Trespass
Version : 13.0
Detailed table of contents
This chapter contains the following topics:
Summary
• Related instruction
• The Law
Licences to enter and remain
• Property rights vs. licences
• Bare or implied licences
• Licence coupled with a contract
• Trespass by Police
• Trespass notices
• Trespass on licensed premises
Public meetings
• Public spaces
• Hall or other restricted area
• Shareholder meetings
• Meetings of public bodies
Trespasser photographs and information
• Photographs may be issued
Trespass notices
• Serving the trespass notice
- Private premises
- Commercial premises
• Verbal trespass
• Written trespass
- Entry of outcome and alert on NIA
- Storage of ‘Trespass Notice’ and ‘Details of Service of Trespass Notice’
Blanket trespass bans
• Introduction
• Definitions
- Blanket trespass notices
- Occupier
- Trespass notice schemes
• Is it legal to issue blanket trespass notices?
- Blanket trespass notices should only be used in exceptional circumstances
• Good practice guidelines in respect of blanket trespass notices
- Action for Police (premises using blanket trespass notices)
- Instances where issue of a blanket trespass notice may be lawful
- Circumstances that might justify the issue of a blanket trespass notice
- Legality of blanket trespass notices
Trespass procedures
• Trespass after warning to leave
• Trespass after warning to stay off (wilful trespass)
• Being found on property without reasonable excuse
• Obligation to give name and address - section 9
Trespass on state highways
• Background
- State highways
• Management of state highways
- Right to enforce the Trespass Act on state highways
• When is it appropriate for Police to exercise the NZTA delegation?
- Determining ‘reasonableness’
• Liaison required with NZTA
- Contact details for liaison
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• The delegation
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Summary
This section contains the following topics:
• Related instruction
• The Law
This chapter relates to the issue of trespass notices and enforcement of the Trespass Act
1980. The Act applies to commercial premises open to the public as well as private
premises.
In general, Police should not become involved in issuing trespass notices. Exceptions
may arise, for example where occupiers fear persons on whom they wish to serve
notices, where there are large crowds, and where the owners / occupiers are
unavailable.
A professional ‘document server’ or ‘process server’ can serve a trespass notice on
behalf of members of the public for a small fee. Local document/process servers are
listed in the Yellow Pages under ‘Document Services’ or ‘Private Investigators’.
Related instruction
This instruction should be read in conjunction with the Police Manual chapter
‘Photographs of shop thieves’.
The Law
An owner / occupier in lawful occupation of a place or land may warn a person to leave
that place or to stay off that place (sections 3 and 4 of the Trespass Act 1980). The
lawful occupier may authorise any other person, including a member of police, to give
the warning.
A warning to stay off the place may be given orally but is more generally given in
writing, and is commonly known as a ‘trespass notice’. A trespass notice may be issued
only if the person is or has been a trespasser or is likely to trespass on that place.
Members of the public have an implied licence to enter shops and similar places open to
the public. Before a person can become subject to the Trespass Act this implied licence
to enter must be withdrawn.
This is done when the occupier or authorised person informs the person in clear terms
that the licence is withdrawn, (e.g., “Go, and don’t come into this shop again” or “Stay
off these premises”).
An offence is committed when a person who has been warned to stay off a place wilfully
trespasses on that place within 2 years of the giving of the warning.
It is not sufficient merely to tell the person to leave or to inform the person that they are
not welcome, as that does not withdraw the implied licence to enter on future occasions.
The person must be advised not to return.
A trespass notice may be issued to a person who:
• has previously trespassed on that place
• has been warned to leave a place but refuses to leave (in this case the person may
also be arrested - section 3 Trespass Act 1980)
• enters a place after the implied licence to be in that place has been withdrawn
• is reasonably suspected of being likely to trespass on that place (section 4(2)
Trespass Act 1980).
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Note: The withdrawal of the implied licence to enter and the warning to stay off can be
given in the same notice.
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Licences to enter and remain
This section contains the following topics:
• Property rights vs. licences
• Bare or implied licences
• Licence coupled with a contract
• Trespass by Police
• Trespass notices
• Trespass on licensed premises
Property rights vs. licences
Common law distinguishes between a personal right to enter and remain upon land and
an interest in the land itself. A personal right to enter and remain can be revoked by the
person who granted that right, but an interest in the land is a property right that can be
revoked only in terms laid down by law.
