Is Public Nudity an Offence? (NSW)
There are a number of ‘clothing optional’ beaches in New South Wales such as Tyagarah Nature Reserve near Byron Bay. On these beaches, it is permissible to be partially or completely naked. However, public nudity is an offence when it occurs outside of areas designated as ‘clothing optional’. Even within these areas, there can be uncertainty as to exactly where nudity is permitted.
The offence of “obscene exposure”
Section 5 of the Summary Offences Act 1988 makes obscene exposure an offence, stating “a person shall not, in or within view of a public place or school, wilfully and obscenely expose his or her person”. To find a person guilty, police must prove beyond a reasonable doubt that they intentionally exposed themselves in an obscene way within sight of a public place or school.
The court will assess how serious the offending is by considering the circumstances of the offence and the circumstances of the offender. This will include considering whether there were extenuating circumstances or circumstances of aggravation.
What does the offence cover?
The court has interpreted the phrase ‘wilfully and obscenely expose his or her person’ as referring to the genital area of either a male or a female in a public place. There is no requirement for the nudity to be of a sexual nature or for a sexual act to be performed for the offence to be made out.
In the case of R v Eyles, ‘wilfully and obscenely expose his or her person’ was found to mean the penis of the accused. It is unclear whether the intentional exposure of the buttocks or female breasts would suffice to make out the offence.
The offence is only made out if the exposure was intentional. Accidental exposure such as a “wardrobe malfunction” does not amount to an offence under Section 5.
What is the law on “clothing optional” beaches?
The Local Government Amendment (Nude Bathing) Act 1996 states that public nudity is permitted if it occurs at one of the listed designated “clothing optional” beaches. Public nudity on those designated beaches will not attract a charge of offensive behaviour if the council’s regulations are followed.
However, Section 633(6) of the Local Government Amendment (Nude Bathing) Act 1996 (NSW) Act, only lists five beaches in New South Wales that have been “designated for the purposes of nude bathing.” These are:
- Lady Bay Beach
- Cobblers Beach
- Obelisk Beach
- Werrong Beach
- Samurai Beach
While there are numerous other “informal” nude beaches in New South Wales where it is common for people to be nude, these are not designated areas and police retain the discretion to prosecute people for obscene exposure in these places.
Tyagarah Nature Reserve
One example of this is the Tyagarah Nature Reserve, just north of Byron Bay. Although the Shire Council and New South Wales National Parks websites contain information about the reserve and state that a one-kilometre stretch of the beach is “clothing optional” they do not stipulate which part of the beach this is.
In 2017, the Byron Shire Council voted to reduce the “clothing optional” stretch of Tyagarah beach to a 200 metre stretch between Grays Lane and Elements Resort. This was due to the perception that a long nudist beach in an isolated location could potentially attract sexual predators. Since 2017, there have been regular police patrols of the Tyagarah Nature Reserve to ensure visitors comply with the law and swim and sunbathe nude only within the designated area.
If you require legal advice or representation in any legal matter please contact Armstrong Legal.