ISSUES PAPER POSSIBLE AMENDMENTS TO THE TRESPASS ACT - DEPARTMENT OF THE ATTORNEY-GENERAL AND JUSTICE
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DEPARTMENT OF
THE ATTORNEY-GENERAL AND JUSTICE
ISSUES PAPER
POSSIBLE AMENDMENTS TO
THE TRESPASS ACT
http://www.nt.gov.au/justice/Table of Contents
Contents
1 Introduction .....................................................................................................................................3
2 Consultation.....................................................................................................................................4
3 Current Position ..............................................................................................................................5
3.1 ...... Background ............................................................................................................................5
3.2 ...... General observations .............................................................................................................7
3.3 ...... Criminal trespass in other Australian jurisdictions ................................................................... 8
3.4 ...... Outline of the Trespass Act .................................................................................................... 8
4 Options for reform ...........................................................................................................................9
4.1 ...... Section 4 - definition of ‘occupier’ ........................................................................................... 9
4.2 ...... Penalties and compliance with Part IIAA of the Criminal Code ............................................. 11
4.3 ...... Possible amendments to section 7 of the Trespass Act........................................................ 15
4.4 ...... Possible amendments to section 8 of the Trespass Act........................................................ 17
4.5 ...... Section 10 – Police powers under the Trespass Act ............................................................. 20
4.6 ...... Giving directions to leave or warnings to stay off to youths................................................... 22
4.7 ...... Section 12 - Evidential provisions ......................................................................................... 23
4.8 ...... Transfer of Summary Offences Act offences into the Trespass Act ...................................... 24
4.9 ...... Defences at section 13 of the Trespass Act ......................................................................... 25
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 2 of 28Issues Paper 1 Introduction The Northern Territory of Australia is the only jurisdiction that has an Act dedicated to criminalising the tort of trespass in certain circumstances, namely the Trespass Act. In recent years, the public and other Northern Territory government agencies have raised concerns about perceived deficiencies in the Trespass Act and the need for statutory reform of that Act. In response to those concerns, the Northern Territory Department of the Attorney-General and Justice (the Department) has developed this issues paper. This paper sets out a number of possible amendments to the Trespass Act. The purpose of this paper is to seek comment from the public and key stakeholders about possible reforms to the Trespass Act. The paper provides industry, members of the public, and the government with an overview of: • the current legislation and its background; • the statutory situation elsewhere in Australia; and • options for change and reform. This overview should provide enough background information to support submissions as to what should be the policy outcomes concerning the issues raised in this Issues Paper. A number of questions about possible amendments to the Trespass Act are posed throughout this Issues Paper. Those questions are intended to facilitate discussion. However, submissions need not be constrained by those questions and may be made with respect to any Trespass Act and related reforms. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 3 of 28
Issues Paper 2 Consultation You are invited to provide comments on this Issues Paper to the Department. Comments can be as short or informal as an email or letter, or it can be a more substantial document. Comments do not have to address all aspects of the Issues Paper and do not need to be confined to the issues identified in the Issues Paper. Electronic copies should be sent whenever possible. Comments should be sent to: Director, Legal Policy Department of the Attorney-General and Justice GPO Box 1722, DARWIN NT 0801 Or by email to Policy.AGD@nt.gov.au The closing date for comments on this Issues Paper is [insert date] 2018. Any feedback or comment received by the Department will be treated as a public document unless clearly marked as ‘confidential’. In the absence of such clear indication, the Department will treat the feedback or comment as non-confidential. Non-confidential feedback or comments will be made publicly available and published on the Department’s website. The Department may draw upon the contents of such and quote from them or refer to them in reports, which may be made publicly available. Any requests made to the Department for access to a confidential submission, feedback or comment will be determined in accordance with the Information Act (NT). Note: Although every care has been taken in the preparation of the Issues Paper to ensure accuracy, it has been produced for the general guidance only of persons wishing to provide comments on the issues. The contents of the paper do not constitute legal advice or legal information and they do not constitute Government policy documents. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 4 of 28
Issues Paper
3 Current Position
3.1 Background
At common law, a person in lawful possession of land has the power to revoke an express or implied
licence to enter or remain on that land. Any subsequent entry or interference with that land would give rise
to a cause of action under the tort of trespass and could be remedied using civil remedies, for example an
injunction and/or damages. Historically trespass has not been considered a criminal offence.
In 1987, the Legislative Assembly determined that trespassing should attract criminal sanction in certain
circumstances and made ‘[a]n Act to amend the law relating to trespass’, cited as the Trespass Act. The
purpose of the Trespass Act is to bring together, in one piece of legislation, the law concerning criminal
trespass.
The Trespass Act has been amended several times since 1987. The majority of those amendments relate
to technical issues that were not substantive. For example, issues concerning the conversion of monetary
penalties to penalty units, changes to the titles of other Acts referred to in the Trespass Act, and clarifying
that the penalties expressed in the Trespass Act are maximum penalties.
However, significant changes were made to the Trespass Act by the Trespass Amendment Act 2000. That
Act:
• removed the requirement that premises be ‘enclosed’ in order to trigger the offence at section 5 and
the offences at sections 7 and 8 of the Trespass Act, insofar as the trespass related to premises;
• removed reference to the term ‘unlawfully’ throughout the Trespass Act. The removal of the term
‘unlawfully’ clarified that offences against the Trespass Act are regulatory offences. This means that
Part II of the Criminal Code generally does not apply and there is no need to establish a guilty mind
in order to prove offences under the Trespass Act;
• added section 13(1A) of the Trespass Act to provide a defence of honest and reasonable mistake of
fact for an offence of trespass on premises;
• amended the evidential provisions at section 12 of the Trespass Act to permit certain evidence to be
provided by way of an averment by the prosecution, rather than being proved by a statement on
oath.
