The Laws Relating to Public Nudity in New South Wales

Free the Nipple is a feminist campaign with goals to make it legal and socially acceptable for women to be topless in public and to post topless images on social media websites such as Instagram and Facebook.

But what’s this all about? And what are the laws relating to public nudity in New South Wales?

Obscene nipples

The Free the Nipple movement was started by US filmmaker, actor and activist Lina Esco in 2012, after she documented herself running through the streets of New York topless.

Esco argues that laws and social norms which treat female toplessness as inherently sexual or obscene, promote a double standard. “Free the Nipple is just a Trojan horse in order to start the conversation of gender equality” Esco told Comedy Central in 2017, “It’s not really about going topless. It’s about having the choice.”

The Free the Nipple movement aims to change laws which prohibit women from being topless in public as well as to change community standards on websites who apply a double standard towards top-half exposure.

Some US states allow toplessness for women in public areas where toplessness for men is acceptable, around 35 states still apply a gendered distinction as to what constitutes obscene exposure.

The movement has attracted a number of high-profile celebrity supporters including: Amber Rose, Miley Cyrus and Cara Delevingne.

Not everyone is thrilled by the Free the Nipple campaign. 

Writer Jessica Megarry wrote in Feminist Current in 2015 that the movement has a narrow, barely feminist goal which “seems to be less about a woman’s right to breastfeed and more about a woman’s right to post a topless selfie”. She goes on to note that rather than challenging male social dominance, “young women are being urged to strip for the entertainment of an infinite number of men”.

Whether you’re for or against freeing the nipple, the laws around female toplessness in NSW may not be what you expect.

The offence of obscene exposure in New South Wales 

Obscene exposure is an offence which may, depending on the circumstances, prohibit certain acts of public nudity in New South Wales.

It is an offence under section 5 of the Summary Offences Act 1988 (NSW) which carries a maximum penalty of 6 months in prison and/or a fine of 10 penalty units.

A penalty unit in NSW is currently $110, which means the maximum fine is $1,100.

To establish the offence, the prosecution must prove beyond reasonable doubt that:

• You were in or within view of a public place or school,
• You obscenely exposed yourself, and
• You did so wilfully.

What is a public place?

A public place is defined by the Act as a place or part of a premises that is open to, or used by the public, whether or not for payment, and whether or not only open to a limited class of persons.

This includes:

• Shopping centres and stores within them,
• Restaurants, pubs and clubs, and
• Sporting venues.

What is the meaning of obscene?

‘Obscene’ has been defined by the courts as conduct which ‘[o]ffends against the susceptibilities of the citizen by violating… contemporary standards’.

This is determined by the magistrate on a case-by-case basis, depending on the factual circumstances.

The offence is most frequently prosecuted where a person is intentionally exposes him or herself in a public place, whether or not it is accompanied by a sexual act.

What does wilfully mean?

‘Wilfully’ means intentionally so, being ‘dacked’ would not suffice, provided you pulled your pants up in a timely manner nor would passers-by seeing you naked in your home, provided you did not know you could be seen from a public place.

Exception

Section 633(6) of the Local Government Amendment (Nude Bathing) Act 1996 (NSW) lists a number of beaches and adjacent seas where it is permissible to bathe naked.

These are:

• Lady Bay (Lady Jane) Beach,
• Cobblers Beach,
• Obelisk Beach,
• Werrong Beach, and
• Samurai Beach.

Legal defences

Defences to the charge of obscene exposure include duress and necessity.

In the event you are able to raise evidence of a legal defence, the onus then shifts to the prosecution to prove beyond a reasonable doubt that the defence is not available in the circumstances.

You are entitled to an acquittal (a not guilty verdict) if the prosecution is unable to do so.

Breastfeeding, genital exposure and female toplessness

Generally, breastfeeding cannot be deemed “obscene” due to the operation of the Sex Discrimination Act 1984 (Cth) which prohibits discrimination on the basis of sex.

On the flip side, the exposure of genitalia has generally been deemed “obscene” by the courts. 

When it comes to female toplessness, things get more complicated.

Bare female breasts may or may not be obscene depending on the circumstances of exposure. For example, it has become socially acceptable for woman to sunbathe topless on beaches generally, even if those beaches aren’t listed as a ‘designated beach’.

So, toplessness at beaches is unlikely to be deemed obscene as long as it’s practised with a degree of social etiquette in mind.

Police generally have taken a more “liberal” view of female toplessness in public, allowing it to occur as long as it isn’t causing too much of a public disturbance. 

If a woman were to wilfully expose her breasts to shock members of the public, particularly in the presence of children, this would be more likely to fall short of community standards and constitute an offence of obscene exposure.

What about private property?

It should be noted that although NSW police are generally tolerant of female toplessness in public, this doesn’t mean that there is any “positive right” to free the nipple (with the exception of breast feeding).

Private business and venues can remove anyone who doesn’t meet their clothing standards, including toplessness. Refusing to leave a private premises on the principle of nipple equality is admirable, but it could also land you in legal trouble.

Section 4A of the Inclosed Lands Protection Act 1901 (NSW) makes it an offence punishable by 10 penalty units ($1,100) for a person to remain and conduct themselves in a manner that is offensive on an inclosed land after receiving a directive to leave. 

So, is the nipple free in NSW? Generally, yes, but women should be wary of crossing the threshold of community standards and violating private clothing standards which could see them removed from venues.