- Public and private space
- Banning notices
- Security guards
- Contesting a charge of Trespass
- Inclosed land
- Excluding the notice
- Lawful excuse
Practice Pointers: Banning the Banning Notice
Chris Grant [*]
There is an ever increasing practice of shopping centres banning and excluding young people from publicly used spaces. Through their use of private property rights and security staff, shopping centres target young people for often spurious reasons, then issue banning notices. Young people who return and re-enter the centre in breach of the banning notice are charged with criminal trespass under the Inclosed Lands Act 1901 (NSW).
The rise in the number of young people in NSW charged with trespass on a shopping centre has been exponential since 1995, when 17 young people were charged. In 1996 it was 46, in 1997 it was 85 and in 1998 it rose to 121 young people being charged with trespass for being in a shopping centre. [1] To date no figures are available for 1999, but anecdotal evidence from the Children’s Legal Service and youth workers would suggest that the increase will be even greater in 1999.
These practices are a completely unfair and inappropriate way to address an issue that is essentially about privatisation of public space.
Public and private space
In many areas of Sydney, and as part of a world trend, the old style village or street shopping areas have now been replaced with mega shopping malls or centres where a vast variety of shops and essential services are located under one roof. For young people these shopping centres are the modern equivalent of the old local streetscape which contained shops, parlours and community halls.
Streetscapes provided public areas where young people could play or hang out with friends. Many of these public spaces have now been fenced off, called shopping centres, and created as an environment which, supported by security companies, discourages participation by young people in the general life of the centre unless they are spending money.
Classifying the land which shopping centres occupy as ‘private’ or ‘public’ is difficult because they contain elements of both. From a strict property law perspective, the land is private land usually owned by a large corporation and leased out to the operator/manager of the shopping centre.
The lessor then allows the public to enter the premises during operating hours and use the services, facilities and space. It does this by granting to each member of the public an implied licence to be on the premises.
For these reasons shopping centres have been described as privately-owned-public-space, and this description seems to capture its dual status.
Banning notices
Shopping centres have developed a practice of issuing ‘banning notices’ to those members of the public they wish to exclude from the centres, usually young people. These notices vary from centre to centre: various titles include ‘Notice Prohibiting Entry’ and ‘Termination of Licence’. The notices may also take the form of a letter to the young person from the operations manager of the centre.
Banning notices generally advise that the specified person is forthwith prohibited from entering the centre for a period. Six months to 2 years is the length of time usually specified, however, there have been cases where people have been banned for longer, including a six-year ban and a lifetime ban.
Unfortunately there are no publicly available figures for the number of people banned from shopping centres. Based on a conservative hypothesis that for every young person who returns to the centre and is charged with trespass by the police, there would be another ten young people who comply with the order and don’t return or, if they do return, they are given a warning, then the number of people banned from shopping centres in NSW is likely to be in the thousands.
Security guards
In practice, the issuing of notices is the domain of the rostered security guards, who usually focus on young people. Young people often hang out in centres to socialise rather than shop, and hence are easy and visible targets for security guards.
From anecdotal evidence and studies undertaken by youth organisations, [2] security guards frequently hand out banning notices to young people for the most frivolous of reasons, such as association with other ‘adversely known peers’ or simply questioning the guards.
The centres appear to give security guards an open-ended discretion in the issuing of banning notices. For example, some of the notices do not state the reasons for the prohibition on entry, and those that do refer to such vague pronouncements as ‘anti-social behaviour’ or ‘acting in a disorderly/unruly manner’ and ‘obstructing traffic flow’. If the young person is accused of committing a criminal offence such as shoplifting, assault or public order offences in the shopping centre they are, as a matter of course, issued with a banning notice. This is in addition to being charged and prosecuted by the police for the alleged offence.
There are no regulations, guidelines or procedures with which the security guards must comply in issuing the notices. Therefore, despite having no more powers than a private citizen, a guard can impose far greater sanctions and consequences on young people (namely, banning from shopping centres) than those likely to be imposed by a court, and without involving any due judicial process.
Once the young person breaches the banning notice by entering the centre again, the security guards hold the young person while the police are called. On the request of the centre, the police then charge the young person with trespass under s.4(1) of the Inclosed Lands Act.
Contesting a charge of Trespass
Inclosed land
The term ‘inclosed land’ (these days more usually spelt ‘enclosed’) is given a comprehensive definition in the Inclosed Lands Act, and includes public and private land inclosed or surrounded by a wall or boundary or natural feature, and including land used in connection with a building or structure.