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amendments to the Trespass Act Page 5 of 28Issues Paper
Since the Trespass Amendment Act 2000, there have been no substantive amendments to the Trespass
Act.
In April 2013, the Northern Territory Law Reform Committee (NTLRC) released its Report No. 38, ‘Report
on the Trespass Act’ (the NTLRC Report). The NTLRC Report addressed the following question:
‘Should the Trespass Act and proceedings that can be commenced under Trespass Act be
amended? With particular regard to issues that may arise concerning trespass on housing located
on Aboriginal land.’
In responding to that question, the NTLRC Report made the following recommendations:
(a) that there is no need for any amendment to the general structure of the Trespass Act or the
proceedings that can be commenced under the Act. In particular, there is nothing in the legislation
in force in any other Australian jurisdiction which commends itself to the NTLRC for adoption or
replication in the Territory;
(b) that section 7(1) of the Trespass Act be amended to remove the requirement for an antecedent act
of trespass as a precondition to the giving of a direction, so that it reads:
A person who, after being directed to leave any place by an occupier or member of the Police Force
acting at the request of the occupier, fails or refuses to leave that place forthwith or returns within 24
hours to that place, commits an offence.
(c) that the executive give some consideration to whether the Trespass Act should be amended to allow
for greater flexibility in the duration of a warning off notice under section 8 of the Trespass Act.
Although it is unnecessary to legislate for that purpose; and
(d) that there is no need for any legislative amendment to ensure the effective application of the
Trespass Act to public housing located on Aboriginal land, whether held under Aboriginal Land
Rights Act or some other form of tenure.
A copy of the NTLRC Report is at Attachment A of this Issues Paper.
Since the release of the NTLRC Report, the Department has received a number of queries from members
of the public and government agencies, concerning operational aspects of the Trespass Act that affect its
enforceability. In the course of preparing this report, the Department has also identified several areas for
possible reform that might improve the operability of the Trespass Act. This Issues Paper will discuss the
following areas of reform:
• possible amendments to the definition of occupier at section 4 of the Trespass Act;
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 6 of 28Issues Paper
• conversion of offences under the Trespass Act to comply with the principles of criminal responsibility
set out in Part IIAA of the Criminal Code, and possible changes to the penalties for those offences;
• implementation of recommendation (b) and consideration of recommendation (c) of the NTLRC
Report;
• several possible amendments to section 7 of the Trespass Act;
• several possible amendments to section 8 of the Trespass Act;
• an amendment to section 10 of the Trespass Act to better allow police officers to exercise their
powers of arrest, or to remove a person by force;
• an amendment to clarify that members of the Police Force can take reasonable and proportionate
steps to effect the giving of a direction to leave or warning to stay off;
• possible repeal of the averment provisions at section 12 of Trespass Act;
• amendments to the defence provisions at section 13 of the Trespass Act; and
• the transfer of trespass related offences in the Summary Offences Act to the Trespass Act.
3.2 General observations
Although the Trespass Act amends the law relating to trespass, it does not appear to extinguish the
common law right of a person in lawful possession of land to withdraw a licence to enter or remain on it.
In theory, assuming that a person in lawful possession of land may withdraw an express or implied licence
to enter and/or remain on that land without engaging the Trespass Act, but instead using the common law,
an occupier could revoke an implied licence to enter their land using their common law power as the
possessor of that land. If the relevant land was ‘premises’ (as defined under section 4(1) of the Trespass
Act), any further entry or failure to leave the land, within a reasonable period of time, would constitute an
offence against section 5 of the Trespass Act. This would permit a person in lawful possession of a
premises to exclude a person from that premises for any or all of the time that they remain in lawful
possession of it.
With respect to occupiers of premises that are open to members of the public, for example shopkeepers
who occupy premises for mercantile purposes, such occupiers should be aware that their power to exclude
a person from their property may, in certain circumstances, be limited by other laws. For example, if a
shopkeeper is providing services or facilities to members of the public, they may not be able to direct a
customer to leave under the Trespass Act or revoke an implied licence using their occupier’s power at
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 7 of 28Issues Paper common law, to deny that person access to their services and facilities on the basis of the person’s race, or another of the matters listed in section 19 of the Anti-Discrimination Act. If a person was excluded in such circumstances, the shopkeeper’s conduct would likely contravene the Anti-Discrimination Act and expose the shopkeeper to conciliation, and possibly sanctions under section 88 of the Anti-Discrimination Act. Similarly, with respect to people in control of government land, or in occupation of premises that house government agencies or service providers, the occupiers’ powers to exclude a person from entering or returning to those premises should be used cautiously. This is to avoid deterring people from accessing government services. For example, it will rarely be appropriate exclude a person from a hospital as this might discourage them from seeking medical assistance for fear of being prosecuted for trespass. For those reasons, occupiers of premises that are open to members of the public and/or that house government and other essential service providers, should exercise caution when determining whether to exclude a person from those places. 3.3 Criminal trespass in other Australian jurisdictions An outline of similar trespass related provisions from other Australian jurisdictions is contained at Part D of the NTLRC Report (see Attachment A, pages 8 to 10). The information in the NTLRC Report is adopted and relied upon for the purposes of this Issues Paper. 3.4 Outline of the Trespass Act An outline of the Trespass Act is contained at Part C of the NTLRC Report (see Attachment A, pages 5 to 8). The information in the NTLRC Report is adopted and relied upon for the purposes of this Issues Paper. A copy of the Trespass Act, current as at April 2018, is at Attachment B. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 8 of 28
Issues Paper
4 Options for reform
4.1 Section 4 - definition of ‘occupier’
Section 4 of the Trespass Act contains definitions relevant to the interpretation of that Act. Under section
4(1) of the Trespass Act, ‘“occupier”, in relation to a place, means:
(a) where the place is Crown land or land occupied by the Territory or the Commonwealth or a statutory
corporation – a person in charge of the land; and
(b) where the place is other than Crown land or land occupied by the Territory or the Commonwealth or
a statutory corporation – a person in lawful occupation of the place,
and includes an employee or other person acting under the authority of a person in charge under
paragraph (a) or in lawful occupation under paragraph (b).’