There are two types of personal rights to enter and remain on land:
• a bare, or implied, licence
• a licence coupled with a contract.
Bare or implied licences
Bare or implied licences exist when occupiers allow people onto their land in
circumstances where, without the licence, such entry would be unlawful. Examples of a
bare licence include when a shopper enters a bookshop to browse, or when a collector
for charity calls at a house.
As the licence is not given for consideration, it may be revoked at any time and failure to
leave after revocation of the licence constitutes trespass.
Licence coupled with a contract
A licence coupled with a contract exists when permission to enter is given for a
consideration. The person’s right to enter is guaranteed by contract and cannot,
therefore, be arbitrarily revoked.
For example, people who have bought tickets to the theatre or similar entertainment
cannot be removed from the premises on the management’s whim. They have a right to
stay for the duration of the performance if they behave properly and obey the
management’s (reasonable) rules.
Patrons can express their approval or disapproval of the performance if they do so
reasonably and with regard to the rights of other members of the audience. They should
not create a disturbance or behave in a disorderly manner (sections 4(1)(a) and 37 of
the Summary Offences Act 1981). If they behave in this way or disobey the
management’s rules, they are in breach of the contract and can be asked to leave.
Trespass by Police
Police constables are subject to the same laws of trespass as any other citizen unless
they have legal authority to enter property under warrant or under warrantless powers
such as under sections 14, 15, and 20 of the Search and Surveillance Act 2012, and
section 119 of the Land Transport Act 1998.
Constables can enter a property and knock on the door but if the occupier, expressly or
by implication, asks them to leave, in the absence of lawful authority to remain, they
must do so. If, however, before being asked to leave, a constable tells the occupier that
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he / she is under arrest, the constable can stay for the purpose of taking the occupier
into custody.
Police constables do not have an absolute right to enter premises where meetings or
public entertainments are being held, but may do so when they have reasonable grounds
to believe that a breach of the peace may occur. In such cases they are entitled to
remain, and efforts to remove Police can constitute an assault on a constable in the
execution of their duty.
Trespass notices
Occupiers can warn persons to stay off their land. This is commonly called a trespass
notice. In effect, a trespass notice removes the licence that a person might otherwise
have to enter and remain on land.
Under section 5 of the Trespass Act 1980, the warning to leave and not return may be
oral or written. A written warning may be delivered to the person concerned or sent by
registered mail to their usual home address in New Zealand.
In
Dixon v Police (High Court Christchurch, 18 September 1985) the court held that,
under section 3, a verbal warning was sufficient: for example, “I want you off my
property right now”. Under section 4, however, the warning must be more formal, with
explicit instructions: for example, “I want you to leave my property right now and, under
the terms of the Trespass Act, I do not want you to come back onto my property for two
years”. It is not enough to merely tell the person to leave or to inform the person that he
or she is not welcome, because that does not withdraw implied licence to enter on future
occasions. The court also preferred that warnings be in writing, setting out the purpose
of the warning and the consequences of failing to observe it.
A trespass notice may be issued only if the person is, has been, or is likely to be a
trespasser. In particular, a notice can be issued to a person who:
• has previously trespassed on that place
• has been warned to leave a place but refuses to leave
• enters a place after the implied licence to be in that place has been withdrawn
• while in a place, has had the implied licence to be there withdrawn, and the occupier
has reasonable cause to suspect that the person is likely to trespass on that place.
Note: The licence withdrawal and warning to stay off can be given in the same notice.
Trespass on licensed premises
Licensed premises are private property. This means that licensees may use the powers
available under the Trespass Act 1980.
Hospitality New Zealand (HANZ) has a standard warning notice which allows the licensee
to specify the reason for asking a person to leave, such as drunkenness and violent
behaviour, and to deprive the person of the right to re-enter for up to 24 months.
Note: If the person subsequently trespasses, the notice cannot be enforced if the
licensee who signed it has ceased to be the occupier.
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Public meetings
This section contains the following topics:
• Public spaces
• Hall or other restricted area
• Shareholder meetings
• Meetings of public bodies
Public spaces
When a meeting is held in an open public place, the chairperson of the meeting cannot
prevent anyone from attending.
Hall or other restricted area
When a meeting is held in a hall or other restricted area, there is no automatic right to
attend the meeting. If the chairperson asks people to leave, they must do so, because
the chairperson is acting on behalf of the person or organisation that hired the hall and is
effectively the occupier.
