Inclosed Lands Protection Act 1901

The Act primarily affects four classes of persons.

First, landowners, occupiers and persons apparently in charge of inclosed lands (including schools, hospitals and farms) gain statutory powers to request departure, issue re-entry prohibitions, effect citizen arrests for refusal to identify, and, in the case of goats, destroy unmarked animals. They also become the beneficiaries of higher penalty regimes when trespass occurs on prescribed premises or agricultural land.

Second, trespassers and protesters—particularly those targeting farms, animal-agriculture facilities, events or schools—are exposed to graduated criminal liability. The 2016–2019 amendments were explicitly promoted as a response to “vegan activists” and “animal liberation” protests; the aggravated offence in s 4B and the incitement offence in s 4C are therefore of acute relevance to activist networks.

Third, union officials and industrial participants are expressly protected by s 7A. The provision was inserted to neutralise any argument that right-of-entry powers under the Fair Work Act 2009 or Industrial Relations Act 1996 could be trumped by trespass offences.

Fourth, members of the public using roads that have been fenced within private land benefit from the protective deeming rules in s 3(2), s 4(2)–(3) and s 4(1A). A person using a reasonably defined track through inclosed land will not commit an offence unless their route is, in all circumstances, unreasonable. Drovers regain control of straying stock without fear of prosecution.

Police officers are also affected: they may issue penalty notices (s 10) and receive persons delivered into custody under s 6. Event organisers obtain a statutory mechanism to issue binding re-entry bans that carry criminal consequences.

Finally, the legislation indirectly affects magistrates and Local Court practitioners because of the reverse onus provisions, the requirement to supply particulars (s 9A), the alternative verdict pathway in s 4B(2), and the interplay between “lawful excuse” and “reasonable excuse”.

The Act is unusual in that it creates few positive duties but a large number of negative prohibitions backed by reverse-onus defences.

Landowners have no duty to fence land; however, once land is inclosed, they acquire the right to withhold consent and to request departure. They also hold the power under s 4AA to issue re-entry prohibitions that must comply with strict formalities (specifying venue, duration, reason and containing a warning). Failure to observe those formalities would presumably render the prohibition ineffective.

Trespassers bear the legal burden of proving lawful excuse for entry or remaining (s 4(1)) and reasonable excuse for offensive conduct (s 4A(2)), for possessing hunting items (s 4B(1)(e)–(f)), or for the purposes of s 4B(3). The distinction between “lawful excuse” and “reasonable excuse” has not been exhaustively judicially mapped in this Act, but courts are likely to treat “lawful excuse” as requiring a legal entitlement (statutory or common-law) while “reasonable excuse” invites a broader evaluative inquiry.

Stock drovers enjoy an express statutory lawful excuse (s 4(1A)). Union representatives enjoy a statutory immunity for activities permitted under industrial legislation (s 7A). Persons using undefined tracks through inclosed land are protected unless their route is unreasonable (s 4(3)).

Owners retain the ancient right to destroy unmarked goats (s 7), but the provision is carefully conditioned; branded, tagged or collared goats are immune. This creates a due-diligence incentive for livestock owners to maintain identification.

Event attendees and protesters at ticketed events are subject to the re-entry prohibition regime. The prohibition can be oral or written and can apply to multiple future events organised by the same responsible authority.

Penalties are graduated and now include custodial sentences for aggravated farm trespass. Base s 4 entry carries 10 penalty units for prescribed premises and 5 units otherwise. Offensive conduct under s 4A doubles those figures. Leaving a gate open is 15 penalty units (s 5). Aggravated agricultural trespass reaches 200 penalty units or 3 years imprisonment in the most serious cases (s 4B(1)). Incitement under s 4C is 100 penalty units or 12 months. Re-entry after a prohibition is 10 penalty units (s 4AA).

Enforcement is primarily by police via penalty notices (s 10) or court attendance notices. Private citizens may apprehend and deliver offenders who refuse to identify (s 6), but giving a false name attracts only 0.5 penalty units—scarcely a deterrent. Proceedings are summary. The Local Court cannot exceed 2 years imprisonment even where the statutory maximum is higher (s 8(2)).