That definition requires a person in charge of land, or a person in lawful occupation of a place, to expressly
authorise an employee or other person to exercise a Trespass Act power on their behalf. If an authorisation
is not in place, those employees or other persons will not be considered ‘occupiers’ for the purposes of
exercising any of the ‘occupiers’ powers under the Trespass Act. The requirement for employees or other
persons (for example security guards) to be expressly authorised by a person in charge of land or lawful
occupation of a place before being able to exercise occupiers powers under the Trespass Act has caused
difficulties in some prosecutions 1.
To resolve those difficulties, the Trespass Act could be amended to remove the requirement for
‘authorisation’ of employees from the definition of ‘occupier’ in section 4(1) of Trespass Act. The definition
of occupier could also be amended to include security providers (within the meaning of the Private Security
Act), who are engaged by or for the person in charge of land or in lawful occupation of a place, to provide
security services for that place. This would mean that an employee or a security provider would
automatically be an ‘occupier’ for the purposes of exercising a power under the Trespass Act.
It would also mean that a person in charge or lawful occupation of a place could not control which
employees and/or security providers could exercise a Trespass Act power on their behalf. For example,
1Forexample, see Leigh Cahill v M [2010] NTMC 011, though in that case the prosecution failed for a number of
reasons including the failure of the security guard to identify the occupier in the warning to stay off and that the
defendant has not been trespassing at the time the warning was given.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
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the owner of a business might only want certain employees, such as management level employees, to be
able give a direction to leave or warning to stay off their shop. The authorisation requirement allows the
employer to delegate that power to those particular employees. Removing the authorisation requirement
would mean that all employees could issue a direction to leave or warning to stay off to the shopkeeper’s
customers.
The Department does not recommend amending the definition of occupier at section 4(1) of the Trespass
Act. As drafted, the definition of ‘occupier’ affords persons in charge or lawful occupation of a place an
appropriate degree of control over who may exercise Trespass Act powers on their behalf. By being able
to withhold or terminate that authorisation, a person in charge or lawful occupation of a place also has a
degree of control over how those powers are exercised. As the NTLRC concluded in the NTLRC Report:
[t]here is no reason in policy for the removal of the requirement that a direction or warning be
given by or under the authority of an occupier. The occupier is the person with control and
management of the land or premises in question. That entitlement and responsibility leads
necessarily to the conclusion that the power to exclude a person from land or premises should
be vested exclusively in the occupier and its duly authorised agents. That this creates certain
evidentiary onera which must be discharged by the Crown in the conduct of certain prosecutions
does not lead to any different conclusion 2.
Any issues that are caused by requiring an employee or other person to be expressly authorised to use
an occupier’s Trespass Act powers could be addressed by educating occupiers about how to validly effect
an authorisation, rather than amending the definition of ‘occupier’. To assist, The Department could
develop pro-forma templates for occupiers to use to:
• effect a valid authorisation; and
• give written warnings to stay off or directions to leave.
Those templates would only be examples to assist occupiers that is they would not have to be used to
effect a valid authorisation, direction or warning.
2 NTLRC, per paragraph 63 at page 18.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
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Question 1:
Should the definition of ‘occupier’ in the Trespass Act be amended:
(a) to remove the requirement for employees to be authorised by a person in charge of land or in
lawful occupation of a place in order to be deemed an ‘occupier’ for the purposes of the Trespass
Act?
(b) to include security providers who are engaged by or for a person in charge of land or in lawful
occupation of a place to provide security services for that land or place?
Question 2:
Should the Department develop pro-forma templates to assist:
(a) a person in charge of land or in lawful occupation of a place to authorise an employee or other
person as an ‘occupier’ of that place for the purposes of section 4(1) of the Trespass Act?
(b) an occupier to give written warnings to stay off or directions to leave, in accordance with section
9 of the Trespass Act?
4.2 Penalties and compliance with Part IIAA of the Criminal Code
The Government has an ongoing project to convert all offences on the Northern Territory Statute Book so
that they conform to the principles of criminal responsibility set out in Part IIAA of the Criminal Code.
Offences in the Trespass Act do not currently conform to Part IIAA of the Criminal Code. The Trespass
Act needs to be amended to address that issue.
