Mechanically, the Act makes it an offence to enter or remain on "inclosed lands" without the owner/occupier's consent and creates a range of related offences and enforcement tools. Key behaviour rules and penalties are:
Unauthorised entry on inclosed lands is an offence with maximum penalties of 10 penalty units for "prescribed premises" (places like schools, child care services, hospitals — see s 3) and 5 penalty units for other inclosed lands (s 4(1)). Proof that the entrant had a lawful excuse lies on the entrant (s 4(1)).
A specific offence of re-entering an event venue during an organised event where a valid re-entry prohibition has been given, punishable up to 10 penalty units; the person or body that is the "responsible authority" must specify the venue, duration and reason when giving the prohibition (s 4AA(1)–(6)).
Remaining on inclosed land after being told to leave and behaving in a way that would be regarded as offensive by reasonable persons is a separate offence with higher penalties (up to 20 or 10 penalty units depending on the premises) and a statutory allowance for the defendant to show a reasonable excuse (s 4A).
An aggravated unlawful-entry offence applies when an entry under s 4 happens on land where a business or undertaking operates and certain aggravating acts occur (for example interfering with the business, creating a serious safety risk, introducing or raising a biosecurity risk, possession or use of weapons, damaging property or releasing livestock). Penalties for aggravated offences are substantially higher on agricultural land (up to 120 or, in specified circumstances, 200 penalty units or up to 3 years imprisonment) and lower on non-agricultural land (up to 50 penalty units) (s 4B(1)).
The Inclosed Lands Protection Act 1901 (NSW) creates a suite of summary offences directed at unauthorised entry onto, and conduct upon, land that is physically demarcated as private or institutionally occupied. At its core, s 4(1) provides that any person who, without lawful excuse (the onus of proving which lies on the defendant), enters inclosed lands without the consent of the owner, occupier or person apparently in charge, or who remains after a request to leave, is liable to a penalty. The Act deliberately uses the archaic spelling “inclosed” to reflect its 1901 origins, yet its substantive reach has been modernised through successive amendments.
Section 3 supplies the definitional spine. “Inclosed lands” means either “prescribed premises” or any land (public or private) surrounded by a fence, wall, canal, river or cliff, including buildings and associated land. “Prescribed premises” capture government and non-government schools (Education Act 1990), child care services (with explicit exclusions for family day care and out-of-home care under the Children and Young Persons (Care and Protection) Act 1998), public and private hospitals (Health Services Act 1997 and Private Health Facilities Act 2007), and nursing homes (Public Health Act 2010). The definition expressly excludes parts of buildings used for unrelated purposes, preventing over-reach.
A separate, more serious regime applies to agricultural land. Section 4B creates an aggravated offence where a person commits a s 4 trespass on land on which a business or undertaking is conducted and then engages in any of nine listed aggravating acts. These range from interfering with the business (s 4B(1)(a)), creating serious safety risks (s 4B(1)(b)), introducing a biosecurity impact within the meaning of the (s 4B(1)(c)), intending to commit certain property or hunting offences (s 4B(1)(d)), possessing hunting equipment or firearms without reasonable excuse (s 4B(1)(e)–(f)), being accompanied by a hunting dog (s 4B(1)(g)), damaging property on agricultural land (s 4B(1)(h)), or wilfully or negligently releasing livestock (s 4B(1)(i)). Penalty differentials are stark: on agricultural land the maximum is 120 penalty units or 12 months imprisonment (or 200 penalty units or 3 years where two or more persons are involved or certain safety risks are created); elsewhere the ceiling is 50 penalty units.
Current sections
Direct links to the current provisions in Inclosed Lands Protection Act 1901.
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Official source available
Zoe has indexed the source text for search and analysis. Use the official register for the original document and download formats.
It is an offence to direct, incite or procure others to commit the aggravated unlawful-entry offence on agricultural land, with a separate maximum penalty (s 4C).
There are specific offences for actions such as leaving gates open (maximum 15 penalty units) (s 5), and an owner/occupier may destroy a trespassing goat except where the goat is clearly identifiable by brand, tag, collar or earmark (s 7).
Who decides and who enforces
The owner, occupier, or person apparently in charge of the inclosed land can ask people to leave and may, in certain circumstances, apprehend someone found committing an offence and hand them to police (s 6(1)). That private apprehension must be delivered to the nearest constable for further legal process (s 6(1)).
Police may issue penalty notices for offences under the Act; penalty notices are governed by the Fines Act 1996 and may specify an amount up to the maximum court-ordered penalty (s 10(1)–(3)).
Courts (Local Court or Supreme Court in its summary jurisdiction) deal with proceedings summarily; the Local Court’s maximum imprisonment term is capped at 2 years (s 8(1)–(2)).
The Governor may make regulations to carry the Act into effect (s 11).
How the text frames its protective aims (stated purpose-claims) and the mechanisms that deliver them
The statutory scheme is organised to protect the rights of owners/occupiers to control entry to inclosed land and to protect certain commercial activities and prescribed premises. The Act operationalises that protection through criminal offences (ss 4, 4A, 4B), authorised private enforcement (s 6), police-issued penalty notices (s 10) and regulatory power (s 11).
Costs, incentives, trade-offs and practical implementation points (mechanisms, not judgments)
Who pays: persons who enter or remain without consent risk criminal penalties (ss 4, 4A, 4B, 4AA, 4C, 5) or payment under a penalty notice (s 10). Owners/occupiers who apprehend must deliver offenders to police (s 6(1)). A person sued for actions taken in reliance on the Act faces a limited civil window: any civil action must be started within two months and notice given at least one month beforehand (s 9).