The Fines Act 1996 governs penalty notices; payment finalises the matter without conviction. For contested matters, the evidentiary burden on defendants to prove excuses is significant. The 2009 amendments introduced s 9A particulars requirements precisely to prevent defendants being ambushed at hearing with new factual allegations.

The Act is a classic example of layered NSW legislation. It cross-references the Crimes Act 1900 (ss 126, 503, 505, 506) for intended property damage and larceny offences that trigger s 4B aggravation. Biosecurity risks are defined by reference to the Biosecurity Act 2015. Firearms and prohibited weapons offences pull in the Firearms Act 1996 and Weapons Prohibition Act 1998. School and hospital definitions incorporate the Education Act 1990, Health Services Act 1997, Private Health Facilities Act 2007 and Public Health Act 2010.

Industrial carve-outs in s 7A expressly defer to the Fair Work Act 2009 (Cth) and Industrial Relations Act 1996 (NSW), creating a statutory supremacy clause for permitted union entry. The Roads Act 1993 determines what constitutes a “public gate” for the purposes of s 5(2). The Criminal Procedure Act 1986 governs the mode of trial and the meaning of “authorised officer” in s 6.

Interaction with the Summary Offences Act 1988 is also important; s 4B(1)(d)(iii) picks up s 28J of that Act (offensive conduct). The double-jeopardy style bar in s 4AA(6) prevents cumulative punishment where another statute already criminalises the same entry.

At common law, the Act sits alongside the tort of trespass to land but imposes a short two-month limitation and notice requirement for any civil suit brought against a person acting under the Act (s 9). This effectively channels most disputes into the criminal justice system or quick civil resolution.

The most significant recent changes occurred in 2019 via the Right to Farm Act 2019 (No 15). That statute:

• Substituted a new s 5 expanding the gate offence and clarifying cattle grids and moveable fences.
• Inserted s 4C (incitement of aggravated trespass on agricultural land).
• Amended s 4B to increase maximum penalties, add the livestock-release aggravation, and raise the threshold for the higher 200-penalty-unit band.
• Inserted s 7A to protect union right-of-entry activities.
• Substituted s 8, clarifying summary procedure and the Local Court imprisonment cap.
• Updated definitions of agricultural land and prescribed premises.

These changes were a direct legislative response to high-profile protests at New South Wales piggeries, poultry farms and abattoirs. The government cited biosecurity risks (foot-and-mouth disease, avian influenza) and mental health impacts on farming families. The 2016 insertion of s 4B itself had been prompted by similar concerns, but prosecutors found the original drafting insufficiently targeted at organisers; hence s 4C.

The 2014 insertion of s 4AA (unlawful re-entry) was part of a broader suite of event-security measures following disputes at music festivals and sporting venues. The 2009 Criminal Legislation Amendment Act added procedural safeguards (ss 9, 9A, Sch 1) after concerns that trespass prosecutions were being used as a blunt instrument against minor protesters without adequate particulars.

Because most matters are dealt with by penalty notice or in the Local Court, reported appellate authority is sparse. Nevertheless, several controversies recur.

First, the constitutional validity of the 2019 amendments was challenged in activist circles on implied freedom of political communication grounds. No Full Court decision has yet invalidated any provision, but arguments typically focus on whether the burden on protest at agricultural land is disproportionate. The High Court’s Brown v Tasmania (2017) 261 CLR 328 jurisprudence on protest laws is routinely cited in submissions, although the NSW Act contains a “reasonable excuse” safety valve that was absent in the Tasmanian forestry legislation.

Second, the meaning of “interferes with … the conduct of the business or undertaking” in s 4B(1)(a) remains unsettled. Does filming from a distance constitute interference? Does chanting slogans? Magistrates have reached divergent views.

Third, the interaction between s 7A and federal right-of-entry rules under the Fair Work Act 2009 has produced tension. Union officials argue that any entry complying with ss 484–492 of the federal Act is automatically “permitted” and therefore immune. Employers counter that s 7A does not excuse failure to comply with the precise entry-notice formalities. The Fair Work Commission has not yet delivered a definitive ruling.

Fourth, the citizen-arrest power in s 6 has been criticised for its potential for vigilantism, especially where farm owners confront protesters. The requirement to deliver the person to “the nearest constable” is rarely practical on remote properties.