Offences in the Trespass Act are currently prescribed as regulatory offences 3. This means that there is no
need to prove that a defendant had a guilty mind at the time they committed the offence – it is only
necessary to prove any relevant conduct, circumstance and/or result to prove the offence. Under Part IIAA
of the Criminal Code, an offence is made up of physical elements 4 (conduct, result, or circumstance) and
3 See section 11(1) of the Trespass Act.
4 See section 11(1) of the Trespass Act.
4 Criminal Code, Part IIAA, Division 2, Subdivision 2.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 11 of 28Issues Paper fault elements 5 (usually intention, knowledge, recklessness, or negligence) 6. Every physical element has a fault element unless it is identified as an element of strict liability 7 or absolute liability 8. The prosecution must prove all the physical and fault elements of an offence before a person may be found guilty of that offence 9. If an offence has a physical element that is identified as either strict liability or absolute liability, the prosecution need only prove that the defendant engaged in the conduct, that the circumstance was present, or that the result occurred with respect to that physical element. The prosecution does not have to prove fault, only fact. The main difference between absolute liability and strict liability is that a mistake of fact defence is available for an offence that has a physical element which is prescribed as strict liability, but is unavailable for an offence that has a physical element which is prescribed as absolute liability 10. If, when converted to comply with Part IIAA of the Criminal Code, Trespass Act offences are converted ‘like for like’, they will become pure strict liability offences. That means that none of the physical elements forming the offence would require a fault element to be proved. This could be problematic with respect to the offence at section 5 of the Trespass Act (trespass to premises) which carries a maximum penalty of 6 months imprisonment, or a fine of 20 penalty units (as at April 2018 one penalty unit is equal to $154). Modern penalty policy mandates that a penalty of imprisonment will not generally be prescribed for pure strict liability offences, unless there is sufficient justification for doing so. A penalty of imprisonment will not be prescribed for pure absolute liability offences. This is because the ‘requirement for proof of fault is one of the most fundamental protections in criminal law. This reflects the premise that it is generally neither fair, nor useful, to subject people to criminal punishment for unintended actions or unforeseen consequences unless these resulted from an unjustified risk (i.e. recklessness)’11. Removing the requirement to prove fault also negatively affects a person’s right to be presumed innocent. If the section 5 offence is to be converted to become either a pure strict liability offence, or an offence primarily made up of physical elements that are assigned strict liability, there needs to be an adequate 5 Ibid, Part IIAA, Division 2, Subdivision 3. 6 Ibid, section 43AB(1). 7 Ibid, section 43AN. 8 Ibid, section 43AO. 9 Ibid, section 43AC. 10 Ibid, section 43AX and 43AO(2). 11 A guide to framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011 edition, page 22. Available at https://www.ag.gov.au/Publications/Pages/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforc ementPowers.aspx May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 12 of 28
Issues Paper
policy justification for retaining the penalty of imprisonment. For example, anecdotal information received
by the Department suggests that the offence against section 5 is sometimes charged when a person is
found on the premises of another person, but there is insufficient evidence to establish an offence of
unlawful entry of buildings under section 213 of the Criminal Code.
Question 3:
(a) What are your views about repealing or retaining the penalty of imprisonment for an offence
against section 5 of the Trespass Act (trespass to premises)?
(b) Are you aware of anything that would justify retaining the penalty of imprisonment for an offence
against section 5 of the Trespass Act, if it is to be a pure strict liability offence, or an offence with
most of its physical elements prescribed as strict liability?
The offences at section 6 (trespass to prohibited land), section 7 (trespass after direction to leave) and
section 8 (trespass after warning to stay off) of the Trespass Act each have maximum penalties of 20
penalty units (there is no penalty of imprisonment). Those offences also involve the provision of some form
of notice before attracting any criminal sanction. For those reasons, there would be no barrier to those
offences being pure ‘strict liability’ offences on being converted to comply with the principles of criminal
responsibility set out in Part IIAA of the Criminal Code.
The offences at sections 6 to 8 of the Trespass Act could be amended to include a penalty of imprisonment.
The increased penalty would provide the courts with greater discretion when it comes to sentencing an
offender and might increase the deterrent effect of the Trespass Act. However, fault elements would need
to be assigned to the physical elements for those offences. This means that those offences would not be
pure strict liability offences and would become significantly more difficult to prove. This is unlikely to
improve the operability of the Trespass Act.
A further option, suggested by one stakeholder, is to merge the offences at sections 5 and 6 of the
Trespass Act into a single offence. Assuming that the penalty of imprisonment is retained for an offence
against section 5, this would mean that the offence against section 6 would be punishable by a term of
imprisonment. Statistics, provided by the Department’s Research and Statistics Unit, indicate that between
2009 and 2017, people have been prosecuted for only 46 offences against section 6 of the Trespass Act.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
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This suggests that trespassing on prohibited land is not a common offence in the Northern Territory. The
Department has not identified any particular policy reason to make this change.
Statistics, provided by the Department’s Research and Statistics Unit, indicate that between July 2009 and
June 2017:
• 6,590 people have been prosecuted for offences against the Trespass Act (including multiple
trespass offences on a single complaint or indictment).
• A custodial penalty was imposed for 1,125 of those offences. The vast majority of custodial penalties
were imposed in circumstances where other offences had been charged and often as a global or
aggregate sentence that reflected the totality of the offending 12.
• 6,590 Trespass Act offences were dealt with in 3,961 sentencing occasions.
Of those 3,961 sentencing occasions, at least 3,177 involved Aboriginal defendants (approximately
80 percent).
