Legal Issues Bulletin No. 31 reviewed July 2012 Unauthorised entry onto departmental premises - update Principals and institute managers have the capacity to invoke the provisions of the Inclosed Lands Protection Act 1901 (the Act) to deal with people who enter onto or remain on Departmental sites without authority. The powers available under the Act are wide and can significantly impact on people who might ordinarily have regular contact with the school or institute locations. The powers must therefore be exercised only in appropriate circumstances and after full consideration of the seriousness of the matter. What is the relevant law? The Act provides a basis for taking action in relation to what is commonly referred to as trespass. While schools are specifically defined as "inclosed lands", institute premises will also be covered by the Act if surrounded wholly or in part, by any fence, wall, or other construction or some natural feature that will allow the boundaries of the premises to be known or recognised. Any buildings or other structures occupied or used in connection with the land are provided the same protection by the Act. The Act provides for the following relevant offences: 1. Entry without lawful excuse onto inclosed lands without the consent of the owner, occupier or person apparently in charge of the land. The maximum penalty in relation to school premises is $1,100 and for other premises is $550. If dealt with by way of an on-the-spot fine, the penalty is $550. 2. Remaining on inclosed lands after a request to leave is given by the owner, occupier or person apparently in charge of the land. The maximum penalty in relation to school premises is $1,100 and for other premises is $550. 3. Remaining on inclosed lands and behaving in an offensive manner after a request to leave is given by the owner, occupier or person apparently in charge of the land. The maximum penalty in relation to school premises is $2,200 and for other premises is $1,100. If dealt with by way of an on-the-spot fine, the penalty is $250. 4. Giving a false name and address after being requested to provide such details by the owner, occupier or person apparently in charge of the land. The maximum penalty is $55. In relation to (1), it is up to the defendant (the intruder) to prove they had a lawful excuse to be on the premises. In relation to (3), "offensive manner" is behaviour that a reasonable person would find offensive. It must be sufficient to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable person. Do the provisions also cover child care centres on school and TAFE sites? In relation to the offences referred to in (1) - (3) above, people intruding onto child care centres established on school or institute premises are subject to the same penalties as those applying to schools. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU
What should I do if unauthorised entry onto school or institute premises occurs? If an intruder is found on departmental premises, the principal, institute manager or person then in charge of the premises should inquire about the person's right to be there. If a legitimate reason is not provided the person should be advised they are trespassing and be requested to leave. If the person refuses to leave, police should be called. This may result in the person being arrested and charged under the Act or issued with an on-the-spot fine. If I report the matter to the police, should I take action prior to the police arriving? Prior to the arrival of the police no action should be taken to restrain or otherwise apprehend the person. If the circumstances allow, further directions to cease the behaviour and or leave the premises can be given. However no member of staff should put themselves in danger. Am I able to take action under the Act against people who have a reason to visit the premises on a regular basis e.g. parents? People who would usually have a legitimate reason for being on departmental premises may have their entry restricted by the principal, institute manager or person in charge. Action to restrict the access of such people should only occur where all other attempts to resolve the problem have failed and a warning has been given or the behaviour is so serious it warrants that course of action being implemented immediately. In what circumstances can I use the powers available under the Act without prior warning? Such circumstances include: actual physical assaults or threatened physical assaults on students, staff, parents or community members at the school or institute or during the course of school or institute activities inappropriate behaviour in the presence of students, staff, parents or other visitors that is so serious that it warrants action being taken immediately. The department does not expect its staff, students or other visitors to departmental premises to accept such behaviour. Additionally the department has a legal obligation to ensure its premises are safe for staff, students and other visitors and the use of the powers under the Act is an important tool in fulfilling that obligation. In what circumstances can I the use of the powers available under the Act when a warning has previously been given? Behaving in a manner in the presence of students, staff, parents or other visitors to the school or institute that could reasonably be expected to cause alarm or concern. Use of offensive language (i.e. swearing) in the presence of students. As a result of abusive, threatening or offensive phone calls, text messages, websites or emails made to or about staff, or directed towards staff or the school, Principals and institute managers should have particular regard to the age and maturity of any students involved prior to using the powers under the Act. In relation to behaviour, situations may arise where the major concern is not what is said by a person but rather the manner in which they act while engaging with staff, students or other people. This could include people who appear to act in a highly agitated or irrational fashion. While attempts to resolve such issues by other means might be appropriate, the department does not condone the use of offensive language in the presence of students. In most instances, it is expected that a prior warning would be given to the person concerned prior to using the powers under the Act in these circumstances. Any warning given should preferably be in writing and a copy retained by the principal or institute manager with the relevant documentation. A sample letter is attached. Depending on the circumstances, it may be appropriate to notify the local police that the warning letter has been given so that they will be aware of the background in the event more serious action under the Act is necessary at a later time. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 2