Shareholder meetings
The meeting of a listed public company is a meeting of the shareholders of that
company. They decide who can attend.
Meetings of public bodies
The chairperson of a meeting of a public body can ask any officer of the body, or any
Police constable, to remove people who are intoxicated, or engaging in noisy or
disorderly conduct or other misbehaviour. Refer to ‘Guidelines for policing election
meetings’ in the ‘Election and political matters-a guide for Police employees’ chapter.
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Trespasser photographs and information
Photographs may be issued
Official Police photographs may be issued in accordance with the ‘Community disclosure
of offender information’ chapter to occupiers of commercial or retail premises who are
participating in a trespass scheme but Police will not issue ‘informal’ photographs of
persons in custody to scheme participants.
Photographs and personal information will be issued only where there is a crime
prevention need. They will not be issued merely because a person has been warned to
leave or stay off the premises by the occupier for non-criminal behaviour.
After an arrest for shop theft or other offending, an occupier may ask Police for that
person’s name and address. The person’s name and address can be released to the
occupier in order for the occupier to issue a trespass notice.
In appropriate cases, such as when there is concern about the person’s behaviour or
where a person has been seen acting suspiciously on security surveillance cameras and
needs to be identified to be arrested, security surveillance footage may be released to
the public in accordance with the ‘Community disclosure of offender information’ chapter.
Great care needs to be taken to ensure that release is necessary and appropriate in the
circumstances. Staff must consult with their manager, and if necessary legal services.
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Trespass notices
This section contains the following topics:
• Serving the trespass notice
- Private premises
- Commercial premises
• Verbal trespass
• Written trespass
- Entry of outcome and alert on NIA
- Storage of ‘Trespass Notice’ and ‘Details of Service of Trespass Notice’
Serving the trespass notice
Section 5 of the Trespass Act 1980 says that a trespass notice “shall be given to the
individual person concerned either orally, or by notice in writing delivered to him or sent
to him by post in a registered letter at his usual place of abode in New Zealand”.
It is recommended that the trespass notice be served personally on the individual
concerned rather than orally or by registered post. This should minimise later disputes
over whether the person was aware of the notice.
Reasonable time should be allowed for the trespasser to leave. If the person remains or
is taking an unreasonable time to leave, that person can be arrested.
Private premises
You may issue trespass notices on the request of, or on behalf of, an occupier of private
premises that are not open to the public, or to enforce the Trespass Act after an occupier
of private premises has made a complaint. However, as a general practice you should
not issue trespass notices unless there is a valid reason why the owner / occupier cannot
issue the notice. Good reasons for the owner / occupier not issuing a trespass notice
may exist where the occupier fears the person they wish to serve the notice on. In such
circumstances, consider whether other / additional responses might be appropriate, such
as consideration of a warning or a charge such as threatening behaviour under the
Summary Offences Act.
Commercial premises
You
should not become involved in issuing trespass notices on behalf of commercial
enterprises such as shops, yards and similar premises customarily open to the public.
Exceptions arise where occupiers are in fear of people on whom they wish to serve
notices, where there are large crowds, where the owners are unavailable, or for other
valid reasons.
Do not issue a trespass notice unless:
• you are satisfied that you know who the lawful occupier of the property is
• there is good reason why the occupier cannot deliver the trespass notice themselves,
and
• you have the occupier’s authority in writing (unless written authority is impractical in
the circumstances- and you should make a clear file note confirming the occupier’s
authority for you to act), and
• you are issuing the notice to prevent crime, offences of disorder, or breaches of the
peace being committed in or on those premises or any other premises in which there
is reasonable cause to suspect the person will trespass.
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Verbal trespass
If a trespass notice is delivered verbally, it is advisable to record the instruction while it
is still fresh in your mind, the date and time along with the reason for giving a trespass
notice to that person, and a name or description of the person asked to leave.
Written trespass
Templates of a
Trespass Notice and
Details of Service of Trespass Notice are
available on the Police intranet and Police internet (for public use).
Print two copies – one to serve and the other to keep, with details about how the
trespass notice was served recorded in the ‘Details of Service of Trespass Notice’ part.
The completed trespass notice can be served by the occupier or an agent of the occupier
with the occupier’s authority. ‘Occupier’ means any person in lawful occupation of that
place or land and includes any employee or other person acting under the authority of
any person in lawful occupation of that place or land.
