Northern Territory Second Reading Speeches

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TRESPASS AMENDMENT BILL 2000

Mr Speaker, I move that the bill be now read a second time.

The purpose of this bill is to amend the Trespass Act to clarify that all offences under the Trespass Act are regulatory offences, to provide for the proof of technical matters by averment and to make further minor amendments.

Last year, the Commissioner for Police wrote to me requesting amendments to the Trespass Act in order to eliminate difficulties experienced with prosecutions under the act. In particular, the Commissioner highlighted that the offences appeared to be a combination of both regulatory offences and simple offences. Criminal offences in the Territory fall into two categories. There are those offences that require a guilty mind, which are referred to as simple offences and crimes, for example rape, robbery and murder. There are also those minor offences where the state considers that a criminal sanction is necessary in order to regulate affairs of citizens in an orderly manner regardless of whether the offender intended to actually commit the offence. These offences are referred to as regulatory offences and include offences such as speeding and selling contaminated food.

Under section 11 of the Trespass Act, all offences are expressed to be regulatory offences however some offence provisions also contained the word unlawful, which indicates that aspects of a guilty mind are required. This potential conflict is not in accordance with the policy of the act and should be clarified. In the Supreme Court’s decision of Kenright v Hails early this year, His Honour, Justice Mildren suggested that the conflict could not be reconciled and that it required the attention of legislature. This amendments confirms that all offences under the Trespass Act are regulatory by removing all references to the requirement that any offence be committed unlawfully.

Most of the offences under the act provide that trespass is only committed once a person has been first warned off the relevant premises or given notice. In those cases, it is appropriate that the offence be regulatory. In the case of an offence under section 5, the trespass is committed even if no notice or warning is evident. This means that a person could be found guilty of an accidental but reasonable trespass. While offences under section 5 remain regulatory, section 13 has been amended to provide for a defence of honest and reasonable mistake, for those offences.

An amendment has also been made to section 12 of the act to provide for the making of averment’s. Currently this sections provides that a statement on oath by any person or the fact that a person is an occupier of land, or a member or the police force, or the direction or warning to leave the land has been given, is evidence of that fact. This enables proof of these technical matters without requiring the physical attendance of witnesses at trial. This is clearly unnecessary in cases where the matters are not in dispute between the parties.

It is proposed to amend section 12 to enable these matters to be proven more simply by an averment by the prosecution in a complaint or information. The proposed amendment only provides an averment is prima facie evidence of the fact averred. It does not affect the defendant’s right to dispute the matter alleged in the averment and put the prosecution to proof in relation to that fact if he or she does not agree with it.

The offence under section 5 of the act currently applies to enclosed premises. The Director of Public Prosecutions has identified difficulties with the current definition of enclosed premises. Enclosed premises is defined to include buildings, dwelling places, enclosed yards and vehicles. This means that if a person trespasses on an unfenced private yard, he or she could not be prosecuted under section 5 because the yard is not enclosed.

Many homes in the rural area and on new estates are now being built without fences or side fences only. In most cases, the defined line of the property and the fact that it is a private residence is clear. The Director of Public Prosecutions has raised concerns that section 5 is useless, where a trespasser enters on an unfenced property, unless the trespasser actually enters the home or other building on the land. This means that peeping toms could come up to the front windows and look in, but could not be successfully prosecuted for trespass. These amendments therefore omit the definition of ‘enclosed premises’ and replace it with a definition of ‘premises’, which is substantially in the same terms.

It is current policy to amend all penalties under the Northern Territory legislation as each act is amended so as to reflect the new penalty unit regime under the Penalties Act. This new regime came into operation in 1999. The penalties under the Trespass Act have been changed, in this amendment to be expressed as penalty units, but the monetary amounts of the penalties have not changed.

I commend the bill to honourable members.

Debate adjourned.

 

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