Trespass Charges in Queensland
Criminal Law — 2026-09-25 — by Sacha Sarah Smith, Civic Law
What makes being somewhere "unlawful" for a trespass charge in Queensland, the Criminal Code excuses that apply, the section 634 police safeguard, the ticket option, and when the charge becomes burglary.
Most trespass charges come out of ordinary situations. A person goes back to a house they used to share, to collect belongings or to talk, or returns to a bar or shopping centre after being told to leave, or cuts through a yard late at night. In Queensland any of those can be charged as trespass under section 11 of the Summary Offences Act 2005 (Qld), which carries a maximum of 20 penalty units or one year's imprisonment.
It is a simple offence under section 46 of that Act, dealt with in the Magistrates Court. Unlike burglary, the prosecution does not have to prove that you meant to steal, damage anything or hurt anyone once inside. It does have to prove that you were there unlawfully, and the Criminal Code 's rules on willed acts, mistake and claim of right apply to the charge.
What the Charge Covers
Section 11 creates two offences. The first is unlawfully entering or remaining in a dwelling, or in the yard for a dwelling. The second is unlawfully entering or remaining in a place used for a business purpose, or in a yard used for one.
A penalty unit is a dollar figure set by regulation, currently $172.70, so the ordinary maximum fine for either offence is $3,454. The maximum fine doubles to 40 penalty units, or $6,908, if the offence was wholly or partly motivated by hatred or serious contempt for a person or group based on actual or presumed race, religion, sexuality, sex characteristics or gender identity. The prison maximum stays at one year. That hatred-based factor comes from section 52B of the Criminal Code , and section 11(4) applies it to trespass.
A dwelling includes a boat, a caravan or a tent when it is being used as a dwelling. The yard of a home does not have to be fenced. The Act defines it as the parcel of land that appears to be within identifiable boundaries. Its examples are fencing, a garden along a boundary, or the fences of the neighbouring blocks showing where the front boundary sits. The yard of a business is narrower. It is the part of the place not occupied by buildings, and only where that part is fenced in a way that ordinarily restricts access when the place is not open to the public, is otherwise ordinarily enclosed to restrict access, or has signs on the premises prohibiting entry.
The words "or remain in" matter as much as "enter". You do not have to have gone in without permission. A person who was lawfully inside, and stays after the permission to be there has ended, can commit the offence by remaining.
Whether You Were There Unlawfully
The Act defines "unlawfully" as without authorisation, justification or excuse by law. Where the evidence raises an authorisation or excuse, it is for the prosecution to exclude it beyond reasonable doubt ( Preston v Parker [2010] QDC 264 at [194], [260]).
Permission from the occupier is the most common authorisation, and it does not have to be spoken. The general law of trespass explains when it exists. In Halliday v Nevill (1984) 155 CLR 1, a case about police walking up a driveway to make an arrest, the majority of the High Court held that where the path or driveway to a house is unobstructed, the gate is unlocked and nothing indicates that visitors are unwelcome, the law implies permission for any member of the public to go to the entrance for the purpose of lawful communication with, or delivery to, someone inside. In the same passage the Court said that this implied permission can be refused in advance, or withdrawn at any time, expressly or by implication ([6]).
Permission also has limits. In Barker v The Queen (1983) 153 CLR 338, a Victorian burglary case, Brennan and Deane JJ said that a person who enters within the scope of a permission becomes a trespasser only when the permission is revoked or exhausted, or when their conduct takes their presence outside its scope (at 357). The withdrawal does not have to come from the occupier in person. In Preston v Parker , where the business had complained to police, officers telling the man to move on were acting on the occupier's behalf ([203]).
Having lived somewhere does not by itself give you a right to go back, and owning or renting it may. A domestic violence order can change that. It can include an ouster condition, which bars you from entering or staying at a stated address, and section 63 of the Domestic and Family Violence Protection Act 2012 declares that the address can be one in which you have a legal or equitable interest, such as a home you own or rent. If you were in court when the order was made, were served with it, or were told about it by police, going there against that condition is a contravention of the order under section 177 of that Act. The maximum is 120 penalty units ($20,724) or three years' imprisonment, rising to 240 penalty units or five years if you were convicted of a domestic violence offence in the five years before. Where both charges are laid, the contravention carries the much higher maximum.
Trespass does not need an intention to do anything once inside, but it is not an offence of accident. Section 36 of the Criminal Code applies the Code's rules on criminal responsibility to offences under any Queensland Act, and three of them matter here.
First, under section 23(1)(a) you are not criminally responsible for an act that occurs independently of the exercise of your will. The entry, or the staying, has to be your own willed act.
Second, under section 24, a person who acts under an honest and reasonable, but mistaken, belief about the facts is not criminally responsible to any greater extent than if the facts had been as they believed. If you honestly and reasonably believed you had been invited, you are not criminally responsible for being there. The belief has to be reasonable as well as honest.