To serve a notice, simply hand it to the person. If they refuse to accept it and it drops to
the floor, it is still considered served. Keep that copy and note down that the person
refused to accept the notice.
Rule 3.42 of the District Courts Rules 2009 provides some guidance on personal service.
Personal service of a trespass notice is permissible and may be effected “by leaving the
document with the person to be served, or, if that person does not accept it, by putting
it down in that person’s presence and bringing it to that person’s attention”.
Entry of outcome and alert on NIA
Record service of the trespass notice as a ‘2Z’ (Other Service Request) on a Police 101
(short report) so that an occurrence and alert can be generated.
There should be sufficient information contained in the alert to inform staff and clearly
identify the reasoning behind the decision so as to support any challenge at some later
point. In this situation it would be appropriate to attach supporting evidence/documents
to the NIA alert.
Note: This is particularly important in the issue of blanket trespass notices.
Storage of ‘Trespass Notice’ and ‘Details of Service of Trespass Notice’
Store the copy of the ‘Trespass Notice’ and ‘Details of Service of Trespass Notice’ in
accordance with local procedures.
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Blanket trespass bans
This section contains the following topics:
• Introduction
• Definitions
- Blanket trespass notices
- Occupier
- Trespass notice schemes
• Is it legal to issue blanket trespass notices?
- Blanket trespass notices should only be used in exceptional circumstances
• Good practice guidelines in respect of blanket trespass notices
- Action for Police (premises using blanket trespass notices)
- Instances where issue of a blanket trespass notice may be lawful
- Circumstances that might justify the issue of a blanket trespass notice
- Legality of blanket trespass notices
Introduction
Section 4(2) of the Trespass Act 1980 has been used to issue ‘blanket’ trespass notices
banning shop thieves or disorderly patrons from commercial and retail premises.
Blanket trespass notices are often held to be invalid by the court because it is difficult to
show that a person is
reasonably likely to trespass on each and every location
listed in the blanket trespass notice. They can also be seen as unreasonably
restricting free movement.
For this reason, Police officers must not issue, promote or become involved in serving
blanket trespass notices without first obtaining legal advice.
Commercial entities have developed trespass notice schemes that involve the issue of
blanket trespass notices to intoxicated and disorderly patrons to ensure they stay off a
group/number of licensed premises or other private premises. For example, a blanket
trespass notice may be used to bar shop thieves from entering multiple retail stores in
the same chain or intoxicated persons from entering multiple licenced premises.
Blanket trespass notices are issued where either the participating owner/occupier:
• authorises other participants to issue trespass notices in respect of their premises, or
• is advised of the risk posed by an intoxicated and/or disorderly person (perhaps at a
regular meeting) and decides to trespass the person from their premises.
This section of the chapter is focused on:
• the legality of blanket trespass notices
• good practice for Police when responding to incidents involving blanket trespass
notices
• Police discouraging the practice of issuing blanket trespass notices by licensees,
managers and staff of licensed or commercial and retail premises.
It will provide staff with:
• an understanding of the legal implications of the use of blanket trespass notices
• good practice guidance in the field.
Definitions
This table provides definitions for key terms used through out this document.
Term
Definition
Blanket trespass The term ‘blanket trespass notices’ means those notices issued
notices
under section 4 of the Trespass Act 1980 often banning
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intoxicated and/or disorderly patrons from multiple licensed
premises, banning thieves from participating commercial and
retail premises or banning access to multiple pieces of land
belonging to a cooperating group of owners, e.g. forestry blocks
or farm land.
Occupier
‘Occupier’, in relation to any place or land, means any person in
lawful occupation of that place or land; and includes any
employee or other person acting under the authority of any
person in lawful occupation of that place or land. Section 2
Trespass Act 1980 refers.
Note: Licensed premises are regarded in law as private land.
Trespass notice
‘Trespass notice schemes’ refer to community schemes, where
schemes
each participant (occupier) either:
• authorises other participants to withdraw a person’s licence to
enter and stay on any participating premises and/or issue
trespass notices in respect of any participating premises, or
• is advised of incidents involving intoxication, theft or disorder
at other participating premises and decides whether or not
they will also trespass the person from their premises.
Is it legal to issue blanket trespass notices?
