Gary Moore | Lawyer | Senior Researcher | Free Market Foundation | mail me |
We have lodged objections to the proposed Unlawful Entering on Premises Bill, 2022, in response to the invitation to comment that was gazetted by the Department of Justice. The bill is intended to replace the Trespass Act of 1959.
We object to the bill’s unconstitutional presumptions and ambiguous clauses. The bill claims to criminalise only unlawful entry onto private property, but in effect it would create six offences.
Offences
A person who enters premises without consent would commit the offence of unlawful entry. A person ‘found on or in’ premises without permission would commit an offence. A person directed by a lawful occupier to leave who does not do so would commit an offence. It would be an offence to remove or alter a notice sign posted at a point of access to the premises. Failure to adhere to a police officer’s order to leave would be an offence. Erecting and occupying housing on the premises would be an offence.
These offences would be buttressed by unconstitutional presumptions of guilt. A person found on premises without permission would be presumed to have entered unlawfully.
Persons who without consent erect and occupy housing on premises would also be presumed to have entered the premises unlawfully. Innocent persons would be brought before court and would need to prove their innocence, thus subverting the constitutional presumption of innocence.
The heavy-handedness of the bill, which is three times longer than the present Trespass Act it aims to repeal is critiqued.
As to the clause requiring the arrest of those who erect and occupy housing, the primary purpose of an arrest is to bring the person who is arrested before court for trial. This consideration must be at the centre of the decision to arrest.
Violations of the right to personal dignity
Arrest is a serious inroad into the freedom and privacy of the person arrested and must be sparingly exercised.
When the matter is not urgent and the person charged has a fixed and known address, it is desirable instead for the prosecutor to secure the attendance by the accused in the magistrate’s court by issuing to the person a summons to appear in the court.
The draft bill was not accompanied by the required Socio-Economic Impact Assessment to gauge its costs as well as its benefits and risks.
We object to the proposed bill’s violations of the fundamental right to personal dignity and of the presumption of innocence, and to the ambiguities inherent in many clauses of the bill, which would lead to inconsistent application and thereby undermine the rule of law.
You can read the our comments to the Director-General: Justice and Constitutional Development here