‘Clothing optional’ beaches such as Tyagarah Nature Reserve near Byron Bay are popular with naturalists. However, there have been a number of recent sexual assaults in the vicinity of such designated areas. The Byron Shire Council debated a motion late last year to close the ‘clothing optional’ part of the beach but concluded that public demand warranted keeping it open. However, public nudity is an offence when it is done outside of areas designated as ‘clothing optional’ and even in these areas there can be uncertainty as to exactly where nudity is permitted.
The offence of “obscene exposure”
The law on obscene exposure is found in Section 5 of the Summary Offences Act 1988 (NSW), which states 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 of the offence, police must prove that a person intentionally exposed themselves in an obscene way and did so within sight of a public place or school.
The maximum penalty for this offence is a six-month term of imprisonment and/or a fine, but offenders can also receive a non-custodial sentence like a community service order or a good behaviour bond. The court will assess the seriousness of the offence, based on whether there were extenuating circumstances or circumstances of aggravation, such as the act being witnessed by a child.
What does the offence cover?
The use of the phrase ‘wilfully and obscenely expose his or her person’ in the statutory provision of Section 5 has been held by the courts to mean the exposure of the genital area of either a male or a female. Exposure therefore refers to revealing genitalia in a public place. This can include exhibitionism or public nudity and there is no requirement for a sexual act to be performed.
In the case of R v Eyles, ‘wilfully and obscenely expose his or her person’ was affirmed as meaning the accused’s penis. It is unclear whether exposure of the buttocks or female breasts would be sufficient to make out the offence.
The offence requires the exposure to have been intentional. Accidental exposure such as a wardrobe malfunction does not fall under Section 5.
What is the law on ‘clothing optional’ beaches?
The Local Government Amendment (Nude Bathing) Act 1996 (NSW) states that public nudity is not prohibited if the conduct occurs at one of the listed designated beaches. Public nudity on those designated beaches will not attract a charge of offensive behaviour provided that the council’s regulations are adhered to.
However, Section 633(6) of the Local Government Amendment (Nude Bathing) Act 1996 (NSW) Act, only lists five NSW beaches 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 where it is common for people to swim and sunbathe nude, these are not officially designated areas and prosecution for obscene exposure in these places remains up to the discretion of police.
Tyagarah Nature Reserve
One example of this is the Tyagarah Nature Reserve. Although the Byron Shire Council and New South Wales National Parks websites contain information about Tyagarah Nature Reserve and states that a one kilometre stretch of the beach is “clothing optional” they do not stipulate what section of the beach is clothing optional. In 2017, the Byron Shire Council voted to reduce the stretch of Tyagarah beach where public nudity is permitted to a 200 metre stretch between Grays Lane and Elements Resort. This was because of the perception that having a long nudist beach in an isolated location was attracting predators. Since 2017, there have been daily police patrols of the Tyagarah Nature Reserve so visitors must ensure they comply with the law and swim nude only within the designated area.
By Lochsley Thomson, Solicitor