Incentives and private decision points: the Act gives private occupiers powers to exclude and, in some cases, to apprehend (s 6), and to destroy stray goats subject to identification exceptions (s 7). Those powers create incentives for property controllers to use exclusion and, where relevant, to employ re-entry prohibitions at events (s 4AA). Organisers or persons in charge who give re-entry prohibitions must specify the venue(s), duration and reason and warn the person that contravening is an offence (s 4AA(4)), creating a compliance obligation on responsible authorities.
Burdens on defendants and evidentiary rules: for several offences the statute places the burden on the accused to prove a lawful or reasonable excuse (s 4(1); s 4B(3); s 4AA(5) places proof of reasonable excuse on the person charged). That shifts evidential dynamics in prosecutions.
Discretion and administrative risk: the Governor’s regulation-making power allows detail and procedural rules to be prescribed later (s 11). Police discretion is engaged through penalty notices (s 10). Private persons and event organisers also have discretion to exclude, to give re-entry prohibitions, and to decide whether to apprehend (ss 4AA, 6(1)). Those delegated and private decisions determine much of the Act’s on-the-ground effect.
Interactions with other laws and definitional dependencies: the Act’s definitions reference numerous other statutes (for example, definitions for "prescribed premises" and the aggravated offences’ reference to the Biosecurity Act 2015) so enforcement and scope depend on those other laws (s 3; s 4B(1)(c)). The Act also expressly preserves legal activities permitted under industrial-relations law: it does not make permitted union activities or industrial action an offence under this Act (s 7A).
Compliance and procedural protections for defendants: courts must furnish particulars in certain circumstances and may adjourn or dismiss charges if particulars are not supplied (s 9A). Penalty notices provide a non-court disposal route under the Fines Act (s 10(2)–(3)).
Net effect (mechanical): the Act creates a tiered criminal regime to protect control of inclosed lands, includes enhanced protection for agricultural and business premises (with higher penalties where interference or biosecurity risks are involved), supplies private enforcement powers and police-administered penalty notices, and leaves rule-making and detail to regulation (ss 4, 4B, 4AA, 4C, 6, 10, 11). The Act also contains procedural provisions governing prosecutions (ss 8, 9A) and a brief civil-action limitation (s 9).
Biosecurity Act 2015
Section 4C adds a secondary offence of directing, inciting, counselling, procuring, commissioning or inducing another to commit a s 4B offence on agricultural land (maximum 100 penalty units or 12 months imprisonment). This provision, inserted in 2019, is aimed squarely at organisers of protests rather than individual trespassers.
Section 4AA, inserted in 2014, deals with organised events. It creates an offence of knowingly re-entering an “event venue” (that part of inclosed lands to which entry is by ticket or similar) during an organised event after a “re-entry prohibition” has been given. The prohibition must be issued by the responsible authority (owner, occupier or event organiser) and must specify venue, duration, reason and contain a warning. A statutory bar prevents double punishment where another Act also prohibits entry for the same conduct.
Section 4A criminalises remaining on inclosed lands after a request to leave while behaving in a manner that reasonable persons would regard as offensive in all the circumstances (20 penalty units for prescribed premises, 10 otherwise). A reasonable-excuse defence is available.
Section 5, substantially rewritten in 2019, makes it an offence (15 penalty units) to enter inclosed lands and wilfully or negligently leave open, remove or disable a gate, cattle grid, slip panel or moveable fence. The section applies both to the lands themselves and to roads lawfully inclosed within another person’s lands (provided the gate is not a public gate under the Roads Act 1993).
Ancillary provisions preserve certain liberties. Section 7A, also added in 2019, declares that nothing in the Act makes it an offence for a person (including a union representative) to enter or remain for activities permitted under the Industrial Relations Act 1996 (NSW) or the Fair Work Act 2009 (Cth). Section 1A (via the definition in s 3(1)) and s 4(1A)–(4) protect drovers and persons moving stock along roads that have been lawfully fenced within private land; they enjoy a statutory lawful excuse to enter to prevent straying or regain control. Section 3(2) provides that where a road is inclosed with private lands, only the lands—not the road itself—are treated as the inclosed lands of the owner.
Civil and procedural overlays exist. Section 9 imposes a two-month limitation period and one-month notice requirement for any civil action brought against a person for acts done under the Act. Section 9A, inserted in 2009, requires an informant to supply reasonable particulars of alleged offensive or unlawful conduct upon request; failure to do so can lead to adjournment or dismissal, and a court may adjourn if evidence at hearing departs materially from the particulars supplied. Section 6 permits citizen arrest of offenders who refuse to give name and address (or give false details), while s 10 authorises police-issued penalty notices under the Fines Act 1996. Proceedings are summary (Local Court or Supreme Court in summary jurisdiction) with a two-year maximum term of imprisonment cap in the Local Court (s 8).
Finally, s 7 preserves an ancient right: an owner, occupier or person in charge may destroy any goat found trespassing unless it is branded, collared with the owner’s details, earmarked or tagged. The Act does not extend this power to other livestock.
Taken together, the legislation performs three functions: (1) swift civil-order protection of enclosed land; (2) elevated criminal sanctions where trespass intersects with agricultural, biosecurity or public-institution sensitivities; and (3) calibrated carve-outs that prevent the Act being weaponised against legitimate stock movement, industrial activity or ordinary passage along undefined tracks across private land.
Who it affects
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”.
Key duties and rights
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 and enforcement
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.
How it interacts with other laws
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.
Recent changes and why
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.
Court challenges and controversies
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.
Gotchas
Most practitioners miss several subtle traps.
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.
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).
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.
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.
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.
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.
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.
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.
How to comply
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.