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 police safeguard that has to be followed before the charge is laid, 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), and the maximum penalty is one year's imprisonment.
It is a simple offence under section 46 of that Act, dealt with in the Magistrates Court, and it does not require any intention to steal, damage anything or hurt anyone. Most of the law on it is about one word in the section: whether you were there "unlawfully".
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.
The maximum penalty for either is 20 penalty units or one year's imprisonment. A penalty unit is a dollar figure set each year, currently $172.70, so the maximum fine 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 because of their 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 while someone is living in it. 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 open part of the place that is fenced or enclosed to keep people out when the business is closed, or where signs prohibit 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, commits the offence by remaining.
Whether You Were There Unlawfully
The Act defines "unlawfully" as without authorisation, justification or excuse by law. The prosecution has to prove it beyond reasonable doubt. Where the evidence raises an excuse, it is for the prosecution to exclude it ( Preston v Parker [2010] QDC 264 at [260]).
Permission from the occupier is the obvious authorisation, and it does not have to be spoken. The High Court has 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 anyone to walk to the front door to speak to, or deliver something to, someone inside ( Halliday v Nevill (1984) 155 CLR 1 at [6]). In the same passage the Court said that implied permission can be refused in advance, or withdrawn at any time, by words or by conduct.
Permission also has limits. Someone who came in with permission becomes a trespasser when the permission is revoked or used up, or when what they do goes beyond it ( Barker v The Queen (1983) 153 CLR 338 at 357, Brennan and Deane JJ). Being told to leave a venue or a house ends the permission. Staying on after that is what the "remain" part of section 11 is aimed at.
Having lived somewhere is not the same as having the right to go back. What matters is whether you had authority to be there on the day. A domestic violence order can include an ouster condition, which bars you from entering or staying at a stated address. 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. Going there against that condition is a breach of the order, which is a separate offence 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 have a domestic violence conviction from the previous five years. Where that charge is laid alongside trespass, it is the more serious of the two.
A genuine mistake can also answer the charge. The rule is in section 24 of the Criminal Code , and section 36 applies it to criminal offences under Queensland legislation generally. 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 believed you had been invited, and that belief was reasonable on what you knew at the time, you are not criminally responsible for being there. Where the evidence raises that belief, it is for the prosecution to exclude it. The belief has to be reasonable as well as honest.
Police Have to Give You the Chance to Explain
Trespass is one of a small group of offences in the Summary Offences Act that carry a safeguard in section 634 of the Police Powers and Responsibilities Act 2000 (Qld). 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 officer can start a proceeding only in three situations. You do not give an explanation, or the officer considers your explanation is not a reasonable one, or 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 District Court has treated this as a mandatory step before a trespass charge can be started. In Bismark v Queensland Police Service [2014] QDC 152, 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. Nothing in his conduct, certainly by the time he was at the watch house, made it impracticable. The convictions were quashed and acquittals entered ([25]–[28]). In Newell v Weston [2015] QDC 158, the court upheld the 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. If an officer asks, hears your explanation and considers it unreasonable, the charge can proceed. The officer's view does not have to rest on reasonable grounds ( Preston v Parker at [151]). 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. If you pay the fine, or begin to pay it, you cannot be prosecuted in court for that offence ( State Penalties Enforcement Act 1999 , section 25). If you dispute the allegation, you can instead elect to have the matter decided by a Magistrates Court, and it then proceeds as an ordinary charge (sections 22 and 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 limited exceptions in that 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. Indictable offences are the more serious category under the Criminal Code , such as stealing or assault. 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 between them is intent. Trespass needs none. Burglary and section 421 require the prosecution to prove that you meant to commit an indictable offence inside. Where the evidence does not establish that, 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, and they are dealt with together, so the strategy has to account for all of them.
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