• Of the 3,961 sentencing occasions involving trespass offences, 1,291 involved circumstances where
offences against the Trespass Act were the only offences dealt with at that time. 980 of those
defendants were Aboriginal (approximately 76 percent).
• Of the 1,291 sentencing occasions involving only trespass offences, a custodial sentence was
imposed on 19 occasions. All but one of those custodial sentences were imposed on Aboriginal
offenders.
Based on those statistics:
• It is not clear whether introducing a penalty of imprisonment for offences against sections 6 to 8 of
the Trespass Act would affect incarceration rates. This is because in proceedings for a complaint
that only involves Trespass Act offences, a custodial penalty is rarely imposed for an offence against
section 5 of the Trespass Act, which is the only Trespass Act offence that has a penalty of
imprisonment.
• In matters where a trespass offence is heard on a complaint or indictment that involves other more
serious offending, any custodial penalty would likely form part of an aggregate sentence.
• If a penalty of imprisonment is introduced for offences against sections 6 to 8 of the Trespass Act,
any related increase to incarceration rates is likely to disproportionately affect Aboriginal offenders.
Consequently, introducing a penalty of imprisonment for offences against sections 6 to 8 of the
12 Including prison sentences that are fully and partially suspended, home detention and actual imprisonment.
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Trespass Act may result in an outcome that is contrary to the Government’s commitment to reduce
Aboriginal incarceration and recidivism rates in the Territory.
There are arguments for and against either maintaining the status quo with respect to available penalties
for offences against sections 6 to 8 of the Trespass Act, or amending the Trespass Act to include penalties
of imprisonment for those offences. However, taking into account:
• the Government’s commitment to reduce Aboriginal incarceration and recidivism rates;
• the often minor nature of trespass offences; and
• the propensity for trespass offences that are part of more serious offending to be captured by
aggregate sentencing,
The Department does not currently recommend amending the Trespass Act to include a penalty of
imprisonment for offences against sections 6 to 8 of the Trespass Act.
Question 4:
What are your views about amending the Trespass Act to:
(a) provide a penalty of imprisonment for offences against sections 6, 7 and 8 of that Act?
(b) merge the offences in sections 5 and 6 so that they become a single offence?
4.3 Possible amendments to section 7 of the Trespass Act
Section 7(1) of the Trespass Act makes it an offence to trespass on any place, following the giving of a
direction to leave by the occupier of that place. ‘Place’ is defined at section 4(1) of the Trespass Act to
include premises and land (including ‘prohibited land’ and crown land’, which are also defined in the
Trespass Act).
The requirement for a direction to be given, before an offence can be committed against section 7(1) of
the Trespass Act, suggests that this offence is intended to apply where a person has an implied licence to
enter a place; for example, a shopping centre. A person will only commit an offence against section 7(1) if
they fail to leave a place within a reasonable time after being directed to do so, or return to the place within
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 15 of 28Issues Paper 24 hours after the giving of the direction. Those characteristics suggest that section 7 is designed to provide a remedy to prevent trespass in the short term 13. Removal of the requirement for an antecedent act of trespass Section 7 of the Trespass Act currently requires an antecedent act of trespass as a precondition to the giving of a direction. For example, section 7 would not currently apply to a person who: • enters a shopping centre under an implied licence; • is directed to leave the shopping centre by its occupier; and • refuses to do so. In those circumstances, the person has not trespassed prior to the giving of the direction and for that reason could not be directed to leave under section 7 of the Trespass Act 14. The effect of this is that a person must be told to leave a place more than once before a valid direction to leave may be given 15. The NTLRC has commented that ‘making trespass a precondition to a direction deprives [section] 7 of practical operation’. The NTLRC also noted that the precondition of an antecedent trespass is ‘unnecessary and potentially confounding to the operation of section 7’. The NTLRC has recommended that section 7 be amended to correct that anomaly. The Department agrees with the NTLRC’s assessment and recommendation as it relates to removing an antecedent trespass as a precondition to the giving of a direction. The Department considers that this is likely to greatly improve the operability of section 7. For example, it would allow an occupier to direct a person to leave their place if the person was behaving aggressively, rather than limiting the giving of a direction to circumstances where a person must already be trespassing. Extending the duration of a direction to leave Some stakeholders have asked that the Trespass Act provide a medium term remedy, in addition to the short and long term remedies provided by sections 7 and 8 of the Trespass Act. 13This example is derived from a similar example in the NTLRC Report, see paragraph 13, per pages 6-7. 14 NTLRC Report, per paragraph 66 at page 18. 15 For a practical example of this see the judgement of Barr J, in Jenkins v Todd [2016] NTSC 4. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 16 of 28
Issues Paper
The Department considers that a medium term remedy could be effected by amending section 7(1) of the
Trespass Act so that a direction to leave can remain in effect for longer than 24 hours, for example, a
period of up to 6 months. A person would then commit an offence if they fail or refuse to leave the place
after being directed to do so, or return to that place within the period specified in the direction. A default
duration period could be included so that the direction remains in force for a fixed period (for example 24
hours) if the occupier does not specify the duration of the direction. This would permit a direction to leave
to be used as a short to medium term remedy.
This would also mean that if a person were to return to the place within the operational period of the
direction, or were to refuse to leave that place within a reasonable time after the direction was given, the
person would be trespassing, could be charged with an offence against section 7, and could be given a
warning to stay off under section 8(1) of the Trespass Act. The warning to stay off would then prohibit the
person from returning to that place for one year after the warning was given.
