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This page was last updated 23 August 2010.
7 Inclosed PropertyThe (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.1 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.2 7.1 Loitering or “Moving People On”The (NSW) Inclosed Lands Protection Act 1901 creates two separate offences of remaining on inclosed lands,3 or engaging in "offensive" conduct,4 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,5 and a warning that you are obliged to comply and that failure to comply may constitute an offence before issuing the direction.6 7.2 IdentificationAnyone who is found committing an offence against th e 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.7 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.8 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.9 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.10 There is generally no such obligation on others. 7.3 TrespassIt 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.11 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 9,000 people charged with trespass in 2008.12 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.13 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. Certain Acts may contain similar offences relating to particular infrastructure. For example, the Electricity Supply Act 1995 contains an offence of entering, climbing, or being on electricity works.14 There is also the offence of interfering with electricity supply works.15 There are similar provisions under the Gas Supply Act 1996 (NSW) for interfering with gas supply works.16 Your Right to Peaceful ProtestYou 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.
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