Indecent Exposure - Australia

Australia

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') 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.

Penalties vary between jurisdictions and are summarised below. Specific state Acts, are as follows:

• Australian Capital Territory – Crimes Act 1900, section 393 – 'indecent exposure' – penalty 12 months. Under the Nudity Act 1976, the responsible minister may declare a public area where public nudity is permitted.
• New South Wales – Summary Offences Act 1988, section 5 – 'wilful and obscene exposure' – penalty six months.
• Northern Territory – Summary Offences Act, section 50 – 'indecent exposure' – penalty 6 months.
• South Australia – Summary Offences Act 1953, section 23 – 'Indecent behaviour and gross indecency' – penalty three months and six months respectively.
• Queensland – Summary Offences Act 2005 No. 4, section 9 – 'wilful exposure' – penalty 12 months.
• Tasmania – Police Offences Act 1935, section 21 – 'Prohibited behaviour' – penalty 12 months. Police Offences Act 1935, section 14 – 'Public decency' – one penalty unit.
• Victoria – Summary Offences Act 1966, section 19 – 'wilful and obscene exposure' – penalty two years. Under the Nudity (Prescribed Areas) Act 1983 the responsible minister may declare a public area where public nudity is permitted.
• Western Australia – Criminal Code, section 203 – 'Indecent acts in public' – criminal penalty two years. Summary conviction penalty: 9 months and fine of $9,000.

Definition of person:

It has been noted that a term such as "exposing one's person" relates back to the United Kingdom Vagrancy Act 1824 and Evans v Ewels (1972) where it was said that the word "person" was a genteel synonym for "penis" or "vagina". However, the word "person" in s5 of the (NSW) Summary Offences Act is not limited to "penis" or "vagina". This term is used in New South Wales, the Australian Capital Territory and the Northern Territory. In the other States the exposure refers to one's genital area. In a sense, therefore, the term "person" can be wider than "genitalia". In Regina v Eyles Matter No 60305/97 (1997) NSWSC 452 (1 October 1997) the offender was seen masturbating in his front garden and charged with Obscene Exposure under the Summary Offences Act 1988 - Section 5.

In the case of both males and females, the parts of the body which are capable of being employed for the purpose of obscene exposure are limited. The concepts of obscenity and exposure in a practical sense restrict the potential operation of the provision. There is a question as to whether there is any further restriction to be found in the word "person". The Crown Advocate has submitted that there may be circumstances in which the exposure of the breasts of a woman is capable of being regarded as obscene, and that it is not difficult to imagine circumstances in which the exposure of a person's buttocks could be obscene.

However -

It is unnecessary and inappropriate to decide in the present case whether her submissions in that regard are correct. The jurisdiction which this Court is exercising is a jurisdiction confined to determining questions of law which arise in the case before the District Court. No question arises in the present case as to whether there are any circumstances in which the exposure by a female of breasts, or by a female or male of buttocks, could involve a contravention of s5. The prosecution case against the appellant was that he obscenely exposed his penis and other genitals. It is sufficient for resolution of the present case to say that this was capable of constituting exposure of "his person" for the purposes of the proceedings against him.