It should be noted that police (across Australia) have numerous powers that can pierce the cases cited above and that is why you must seek assistance of a qualified lawyer so you can understand how the law will apply to your facts. You can start by placing a "NO TRESPASS SIGN out the front of home and make sure it is clearly visible. For example, in NSW The Law Enforcement (Powers and Responsibilities) Act 2002 (which rejoices in the acronym LEPAR) was introduced in 2001, in response to a Wood Royal Commission recommendation that NSW police powers be consolidated. - Police may enter premises if they believe on reasonable grounds that a breach of the peace is being or is likely to be committed and it is necessary to enter immediately to end or prevent this. Police are also empowered to enter to prevent significant physical injury to a person. Police are empowered to remain on the premises only as long as reasonably necessary in the circumstances.
It is uncertain whether this provision merely reflects the common law or extends it. There appears to be no High Court or NSW appellate court authority on power of entry to prevent a breach of the peace. In Lippl v Haines (1989) 18 NSWLR 620, the issue for consideration was the power of entry to effect an arrest. Hope AJA (at 630, citing Swales v Cox [1981] QB 849) enumerated the circumstances in which police had power of entry. This did not include breach of the peace. In Plenty v Dillon (1991) 171 CLR 635, the High Court held that police do not have power of entry merely to serve a summons. Gaudron and McHugh JJ (at 647) again listed the circumstances in which police had power of entry, and again, breach of the peace was not included. However, given that neither of these cases concerned an alleged breach of the peace, I would not interpret either case as authority that police do not have such a power.
There is appellate court authority from other Australian jurisdictions (eg Panos v Haynes (1987) 44 SASR 148, Nicholson v Avon [1991] 1 VR 212, Cintana v Burgoyne [2003] NTSC 106) that police do have power to enter premises to prevent a breach of the peace.
“Breach of the peace” is not defined in LEPAR, nor is its scope clearly defined by the relevant case law. For examples of conduct that has been held to constitute a breach of the peace, see R v Van Bao Nguyen [2002] NTSC 38, per Angel J at paras 10-12, and the commentary at para [2.33470] in Vol 1 of Watson, Blackmore & Hosking Criminal Law (NSW) looseleaf service. As stated earlier, each case is determined by the facts and evidence unique to that case and further each case will be determined by the laws of your particular state of territory. The posts on trespass (ABOVE) are not formal legal Advice and only produced as general Educational information - if you are arrested or have questions please Call our Office on (02) 8277-4556/0421 366 238.
It is uncertain whether this provision merely reflects the common law or extends it. There appears to be no High Court or NSW appellate court authority on power of entry to prevent a breach of the peace. In Lippl v Haines (1989) 18 NSWLR 620, the issue for consideration was the power of entry to effect an arrest. Hope AJA (at 630, citing Swales v Cox [1981] QB 849) enumerated the circumstances in which police had power of entry. This did not include breach of the peace. In Plenty v Dillon (1991) 171 CLR 635, the High Court held that police do not have power of entry merely to serve a summons. Gaudron and McHugh JJ (at 647) again listed the circumstances in which police had power of entry, and again, breach of the peace was not included. However, given that neither of these cases concerned an alleged breach of the peace, I would not interpret either case as authority that police do not have such a power.
There is appellate court authority from other Australian jurisdictions (eg Panos v Haynes (1987) 44 SASR 148, Nicholson v Avon [1991] 1 VR 212, Cintana v Burgoyne [2003] NTSC 106) that police do have power to enter premises to prevent a breach of the peace.
“Breach of the peace” is not defined in LEPAR, nor is its scope clearly defined by the relevant case law. For examples of conduct that has been held to constitute a breach of the peace, see R v Van Bao Nguyen [2002] NTSC 38, per Angel J at paras 10-12, and the commentary at para [2.33470] in Vol 1 of Watson, Blackmore & Hosking Criminal Law (NSW) looseleaf service. As stated earlier, each case is determined by the facts and evidence unique to that case and further each case will be determined by the laws of your particular state of territory. The posts on trespass (ABOVE) are not formal legal Advice and only produced as general Educational information - if you are arrested or have questions please Call our Office on (02) 8277-4556/0421 366 238.