In what other circumstances can I use the powers under the Act? When people persistently interrupt the learning environment of the school or institute by entering classrooms without permission, or When people persistently enter onto the school or institute site without permission or legitimate reason. Use of the powers in these circumstances should only occur after previous attempts at resolving the issue have failed. When should powers under the Act not be used? When people merely complain about the actions of staff or decisions at the school or institute. When people persistently write letters or ask for information from school and institute staff. People affected by decisions made by schools and institutes have a right to discuss or complain about those decisions. Complaints can be in writing or oral and may be multiple in nature and repetitive. Similarly, people also have a right to seek clarification or confirmation of decisions made by schools or institutes, particularly in circumstances where the decisions impact on themselves or their children. While the receipt of such complaints or requests may sometimes cause concern to staff, the use of the powers under the Act in these circumstances is inappropriate. Suggested strategies to deal with people in these circumstances are discussed in Legal Issues Bulletin No. 33 Good Practice when Conducting Difficult Interviews and Related Issues. Principals and institute managers should note that action available to them under the Act must not be used as a substitute for normal school or institute discipline policies. Should staff be in any doubt as to what action can be taken, contact should be made with the Safety and Security Directorate or the Legal Services Directorate. What procedures should I take if an incident occurs that is likely to result in me issuing a directive under the Act? The following steps should be taken: 1. If the incident is one involving violence or threatened violence, you should report it to the police. In accordance with approved police procedures, details of the incident will then be entered in the NSW Police data base. 2. If a directive banning the person from the site is subsequently issued and you have genuine safety concerns if a member of staff is required to deliver the directive to the person, you should contact the police and ask them to deliver the directive. 3. Upon receipt of the directive, police will enter the details into their data base and proceed to serve it on the person. When serving it, police will explain both its purpose and the potential ramifications if the directive is not complied with. 4. If the directive is being issued for non-violence related issues e.g. someone being disruptive rather than a threat the directive should be served by a member(s) of staff unless there are genuine safety concerns. If these concerns do arise, you should contact the police as above. 5. Once a directive for non-violence related reasons is issued, you should send a copy of the directive to the police. It will then be entered into the NSW Police data base. 6. It should be noted that principals and institute managers remain responsible for the service of any warning letters issued. What happens if a person breaches a direction that has been given? If the person denied entry subsequently enters the school or institute premises contrary to the direction given, police can be called and the person can be arrested and charged under the Act. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 3
I have been told the police need to actually see the person on the site before they can take action for trespass. Is this correct? Contrary to common belief, it is not necessary for the police to catch the offender actually on the premises. All that is required is that the person is seen on the site and one or more witnesses are prepared to give evidence of this if necessary. Can only the principal, institute manager or office manager take action under the Act? In most cases the principal, institute manager, office manager or someone acting in that position will be the person to issue any directives, particularly written directives. Action can be taken under the Act however by any person who is apparently in charge of the premises. If therefore a staff member is working back late or on the weekend and a person enters the site without permission, that staff member can, if considered necessary, direct the person to leave the premises. If they do not leave, the police should be notified. Any action taken by staff such as this should be reported to the principal, institute manager or office manager at the earliest possible time. Can action be taken under the Act for school or institute activities which are conducted off site? The capacity to take action under the Act in respect of activities away from departmental premises depends largely on the specific circumstances. If the activities are being conducted in another facility (e.g. a local hall) and the school or institute is the sole user of the facility at the time, then action can be taken on the basis the principal, institute manager or other person in charge of the activity is the person apparently in charge of the premises. The situation is not so clear when the activity is being held in an open place such as the local council oval or sporting facility. Much depends on whether the premises are inclosed see the advice on page 1. If however the place being used is inclosed and the school or institute is the sole occupier of the site at the time, then there is nothing to prevent the principal, institute manager or other person in charge of the activity from exercising powers under the Act. If a warning or other action under the Act is being considered in respect of premises away from the school or institute, advice from the Legal Services Directorate should be sought where practical prior to taking any action. What should I do if police do not take action in respect of a reported breach of the Act? If police refuse to take action in a serious matter because the offender has left the premises prior to their arrival or for other reasons, contact should be made with the officer in charge of the station in an attempt to resolve the issue. If no resolution can be reached, contact should be made with the school education director or institute director so that further action can be pursued with the police at a higher level. If I issue a direction under the Act how long is it valid for? If people ordinarily have a legitimate expectation of being able to enter onto departmental sites, principals and institute managers should avoid automatically applying restrictions which are open ended in duration. Depending on the circumstances, consideration should be given to specifying a period of time during which the person s right to enter onto the premises is restricted e.g. two or three months. The imposition of restrictions that are of a relatively short duration can be successful in resolving these types of disputes. Should I review any directions made periodically to ensure they remain validly imposed? Yes. Any decision to restrict a person's right to enter onto departmental premises in situations where the person has a legitimate on-going relationship with the school or institute should be reviewed periodically to ensure maintenance of the limitation is warranted. Principals should conduct the reviews towards the end of terms 2 and 4 and institute managers should review these matters at the end of each semester. Reviews can also be undertaken by principals and institute managers at other times if they become aware of any changes in the circumstances. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 4
