SA Australian Law Regarding Nudity in Public?

[Jeff223]

Hello

My question is in regards to public nudity in South Australia, specifically in the case where attempts have been made to not been seen nude and no sexual activity is taking place, example:

Bushwalking nude on a quiet trail in bushland, on a regular weekday with no cars at trailhead. Carrying shorts to quickly cover or put on upon encountering another person.

Information regarding this can be found on Wikipedia but wondering if I can have this clarified, particularly the part that mentions:

"In some jurisdictions exposure of the genitals alone does not constitute an offence unless accompanied by an indecent act, indecent behaviour, grossly indecent behaviour, obscenity, intention to cause offence or deliberate intention."

Cut and paste from Wikipedia:

"In Australia, it is a summary or criminal offence in some States and Territories to expose one's genitals (also referred to as - 'his or her person')[21] in a public place or in view of a public place. In some jurisdictions exposure of the genitals alone does not constitute an offence unless accompanied by an indecent act, indecent behaviour, grossly indecent behaviour, obscenity, intention to cause offence or deliberate intention. The applicable law is different in each jurisdiction and in several jurisdictions the offence of indecent exposure does not apply"

Regarding South Australia:

"South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively."

My question is, does exposing genitals in such a case as a remote bush trail without intent to offend and taking steps to not be seen constitute "indecent behaviour" and an offence under South Australian law?

Thanks

 

[Rob Legat - SBPL]

My understanding (and take it with a grain of salt - I'm not a criminal lawyer, and I don't practice in South Australia) is that your intent to offend is irrelevant. The law determines that being unclothed in a public place that is not specifically reserved for such activities is indecent behaviour - there's no intent element to it.

"Taking steps" to not be seen is very situational. If you are naked in a public place, or while visible from a public space, that's an offence. Taking steps could be considered being dressed (i.e. not naked). Carrying clothes you can quickly put on is probably not going to be sufficient.

It's possibly you may get a warning if caught - it's not like you're wandering down Rundle Mall pretending to be a helicopter. If it happens a few times, you may find that leniency drying up.

 

[Tim W]

I often agree with @Rob Legat - SBPL,
However, in respect of this sort of behaviour,
I take a more pessimistic view than his.

I suggest that no amount of (non-) intent, and no amount of... context,
will be in play when Constable Friendly wants a word with you.

I would add that the vigour of enforcement
is likely to vary according to which gender is doing the offending.
In other words, you can expect that a woman hiking
is less likely to be thought "indecent" than a man doing the same.

On the assumption that your username is gender-typical,
I suggest that as a male in public you, literally, keep your pants on.

 

[Jeff223]

Thanks for the reply's, and the chuckle regarding the Rundle Mall helicopter comment.

Your comment Tim W regarding the gender is all too true i'm afraid as unfair as that is. A nude female is likely to make a countable blush or laugh, a nude male, will offend his or her sensibilities.

I cant help but feel there is a bit of a legal grey area here, as I can't find anything in South Australian Law specifically mentioning been unclothed in public. It seems to mention "Indecent Behaviour" and i'm sure not been a lawyer i'm probably missing some critical information but I can't find anything that really defines what "Indecent Behaviour" actually constitutes. I mean what may be indecent for one person may be a non issue for another? If anyone is around that has understanding on this in regards specifically to South Australian Law I would like to hear your take on it.

I guess you'd say i'm an occasional solitary nudist in that I like to get out in nature alone and get as close to it as possible. Maslin's beach is one place in South Australia designated for such activities but I don't like the crowds or the "vibe" I get from some of the people there. As such, the sort of places I would go for such activities are the sort of places you are unlikely to come across other people, I worry though that this may be even more unsettling if I did happen to come across someone, especially if they were a solitary female. I can understand they may find this very threatening. I'm also concerned about charges, as my employment requires regular police checks. It would be horrible to have my life turned upside-down just for a relaxing walk in the bush in the buff.

Anyone have any deeper more solid interpretations to what the law in South Australian exactly states in regards to this because to me, it seems as though it depends on what constitutes "Indecent Behaviour"?

 

[Tim W]

I cant help but feel there is a bit of a legal grey area here...

No, there isn't.

You're fishing for a line of argument in the ballpark of
"Well, it doesn't say you can't"
and/or
"Well, there was nobody around right at that moment,
so how could anyone be offended by my conduct?"

The courts have heard it all before.

 

[Jeff223]

No worries, what i'm really fishing for is something written in black and white in South Australian law, and clarification in this statement I read in.... (I know)... wikipedia in regards to nudity in Australian Law.

"In some jurisdictions exposure of the genitals alone does not constitute an offence unless accompanied by an indecent act, indecent behaviour, grossly indecent behaviour, obscenity, intention to cause offence or deliberate intention. The applicable law is different in each jurisdiction and in several jurisdictions the offence of indecent exposure does not apply"

What i quoted above makes it sound like it is a grey area in some jurisdictions. I can't find anything solid in SA law.

 

[Tim W]

...What i quoted above makes it sound like it is a grey area in some jurisdictions. I can't find anything solid in SA law.

Will you accept from me that it is not?

 

[Jeff223]

Yes, definitely, i'm simply trying to educate myself on the matter. I just want to know what constitutes "Indecent Behaviour" in SA law and if there are any laws i'm missing in regards to public nudity or it its a case of "Open to interpretation based the individual situation and societal norms of the time" and that is how it is policed and dealt with, that would be good to know too. Just after clarity on the issue I guess, something written in the legislation.

 

[Rob Legat - SBPL]

I do agree with what Tim has said. I suppose the difference may lie in the fact that Queensland (where I am) is not a particularly progressive state when it comes to social liberties.

The issue of what is indecent is, as you point out, something that is individual. However, when talking about the law as we are here - it is not. It is the prevailing sentiment of society, as determined by the Courts, which is the arbiter. They will make the determination.

It does change over time. What was indecent 50 years ago is commonplace today. By being slightly vague in that respect it allows the legislation to remain relevant in one sense, but somewhat uncertain in another. It is still clear though that public nudity, especially that which exposes the male genitalia, is considered indecent. Just ask Kirin J Callinan, a musician who flashed while wearing a kilt on the red carpet at the ARIAs in 2017 - he pleaded guilty and got a good behaviour bond.

 

[Tim W]

Look at it from a practical point of view.
An indecency conviction (even for a minor offence)
will see you judged adversely by employers,
and by society more generally,
for the remainder of your life.
This is because in the popular mind, right or wrong,
there is no difference between a male naturist who made a dumb choice,
and a serial paedophile.
You can avoid all that by keeping just your pants on.