Third, under section 22(2) you are not criminally responsible for an offence relating to property if you acted in the exercise of an honest claim of right and without intention to defraud. In Preston v Parker the court accepted that trespass is an offence relating to property, so this applies to it ([196]). The question is whether you honestly believed you were legally entitled to be there, and that belief can come from the owner's consent or from a mistaken belief about your own title ([199]–[201]). The section requires the claim to be honest and does not add a requirement that it be reasonable. In Preston itself the claim failed, because from the first move-on direction he knew he had no permission to be on the steps ([202]).
Where the evidence raises any of these, it is for the prosecution to exclude it beyond reasonable doubt.
Police Have to Give You the Chance to Explain
Section 634 of the Police Powers and Responsibilities Act 2000 (Qld) applies to trespass and a few other Summary Offences Act offences. A police officer who suspects you of trespass must, if reasonably practicable, give you a reasonable opportunity to explain why you were at the place or why you entered it. The section then says the officer may start a proceeding if you fail to give an explanation, if the officer considers the explanation you give is not a reasonable one, or if your own conduct made it not reasonably practicable to give you the chance. The Act's example of that last situation is a person who is struggling, or speaking loudly without stopping.
The section does not say what happens if police skip that step. District Court judges hearing appeals have answered it, applying the Court of Appeal's reasoning about a similar safeguard in Rowe v Kemper [2008] QCA 175. Following the safeguard is not itself an element of trespass ( Preston v Parker at [145]; Bismark v Queensland Police Service [2014] QDC 152 at [20]). But a person should not be regarded as having committed the offence until it has been followed ( Preston at [143]; Bismark at [19]), and in Preston the court proceeded on the basis that the prosecution has to prove compliance beyond reasonable doubt ([146]).
In Bismark a man was convicted of trespass after entering a yard in Mount Isa. The officer had not asked him to explain himself because he appeared intoxicated. On appeal the court held that the obligation continues up until the person is charged, and that whether it was impracticable is judged objectively ([22], [25]). Nothing in his conduct, certainly by the time he was at the watch house, made it impracticable ([26]). The court said the failure could not be excused as inadvertent, because the legal foundation for the charges was not made out. The convictions were quashed and acquittals entered ([27]–[28]). In Newell v Weston [2015] QDC 158 the court upheld a magistrate's dismissal of a trespass charge against a man found at night inside a secured area of an industrial site. Officers had asked him his name several times before arresting him, so there was nothing stopping them from asking why he was there ([16]–[20]).
The safeguard does not require police to accept what you say. Where you give an explanation and the officer considers it unreasonable, what matters is that officer's own view, and it does not have to rest on reasonable grounds ( Preston at [149]–[151]). In Preston the officer had considered the explanation, and the conviction was upheld ([188], [266]). Whether you were asked, and what you said, is something to check against the police statements and any body-worn camera footage in the brief of evidence.
A Ticket or a Court Date
Police can deal with trespass by an infringement notice instead of a charge. The amount, set in the State Penalties Enforcement Regulation 2014 , is 2 penalty units for either kind of trespass, which is $345 after rounding down. Within 28 days you can pay it, or elect to have the matter decided in a Magistrates Court ( State Penalties Enforcement Act 1999 , section 22). If you pay, or otherwise begin to discharge the fine, you cannot be prosecuted in court for the offence (section 25). If you elect, a proceeding for the offence may be started in the Magistrates Court (section 27).
If you plead guilty or are found guilty in court, the court then decides whether to record a conviction, under section 12 of the Penalties and Sentences Act 1992 . It must consider all the circumstances. The Act names the nature of the offence, your character and age, and the effect a recorded conviction would have on your economic or social wellbeing and your chances of finding work. Where a conviction is not recorded, it is taken not to be a conviction for any purpose, subject to exceptions expressly provided by that Act or another Act.
When the Charge Is Something More Serious
Trespass is the least serious of a group of offences about entering places. Burglary, under section 419 of the Criminal Code , is entering or being in someone else's dwelling with intent to commit an indictable offence in it. Stealing and assault are examples of indictable offences. The maximum is 14 years' imprisonment. It is life if an indictable offence was actually committed inside, or the entry was by breaking in, or the offence was at night, or it involved violence or threats, being armed or pretending to be armed, being in company with others, or damage to property. Section 421 covers entering or being in other premises with that intent, with a maximum of 10 years, rising to 14 years if an indictable offence is committed inside, and to life if the person also broke in.
The difference is in what the prosecution has to prove about why you were there or what you did. For trespass it is a willed entry or stay without authorisation, subject to the excuses above. Burglary and section 421 go further. The prosecution must prove either that you meant to commit an indictable offence inside, or that you actually committed one there. Where the evidence does not establish either, the more serious charge is open to challenge.
In R v Smith [2008] QCA 406 the Court of Appeal held that "premises" in section 421 covers buildings and structures but not the land around them. A man who went into a yard but never entered the house could not be guilty of that offence, and his conviction was quashed ([26]).
Trespass can also be charged together with other offences from the same incident, such as wilful damage, public nuisance or obstructing police. Each has its own elements.
Civic Law acts for people charged with trespass, burglary and related offences in the Cairns Magistrates Court and across Far North Queensland. To discuss a charge and what defending or resolving it would involve, contact the practice to arrange a consultation.
Contested Hearing (Magistrates Court)
Unlawful Entry / Break and Enter