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Protests and the general criminal law

Trespass

Talking about “trespass”: Two very different meanings

The words “to trespass” can be used in two very different ways.

There’s the usual sense of “trespass” where you’re on someone’s property without their permission – in that case you’re the one doing the trespassing. So you might say, for example, “The police arrested me for trespassing.”

But sometimes people talk of a property owner or occupier “trespassing” someone else by giving them a warning to stay off. In this use of the word, it’s the legal occupier who’s doing the “trespassing”, in that they’re giving the warning. So you might say, for example, “The police trespassed me from Parliament grounds last week.”

In this chapter we use the word “trespass” in both ways, but it will be clear from the context which of the two senses we mean.

Trespass Act 1980, s 2(1) (definition of “occupier”), ss 3, 4

The right to trespass you from a place – that is, the right to warn you to leave or stay off the 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.

If I’m trespassed from a place, 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?

Trespass Act 1980, s 9

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. If you don’t do this, or if you give fake details, this is a criminal offence, punishable by a fine of up to $500.

Also, 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 trespassed even if I have never been to that particular place?

Trespass Act 1980, s 4(2)

Yes, the occupier (or the police, if they’re acting with the occupier’s permission) can trespass you if they think you’re likely to trespass. This is called a warning to stay off.

If I’m trespassed from a place, how long do I have to keep away for?

Trespass Act 1980, s 3, 4

This depends on how you were trespassed. 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 this law 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 a business seeking to keep activists off their premises long term.

Can I be trespassed from Parliament and other public buildings or places?

Cases: Police v Walker [1977] 1 NZLR 355 (CA) – Police v Beggs [1999] 3 NZLR 615 (HC)

Yes, you can be trespassed from public buildings and places such as Parliament government department offices, schools, libraries and museums, in the same way that a private homeowner or business can trespass you.

However, unlike being trespassed by a private landowner or occupier, you’re protected to some extent by the the New Zealand Bill of Rights Act if you’re trespassed from public places. The decision to trespass you must be reasonable taking into account your rights of freedom of peaceful assembly and freedom of expression under the Bill of Rights.

Can I challenge a trespass notice?

Yes, but it’s not easy:

  • If you’ve been trespassed from a public place, you can challenge it by way of “judicial review” – which means going to the High Court (see the chapter “Dealing with government agencies”, under “Challenging decisions and conduct of government agencies”). If you’re trespassed from Parliament for example, the decision to trespass you must be reasonable (see below).
  • If you’ve been trespassed from private property you could take a civil case to the courts to challenge the validity of the trespass notice.
  • If you’ve been arrested and charged with trespass, whether on public or private property, you may be able to challenge the legality of the trespass notice during your trial.

Can I be trespassed from Parliament grounds?

Cases: Police v Walker [1977] 1 NZLR 355 (CA) – Police v Beggs [1999] 3 NZLR 615 (HC)

Yes, Parliament’s Speaker of the House can trespass you, exercising their rights as the legal occupier of Parliament grounds. But unlike a private homeowner or company, they’re restricted by your rights under the Bill of Rights, and so their decision to trespass you must be a reasonable one.

This is because in trespassing you the Speaker is exercising a public function, and so is restricted by the Bill of Rights, the same way other public or government officials are bound by the Bill of Rights.

You can challenge the Speaker’s decision in the courts if you think it’s unreasonable, either by applying for judicial review of the decision in the High Court, or, if you’ve been arrested and charged, by challenging the Speaker’s decision at your trial.

Can I trespass the police?

Yes. Police are subject to the Trespass Act just like other people, which means that if you’re the legal occupier of a place you can give the police a trespass notice or a warning to stay off.

For example, if you’ve hired a community hall to paint banners or hold a public meeting, you’re the lawful occupier and can trespass 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 the chapter “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 trespassed 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 expo 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 trespassed 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. But there was loud chanting and music being played, so 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 charge in court. In the court documents, it emerged that the police had sought advance permission from the lawful occupiers of the TSB Arena to trespass activists.

However, within a few minutes of the trial starting, the activists produced the legal ownership documents for the relevant area, and this indicated that the entire forecourt area was subject to a pedestrian right of way – meaning that people could not be trespassed and removed from the area. The trespass charges against these people were dismissed.

For the people who had been locked on to the door, the activists successfully argued that they couldn’t be arrested for trespass while actually still locked to the door, since they didn’t have a key and therefore couldn’t leave. Since they had the right to remain silent while dealing with the police, they didn’t need to tell 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, and only if they then didn’t leave would the police have been allowed to arrest them for trespass.

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