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Protecting school premises from undesirables under the Inclosed Lands Protection Act 1901 (NSW)     

What can the principal do if someone comes on to the school grounds and makes a nuisance of themselves? There is legislation in NSW which helps! What offences are involved? When can the principal enlist the help of the Police? How can a banning order be used?

The Inclosed Lands Protection Act 1901 (NSW) is intended to prevent trespassing and certain other offences on ‘inclosed lands’. These are any land enclosed or surrounded by any fence or wall (including natural features) marking the boundary, as well as certain prescribed premises.

Prescribed premises include land that is used in connection with a school or a childcare centre.

Under section 4(1) of the Act, it is an offence for a person to unlawfully enter a school without the consent of the principal, or to remain on school property after being asked to leave. In other words, the section creates two offences.

If a person remains on the land after being asked to leave and then acts in a manner considered offensive to a reasonable person, this is another offence – under section 4A(1).

These offences are dealt with summarily by a Magistrate in the Local Court. If found guilty, the offender can be fined.

The Act gives principals (or appropriately delegated persons in control of the land) power to deal with trespassers on school property or other land used in connection with a school.

By making ‘trespassing’ an offence, principals are more easily able to get the Police to remove members of the public from school property and have them charged.

As noted above, it is an offence for a person to remain on school property after being asked to leave by the principal. But how does the principal prevent someone known to be a security threat from entering school property in the first place? If a person has a lawful excuse, they can enter a property and stay there until they are asked to leave. So how do you determine if someone has a lawful excuse?

In a NSW Supreme Court case 20 years ago, Justice Kirby found that ‘lawful excuse’ under the Act means more than just that the purpose for entering the land was ‘not criminal’. Consent of the owner (or controller of the land) to enter the premises is a lawful excuse. Generally, people with a connection to the school (such as parents) have an implied consent to enter the school premises.

One way to demonstrate that a person does not have the principal’s consent to enter the school is to issue a ‘Ban Notice’. This is simply a written notice addressed to a person, informing them they do not have the principal’s consent to be on school grounds. Without that consent, the person would not normally have a lawful excuse to enter the school.

The principal should sign the ban notice and make sure that it is served on the banned person.

It may be appropriate to issue a ban notice where a person acts violently, uses offensive language or otherwise acts inappropriately on school grounds. While schools do not usually tolerate people acting in these ways around staff or students, some care is required when banning people who normally would have a lawful excuse to enter school grounds, such as parents of current students. If a parent is to be banned from school premises, it is best to consider how long a ban may be appropriate and to review the ban periodically.

If someone has acted violently, it may be appropriate to have the ban notice served by the Police to protect the staff of the school. Where the ban notice is not served by Police, a copy of the ban notice and details of service should be sent to the local Police for their records.

If there are ongoing problems with a person, a school could commence civil proceedings (whether or not there are criminal proceedings already on foot) to obtain an order restraining the person from entering the school grounds again.

If you need help with any of these issues, please contact David Ford or Stephanie McLuckie.

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