Important Legal Stuff
Some Legal History
Prior to 1970, squatting was not illegal in NSW; it was a civil offence. This meant that if people occupied a building (ie. trespassed) and the owner wanted them out, the owner had to apply to court to get a ‘possession order’ allowing him or her to take the place back from the squatters. This all could take some time, meaning squatters enjoyed a certain amount of security: while matters were in court they could work out what they wanted to do and where they wanted to go.
During the late 1960s there were a lot of student/worker/citizen demonstrations in cities around the world. When anti-Vietnam protestors began ‘sit-ins’ — a form of trespass — in Australian cities around this time, the conservative NSW Liberal government began a ‘law and order’ campaign to make protesting more difficult. It proposed a law that made it illegal to demonstrate without prior police permission. And it quietly passed a law making ‘sit-ins’ — and, therefore, squatting — on private property illegal.
Squatting still isn’t illegal in many other areas. Until recently, squatting was still only a civil offence in Victoria, giving squatters there a greater degree of security than in states such as NSW. In England the Tory government tried to criminalise squatting in 1974, but a very visible and effective campaign by squatters, workers, trade unions and civil liberties groups led to these plans being shelved. More recently, the English government tried to outlaw squatting through the infamous Criminal Justice Bill. But even now, after the passage of the bill, squatting is still not a criminal offence.
Squatting is not a crime in and of itself.
It is made criminal by particular governments for particular reasons — usually in a spurious and spectacular attempt to maintain ‘law and order’.
[For more detail, see Chapter 11, Squatting History.]
Squatting Today
Squatting in NSW is covered by the Inclosed Lands Protection Act (NSW). Under that law it is illegal to either:
This means that once you are inside and have secured your building you cannot be evicted until the owner or the owner’s representatives, such as security guards or hired henchpersons, ask you to leave. When this happens, don’t simply let them in; talk to them through the door if possible. Demand to see their ID and some authorisation that they are acting on behalf of the owner.
Police and neighbours cannot order you to leave without prior direction from the owner. Knowing who the owner is and what he or she plans to do with the building is important because it will help you see through the lies potential evictors are likely to tell you, for example, that they are the owners and they need to start construction of an apartment block. You also may be able to bluff them into believing you’ve made an agreement with the owner regarding your living there. When demanding to see their ID, don’t reveal the name of the owner — this only will make it easier for wannabe evictors. If they cannot prove they’re authorised to act, tell them they are not legally empowered to ask you to leave and ask them to go away. Be careful and assertive, and don’t be intimidated into leaving when you don’t have to.
If they do have proof of authorisation and they ask you to leave, try talking them into letting you stay, or at least negotiate for some leeway: a few weeks or days to pack up your things and find somewhere else. Sometimes they may go away and not bother you for months. Other times they may come back with police when you are even less prepared. Either way it will give you some time to work out want you want to do — fortify the place, move your stuff out, open up another squat or organise an eviction party/protest/media event.
If they are authorised to act and they ask you to leave and you refuse, you could be arrested for trespass under the Inclosed Lands Protection Act, but this rarely happens. Arrests of squatters are very uncommon; most owners just want you off the property and are not interested in pressing charges.
If you are arrested you need only tell the police your name and your address (the address of your squat). You will be taken to the police station, your name and fingerprints will be taken, and you will probably be released quite quickly. You do not have to go to the police station unless you are arrested.
Don’t tell the police anything more than you have to: your name and the address of your squat. You do not have to answer any other questions, either before arrest or during interrogation. You must be informed of your right to remain silent during interrogation. DO NOT SAY ANYTHING!! Once you speak you cannot go back to being silent — it could go against you in court. Nothing can go against you in court for remaining silent to EVERY question.
You are entitled to a phone call: use this chance to call someone for help and legal assistance.
You should be allowed bail if the police are fairly certain as to your identity. If you don’t have ID you will have to verify your identity some other way. The police may hold you if they think you will re-offend (re-squat) which may be likely for squatters who cannot prove alternative means of accommodation. If this happens, tell them you will be staying at a friend’s house. If you are not allowed bail you must be brought before a magistrate within a ‘reasonable’ time. The magistrate will either give you bail, remand you (only in exceptional circumstances) or hear the charge.
Squatters’ Rights
If you talk about squatting, people will often mention ‘squatters’ rights’. What they’re usually referring to is the doctrine of ‘adverse possession,’ an old English common law (ie. a rule made by judges not by parliament) that allows squatters to get legal title (ie. own) the property they occupy if the owner shows absolutely no interest in it for a certain period of time. However, the length of time required is so long (12–18 years) and the conditions are so strict that you may as well forget about ‘squatters’ rights’ giving you any legal protection. There are no ‘legal rights’ for squatters. But there are certain steps the owner, owners representative or police must follow if they are to evict you, and there are plenty of extra-legal things you can do to postpone eviction or stay on indefinitely (see Chapter 9, Important Extra-legal Stuff).
Legal Help
If you’re squatting it’s a good idea to make contact with some community legal centres or tenancy services, or at least have their phone numbers handy. Though they’re usually under-funded and overworked they should be able to give you legal information if you need it. As well, try to find a friend or acquaintance with some knowledge of the law who is prepared to help in the time of eviction — he or she may prove valuable in negotiating with the police or owners. For your nearest community legal centre call Law Access NSW, on 1300888529. For languages other than English, call the Telephone Interpreting Service on 131450, or look at the website www.lawaccess.nsw.gov.au
Better still, be your own lawyer. The Complete Activists’ Guide published online by the National Association of Community Legal Centres at www.naclc.org.au/activist, is a good source on police powers and what to do if arrested. It covers law in each state in Australia. Familiarise yourself with its contents and have it handy in times of owner/police negotiation or confrontation. The Law Handbook (Redfern Legal Centre Publishing) is available in most libraries and is also a good source of information on legal rights.
Get a copy of the Inclosed Lands Protection Act and familiarise yourself with the relevant bits: quoting section 4 may be enough to get an unauthorised wannabe evictor to back off for a while. You can find legislation in the NSW state library or in most university libraries, or at the Australasian Legal Information Institute website www.austlii.edu.au
For information on ASIO and Australian Federal Police powers under Terrorism Laws see “ASIO, the Police and You” (Australian Muslim Civil Rights Network) published at http://amcran.org
Be confident and learn about the few ‘rights’ you have as a squatter. Knowing where you stand legally will help you act effectively at eviction time.