Question 5:
Should section 7 of the Trespass Ac be amended:
(a) to remove the requirement for an antecedent trespass as a precondition to the giving of a
direction to leave?
(b) to increase the duration of a direction to leave so that it can remain in effect for a specified period
of time?
4.4 Possible amendments to section 8 of the Trespass Act
Section 8(4) of the Trespass Act makes it an offence if a person trespasses on a place following a warning
to stay off. Before a person can be given a warning to stay off, the person must be trespassing or have
trespassed on that place (see section 8(1)), or the occupier must have reasonable cause to suspect that
the person is likely to trespass on that place (see section 8(2)). If a person has been found guilty of
trespassing on a place under the Trespass Act, the courts may also issue a warning to stay off that place
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 17 of 28Issues Paper (see section 8(3)). Those provisions suggest that the purpose of section 8 is to provide a long term remedy in circumstances where a person has displayed a propensity to trespass 16. There are several amendments that could be made to section 8 of the Trespass Act. These are set out in the following paragraphs. Amending section 8 so that a warning to stay off can remain in effect for up to one year A warning to stay off under section 8 of the Trespass Act remains in effect for a fixed period of one year after the giving of the warning. In the NTLRC Report, the NTLRC recommends that the Government consider amending section 8 of the Trespass Act to allow for greater flexibility in the duration of a warning off notice. If section 7 of the Trespass Act is amended so that a direction to leave may be used to provide a medium term remedy, it seems reasonable that the duration of a warning off notice under section 8 remain a fixed one year period. This would allow section 8 to be used as an escalation of the available remedy in circumstances where a person has displayed a propensity to trespass. The amendment to section 7 seems to adequately address the issue raised in the NTLRC Report, and the request made by stakeholders for a medium term remedy. The Department has not identified any policy reason to amend section 8 so that the duration of the warning to stay off is flexible. However, if that proposal is supported, the Trespass Act could be amended to effect that change. Amending section 8 to permit a warning to stay off to be issued for multiple places It is unclear whether a section 8 warning to stay off may be given for multiple places. This is because of the use of the term ‘that place’. Section 8(1), provides that ‘where a person is trespassing or has trespassed on any place, an occupier of that place may…warn that person to stay off that place’ (emphasis added). The extrinsic material to the Trespass Act provides no guidance as to the intended scope of section 8 with respect to its application to multiple places. Section 24 of the Interpretation Act provides that references in an Act that are expressed in the singular also include the plural, and vice versa. However, in Police v KS 17, Ms Oliver SM, as she then was, expressed some doubt as to whether section 8 of the Trespass Act permits a person to be warned to stay off multiple places, notwithstanding the application of section 24 of the Interpretation Act. 16 NTLRC Report, per paragraph 62 at page 17. 17 [2010] NTMC 20 at 35. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 18 of 28
Issues Paper This means that a person’s propensity to trespass on one place might not automatically provide an occupier with ‘reasonable cause to suspect’ that they will trespass on other places. This may cause an issue for some occupiers. For example, if a person were to trespass on a bus, the occupier of the bus network might want to exclude the person from the entire bus network rather than the individual bus. Without that power, the remedy provided by section 8 would be of limited use as the person could simply catch the next bus. The occupier of the bus network would be unable to give a warning to stay off the whole bus network unless section 8(1) or (2) were found to apply to each bus in that network. That would set a high bar that would be very difficult to establish. The Trespass Act could be amended to permit an occupier to exclude a person from multiple places that they occupy without the need for an antecedent trespass on each of the places covered by the warning. The purpose of the amendment would be to allow an occupier of multiple places to warn a person to stay off those places, if a person displays a propensity to trespass on only one place that is occupied by that occupier. If section 8 is amended to permit a multiple place warning, section 7 of the Trespass Act might also need to be amended so that a direction to leave may be given with respect to multiple places. Allowing police to issue a warning to stay off on behalf of an occupier Unlike section 7(1) of the Trespass Act, section 8(1) and (2) of the Trespass Act does not contain a power that allows a member of the Police Force to warn a person to stay off a place, if asked to do so by its occupier. Stakeholders have given examples of having to give a warning to stay off themselves. This has occasionally meant that an occupier has found out where the person lives, attended their home and warned them to stay off the occupier’s place. Stakeholders have asked that members of the Police Force be able to give a warning to stay off on their behalf. NT Police have also requested that section 8 be amended to permit this to occur. If section 8 is amended to permit a member of the Police Force to give a warning to stay off at the request of an occupier, the amendment would not negate the need for an antecedent trespass, or for the occupier to have reasonable cause to suspect that the person is likely to trespass. If those circumstances were not present, the warning would not have been issued validly, even if it were given by a member of the Police Force. The Department has not identified anything that would preclude an occupier from authorising members of the Police Force to give a warning to stay off under section 4(1) of the Trespass Act. This is because a police officer could be an ‘other person’ for the purposes of being authorised by a person in charge of land or in lawful occupation of a place. However, effecting such an authorisation may not always be practical. It is also unclear whether a member of the Police Force, who has been authorised by an occupier under May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 19 of 28
Issues Paper
section 4(1) of the Trespass Act, would be acting in the course of their duties if they warned a person to
stay off 18.
Noting the above, it seems reasonable to amend section 8 of the Trespass Act to expressly permit a police
officer, acting at the request of an occupier, to warn a person to stay off a place.
