Activism
Protests and the general criminal law
Trespass
“Trespass” and its meanings
“Trespass” in its broader sense can mean an act of doing something wrong, committing an offence, intruding upon something, or sinning. It can be used as a noun or a verb and you may have come across it in phrases such as “I hope I’m not trespassing on your time” or “forgive us our trespasses”.
In a modern legal context, “trespass” most often refers to where you’re on someone’s property without their permission. In this case, you can be said to be a “trespasser” or to be “trespassing”. This is how the term is used in this chapter.
Confusingly, in recent years, and especially in New Zealand, some people have also started using “trespass” to mean to warn someone to leave or stay off a place verbally or to give them a written trespass notice. As such, you will sometimes hear people say things like “leave now or I’ll trespass you”, “the security guards trespassed the protestors”, or “we were trespassed from Parliament”. “Trespass” is not used in this sense in this chapter.
Who has the legal right to warn me to leave or stay off a place?
Trespass Act 1980, s 2(1) (definition of “occupier”), ss 3, 4, 5
The right to warn you to leave or stay off a place belongs to the legal occupier of the property. This could be the owner of the place if they’re living there (or if no-one is living there at all), or the person who’s renting the place (called the “tenant”).
It also includes any person who the legal occupier has authorised to give you a warning to leave or stay off – this could be the police, for example. When policing demonstrations, the police may try to get this permission in advance.
A warning can be given verbally or as a written notice delivered to you in person or sent by registered letter to your usual place of residence in New Zealand.
If I’m warned, how quickly do I have to leave?
If you’re warned to leave a place, you must leave by the most direct exit.
In protests, police will often say, “You have two minutes to leave”. If they then arrest you before the two minutes are up, you could be able to use that as a defence against a criminal charge of trespass – that they didn’t wait for the time limit they gave you.
If the police are warning me for trespass, do I have to give them my details?
Yes, if you’re already on the property, then the occupier or the police have the right to require you to give them your name and address. Failing to do this or giving fake details is a criminal offence and is punishable by a fine of up to $500.
If you don’t give your name and address, a police officer can give you a caution that you could be arrested. If you still don’t give your name and address, the police can arrest you.
Can I be warned even if I have never been to that particular place?
Yes, the occupier (or the police, if they’re acting with the occupier’s permission) can warn you if they think you’re likely to trespass. This is called a warning to stay off.
If I’m warned, how long do I have to keep away for?
This depends on how you were warned. There are two different ways:
The first is through a warning to leave when you’re already on the property – if you then don’t leave, the police can arrest you. The law doesn’t set a specific time limit for this, but, in general, a warning to leave is aimed at your immediate actions. For example, this would be common in a protest when police tell people they’ll be arrested if they don’t move.
The other type is a warning to stay off, which can be given to you:
- while you’re trespassing on the property, or
- within a reasonable time after you were trespassing, or
- at any time when you’re off the property, if the occupier has reasonable cause to suspect that you’re likely to trespass.
If you’re warned to stay off, it’s an offence to come back within two years. This could be used, for example, by businesses seeking to keep activists off their premises long term.
Can I be warned to leave or stay off Parliament grounds or other public places?
Parliament Act 2025, s 57Cases: Police v Walker [1977] 1 NZLR 355 (CA); Police v Beggs [1999] 3 NZLR 615 (HC)
Yes, you can be warned to leave or stay off public places, such as Parliament, government department offices, schools, libraries, and museums.
However, unlike when you are warned by a private landowner or occupier, you’re protected to some extent by the New Zealand Bill of Rights Act if you’re warned to leave or stay off a public place. The decision to warn you must be reasonable taking into account your rights of freedom of peaceful assembly and freedom of expression under the Bill of Rights (see: “Overview of the anti-discrimination laws”).
Can I challenge a warning to leave or stay off?
Yes, but it’s not easy:
- If you’ve been warned to leave or stay off a public place, you can challenge it by way of “judicial review” – which means going to the High Court (see: “Challenging decisions and conduct of government agencies”).
- If you’ve been warned to leave or stay off a private property, you could take a civil case to the courts to challenge the validity of the warning.
- If you’ve been arrested and charged with trespass, whether on public or private property, you may be able to challenge whether the warning was legal during your trial. If it was on public property, you’ll be able to challenge whether it was a “reasonable” infringement of your rights under the Bill of Rights.
Can I warn the police to leave or stay off my property?
Yes. Police are subject to the Trespass Act just like other people. This means that, if you’re the legal occupier of a place, you can warn the police to leave or stay off verbally or in writing.
For example, if you’ve hired a community hall to paint banners or hold a public meeting, you’re the lawful occupier and can warn any person.
The police will be allowed to enter and stay if they’ve got a legal arrest warrant or search warrant issued by a judge (see: “Police powers”), but otherwise they will be in the same position as any member of the public who you tell to leave or warn to stay off.
Activists and trespass law in action: Peace Action Wellington vs a weapons expo
Getting warned to leave or stay off is a common occurrence for people involved in organising protests. Issuing trespass notices is one way that protests can be shut down, and increasingly they are being used to stop political organisers from going to places where they might want to protest in advance of them ever being there. But these attempts to use the Trespass Act to shut down political protests aren’t always successful.
In 2015, Peace Action Wellington, a grassroots community peace group, organised a protest against the annual weapons exposition at the TSB Arena, a Wellington waterfront venue that hosts conferences and trade shows. Activists gathered early to form a human blockade of the entrance. The police erected waist-high barriers in a square around the front entrance of the building, leaving one side open for expo attendees to access the entrance.
The activists formed a human chain across this opening as well as seeking to prevent entry at a number of places along the barrier fence. Police then attempted to force their way through the lines of people in order to escort delegates inside. The police indicated people would be given trespass warnings if they crossed a drain in front of the building.
The police start giving trespass warnings
Once a larger number of delegates started arriving, the police began to warn people for trespass, indicating that they could continue to protest if they stayed beyond the drain. As there was loud chanting and music being played, it was difficult to hear what was going on. Some people abided by the police instructions and moved away from the drain to avoid arrest. Others who had recently arrived at the protest joined the human chain, unaware of the police warnings.
The police then began arresting people (some of whom were in the human chain, others who were simply moving around the forecourt) who might at some stage have been inside the tiled area indicated by police, but who had moved out. In total, 27 people were arrested, almost all for trespass.
Two activists had locked themselves to entry doors in the basement carpark of the facility. They were also cut off and arrested for trespass.
Defending the charges in court
Most of the activists decided to defend the trespass charges in court. In the court documents, it emerged that the police had sought advance permission from the lawful occupiers of the TSB Arena to issue trespass warnings to activists.
However, the activists produced the legal ownership documents for the relevant area. These indicated that the entire forecourt area was subject to a pedestrian right of way, meaning that people could not be given trespass warnings and removed from the area. The trespass charges against these people were dismissed.
The people who had been locked to the door successfully argued that they couldn’t be arrested for trespass while still locked to the door, since it was obvious to the police that they couldn’t leave.
The police would have needed to cut them free from the door, and then issued them with a trespass warning. Only if they then didn’t leave would the police have been allowed to arrest them for trespass.
