Trespass
If a person is on private property without permission they could be trespassing, which is a separate offence from other offences (eg graffitiing) that may be committed on private property. The Summary Offences Act 1953 addresses trespassing (s 17A).
A person is guilty of trespassing if:
A person trespasses on premises;
The trespass interferes with the enjoyment of the premises by the occupier;
The person is asked by an authorised person to leave the premises; and
The person fails to leave the premises immediately, or again trespasses on the premises within 24 hours of being asked to leave.
The offence has a maximum penalty of $2,500 or imprisonment for 6 months.
A person is guilty of an offence if they use offensive language or behave in an offensive manner while trespassing on premises. Offensive includes threatening, abusive or insulting language or behaviour (SOA s 17A(2)). The maximum penalty for this offence is $1,250.
A person who trespasses on premises must give their name and address to an authorised person if asked to do so by the authorised person. In this context, an authorised person means the occupier or a person acting on the authority of the occupier. The maximum penalty for failing or refusing to provide this information is $1,250 (SOA s 17A(2a)).
An authorised person must, at the request of a person in relation to whom the authorised person is exercising powers, inform the person of the authorised person’s name and the capacity in which they are an authorised person under s 17A (SOA s 17AC).
Serious criminal trespass
Serious criminal trespass occurs when a person enters or remains in a place (other than a place that is open to the public) as a trespasser with the intention of committing an offence involving theft, or an offence against a person (such as assault), or an offence against property punishable by imprisonment for 3 years or more (such as arson). This offence attracts a range of penalties depending on the circumstances, but a basic offence carries a minimum penalty of 10 years imprisonment or 20 years imprisonment for an aggravated offence in the case of non-residential buildings (Criminal Law Consolidation Act 1935 s 169) and in the case of residential buildings, 15 years to life (CLCA s170).
Security guards
If the owner of any private property, or the servant or agent of the owner, finds a person committing an offence on, or with respect to, that property, they may apprehend the offender and hand the offender to the police as soon as reasonably practicable (SOA s 76).
This power may be referred to as a citizen’s arrest, and includes where:
A store detective or security guard arrests a person committing an offence against his or her employer; or
A person is attempting to commit an offence. However, once a person stops the attempt, the power to make the arrest ceases.
For a citizen’s arrest, it is not enough to merely suspect that someone has committed an offence. The civilian must see the offender commit the offence. Anyone wrongly arrested can sue for false arrest and seek damages or compensation. If a citizen’s arrest is made, the arrested person must be handed over to the police without delay and a full explanation given (in writing) of the reasons for the arrest. Visit the Law Handbook for more information about security guards and others.
Security guards and the public have less training than the police and the risk of the situation escalating is perhaps higher. It is wise to film the incident, get the name and contact details of the arrester and request police be called ASAP if this does not seem to be occurring.
If you are not following the rules of the premises, a security guard can ask you to leave or not allow you to enter. If you refuse to leave or try to enter when they have said that you cannot, they are allowed to use reasonable force to stop you from entering onto a property or to get you to leave the property. They are not allowed to assault you.
If a security guard asks you to leave but you do not do so immediately, the police can charge you with trespass. If you trespass and a security guard asks you for your name and address but you do not tell them, you can be fined (see above).
Security guards can only search your bag or pockets if you agree to let them do so. If you do not want them to search your bag or pockets, you can say no. They are not allowed to force you to surrender your bag or to search you without permission. However, if the police are called they may search you or your property.
Shopping centres can give out ‘banning notices’ or a ‘termination of licence’. A manager of a shop or shopping centre can ban someone for all kinds of reasons, including if they believe someone has been rude or disruptive. If you are banned from a shopping centre and still enter the shopping centre then you can be charged with trespass (see above).
Last revised: October 2021