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7 Inclosed Property
The (NSW) Inclosed Lands Protection Act 1901 applies to both private and public land and facilities. Inclosed land is defined in two ways. First, it is any land surrounded by a fence, wall or other erection, or partly by a fence and partly by a natural feature (like a river or cliff) that makes the land’s boundaries recognisable.189 Second, certain facilities – such as schools, child care services and hospitals and nursing homes - are defined to be inclosed lands and are known as prescribed lands in the legislation. Again, these do not discriminate between public and private facilities.190
7.1 Loitering or “Moving People On”
The (NSW) Inclosed Lands Protection Act 1901 creates two separate offences of remaining on inclosed lands,191 or engaging in “offensive” conduct,192 after being asked to leave by the owner, occupier or person apparently in charge of those lands. The offensive conduct offence has a harsher penalty, except (curiously) when dealt with by penalty notice. The usual provisions apply regarding the need for police to give their name and place of duty, the reason for the direction,193 and a warning that you are obliged to comply and that failure to comply may constitute an offence before issuing the direction.194
7.2 Identification
Anyone who is found committing an offence against the Inclosed Lands Protection Act 1901 must give their name and address when asked, even to someone who is not a police officer such as a security guard or worker. If you do not give your name and address, you can be detained by that person and given into police custody.195 There is also a penalty of $55 for providing false details, on top of any penalty for the principal offence for which you were apprehended.196 Before exercising this power, police must show they are a police officer, give their name and place of duty, and provide reasons for the request.197 A warning that you are obliged to comply with a request for identification and that failure to comply constitutes an offence should also be given as soon as reasonably practicable after making the request.198 There is generally no such obligation on others.
7.3 Trespass
It is an offence under the Inclosed Lands Protection Act 1901 to enter inclosed lands without the consent of the owner or occupier of the land.199 The offence is often used against demonstrators and activists to protect property and maintain public order. There has been a steady increase in trespass charges over the last 20 years, with over 3,000 people charged with trespass in 2002. Although the offence carries a penalty of $550 (or $1100 for premises such as schools and hospitals), campaigners may find that bail is refused or unacceptable conditions are imposed. Consequently, people may spend time locked up prior to their hearing.
There is a defence of lawful excuse.200 This may be made out by establishing a reasonable belief in the existence of a public right of way, coupled with the fact there were no closed gates.
Your Right to Peaceful Protest
You do generally have a right to lawful assembly in public spaces (see 8.4 below). This does not, however, extend to inclosed spaces. In O’Donohue v Wille [1999] NSWSC 661, three protestors were charged with trespass under the Inclosed Lands Protection Act 1901 as a result of entering an area of public parkland enclosed by barbed wire fencing that had been licenced to the RTA to construct the Eastern Distributor tunnel. The protestors argued that they had a lawful excuse for being on the inclosed lands occupied by the RTA since they were protesting against the construction of the Eastern Distributor and the associated tree destruction and reduction of public recreation space in Moore Park. At first instance, Magistrate Pat O’Shane dismissed the charges on the basis that the protestors “had a right to protest peacefully”.
This decision was overturned on appeal. Justice Kirby of the Supreme Court of NSW held that entering land for a purpose that is not unlawful, does not constitute a lawful excuse.
This means that actions such as “sit-ins” in Ministerial Offices or corporate headquarters or, more generally, protests inside premises or in inclosed spaces are not lawful excuses that would allow you to avoid trespass charges/convictions under the Inclosed Lands Protection Act 1901.
- (NSW) Inclosed Lands Protection Act 1901 s 3.
- (NSW) Inclosed Lands Protection Act 1901 s 3.
- (NSW) Inclosed Lands Protection Act 1901 s 4(1). The maximum penalty is $550 or $1100 where the offence occurs in respect of prescribed premises: s 4(1). Where dealt with by way of a penalty notice, the penalty is $350 and $550 respectively: see Inclosed Lands Protection Regulation cl 3 and Schedule 1.
- (NSW) Inclosed Lands Protection Act 1901 s 4A(1). The maximum penalty is $1100 or $2200 where the offence occurs in respect of prescribed premises: s 4A(1). Where dealt with by way of a penalty notice, the penalty is $250 in either case: see Inclosed Lands Protection Regulation cl 3 and Schedule 1.
- (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 s 201(1), (2A), (2B) and (3)(i).
- (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 s 201(2C). A warning need not be given if you have subsequently complied: s 201(2C).
- (NSW) Inclosed Lands Protection Act 1901 s 6(1).
- (NSW) Inclosed Lands Protection Act 1901 s 6(2).
- See (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 s 201(1), (2A) and (3)(g).
- (NSW) Law Enforcement (Powers and Responsibilities) Act 2002 s 201(2C). A warning need not be given if you have subsequently complied: s 201(2C).
- (NSW) Inclosed Lands Protection Act 1901 s 4(1). The maximum penalty is $550 or $1100 where the offence occurs in respect of prescribed premises: s 4(1). Where dealt with by way of a penalty notice, the penalty is $350 and $550 respectively: see Inclosed Lands Protection Regulation cl 3 and Schedule 1.
- (NSW) Inclosed Lands Protection Act 1901 s 4(1).
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This site was last updated
Friday 30 July, 2010
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