Unlawful entry on inclosed lands in New South Wales.

Is trespassing a criminal offence in NSW?

Yes. Many people think of trespass as a civil matter, a thing you sue over rather than get charged with. In New South Wales it is both. Section 4 of the Inclosed Lands Protection Act 1901 makes it a criminal offence to enter inclosed lands without the consent of the owner, the occupier, or the person apparently in charge, and without a lawful excuse. The same section makes it an offence to stay on the land after being asked to leave. A person can be charged, brought before the Local Court, and fined.

The offence is a summary one. It is heard in the Local Court and does not carry a term of imprisonment for a simple entry. That keeps it at the lower end of the criminal law. It is still a criminal charge, and a conviction can be recorded, so it is not a matter to shrug off. The full text of the Act is on the NSW legislation site.

What are inclosed lands?

The offence turns on the words "inclosed lands", and the Act gives them a wide meaning. Inclosed lands are any land, public or private, that is bounded by a fence, a wall, or some other form of enclosure. The boundary can also be a natural one, such as a river, a creek, or a cliff, where it marks off the land. So a fenced backyard is inclosed lands. So is a building, a farm behind a boundary fence, a construction site with hoarding, and a paddock with a gate. Land does not have to be locked or even fully sealed to count.

The Act singles out a class called prescribed premises, which attracts a higher penalty. Prescribed premises include schools, hospitals, child care centres, places of public worship, and agricultural land. The reason is plain. Trespass at a school or a hospital carries risks a trespass in an ordinary backyard does not. A person charged should check which class the land falls into, because it sets the ceiling on the fine.

What is the penalty for trespassing on inclosed lands in NSW?

For a simple unlawful entry under section 4, the maximum is a fine of 5 penalty units, which is $550, for ordinary inclosed lands. Where the land is prescribed premises, the maximum rises to 10 penalty units, which is $1,100. A penalty unit in New South Wales is $110. There is no term of imprisonment attached to the basic offence, so a person cannot be sent to gaol for a plain trespass on inclosed lands.

Section 4A raises the maximum where the entry is aggravated. It applies where a person, while on the inclosed lands without consent, behaves in an offensive manner or damages property. The maximum there is 10 penalty units, or 20 penalty units on prescribed premises. It is still fine-only. The text of these provisions, and the way the courts have read them, can be checked on JADE. Because the offence is minor and fine-only, a person with no record has a strong claim to a section 10 dismissal without a conviction, so that the trespass leaves no lasting mark.

What is the difference between trespass and break and enter in NSW?

This is the point the recent Sydney charges bring out. Trespass and break and enter sound alike, but they sit in different Acts and carry very different penalties. Trespass under the Inclosed Lands Protection Act 1901 is entry onto land without permission. It needs no plan, no purpose, and no crime inside. Walking through an open gate into a fenced yard can be enough. The penalty is a fine.

Break and enter is a different beast. It is charged under section 112 of the Crimes Act 1900, and it needs proof that the person entered a building and, at the point of entry, intended to commit a serious indictable offence inside, such as stealing or assaulting someone. That intent is the extra ingredient. Break, enter and commit a serious indictable offence carries a maximum of 14 years imprisonment, and up to 25 years in its aggravated form, where the person was armed, in company, or used violence. The firm's note on break and enter offences sets out that scheme in full. So the charge a person faces after entering a property can range from a small fine to a very long sentence, and the line between the two is criminal intent.

Where a person enters property and takes something, but the Crown cannot prove the intent needed for break and enter, the case is often built the way the recent Sydney charges were built: trespass on inclosed lands for the entry, and larceny under section 117 of the Crimes Act 1900 for the taking. Each is a separate charge with its own elements. The break-and-enter charge, with its heavy maximum, only comes into play when the Crown can show the intent existed at the moment of entry.

What is a lawful excuse for entering inclosed lands?

The offence only applies where the entry was without a lawful excuse, and the Act puts the burden of proving that excuse on the accused person. A lawful excuse is a legal right or reason to be on the land. Consent from the occupier is the clearest one. A right of way, an easement, or a statutory power, such as a police officer acting under a warrant or a worker with a right of entry, will also do. So will a genuine and honest belief that the person was allowed to be there, for instance where a gate was open and the land looked public.