Test:
• Section 4 of the Trespass Act 1980 requires an occupier of a place to have reasonable
cause to suspect that a person is likely to trespass on that place before he or she can
warn a person to stay off that place. In the case of a blanket trespass notice, the
occupier needs to have reasonable cause to suspect that a person is likely to trespass
to
each and every place listed on the trespass notice.
Blanket trespass notices should only be used in exceptional circumstances
Police officers are discouraged from promoting or participating in blanket trespass
schemes because of the underpinning legal principle discussed above. It is difficult to
establish any reasonable likelihood that an individual will trespass on every location
named on a blanket trespass notice. This means that blanket trespass notices are
generally difficult to enforce in court.
Direction to staff
For this reason, Police should not issue, promote or become involved in serving
blanket trespass notices unless there are exceptional circumstances justifying
their use. Officers must seek legal advice to ensure that the legal test is met,
and must satisfy themselves that there is reasonable cause to suspect that the
person is likely to trespass on every place covered by the notice.
Good practice guidelines in respect of blanket trespass notices
Action for Police (premises using blanket trespass notices)
Given the risks associated with blanket trespass notices, Police members must seek legal
advice before becoming involved with any trespass notice scheme that promotes the use
of blanket trespass notices. Their use is generally to be discouraged.
Section 4(2) of the Trespass Act requires the occupier to restrict the particular places
included in a trespass notice to those where the occupier has reasonable cause to
suspect the person will enter.
Step
Police action regarding blanket trespass notices
1
Discourage all licensing, commercial and retail action plans and accords from
promoting trespass notice schemes using blanket trespass notices.
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2
Do not endorse any trespass notice scheme that uses blanket trespass
notices.
3
Do not enforce trespass notice schemes using blanket trespass notices unless
you are satisfied that the person issuing the trespass notice:
• Has the authority to issue trespass notices in respect of all premises listed
in the notice; and
• there are reasonable grounds to suspect that the person is likely to
trespass on each place listed and has trespassed on one of the places
listed.
or
• You have obtained legal advice confirming that the scheme is likely to be a
valid use of a blanket trespass notices.
4
Encourage licensees, managers and staff from licensed, commercial and retail
premises as occupiers to:
• stop issuing blanket trespass notices
• issue individual trespass notices on persons:
−
who have trespassed on their premises, or
−
where they have reasonable cause to suspect that those persons are
likely to trespass on their premises
• serve their own trespass notices in person or by registered post
Note: Should licensees, managers and staff remain in doubt about the validity
of the trespass notices then suggest they seek their own legal advice.
5
If Police arrest and charge a person with an offence involving licensed
premises, then consider seeking bail conditions requiring them to “stay off”
and not to “enter” licensed premises.
Instances where issue of a blanket trespass notice may be lawful
Blanket trespass notices may be lawful if the:
• person issuing the notice is the Occupier
of all the premises identified in the blanket
trespass notice
and has reasonable cause to suspect that the person is likely to
trespass on each and every place listed,
• licensed premises identified in the blanket trespass notices are controlled and owned
by a single licensing trust or, for example, a committee running a ‘Trespass Charter’
and the trust issuing the notice has reasonable cause to suspect that the person is
likely to trespass on each and every place listed in the notice; or
• committee running a ‘Trespass Charter’ or ‘Trespass Notice Scheme’ has proper
guidelines and procedures to ensure that a notice is issued with the participants’
authority and where the places specified on the notice are those where there is a
reasonable cause to suspect the person will trespass.
Circumstances that might justify the issue of a blanket trespass notice
A blanket trespass notice might be justified:
• to prevent continuing crime by repeat offenders, providing the occupier has
reasonable cause to suspect that the trespasser is likely to continue their pattern of
behaviour at all locations identified in the notice
• to exclude persons from several premises where their conduct or actions compromise
staff and customer safety at those premises.
• where an individual poacher is reasonably suspected of poaching on multiple blocks of
land (i.e.forestry blocks).
Legality of blanket trespass notices
Blanket trespass notices are almost always held to be illegal. For this reason Police
should exercise extreme care before serving or enforcing these notices.
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Refer to
Auckland Council for Civil Liberties and Others v Attorney General (Police), (High
Court, Auckland Registry, CP 452/93, 10 November 1993, Williams J) and to
Police v
Heke (aka Stanton) Nelson District Court 07/09/2011 CRI 2011 042 435.
