This is not a place for legal advice and today’s correspondent raises questions that, I’m told are to be shortly determined in a Local Court.  The gist of the issue is that the defendant has been charged with entering inclosed lands contrary to the Inclosed Lands Act Protection Act 1901 (NSW).  Section 4(1) of that Act says:

Any person who, without lawful excuse (proof of which lies on the person), enters into inclosed lands without the consent of the owner, occupier or person apparently in charge of those lands, or who remains on those lands after being requested by the owner, occupier or person apparently in charge of those lands to leave those lands, is liable to a penalty …

Without going into the details of the allegation and rephrasing the question slightly, I’m asked if it there would be a ‘lawful excuse’ to enter the inclosed lands ‘to try and make contact with a statutory authority who is in control of an area which may include some private property/inclosed lands during an ‘emergency’?’

My correspondent goes on:

What is clear however is that trespassing laws make it difficult for neighbours (or even authorities) to check on certain aspects of a fire (which they might believe is being handled negligently or is a nuisance) if they cannot communicate with the statutory authority/fire controllers in the area of the fire…
Specifically, the defendant in this case wanted to make a complaint/report an incident to the RFS on the site.

Discussion

The section is reasonably clear, it is an offence to enter ‘inclosed lands’ (noting the irregular spelling but that was how they spelt it in 1901) without the permission of the owner.  In the absence of that permission the defendant must establish, on the balance of probabilities (Evidence Act 1995 (NSW) s 142) that they had a lawful excuse.

I’m not aware of any statutory provision that would allow a person to enter inclosed lands to communicate with the Rural Fire Service (‘RFS’) and in particular, to complain to the RFS about the way they are conducting their operations.

As has been noted before there is a doctrine of necessity that is both a defence to a tort and criminal law. But when it comes to the criminal law the defence is restricted as it is not an invitation to allow people to choose what laws they will comply with (see Necessity and the protection of property (July 21, 2024)).

In Veira v Cook [2021] NSWCA 302 at [41] Meagher J said:

There is no support in any of the Australian or English authorities for the necessity defence extending to excuse criminal conduct undertaken otherwise than in response to an imminent threat of death or serious injury, either to the accused or to someone else. That is because the defence exists only where the circumstances are such as to overwhelmingly impel disobedience to the law.

In my post, above, I make the argument why I think Meagher J’s broad conclusion is wrong, that is there is support in the authorities for the defence in circumstances where is less than ‘an imminent threat of death or serious injury, either to the accused or to someone else’ and that the defence can be, and has been used to take action simply to protect property.  But my dissent from Meagher J’s broad opinion is not relevant here as here there is no suggestion of any action by the defendant either in response to an imminent threat of death or to protect property.

I would have no doubt that if necessity can justify actions such as a prison escape it would also justify, in the right circumstances, a person entering their neighbours inclosed lands to either escape a fire or to attempt to extinguish a fire.   It might be a defence, taking into account the issues of immediacy and proportionality, to enter the land to tell the RFS commander that there is someone trapped or otherwise at risk of the fire and in immediate need of assistance.  However, in R v Rogers (1996) 86 A Crim R 542 (quoted in my earlier post), Gleeson CJ said:

The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law. Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.

A defendant may not be happy with the way the RFS is conducting its operations and may consider that they know better and want to complain but one has to ask whether that is either immediately necessary nor a proportionate response to warrant acting contrary to law.  One imagines that making ‘a complaint’ is not a matter of urgency nor is it ‘proportionate’ to break the law to let the RFS commander know your opinion. No doubt the commander is busy, and they are not required to check with everyone who may have an opinion before making a decision. The structure of the RFS and the incident management system does not anticipate decision making by democratic consultation in the face of a bushfire.  If a person had a complaint that could be communicated by phone to a regional command facility.   

Conclusion

The doctrine of necessity may justify entering inclosed lands to communicate with the RFS where that was in response to an immediate need and the action was proportionate to that need.  It might be justified by a person escaping a fire or needing to communicate an urgent threat to life. But there are other ways to communicate with the RFS, given that the local commanders are busy fighting a fire. One is to use a telephone to ring the Incident Coordination Centre to make a complaint, or triple zero to report an immediate threat to life. 

Where there are alternatives, it is not open to people to ‘choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law’.  People are not free to break the law on the basis that they believe their actions ‘serves some value higher than that implicit in the law which is disobeyed’.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.