review.
There are four types of permits available in Melbourne. Each permit requires a certain level of Safety, Amenity and Performance review. The first is a General Area Permit. This permit applies to acts that do not use dangerous goods, such as singers and dancers, and is restricted to the boundaries outlined by the City of Melbourne Council.
The Pavement Art Permit is restricted to acts that are part of the artistic medium who work directly on the pavement with chalk or approved materials on paper, canvas or other removable surfaces.
A Bourke Street Mall Permit may only be applied for by professional busker. The City of Melbourne Council defines a professional busker as the ongoing, year-round performer, who has developed their skills to a professional level. The professional busker must have held a General Area Permit for more than six months to apply. This permit is the only one to require a level 2 Safety, Amenity and Performance review.
The final permit is Circle Act Permit. This permit allows for a structured performance that requires audiences to stop and watch and/or participate. This is the only permit that allows for the use of dangerous goods as part of the act.
There are numerous conditions that are imposed on buskers in Melbourne that must be taken into account.
Australian Capital Territory – Canberra
The Australian Capital Territory (ACT) does not require buskers to hold a permit. There are only two restrictions that are in place for buskers in the ACT. The two restrictions are that the performer must not restrict pedestrian’s right of way and the performer may require permission from private property owners.
Northern Territory – Darwin
To busk in Darwin a Busking Permit must be obtained from the Darwin City Council. There is currently only one type of permit available. The Busking Permit is issued on a daily basis at the cost of $2.50. Buskers in Darwin are permitted to busk in malls and the community markets, such as the Mindil Beach Sunset Markets.
Tasmania – Hobart
Hobart City Council defines a busker as ‘a person who performs in public for gratuities. Performers may entertain the public by playing an instrument, singing, dancing, juggling, miming, etc. A busker may accept but cannot solicit donations in appreciation of their performance.’
Busking in Hobart is limited to the Salamanca Markets. To obtain a Busking Permit to perform at the markets you must contact the Hobart City Council Customer Service branch by phone, email or in person. To obtain the application form, valid photo identification is required. The application has no fees, nor does it require the busker to audition.
There are certain conditions that the buskers must abide by. The performance must not obstruct vehicles or pedestrians passage as well as preventing a stallholder from trading. A busker cannot display or wear any advertising. A busker is not allowed to play recorded music from their area when they are not performing.
Western Australia – Perth
To obtain a busking permit in Perth, you must complete the application in person at Council House. The busker is required to have identification of a valid Australian address. Permits are issued at Council House. The permits have photo identification, the expiry date, the person’s name and their act. If the person is under the age of 18 we need a parent to fill out the parental consent form.
If it's the persons first time busking, there is a one month probation period which only allows them to receive a permit that is valid for one month at $24. After this probation period the busker may purchase a permit for any duration at $24 a month. Once a permit is expired a busker will have to make a new application as Perth does not renew busking permits. Both permits do not allow for the use of dangerous materials or goods.
Perth has two types of permits, a single and a group permit. The group permit allows up to 6 performers. Both permits have the option of allowing the performer the option to sell CDs of their performance, this option costs an extra $45 a month.
There are certain conditions that must be met when busking in Perth. A busker can only stay in one position for 30 minutes, after this time period they must move to a different spot that is more than 50 meters away. The use of amplification devices is limited to 72db and can only be battery operated. Buskers are not allowed to use any dangerous materials such as fire or sharp objects.
The performers are allowed to busk within the City of Perth jurisdiction, which covers Northbridge, Central CBD, West Perth, East Perth and some of Crawley.
South Australia – Adelaide
The Adelaide City Council definition of a busker is ‘an independent musician, actor or street performer or group of the same (up to 6 people) performing in a Public Place and may include the collection of money for the performance.’ Adelaide Council is the only authority that imposes a restriction on the number of members in a busking group.
To busk in Adelaide you must hold a valid Street Permit that is obtained from the Adelaide City Council, however as of July 1, 2015 a fee is no longer charged for a busking permit.
There are several requirements and restrictions that are placed on a busker in Adelaide. Some of the requirements include: a limit on the distance between buskers, and a limit on the use of noise amplification devices. It is important to understand that buskers must not advertise or sell certain products. The only products that they can sell are CDs and DVDs that relate to their performance. The most important restriction is that buskers cannot charge for their performance.
The only restrictions that are in place are that buskers cannot perform in front of prominent buildings (e.g. Town Hall and Parliament House), and that it cannot interfere with pedestrian access. If a person wishes to busk in other locations across South Australia, they should contact the Local Area Government for further information.
Dominic Zahra is a Paralegal at the Australian Broadcasting Corporation and Mandy van den Elshout is a Senior Lawyer at the Australian Broadcasting Corporation.
This article was ammended in 2016 to reflect the changes to Adelaide busking permits.
R v Smith  2 NSWLR 586.
Worcester v Smith  ALR 660.
Conners v Craigie(1994) 76 A Crim R 502.
Jolly, Sean Graham v R  NSWDC 212 (3 July 2009).
 For a full list of requirements see Part 7 and 8.1 of the Street Permit Policy Guidelines, http://stage.acc-dev.net/assets/acc/Council/policies/docs/street-permit-policy-guidelines-mar-2013.pdf