New South Wales Laws
Contents
Clothing is optional
The first thing to mention is that WNBR is clothing optional. You can go totally naked or wear a space suit if you want or anything in between. It is your choice and organisers will not pressure participants to do anything against their convictions. Additionally we will not tolerate participants pressuring other participants to dress or undress. Obscene or lewd behaviour by participants will not be tolerated as the WNBR is totally non-sexual in nature.
Previous experiences
Tweed Heads 2004
The ride in Tweed Heads had no arrests and did not report encountering the police.
Newcastle
The previous experience in Newcastle has been that no one has been arrested in 2005, 2006 and 2007. 1 arrest of a young man occurred in 2008 and his details were taken at the scene, though he was not taken into custody and no charges were laid.
2005
The ride did not encounter the police.
2006
The police saw us in 2006 when we rode up Hunter St. and mostly laughed. One police officer stopped a couple of riders and had a bit of a grumble but that was it. No police directive was issued so we did not defy them and were not arrested. The ride continued naked to the finish.
2007
At about a quarter past 3 a senior Policeman with lots of silver pips and epaulettes made an announcement to the crowd of riders. He warned the riders that arrests could occur as the intended ride would (in his opinion) breach section 4 and/or 5 of the NSW Summary Offences Act 1988 because we would expose our genitals in public.
One of the riders disagreed with the policeman saying that the intended nakedness of the riders was not obscene and although the wilful exposure of genitals might meet the definition of indecent exposure, this offence no longer existed, much to the distress of the Reverend Fred Nile as mentioned in Legislative Council debate on the Local Government (Nude Bathing) Bill. The rider also asked why semi-naked lesbians could simulate sex with strap-on dildos during the Sydney Gay and Lesbian Mardi Gras and although no opinion of the right or wrong of this public behaviour was offered, it was questioned why such sexually charged behaviour was allowed by the Police while disapproving of the non-sexual World Naked Bike Ride. The rider also asked why the Police had chosen to visit when there had been no public complaints and no Police action in 2005 or 2006 and whether there had been any complaints this year. The Police responded that there had been no complaints that he knew of, though by accident or design, WNBR had received a lot of publicity in the media this year and that prompted their visit. He was right of course; people had been conspiring to publicise WNBR.
The riders made it plain that they did not want to offend anyone, the event was intended as fun and had been accepted in that spirit by Newcastle people in previous years. The riders did not want to inconvenience the police with unnecessary effort or paperwork over an essentially harmless activity. In the end the Police said that if we were found on the street and an offence could be proven, we faced arrest without warning but the Police would not be following the riders and hence their action depended on a complaint from the public. The Police were thanked for the message.
No one has made complaints about the WNBR in Newcastle and Novocastrians seem to take the event in the fun nature in which it is intended.
2008
In 2008, the Newcastle WNBR had the support of a Police Liaison Organiser, Ian McKenzie, who was at the time a Newcastle Greens Councillor on Newcastle City Council.
From the ride report by Daniel Endicott in Newcastle archive.
- "In Lambton a man’s chain went off the low side into the frame at the rear wheel. While stopping to dislodge the chain, and re-attach, we heard a man yelling obscenities at us and getting very angry. Later on the East-West cycleway we got a call from the police that the angry man had complained. The police paid us a visit, and the man was arrested, put his pants on and continued with the ride."
See also Media Coverage in Newcastle 2008.
The young man was naked apart from helmet, shoes and backpack when the Police confronted the ride in Lambton. He approached the Police complaining of the harrasment by the man who had yelled at him. The Policeman called him over calling him a "Sicko" and took his personal details. The Policewoman, who was also in attendance, advised the Policeman of a new procedure that allowed arrests to be made without physically taking the arrested person to the Police Station and that paperwork with charges for an offence would be delivered to the arrested person's home. The young man was supported by Ian McKenzie and a legal observer at the time. The young man covered his genitals and was allowed to go and the ride continued with him. Later the young man was given support by Police Liaison Organiser, Ian McKenzie and WNBR Newcastle Organiser, Marte Kinder with offers of help with any legal expenses that might result from the arrest, offers to find pro-bono legal representation and follow up. Ian and Marte kept in contact with the young man and despite the worry of possible Police charges, as of the time of writing (December 2008) no charges have been laid and appear unlikely to be laid given the amount of time that has elapsed (9 months). It may be possible that after doubts about the legality of making a false arrest, the Police have consulted with the Director of Public Prosecutions or other experts at the Police Station and found that they had at best a poor chance of conviction. The Police may also have seen the procedure of laying charges simply as a waste of time and resources. Whether the very angry man who complained was willing to testify as a witness is unknown. Never-the-less the young man was not charged with an offence.
Sydney
The previous experience in Sydney has been that no one was arrested in 2008 or 2009.
2009
In 2009 the Police attended the assembly/painting place and gave the ride an escort all the way (see: Sydney Morning Herald, 16 Mar 2009, "Cyclists' naked ambitions punctured". The Police were very strict about the exposure of nipples by women and both sexes genitals, threatening arrests for Offensive conduct under the SUMMARY OFFENCES ACT 1988 - SECT 4 reasoning that the innocent exposure of the non-sexual naked human body is behaviour "such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person". Riders questioned the police why naked breasts were a feature of the Sydney Body Art Ride to be told SBAR has a permit allowing exposure of breasts. Riders also questioned why the Sydney Gay and Lesbian Mardi Gras had featured full nudity. It is not reasonable to say that a permit can be issued that allows the law to be broken or that a different community standard applies from one event to another in the same city with the same law.