Consent has limits. It can be given for one purpose and not another, and it can be taken back. A person invited onto land who is then told to leave commits the offence if they stay. That is the "remain after being asked to leave" limb of section 4. It is why a person who was welcome at first can still be charged. The question in a defended case is often whether consent was ever given, whether it was withdrawn, and whether the person knew it.

Can police move you on or arrest you for trespass?

Police have a power under the Law Enforcement (Powers and Responsibilities) Act 2002 to give a move-on direction to a person on or near a public place in some circumstances. On private land, the occupier, or police at the occupier's request, can ask a person to leave, and staying then becomes the offence. Police can arrest a person for an offence, including a trespass, though for a minor fine-only matter a court attendance notice is the usual course rather than an arrest. Where a person is arrested, the lawfulness of that arrest, and of any search that followed, can matter to the case.

There is a separate, more serious offence in section 4B of the Act, added to deal with people who enter agricultural land or a business and interfere with its operation or create a biosecurity risk. That offence was aimed largely at protest activity on farms, and unlike the basic offence it can carry imprisonment for the most serious cases. It sits apart from the everyday trespass that fills the Local Court list, but it is part of the same Act and worth knowing about.

What defence work looks like in a trespass case.

The first question is identity and entry. Trespass cases often rest on brief evidence, a witness, a security camera, or an admission. The Crown has to prove that this person entered these lands, that the lands were inclosed, and that there was no consent. Where the land was not fenced or otherwise enclosed, the charge may not be made out at all. Where identity rests on grainy footage, that is a live issue.

The second question is lawful excuse. Because the burden of proving an excuse sits on the accused, a defended trespass often turns on evidence that the person believed they were allowed to be there, or that consent was given and never clearly withdrawn. The third question, where the trespass is charged alongside larceny or goods in custody, is the link between the person and the property. Entering land is one thing. Taking something is another, and the Crown must prove each. For a first offence with no aggravation, the real work is often not about winning at hearing but about outcome, keeping a conviction off the record through a section 10 or a conditional release order. A well-prepared plea, with the right material before the court, is usually the difference.

Frequently asked.

Is trespassing a criminal offence in NSW?

Yes. Trespass on inclosed lands is a criminal offence under section 4 of the Inclosed Lands Protection Act 1901. A person commits it by entering inclosed lands without the consent of the owner, occupier or person apparently in charge, or by staying after being asked to leave, unless they have a lawful excuse. It is a summary offence in the Local Court, and for a simple entry the penalty is a fine, not a gaol term.

What is the difference between trespass and break and enter in NSW?

Trespass is entry onto land without permission, charged under the Inclosed Lands Protection Act 1901 and punished by a fine. Break and enter is charged under the Crimes Act 1900 and needs proof that the person entered a building intending to commit a serious indictable offence inside. Break and enter carries up to 14 years, and up to 25 years in aggravated form. The extra ingredient is criminal intent at the point of entry.

What are inclosed lands in NSW?

Inclosed lands are any land, public or private, bounded by a fence, wall, or other means of enclosure, or a natural feature such as a river or cliff that marks a boundary. It covers a fenced yard, a building, a farm, and land marked as private. Prescribed premises, such as schools, hospitals, child care centres, places of worship and agricultural land, attract a higher maximum penalty.

What is the penalty for trespassing on inclosed lands in NSW?

For a simple unlawful entry under section 4, the maximum is a fine of 5 penalty units, which is $550, or 10 penalty units, which is $1,100, if the land is prescribed premises. There is no imprisonment for the basic offence. The aggravated offence in section 4A, which applies where the person behaves offensively or damages property, carries a higher fine but is still fine-only.

Can you go to jail for trespassing in NSW?

Not for a simple trespass. Sections 4 and 4A of the Inclosed Lands Protection Act 1901 are punished by fines only. Imprisonment can apply to the aggravated offence in section 4B, which targets interference with a business or a biosecurity risk on agricultural land. It can also apply where the trespass is really part of a more serious crime charged under the Crimes Act 1900, such as break and enter.

What is a lawful excuse for entering inclosed lands?

A lawful excuse is a legal right or reason to be on the land: consent from the occupier, a right of way, a statutory power such as a police officer executing a warrant, or a genuine and honest belief that the person was allowed to be there. The Act puts the burden of proving a lawful excuse on the accused. Consent that was given can be withdrawn, and staying after that becomes an offence.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 13 July 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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