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Trespass In The ACT

Trespass on land is both a civil wrong and a criminal offence. It is covered in various pieces of ACT legislation, including the Civil Law (Wrongs) Act 2002 and the Trespass on Territory Land Act 1932, as well as the Commonwealth Crimes Act 1914.

Civil Law

Trespass is the direct and wrongful interference by a person with another person’s property or goods. To be wrongful, it must be done voluntarily and without authorisation. There must also be a direct link between the trespasser’s actions and the interference with the other person’s property or goods.

Court cases of trespass to land have included:

  • dumping soil in front of a property;
  • flying a drone at a low height over a property;
  • parking a car on someone’s land;
  • construction that expanded on to someone else’s property.

A person affected by trespass can take action under the Civil Law (Wrongs) Act. The remedies include injunctions and damages. An injunction is a court order that restrains a person from continuing the conduct that is causing the trespass. If that person is found liable for trespass, damages can be awarded. The types of damages which could be awarded include:

  • compensatory: a calculation of the consequences of the trespass, in a bid to restore the injured party to their former position;
  • exemplary: a penalty that punishes the trespasser and aims to deter future trespassing.

In the High Court case of Plenty v Dillon, a farmer challenged the right of officers to enter his land, without his consent, to serve a summons. The entry was held to be wrongful and the farmer was awarded damages. The court stated that although the entry caused no damage to the land, “the purpose of an action for trespass to land is not merely to compensate the plaintiff for damage to the land. That action also serves the purpose of vindicating the plaintiff’s right to the exclusive use and occupation of his or her land…”

The Act provides a defence to trespass if:

  • the defendant does not claim any interest in the land;
  • the trespass was not due to negligence or was not intentional;
  • the defendant offered to make amends.

Criminal Law

Trespass is also a criminal offence under ACT and Commonwealth law.

Trespass on Territory Land Act 1932

This territory Act allows the ACT Government to place signage on territory land that bans trespass on that land. If a person enters or trespasses on that land where there is a sign, and they do not have a reasonable excuse, they face a maximum fine of 5 penalty units ($800).

If an animal is found straying, wandering or at large on any road or land belonging to the Commonwealth, the animal’s owner faces a maximum fine of 5 penalty units ($800). “Owner” is any person who has care, custody or control of the animal. “Animal” means livestock including horses, cattle, sheep, goats and pigs.

If a person lets loose or ties up an animal on any Commonwealth road or land in the city area, or if they leave open a gate that allows an animal to trespass on the land or road, without reasonable excuse, they face the same penalty.

A person who damages a fence without lawful excuse faces a maximum fine of 10 penalty units ($1600). If they damage or destroy trees, plants, gardens, plantations or afforestation areas on ACT land, the maximum fine doubles.

The Act authorises the government to appoint officers who can, with force if necessary:

  • prevent a person, animal or vehicle from trespassing on ACT land, gardens, plantations or afforestation areas without lawful excuse;
  • prevent any person from damaging or destroying trees, plants, gardens, plantations or afforestation areas on ACT land;
  • remove anyone found trespassing on that land.

An officer who suspects a person of committing an offence can require that person to provide their name and address. A person who fails to give their real name and address can be fined a maximum of 5 penalty units ($800).

Crimes Act 1914

Under this Commonwealth Act, if a person trespasses or enters Commonwealth land, without lawful excuse, they can be fined a maximum of 10 penalty units ($2220). A police officer or authorised officer can require a person found on that land to provide their name and address, and fine them if they refuse. If a police officer or authorised officer believes the person is trespassing, they can arrest and detain the person.

If a person lets livestock in their custody or control trespass onto Commonwealth land, the person can be fined 1 penalty unit ($220).

For advice or representation in any legal matter, please contact Armstrong Legal.

Sally Crosswell

This article was written by Sally Crosswell

Sally Crosswell has a Bachelor of Laws (Hons), a Bachelor of Communication and a Master of International and Community Development. She also completed a Graduate Diploma of Legal Practice at the College of Law. A former journalist, Sally has a keen interest in human rights law.

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