In first case (Auckland Council for Civil Liberties) Police received advice from the
Solicitor-General that blanket trespass bans were likely to be held invalid by the Court;
assurances and undertakings were then given by Police to the plaintiffs. This led to the
matter being resolved between the parties without the need for litigation.
In
Police v Heke the Nelson City Council issued a blanket trespass notice to Mr Heke that
covered almost all Council controlled parks and reserves in the Nelson area. The notice
was held to be unreasonable and unlawful.This is because the notice:
• purported to limit Mr Heke’s right to free movement,
• covered areas Mr Heke was unlikely to visit,
• did not assist him to determine where he could go.
Whilst there is no identified case law to support this proposition, the courts may more
readily entertain blanket trespass notices issued in respect of private property than those
issued in respect of premises the public may enter. Because of the uncertainty around
this point, members must seek legal advice.
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Trespass procedures
This section contains the following topics:
• Trespass after warning to leave
• Trespass after warning to stay off (wilful trespass)
• Being found on property without reasonable excuse
• Obligation to give name and address - section 9
Trespass after warning to leave
If a person trespasses after being warned to leave, follow these steps.
Step
Action
1
Obtain the complainant’s full particulars and be sure they are an occupier.
2
Ascertain all facts about the complaint.
3
Decide whether the suspect is there without authority.
4
Ask the complainant to, in your presence, warn the person to leave.
If the person. . .
then. . .
leaves peacefully
• record full particulars
• if the occupier asks you to, warn the suspect to
stay off and tell him or her it is an offence to
return to the premises within two years.
refuses to leave
• Ask the complainant in the presence of the person:
“Do you wish me to act on your behalf?”
• If the complainant says “yes”, warn the person to
leave. Give the suspect a reasonable time to do
so.
• If the person still refuses, you can arrest. Report if
the person was carrying a firearm.
Trespass after warning to stay off (wilful trespass)
If a person trespasses after being warned to stay off, follow these steps.
Step
Action
1
Obtain the complainant’s full particulars and be sure they are an occupier.
2
Ascertain that a warning was issued to stay off the place within the last two
years. The person must have been advised to stay off for 2 years.
3
Ideally get the person to acknowledge the previous warning.
4
Ask the person for an explanation.
5
Warn the person to leave and arrest if he / she refuses to do so.
Being found on property without reasonable excuse
If a person is found on property without a reasonable excuse, follow these steps.
Step
Action
1
Be sure that the person has been found without reasonable excuse in one of
the places named in section 29 of the Summary Offences Act 1981.
2
Decide whether there was criminal intent.
If. . .
then. . .
there was
no criminal
warn the person to leave and if this is refused, you
intent
can arrest for an offence under section 29(1).
there was criminal
you can arrest under section 29. Search the
intent
person, and obtain full particulars of victims and a
proper description of the place involved.
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Obligation to give name and address - section 9
An occupier or constable may require any person found trespassing to give his name and
address, and the number of their firearms licence under the Arms Act 1983 if the person
is in possession of a firearm.
If the trespasser fails or refuses to give the constable this information, the constable
may caution the person for failure or refusal to supply the required particulars and if the
person continues to fail or refuse to provide the information, may arrest without warrant.
This is an uncontrolled document printed for reference only.
The controlled document can be found in the Police Instructions site which is accessible via the New Zealand Police Intranet.
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Trespass on state highways
This section contains the following topics:
• Background
- State highways
• Management of state highways
- Right to enforce the Trespass Act on state highways
• When is it appropriate for Police to exercise the NZTA delegation?
- Determining ‘reasonableness’
• Liaison required with NZTA
- Contact details for liaison
• The delegation
Background
In May 2009 thousands of people, after breaking a Police cordon, walked or cycled over
Auckland Harbour Bridge to campaign for access over the bridge. This caused traffic
chaos and put motorists and other road users at risk.
To ensure Police members are authorised to act on behalf of New Zealand Transport
Agency (NZTA) in dealing with crowds or protesters in such situations, the Agency has
authorised
all constables of New Zealand Police by way of delegation to act on its
behalf to prevent any person from trespassing on state highways or NZTA controlled land
for the purposes of section 56 Crimes Act 1961 (relating to reasonable defence of land or
buildings) and the Trespass Act 1980.
State highways
State highways are roads that are declared by notice in the
Gazette to be a state
highway. They are not Territorial Local Authority (Council) administered roads. (Refer to
sections 5 and 103 Land Transport Management Act 2003).