In undertaking a review, principals and institute managers need to satisfy themselves the maintenance of the limitations are justified. Information should be sought from relevant people indicating any reasons why the limitations on entry to the site should or should not be maintained. A sample letter for use by principals and institute managers following a review is attached. Can a person seek a review of a decision to limit access to departmental sites? Yes. People whose access to departmental premises is restricted or denied by a principal or institute manager, including those situations where a review has confirmed the restriction or denial, should be advised they may lodge a complaint about the decision. Any letter issued by the principal or institute manager must have this information included. A complaint about a decision by a principal or institute manager should be directed to the school education director or institute director respectively. The complaint will then be dealt with in accordance with the Department's Complaints Handling Policy. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 5
SAMPLE WARNING LETTER (ON LETTERHEAD) Dear I refer to the incident on (insert date) when you entered onto the (insert school/campus/college/institute as appropriate) site and you (outline behaviour which gives rise to the letter). I consider your behaviour on this occasion was inappropriate and not in keeping with the standard of behaviour expected of people who enter onto this site. You should note entry onto this site is a privilege not a right and I have authority under the provisions of the Inclosed Lands Protection Act 1901 to control your access. This authority includes the capacity to impose conditions and/or prohibit your entry to the (insert school/campus/college/institute as appropriate) site. You should note that if you behave in a similar fashion again, or otherwise act inappropriately, while on or in the immediate vicinity of the (insert school/campus/college/institute as appropriate) site, it may result in my issuing a directive in accordance with my powers under the Inclosed Lands Protection Act 1901 to prohibit or otherwise restrict your entry to the (insert school/campus/college/institute). Yours faithfully Principal/Institute Manager (as applicable) SAMPLE LETTER RE DIRECTION TO LEAVE PREMISES (ON LETTERHEAD) Dear I refer to the incident on (insert date) when you entered onto the (insert school/campus/ college/institute as appropriate) site and you (outline behaviour which gives rise to the letter). I also refer to my previous warning letter to you dated (insert date).# Your behaviour on this occasion was inappropriate and as a result I do not consider your current access to the (insert school/campus/college/institute as appropriate) to be in the best interests of either the students or the staff. You should note that entry on to the (insert school/campus/college/institute as appropriate) is a privilege not a right. In accordance with my authority under the Inclosed Lands Protection Act 1901, you are directed not to come onto the (insert school/campus/college/institute as appropriate) site again (insert relevant provisions - [eg (without my prior approval and then only for the purpose of seeing me) or (except under the following conditions - )]*. **This directive is to remain in force for a period of (insert relevant period) If you enter onto the (insert school/campus/college/institute as appropriate) site contrary to this direction, the matter will be immediately reported to the police who may then take further summary action. ***The restrictions imposed upon you in relation to your entry onto the (insert school/campus/college institute as appropriate) site will be reviewed periodically to determine whether they should continue to operate. Generally the reviews will be held in June/July and December each year. If you feel my decision in this matter is unfair you can make a complaint to (insert contact details of the School Education Director for school matters or details of the Institute Director for TAFE NSW matters as appropriate). Yours faithfully *Principal/Institute Manager # delete if not applicable *delete that which is not applicable **insert if applicable ***include if appropriate. This provision only applies to people who have a legitimate on-going relationship with the school or institute. If a specified period of time applies to the directive, this paragraph may not apply and can be deleted. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 6
SAMPLE LETTER NOTIFYING PERSON OF THE RESULT OF A REVIEW Dear I refer to - *My previous letter of (insert date) which imposed conditions on your entry onto the (insert school/institute/campus/college site as applicable) *The decision of the (insert School Education Director/Institute Director as applicable) dated (insert date) which imposed conditions on your entry onto the (insert school/institute/ campus/college site as applicable) I have reviewed the circumstances of the decision made to (insert limit or deny as applicable) your entry onto the (insert school/institute/campus/college site as applicable) and determined that *The existing conditions in relation to your entry onto the site are to remain in force *The conditions relating to your entry onto the site are to be varied as follows (insert relevant new conditions) for the following reasons (insert reasons for the decision). If you wish to complain about my decision in this matter, you should contact (insert contact details of the School Education Director for school matters or details of the Institute Director for TAFE NSW matters as appropriate). Yours faithfully *Principal/Institute Manager *delete that which is not applicable LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 7
About Legal Services Legal Services provides legal support and advice to staff in schools, colleges, regions, state office directorates and specialist boards and authorities. It arranges for the Department to be represented before a range of courts and tribunals and assists with the preparation of legal documents. It is also available to provide legal advice in respect of any departmental policies or procedures that may have a legal complexion. The Legal Services Directorate can provide legal advice to departmental staff only. It is not able to provide legal advice or assistance to parents, students or members of the public. The Legal Services Directorate posts a large amount of information on the Department s intranet. This includes: all current Legal Issues Bulletins questions the Legal Services Directorate most frequently encounters information about the Government Information (Public Access) Act links to other related legal web-sites other information for the use of schools and TAFE The Legal Services Directorate continues to offer its telephone advice service to DEC personnel. The service is available between 9.00am to 5.00pm weekdays. LEGAL SERVICES DIRECTORATE REVIEWED AND CURRENT AS AT 31/07/2012 WWW.DET.NSW.EDU.AU 8