Certain fact situations have given rise to arguments that the young person was not on ‘inclosed land’ as defined, for example, that they were on one of the common areas attached to the centre such as a bus stop, public telephone area or a public footpath. The definition must not be read so broadly to cover such areas, as to do so would be to extend private property rights to areas of public utility and to areas that are attached to other services not part of the shopping centre. In addition, these common areas are not fenced or partly fenced and may not come within the definition of ‘enclosed’ (see Vale v Hartley (1941) 58 WN NSW 217; Ex parte Wallace [1892] NSWLawRp 1; (1892) 8 WN NSW 90).
Excluding the notice
The prosecution generally relies on the evidence of the banning notice being issued and served on the young person as the proof that the shopping centre did not consent to the young person being on the premises. If the banning notice can be excluded as evidence, the prosecution may not make out this element of the offence.
One argument for excluding the notice is under the Minors (Property and Contracts) Act 1970 (NSW) (Minors Act), legislation unique to NSW. It comprehensively sets out the law relating to minors (people under 18 years old) and their capacity to enter contracts, proprietary agreements or other obligations. The general thrust of the Act is that only transactions entered into by a minor that are for their benefit are binding (s.19).
The transactions that come within the Act are collectively called a ‘civil’ act. They are numerous and various, and are defined in s.6. They include:
• s.6(j) — a grant of any leave or licence; and
• s.6(m) — without limiting the generality of the foregoing, any act relating to contractual rights or obligations or to any chose in action.
A young person accepts service of the banning notice and agrees to comply with that notice. Further, the young person is usually requested to sign and acknowledge the contents of the notice. As s.6(j) specifically refers to the granting of a licence, and should cover a termination of licence, and s.6(m) places a broad interpretation on the section, it can be argued that a minor’s acceptance of the shopping centre’s termination or withdrawal of its licence is a ‘“civil act” covered by the Minors Act’.
If the Minors Act applies, clearly the minor, by signing the banning notice, is not participating in a civil act for their benefit. There is no benefit to a young person to agree to be excluded from a shopping centre for a number of months. To do so denies them access to all essential facilities and the opportunity to continue to participate in their social network. To comply with the Act, the young person is required to serve a Notice of Repudiation on the shopping centre.
In summary, it is argued that banning notices issued to young people are covered by the Minors (Property and Contracts) Act and, not being for their benefit, are therefore not binding or enforceable in law. If a court accepts this argument, the prosecution will no longer be able to rely on these notices to prove lack of consent to make out the offence.
Another argument for excluding the notice is under the Evidence Act 1995 (NSW). Sections 135 and 137 give a court a general discretion to exclude evidence if its probative value is substantially outweighed by the danger that the evidence might be prejudicial, misleading, or result in an undue waste of time. It is then a matter of raising any flaws in the notice or the prosecution evidence related to the notice. Examples of how the probative value of the banning notice might be challenged include:
• failure of the security guard/representative from the shopping centre to properly explain to the young person the meaning and consequences of signing the notice, or to have a guardian or parent present at the time. In these circumstances it would be unfair on the young person to admit the notice as evidence against them because of general policy concerns about the capacity of minors to enter arrangements that affect their rights;
• the notice does not attach a map or have clear boundaries as to where the prohibition applies, making it unclear or confusing;
• the notice is misleading in that it does not specify the correct penalty for breaching the notice; or
• the notice is not properly executed — it is signed by ‘Joe’, the security guard.
A third argument may be on the question of service. The prosecution must prove service of the notice on the young person; in a number of cases the prosecution has not been able to do so, and the court has dismissed the charge.
Lawful excuse
A person can defend the charge if they can show a ‘lawful excuse’ for being on the premises.
The Inclosed Land Act is of 1901 vintage, and is of little assistance: it gives as its only example of ‘lawful excuse’ when a drover in charge of stock enters inclosed land for purposes of preventing stock from straying.
Many of the cases that discuss the meaning and scope of the term ‘lawful excuse’ involve people being on private land for the purposes of a peaceful protest against certain activities undertaken on the land. [3] None relates to lawful excuse for trespass on shopping centres, or on land where, similarly, private land also has a public use element. It is argued that trespass on this category of enclosed land needs to be challenged to a higher court. This would enable a court to examine and rule on the meaning of lawful excuse within the context of the numerous distinguishing features of these cases.