Question 6:
Should section 8 of the Trespass Act be amended to:
(a) permit a warning to stay off to remain in effect for a period not exceeding one year?
(b) authorise police, at the request of an occupier, to give a warning to stay off a place?
Question 7:
Should sections 7 and 8 of the Trespass Act be amended to clarify that a person may be directed to
leave or warned to stay off multiple places occupied by the same occupier?
4.5 Section 10 – Police powers under the Trespass Act
Section 10 of the Trespass Act provides that, ‘[w]here a person fails or refuses to leave a place after being
directed to do so under section 7 or trespasses on a place after being warned to stay off under section 8,
a member of the Police Force may warn that person of the consequences of not leaving the place forthwith
and, if the person fails to leave forthwith:
(a) arrest the person without warrant to be further dealt with according to law; or
(b) without arrest but by force if necessary, remove the person and the person’s property (if any) from
that place.’
Removing the requirement for police to give an additional warning
Some stakeholders are concerned that police are sometimes unable to arrest someone who has been
warned to stay off or directed to leave, because that person either runs off before police can warn them of
18 Inquest into the death of Asera aka Ezra Young [2018] NTLC 009, Per Cavanagh J, at 54
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 20 of 28Issues Paper the consequences of not leaving straight away, or leave when police give them the warning but return after the police have left. Northern Territory Police have requested that section 10 of the Trespass Act be amended to remove the requirement making their arrest and removal power subject to the giving of an additional warning. The Department has identified two cases in which an arrest or removal was deemed unlawful due to a failure by police to warn the person of the consequences of not leaving a place forthwith, before arresting or removing them 19. Noting those cases, and that police may only arrest and remove a person after a warning or direction has been given, it seems reasonable to omit the requirement for police to give an additional warning before exercising their powers under section 10 of the Trespass Act. Permitting a member of the Police Force to take reasonable and proportionate steps to effect the giving of a direction to leave or warning to stay off The Trespass Act does not outline what steps a member of the Police Force can take to effect the giving of a direction to leave under section 7 of the Trespass Act. For example, if a member of the Police Force is asked by an occupier to direct a person to leave their premises, and the person is asleep in the premises, it is unclear whether the member could gently shake the person to wake them up in order to give them a direction to leave. This issue might also arise with respect to section 8 of the Trespass Act, if section 8 is amended to permit a member of the police force to give a warning to stay off at the request of an occupier. To clarify the scope of police powers in such circumstances, an express power could be included in the Trespass Act to enable a member of the Police Force to take reasonable and proportionate steps to effect the giving of a direction to leave or warning to stay off. Whether those steps are reasonable and proportionate would be a question of fact to be determined by a court in each case. 19 See Cintana v Burgoyne [2003] NTSC 106, and Jenkins v Todd [2016] NTSC 4. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 21 of 28
Issues Paper
Question 8:
Should section 10 of the Trespass Act be amended so police do not have to give an additional warning
about the consequences of not leaving a place forthwith before exercising their power to arrest or
remove a person?
Question 9
Should the Trespass Act be amended to clarify that a police officer can take reasonable and
proportionate steps to effect the giving of a direction to leave or warning to stay off?
4.6 Giving directions to leave or warnings to stay off to youths
The Department has received information about police refusing to give youths 20 a direction to leave or a
warning to stay off because the youth was under the age of 14, or was not accompanied by an adult.
The Department has not identified any issues that would prevent a youth aged 10 or over from being given
an enforceable warning to stay off or direction to leave under the Trespass Act 21. Similarly, the Department
has not identified any statutory requirement for a youth to be in the company of an adult before they can
be given such a direction or warning. A direction to leave or warning to stay off would only be enforceable
against a youth aged 10 or over. This is due to the age of criminal responsibility fixed by the Criminal Code
(see sections 38 and 43AP of the Criminal Code). There does not appear to be anything that would prevent
an occupier from giving a direction or warning to a youth under the age of 10, however any such direction
or warning could not be enforced under the Trespass Act.
The Trespass Act could be amended to provide that an enforceable direction to leave or warning to stay
off may be given to a youth aged 10 or over, regardless of whether the youth is accompanied by an adult.
However, that amendment would only clarify the status quo and is unnecessary for that reason. The
Department considers that this issue is better addressed as an operational issue by police, rather than as
an amendment to the Trespass Act.
20Section 6 of the Youth Justice Act relevantly provides that a ‘youth’ is a person under the age of 18, or, in the
absence of proof of age, a person apparently under 18 years of age.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 22 of 28Issues Paper
Question 10:
Should the Trespass Act be amended to clarify that a child aged 10 or over may be directed to leave
under section 7 and/or warned to stay off under section 8, regardless of whether or not they are
accompanied by an adult?
4.7 Section 12 - Evidential provisions
Section 12 of the Trespass Act permits an averment, in a complaint or information, that:
(a) the person is, or was at the relevant time, an occupier within the meaning of section 4 or a member
of the Police Force; or
(b) a direction to leave or a warning to stay off was given in accordance with section 9.
If the prosecution elects to aver one or both of those matters, the averment is prima facie evidence of
those facts. This means that it is accepted as evidence unless proven otherwise by the defence. In the
absence of contrary evidence, the averment will, in effect, become conclusive evidence of the facts
averred 22. Averments have been used in criminal matters to reduce the number of unnecessary witnesses
that need to be called, in order to utilise court, defence and prosecution witnesses efficiently for matters
that are not in issue.
