THE EDITOR: The Trespass Amendment Bill 2019 has passed the Senate and is to go for assent. This law intends to criminalise the tort of trespass without criminal trial, which raises the spectre of confusion of laws and jurisdictions, evidence and procedures.
The amendment does not say what the standard of proof is to be. It seems to cover all categories of lands and premises, not merely residential – without explicitly saying so.
In the law of trespass before now the offended occupier had to engage the law to assert his cause. The same thing must happen under the amendment; and this begs the question: why was the amendment needed? The answer would seem to be to add draconian penalties.
The amendment now includes heavy fines and imprisonment at the level of indictable offences being imposed, where an occupier is wrongly evicted by “force” even in cases where there could be disputes on title and possession. So what it does is add new liability and risk onto objective defects.
As if to try to counter-balance this mess, the amendment purports to punish as heavily occupiers who resist a forced dispossession when it is found they had no right to do so.
Altogether, these provisions add complexity and criminality without regularising title or possession and further complicate the law, giving work to lawyers they would not have had, either under the existing statutory setting or the law of tort.
E GALY via e-mail