Management of state highways
One of the functions of NZTA (see section 95 of the Land Transport Management Act
2003) is to manage the state highway system. The Agency’s powers and duties in
relation to state highways are set out in section 61 of the Government Roading Powers
Act 1989. Section 61(2) states:
(2) All rights and powers vested in any local authority under sections...353 of the Local
Government Act 1974,
and all rights and powers vested in any local authority in relation
to roads under any other Act, may, in respect of any state highway be exercised by the
Agency (i.e. NZTA).
Right to enforce the Trespass Act on state highways
The Court of Appeal decision in
Police v Abbot & Mountier (
Police v James Abbott (CA109/2009) and
Frances Mountier (CA110/2009)) raised the issue of powers of a local
authority to invoke the Trespass Act 1980 in relation to a peaceful protest on an area
designated as a road. The respondents argued that the Trespass Act could not be applied
to public roads as trespass law protects a right of exclusive occupation which the Council
did not possess as the public has a common law and statutory right to pass and re-pass
on the highway together with an associated right to freedom of assembly under the New
Zealand Bill of Rights Act 1990 (NZBORA).
Section 317(1) of the Local Government Act 1974 vests in fee simple all roads in the
council of the district in which they are situated and section 353 states that the Council
“shall take all sufficient precautions for the general safety of the public and traffic and
workmen employed on or near the road”.
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The Court held that these provisions give Council control over the land, that the Council
is an ‘occupier’ and could avail itself of the Trespass Act. The fact that there were other
remedies in the Local Government Act did not mean that the Trespass Act is excluded,
although in some circumstances it may not be reasonable for the Council to choose to
rely on trespass rather than engage relevant provisions of the Local Government Act.
The appropriate remedy will be a question of fact and degree in a particular case.
When is it appropriate for Police to exercise the NZTA delegation?
When authorising all constables to act under the Trespass Act on their behalf, the NZTA
advised that because of the public's right to use and have access to a state highway,
their power to enforce the Trespass Act “should only be carried out when an assembly on
state highways is obstructive or creates a nuisance”.
In addition to the restriction imposed by the NZTA, Police must:
• be satisfied that it is reasonable to use the Trespass Act rather than any other powers
available to them
• ensure that the rights and freedoms in the New Zealand Bill of Rights Act 1990
(including freedom of expression and peaceful assembly) are limited only to the
extent reasonably necessary.
Determining ‘reasonableness’
Factors to consider when deciding if using the Trespass Act (in situations involving
trespass on state highways) is reasonable include:
• whether the assembly is unreasonably prolonged
• the rights and freedoms of other people using state highways
• the size of the assembly and its duration, when balancing the competing interests of
the public authority and the effective operation of the property it owns against the
interests of individuals wishing to assemble and to express themselves.
(See
Police v Beggs [1999] 3 NZLR 615 (HC) (case involving protestors trespassed from
Parliament grounds).
Liaison required with NZTA
If there is advance warning of any protests or disruption by crowds on state highways,
Police must liaise with regional NZTA staff with the aim of developing measures to
prevent the trespass or to best manage the trespass should it occur.
Contact details for liaison
Road Policing managers and other senior Police managers meet regularly with Regional
Managers from NZTA to discuss matters of mutual interest. In the event that you
become aware of planned disruptions on state highways, advise your district’s Road
Policing Manager or Area Commander as soon as possible so that they can raise the
matter with the appropriate NZTA managers through their usual network contacts.
In the event of an emergency or if road closure assistance (e.g. contractors etc) is
required, ask your local Comms Centre to contact the NZTA call centre which acts as a
single contact point for Police to report events on state highways.
The delegation
The delegation of powers from New Zealand Transport Agency comprises two parts:
• a sub-delegation from the Chief Executive NZTA to NZTA’s Regional Director,
Auckland and Northland of his power to authorise all members of NZ Police to act on
behalf of the agency
• an authorisation from the NZTA’s Regional Director, Auckland and Northland to
every
NZ Police constable.
This is an uncontrolled document printed for reference only.
The controlled document can be found in the Police Instructions site which is accessible via the New Zealand Police Intranet.
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These delegations can be viewed in the ‘Delegations’ section of the Police Instructions
site.
This is an uncontrolled document printed for reference only.
The controlled document can be found in the Police Instructions site which is accessible via the New Zealand Police Intranet.
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