On being converted to Part IIAA of the Criminal Code, section 43BX of the Criminal Code will apply so
that fault elements of an offence cannot be averred. This is not currently an issue because offences
against the Trespass Act are regulatory offences, do not have fault elements and are not subject to Part
IIAA of the Criminal Code.
If offences against the Trespass Act are amended to include complex fault elements, the utility of the
averment provisions may be affected. For example, if a fault element of knowledge were assigned to the
circumstance that a warning was given for an offence against section 8, an averment that the warning was
given in accordance with section 9 would be incapable of establishing that the defendant ‘knew’ that they
had been warned to stay off. Additional evidence would be needed to establish the fault element for that
22Jambajimba v Svikart (1984) 71 FLR 287 at 291.9; and see Jenkins v Todd [2016] NTSC 4, per Barr J, at 61 and
66.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 23 of 28Issues Paper
circumstance. The link between the warning being given and the defendant’s knowledge of that
circumstance would make it inappropriate to use an averment.
The continued utility of the averment provisions will not be clear until a determination is made with respect
to the fault elements issue. At this time, the Department simply notes that if complex fault elements are
included for offences against the Trespass Act, it may become necessary to amend or repeal the averment
provisions at section 12 of the Trespass Act.
Question 11:
Should the averment provisions at section 12 of the Trespass Act be omitted?
4.8 Transfer of Summary Offences Act offences into the Trespass Act
Section 46A of the Summary Offences Act is the offence of forcible entry. Section 46A provides that ‘[a]
person who, in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of
the peace, enters, whether or not he is so entitled to enter, land which is in the actual and peaceable
possession of another is guilty of an offence.’ The penalty for an offence against section 46A of the
Summary Offences Act is 12 months imprisonment.
The purpose of this offence is to criminalise entry to land that is occupied by someone else, with the
intention of occupying or taking possession of that land 23, where the entry might result in a breach of the
peace. This offence could be committed by a person regardless of whether or not they entered the land
lawfully.
Section 46B of the Summary Offences Act is the offence of forcible detainer. Section 46B provides that
‘[a] person who, being in actual possession of land without being entitled by law to possession, holds
possession of it in a manner likely to cause a breach of the peace or reasonable apprehension of a breach
of the peace against a person entitled by law to the possession of the land is guilty of an offence.’ The
penalty for an offence against section 46B of the Summary Offences Act is 12 months imprisonment.
23 This is not expressed in the offence. However, the offence has been interpreted so it only applies in those
circumstances, see Dureau v Trenerry (1998) 147 FLR 397.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 24 of 28Issues Paper The purpose of this offence is to prevent a person who is unlawfully in possession of a place (i.e. a squatter) from starting a disturbance in order to retain possession. The offences at sections 46A and 46B of the Summary Offences Act are more suitably located in the Trespass Act. This is because they both relate to general ownership and occupancy of land and premises and the general rights and restrictions pertaining to that ownership and occupancy. For this reason, the Department proposes that both those offences be transferred from the Summary Offences Act to the Trespass Act. In the course of that transfer, those offences will be modernised and converted to comply with the principles of criminal responsibility set out in Part IIAA of the Criminal Code. Question 12: What are your views with respect to transferring the offences of forcible entry and forcible detainer from the Summary Offences Act to the Trespass Act? Question 13: Are there any other offences in the NT Statute Book that are more suitably located in the Trespass Act? 4.9 Defences at section 13 of the Trespass Act Section 13 of the Trespass Act contains a number of specific defences for offences against the Trespass Act. Part IIAA of the Criminal Code provides a number of general defences that are similar to the Trespass Act defences. The relevant defences are as follows: Trespass Act Part IIAA of the Criminal Code Section 13(1A), which provides a reverse Section 43AW, which provides a defence of mistake or onus defence of honest and reasonable ignorance of fact for an offence that has a physical mistake of fact for an offence against section element for which there is a fault element, in certain 5 (trespass to premises). circumstances. May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible amendments to the Trespass Act Page 25 of 28
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Section 43AX, which provides a defence of mistake of
fact for an offence that has a physical element for which
there is no fault element, in certain circumstances.
Sections 13(2) and 13(3)(b), which provide a Section 43BC, which provides a defence of sudden and
defence of self- defence and emergency for extraordinary emergency.
offences against sections 5 (trespass to
premises), 7 (trespass after direction to Section 43BD, which contains a defence of self-defence
leave) and 8 (trespass after warning to stay
off)
Section 13(1), which provides a defence for Nil equivalent.
an offence against section 6 (trespass on
prohibited land) if the defendant proves that
they didn’t see and could not reasonably be
assumed to have seen a no trespass notice
posted on the land, or the trespass was not
wilful and was done while hunting or in pursuit
of game.
Section 13(3)(a), which provides a defence to Nil equivalent.
an offence against section 8 (trespass after
warning to stay off) if the defendant proves
that the person by whom or on whose behalf
a warning was given is no longer an occupier
of the place concerned.
When the Trespass Act is amended to comply with the principles of criminal responsibility in Part IIAA of
the Criminal Code, the defences in that part of the Criminal Code will be available for each offence against
the Trespass Act.
May 2018 Northern Territory Department of the Attorney-General and Justice: Issues Paper: Possible
amendments to the Trespass Act Page 26 of 28You can also read