Finally, the goat-destruction power in s 7 is largely unused but remains symbolically controversial among animal-welfare groups.

Most practitioners miss several subtle traps.

1. Reverse onus creep: Sections 4(1), 4A(2), 4B(3) and 4AA(5) all place an evidential or legal burden on the defendant. In a jurisdiction where the Evidence Act 1995 (NSW) s 141 requires the prosecution to prove guilt beyond reasonable doubt, defence counsel must still adduce evidence of “reasonable excuse” before the persuasive burden shifts back.

2. The “apparently in charge” trap: Consent or a request to leave may be given by a security guard or farm manager who is only “apparently” in charge. Courts have upheld such requests even where the person lacked actual authority, provided the belief was reasonable (see the ordinary meaning adopted in analogous Inclosed Lands cases).

3. Biosecurity aggravation: Section 4B(1)(c) does not require actual biosecurity impact—only the introduction or increase of a risk. A muddy boot from one farm to another can theoretically trigger the 3-year imprisonment band if the prosecution proves the land is agricultural.

4. Section 4B(2) alternative verdict: If the aggravated charge fails, the court may convict of simple s 4 trespass without a fresh charge. Defence counsel who run a “no interference” case may inadvertently hand the prosecution a fall-back conviction carrying a criminal record.

5. Re-entry prohibition duration: Section 4AA(4)(b) requires the responsible authority to specify duration. A prohibition expressed to last “for the remainder of the festival” has been held sufficient, but one that simply says “indefinitely” has been struck down in Local Court rulings as failing the statutory formality.

6. Union immunity is narrower than it looks: Section 7A only protects “activities permitted under” the industrial statutes. If a union official enters without the 24-hour notice required by s 487 of the Fair Work Act 2009, the immunity evaporates and s 4 liability revives.

7. Penalty notice versus court election: Many defendants elect to contest a penalty notice only to discover that the court can, and often does, impose a higher fine plus a conviction. The Fines Act 1996 does not cap the court penalty at the notice amount.

8. Road-track deeming: Section 4(3) protects passage along undefined tracks only if the route taken was not unreasonable. GPS tracks showing deliberate deviation to film sheds have been used to negative the defence.

Landowners and event organisers should:

• Develop scripted verbal requests to leave that explicitly invoke the Act and warn of consequences.
• For re-entry prohibitions, use a written template that satisfies every element of s 4AA(4).
• On farms, install clear signage at boundaries stating “Private Agricultural Land – Entry by Invitation Only” and deploy CCTV to corroborate aggravating acts.
• For gate management, ensure all internal gates are fitted with self-closing mechanisms or signage reminding users to close them.
• Consult biosecurity officers before alleging s 4B(1)(c) aggravation; obtain expert evidence early.

Unions and industrial officers must:

• Issue entry notices strictly in accordance with federal or State legislation.
• Document the precise statutory provision that “permits” the entry so that s 7A can be invoked if challenged.
• Avoid collateral protest activity that falls outside the statutory right-of-entry purpose.

Protesters and activists should:

• Obtain explicit consent or confine activities to public roads and footpaths.
• Understand that “filming from outside the fence” is usually safe, but crossing the fence to reach the animal sheds almost always triggers s 4B if any business interference can be shown.
• Never release livestock; the 3-year imprisonment risk is real and prosecutors have been instructed to pursue it.
• Where organising, avoid language that could be construed as “inciting” under s 4C; courts treat social-media calls to “shut down the farm” as evidence of commissioning.

Droving contractors must carry a copy of the Act or a summary card citing s 4(1A) and ensure stock movement occurs only along the road corridor or the shortest necessary deviation to regain control.

Legal practitioners advising clients should request full particulars under s 9A at the earliest opportunity, file notices of motion seeking them if refused, and plead reasonable excuse in the alternative from the outset. When defending aggravated charges, always address each of the nine limbs in s 4B(1) separately; a single “no case” submission rarely succeeds across the board.

Compliance ultimately rests on clear communication at the boundary, meticulous documentation of any prohibition or request, and an understanding that the 2019 amendments have deliberately tilted the cost-benefit analysis against unauthorised entry onto agricultural land.