Trespassing laws and penalties in Australia

Trespassing on private property without permission can amount to a criminal offence in New South Wales. The relevant legislative framework on this is the Inclosed Lands Protection Act 1901 (NSW) and the Crimes Act 1900 (NSW) that prescribe penalties including imprisonment and conviction.

Trespassing Meaning

Trespassing is entering into inclosed lands without permission of the owner, occupier or person apparently in charge of it, and without a lawful excuse.

Is Trespassing a Criminal Offence?

Trespassing is both a civil and criminal offence. It can amount to a civil matter if the person you have trespassed against brings the matter to court to sue you and/or to prevent you from doing it again. Trespass will also amount to a criminal offence if it breaches the Inclosed Lands Protection Act 1901 (NSW) or the Crimes Act 1900 (NSW) such as an aggravated break and enter offence. If the case ends up in court for any one of the trespass offences, it could result in a conviction (criminal record) unless the court imposes a non-conviction penalty such as a section 10(1)(a) or Conditional Release Order sentence.

Under Section 4 of the Inclosed Lands Protection Act 1901 (NSW) it is an offence to they enter inclosed land without a lawful excuse (the burden of proof lies on the person entering) or consent of the owner, occupier, or person apparently in charge.

"Inclosed land" means either a "prescribed premises" or any public or private land completely or partially surrounded by fences, walls, canals, natural features (such as rivers or cliffs), or any identifiable boundary markers, including buildings, structures, and associated land.

A "prescribed premises" means land occupied or used in connection with a government or registered non-government school (as defined in the Education Act 1990), a childcare service, a hospital, or a nursing home (as defined in the Public Health Act 2010).

What is the Fine and Penalty for Trespassing in Australia?

The maximum penalty for breaching section 4 of the Inclosed Lands Protection Act 1901 (NSW) offence is a fine of 5 penalty units for general inclosed lands, and 10 penalty units if the land is a prescribed premises. One penalty unit equals to $110.

The maximum penalty a section 4A offence of the same Act is a fine of 10 penalty units for general inclosed lands, and 20 penalty units if the land is a prescribed premises.

The maximum penalty for a section 4AA offence of the same Act is a fine of 10 penalty units.

The offence of section 4B of the same Act carries a maximum penalty of:

• A fine of 50 penalty units for general business land;
• A fine of 120 penalty units or 12 months' imprisonment or both, for agricultural land; and
• A fine of 200 penalty units or 3 years imprisonment or both, if the offending is aggravated by risk to safety or group behaviour.

If a trespass is undertaken in the furtherance of a crime much more serious penalties apply under the Crimes Act 1900 (NSW). These include:

• The offence of entering a dwelling or house with intent to commit an indictable offence under section 111 of the Act. This carries a maximum penalty of 10 years' imprisonment.
• The offence of entering a dwelling or house and committing a serious indictable offence in circumstances of aggravation under section 111(2) of the Act. This carries a maximum penalty of 14 years imprisonment.
• The offence of break and enter any dwelling-house or building and commits any serious indictable offence inside or committing such an offence while inside and then breaks out of the dwelling-house or building carries up to 14 years imprisonment under section 112(1) of the Crimes Act.
• The offence of break and enter a dwelling-house or other building with intent to commit any serious indictable offence therein carries up to 10 years' imprisonment under section 113 of the Crimes Act.
• The offences of breaking and entering into property and assaulting another with intent to murder or cause grievous bodily harm. This carries a maximum penalty of 25 years' imprisonment.

The Offence of Remaining on Inclosed Lands with Offensive Conduct

Under section 4A of the Act it is an offence for a person to stay and behave offensively on inclosed lands if they have been asked to leave.

Behaviour will be 'offensive' if a person conducts himself or herself in such a manner as would be regarded by reasonable persons as being, in all the circumstances, offensive,

The Offence of Unlawful Re-entry During Organised Events

Under section 4AA it is unlawful to re-enter an event venue after being asked to leave without reasonable excuse during an organised event.

An event venue means that part of enclosed lands used for an organised event where entry is granted by ticket, membership, or similar arrangement; "organised event" includes organised sporting events (and associated performances or ceremonies), organised public exhibitions, fairs, conventions, performances, ceremonies, festivals, or other similar events, and any other event prescribed by regulations.

Aggravated Unlawful Entry on Inclosed Lands

A serious offence exists under section 4B of the Act if the person commits a trespass offence as outlined by section 4 of the Act, where:

• The land is used for business or an undertaking (including agricultural land); and
• The entry endangers safety or causes disruption; or
• The person is accompanied by two or more others.

Break and Enter Offences under theCrimes Act 1900(NSW)

Break and enter means the physical breaking into a property or merely entering through a door, window or gate that is unlocked yet closed without permission. Break and enter offences include:

• Section 113 of the Crimes Act of break and enter with intent to commit a serious indictable offence.
• Section 112 of break and enter any dwelling-house or other building and commits any serious indictable offence therein.

Legal Defences to Trespass Charges

If you are charged with a trespass-related offence, there are a number of defences that may be available to you, including the following:

• You had permission from the owner or occupier to enter the land or property.
• You had a lawful excuse to trespass on the land, such as to retrieve stray animals or to avoid immediate harm i.e. the defences of necessity or duress.
• You made an honest and reasonable mistake of fact by believing that the land was public land or that you had lawful access to it.

The onus of proving a lawful excuse lies with the defendant, and an experienced criminal defence lawyer will be able to provide you with advice on the best defence strategy for your case.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.