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  • Home Resources & Technical Articles Criminal Offence Topics (A to Z) Trespass Offences Trespass Offences and Penalties in the Australian Capital Territory (ACT)

    Trespass Offences and Penalties in the Australian Capital Territory (ACT)

    It is not uncommon for many people to prioritise the security of their properties as there are individuals that are willing to intrude. This intrusion may result in damage or loss of property. Based on this, the Australian Capital Territory has put some laws in place to discourage the act of trespassing.

    Under the law, trespassing is one offence that does not require proof of damage to property before a person can sue. The legislation regarding trespassing is visible in the Trespass on Territory Land Act 1932 (ACT) and the Civil Law (Wrongs) Act 2002 (ACT).

    In this writeup, we will go into the details of trespassing under the different legislation Acts. Also, we will consider the elements of trespassing in the ACT (including Canberra) and the possible defences.

    If an individual is convicted in an ACT court for a Trespass offence, the offence will show up as a disclosable court outcome (DCO) on a national criminal background check in the ACT.

    What Leads to the Crime of Trespass in the ACT?

    The crime of trespassing occurs when an individual intentionally goes into or resides in a property without obtaining authorisation from the appropriate authorities.

    Furthermore, in the ACT, a person can be guilty of the crime of trespass if their animal enters someone else's property.

    It is important to note that trespassing has to be intentional. If the act of trespassing resulted from an accident, a person might not be guilty of committing an offence.

    Elements of Trespassing

    Certain elements can establish that a person committed the crime of trespass. In a trial for trespass, the person suing for the crime of trespass will need to prove the presence of these elements:

    • Lawful Ownership of Property

    The plaintiff will have to show the court that the property the accused trespassed on is lawfully theirs, and they have the right to prevent people from entering the property.

    • Authorisation

    Proving that the accused did not get any form of permission before entering into property can establish the crime of trespass. Primarily, the permission could be orally or in writing.

    • The Act Was Intentional

    The ability to convince the court that the accused intentionally carried out the act of trespass can help in proving that the accused is guilty of the offence.

    • Negligence

    There are situations where the accused could claim that their action was not intentional. However, if the prosecution can provide evidence that the accused committed the crime of trespass due to unreasonable negligence, the court may find the accused guilty.

    The Crime of Trespass in the Australian Capital Territory

    Section 4 of the Trespass on Territory Land Act 1932 (ACT) states that any individual who enters a property without authorisation commits an offence.

    The property could be a dwelling house or a government-owned property with a notice warning against the act of trespassing. Anyone guilty of this crime may receive a punishment of 5 penalty units. A penalty unit in the Australian Capital Territory amounts to $210.

    Furthermore, Section 4A of this legislation makes it an offence for a person to allow their animal to roam about on the road or into someone else's property.

    Consequently, this offence attracts a maximum of 5 penalty units. In this Section, an animal owner refers to an individual who has custody or is in charge of an animal.

    Other offences that are present in the Trespass on Territory Land Act 1932 (ACT include:


    #1. Damage of Fence

    It is illegal for a person to cause any form of damage to the fence of a property belonging to another individual. Damage to a fence can involve drawing graffiti or breaking it down. This crime attracts a maximum of 10 penalty units.


    #2. Leaving Gates open

    A person may be guilty of committing an offence if they leave the gate of an unleased Commonwealth land open after seeing an instruction warning against such. A Commonwealth land is the land that the government owns or manages. The crime of leaving gates open attracts a maximum of 5 penalty units.


    #3. Damaging Vegetation

    Seeing a notice that warns against the damage of vegetation and going against the instruction is an offence. The punishment for this crime is 20 penalty units.

    Steps a Person Can Take if another Individual Commits the Crime of Trespass against Them

    The person whose land has been trespassed can call the police to remove the trespasser immediately, or they can sue the individual. If an individual wants to avoid going to court, they can write a 'letter of demand' to the guilty party.

    The letter should include information regarding the negative effect of the trespass, demands, and the expected date of response.


    Who Has the Authorisation to Stop the Act of Trespassing?

    During the commission of trespassing, an inspector has the authorisation to stop the offence. Preventing the crime of trespass might include issuing a warning or using force.

    Also, any individual who has received authorisation from the minister in writing may have the power to stop the act of trespassing. The Minister here is a Chief Minister appointed under the Australian Capital Territory Self Government Act (1988).

    Possible Defences to the Crime of Trespassing

    When facing charges for trespassing, there are some defences that a person can raise. Consequently, this can result in the court dismissing the case. Some of these defences are present in Section 141 of the Civil Law (Wrongs) Act 2002, they are:


    #1. The Act Was Unintentional

    A defendant can claim that they committed the crime due to a mistake. If the plaintiff cannot prove otherwise, the court may dismiss the case.


    #2. Necessity

    An individual may trespass in the process of ensuring their safety or the public's safety. If the accused can show the court that their action was a reasonable response to the threat perceived, the court may not find them guilty.


    #3. The Defendant Made a Reasonable Offer

    It would be a defence to the crime of trespass if the defendant made a reasonable offer to the plaintiff before the trial took place.

    The Court that Listens to Trials for Trespass

    In the Australian Capital Territory, the Magistrate court often conducts trials for trespass offences.

    Conclusion

    The Crime of Trespass in the Australian Capital Territory is not an indictable offence. However, a person might have to pay a certain fine upon conviction. Payment of these fines might not be easy, depending on the financial capacity of the offender.

    As such, the best option for anyone facing charges for the crime of trespassing is to seek legal guidance. Consequently, this could help a person avoid the punishment that follows the offence of trespass in the Australian Capital Territory.

    Will a Trespass Offence in the ACT show up on a national criminal background check?

    If an individual is found guilty of a trespass offence in the ACT, the offence will show up as a disclosable court outcome (DCO) on the results of their police check.

    Individuals can obtain a Nationally Coordinated Criminal History Check online via the Australian National Character Check - ANCC® website.

    Sources

    Civil Law (Wrongs) Act 2002 (ACT) - https://www.legislation.act.gov.au/a/2002-40

    Trespass on Territory Land Act 1932 (ACT) - https://www.legislation.act.gov.au/a/1932-20

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