DPP v Willie & Ors (1999) NSWSC 661 [4] concerns three defendants who entered a construction site on the eastern distributor motorway by breaking through a wire fence, and were charged with trespass under the Inclosed Lands Act. Signs on the fence said ‘no unauthorised personnel’ and ‘no pedestrian access’.
Their defence was that by making a peaceful protest they had a lawful excuse to be on the land. The Supreme Court did not agree, and held that an absence of criminal intent did not equate to a lawful excuse. The court narrowly defined ‘lawful excuse’, limiting it to defences that apply in civil trespass, such as necessity to preserve life or protect property, and honest and reasonable mistake where the mistaken facts, if true, would give a right of entry.
This narrow definition of lawful excuse outlined in DPP v Willie should be confined to the facts of the case: it dealt with fenced off, private property without any public entry or use. However the Court in that case does make some general statements about what is required for a lawful excuse. Kirby J quotes with agreement the following statement from Hancock v Birsa (1972) WAR 177:
What it does require, and in my opinion all that it requires is a judgement by the Court as to ‘whether the defendant’s presence on the premises is excusable in all the circumstances of the case’. Hale J states further that ‘without lawful excuse’ is a compendious method of saying without an excuse which would appear to a reasonable man to be adequate in the circumstances.
These statements seem to contradict Kirby J’s narrow definition of lawful excuse; his reference to them could be reconciled by confining his narrow definition to the facts of that case.
To argue a case on ‘lawful excuse’, the statement from Hancock v Birsa is a good starting point as it requires a court to take each case on its merits and to look at all the circumstances. It is then a matter of the evidence persuading a court that the young person’s entry into the shopping centre is ‘in all the circumstances, excusable‘ and that the excuse ‘would appear to a reasonable man to be adequate in the circumstances’.
Research projects, surveys, studies and anecdotal evidence of youth workers conclude that shopping centres are one of the main meeting places for young people because they are low cost and have all the facilities within easy access. They also show that there is nowhere else for young people to meet and ‘hang out’ due to the chronic shortage of public space available and that this situation appears to be getting worse. [5]
At the same time, centres provide every modern facility used by young people and the general community, such as supermarkets, banks, Medicare and government offices, post offices, medical centres and entertainment areas such as cinemas, restaurants and amusement centres. Many of these facilities are not available in the surrounding areas and therefore, options are often non -existent for young people with limited transport means.
Young people from families of non-English speaking background are often heavily relied on by their families to have access to facilities in shopping centres. As well, shopping centres are a huge employer of young people, and to exclude them is to deprive them of potential employment opportunities.
If the young person entered the shopping centre to attend a medical appointment, it would be submitted that it is excusable on the grounds that it is the person’s family doctor who has a history with the young person and there are no reasonable alternative options.
A typical scenario is a young person who enters the centre to meet with friends. This may be excusable by demonstrating to the court the importance of this public space to the young person in maintaining social networks, and by showing, with reference to research studies, the shortage of alternative meeting places.
It is a matter of drawing on the experiences of young people in persuading a court of the importance of having access to the public space of shopping centres and thereby having a lawful excuse. It may also be relevant to point out that the young person was not engaged in any criminal or illegal conduct on entering the centre.
Final word
Courts should consider and test all these issues. The current practice of banning young people from shopping centres is discriminatory against young people, and an erosion of their right to free movement. It also breaches the International Convention on the Rights of the Child.
It is important for lawyers and youth workers to familiarise themselves with these issues, and to advocate for young people against the growing trend of private organisations overtaking public space to which young people should have access. If they do so, the conduct of shopping centres and private security firms in their dealings with young people will inevitably be subject to scrutiny.
[*] Chris Grant is a solicitor with the Children's Legal Service in Penrith.
The views expressed are those of the writer and do not represent policy of the NSW legal Aid Commission.
[1] NSW Bureau of Crime Statistics and Research.
[2] Parramatta Youth Services Network research project, ‘Youth and Public Space, January 1998.
[3] Darcey v Pre-term Foundation Clinic (1983) 2 NSW LR and Mark & Anors v Henshaw (1998) 155 ALR 118.
[5] Numerous studies/papers referenced in the Parramatta YSN, above; Morey, ‘Whose Space Is it Anyway?’, (1999) 52(3) Australian Social Work.
