Trespass

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In Victoria, it is an offence to wilfully trespass in any place and neglect or refuse to leave that place after being warned to do so by the owner, occupier or a person authorised by the owner or occupier (section 9(1)(d) Summary Offences Act 1966 (Vic)).

In plain language, this means you will be trespassing if:

  • You are on public land and someone who controls that place tells you to leave and you refuse to; 
  • You go onto private property without permission (unless you have a legitimate purpose); or
  • You are on private property with permission but then someone who controls that property tells you to leave and you refuse.

The maximum penalty is 25 penalty units or six months’ jail, although the penalty is usually a small fine.

Every case is different so you should seek legal advice about the penalty you may face.

 

Trespass is also a civil matter

If you enter onto another person’s land without their permission, you will be trespassing.

If you deliberately or carelessly do something that directly causes interference with someone else’s land, a trespass is committed.

Trespass is a civil wrong, and you can be sued for doing it.

The most common example of trespassing is when you go onto someone’s land without their permission.

Because trespass is fundamentally a civil rather than criminal issue, the police decision to become involved in some trespass cases has political and social implications.

 
Civil to criminal trespass

Criminal trespass issues frequently arise in areas where the public ordinarily has the right or a licence to be there: such as the QV building next to the Max Brenner Chocolate Bar or a Centrelink building. 

To be charged with trespass, the owner (or a person who has authority) of the property must clearly communicate that you don’t have licence to be on the property anymore. This can be done orally or in writing. 

The owner or leaseholder must then give you reasonable time to leave premises.

Once you have been given this reasonable opportunity to leave and you haven’t left, then they can be arrested for trespass (section 9 Summary Offences Act).

 

Trespass under Commonwealth law

The corresponding Commonwealth offences do not require that a warning be given but provide for a defence of “lawful” or “reasonable excuse” (section 89(1) Crimes Act 1914 (Cth) and ss.11(1) and 12(1) Public Order (Protection of Persons and Property) Act 1971 (Cth)).

The penalty for both is a fine of up to $1000.

Trespass on certain types of premises, like military bases or energy plants, is governed by different Acts.

For example: Regulation 35 of the Defence Force Regulations1952 (Cth) authorises the Minister to declare a place to be a prohibited area and creates offences of entering or remaining without permission.

The maximum penalty is $2000 or imprisonment for six months, or both.

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