2008
No arrests occurred in Sydney in 2008. More details of interaction with the Police will be posted here when time permits.
Byron Bay
The previous experience in Byron Bay has been that no one was arrested in 2008.
2008
No arrests occurred in Byron Bay in 2008. More details of interaction with the Police will be posted here when time permits.
Legal References
If you want to know more about the law in NSW perhaps you can have a look at these links:
Obscene exposure
5 Obscene exposure
A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.
Maximum penalty: 10 penalty units or imprisonment for six months
The word 'person' means genitals in legalese.
- LOCAL GOVERNMENT AMENDMENT (NUDE BATHING) BILL (debate in Legislative Council of NSW 4 December 1996)
- NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION: R v Barrass (2005) NSWCCA 131
Offensive conduct
4 Offensive conduct
(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.
(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.
This offence is something else again and says nothing specifically about nudity. Honestly, I am uncertain if offensive conduct could apply to a case that would have previously been called indecent exposure. I could not find any precedents that indicated that it was. The trouble with a lot of these cases is that they go unreported in the legal journals unless they get to the appeals or supreme courts. For one case that was heard in the Supreme Court and reported and has legal discussion about Offensive conduct see Burns v Seagrave and Anor (2000) NSWSC 77 (23 February 2000). It says of the the offence, among other things: That the offence contemplated behaviour "such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person". ... Which begs the question whether a magistrate would consider the sight of a human body alone capable of causing such an emotional reaction in the mind of a reasonable person in the 21st Century?
There is a difference between indecent exposure (which is no longer on the NSW Statute books) and obscene exposure. The Reverend Fred Nile laments the loss of the indecent exposure laws. (See the NSW parliament debate on the Nude Bathing Bill). Rev Nile quotes the famous precedent for distinguishing indecent from obscene.
Lord Sands in the Scottish case of McGowan v Langmuir [1931] S.C. (J.) 10, at 13: I do not think that the two words “indecent” and “obscene” are synonymous. The one may shade into the other, but there is a difference of meaning. It is easier to illustrate than define, and I illustrate thus: for a male bather to enter the water nude in the presence of ladies would be indecent, it would not necessarily be obscene. But if he directed the attention of a lady to a certain member of his body his conduct would certainly be obscene.
So, if you are naked and make gesticulations or say things that are rude you are very likely to get in trouble. Go nude without being lewd.
Naturist websites like Free Beaches Australia have a summary of naturist etiquette as do other respectable naturist groups.
Behaving in a way that is respectful, non-sexual, always non-threatening and considered good behaviour among the established Naturist community should not meet the definition of obscene and although it might be considered at law to be indecent, that law is dead.
This probably is the reason why Spencer Tunick has photographed masses of naked people in public spaces in Sydney and Melbourne without trouble.
General approach
If you see the Police on your ride, it is more likely that they will be pissing themselves with laughter than angry. If they stop you, jolly them along with a joke and explain that you are protesting against non-renewable energy, the rights of cyclists to use the road safely etc. Try not to confront them or agitate them. Do not volunteer to dress.
If the police do make a formal directive to dress, this is your official warning. If you do not want to be arrested, follow the Police directive.
If you do want to be arrested, because you are fanatical about the protest message of the ride, defy the Police and they will probably arrest you. The decision to dress or remain naked is up to the individual riders and they should take the decision with their eyes open. WNBR applauds the riders who have stood their ground naked in the face of arrest for the cause (like Simon Osterman in Auckland 2005) although it takes a special bravery uncommon to most of us. Your arrest will get fantastic media coverage if exploited properly. The experience of Simon Oosterman was that about 600 newspapers picked up the story around the World. This is great value for money publicity if you are prepared to risk a fine of a few hundred dollars. WNBR internationally has passed around a hat for arrested riders in the past and this might offset some of the fines or legal expenses. This is not a guarantee or indemnity.
Ultimately, the decision to ride naked or clothed and comply or defy Police directives lies with the individual and they bear the consequences of that decision.
I reckon, that if you keep the above explanation in mind, you should be sweet and will avoid arrest by complying with the Police if and when they tell you to dress. WNBR can not give you an iron clad guarantee and the risk that Police will act in an unexpected way is still there. This makes the WNBR a more exciting experience. It is, after all, an act of civil disobedience that is essentially harmless.
The most important thing is to have fun. WNBR is positive and cheerful. The riders, the public and the police will all enjoy the experience of WNBR if you get into the spirit of the thing.
Summary
On the day of the ride, everyone should assemble WITH THEIR CLOTHES ON. When the ride gets to the secret painting place, Organisers will explain further on the topic of nakedness and the law.
Like I said at the beginning, your choice to go naked or clothed is your choice. I will respect that participants will do what they want but need to have their eyes open while they do it.
I suspect that police will only seek us out if there is a complaint from the public - so avoid being offensive or confrontational (this goes regardless of the amount of clothes you have on).
If we meet the police we will be jolly and I recommend co-operating if they make a formal directive. I am sure that police do not like to do extra unnecessary work and have a sense of humour. How they apply the law may differ greatly from my opinion or those of a magistrate for that matter. I recommend not getting arrested but I can make no iron clad guarantees about it. My opinions on the law are not professional opinions and I do not take responsibility if you rely on my advice and do not like the outcome.
- return to Byron Bay, Newcastle, Nimbin or Sydney.
- For the law that applies in Victoria, please refer to the Victoria Laws page.
