8) Important Legal Stuff

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Some Legal History

Prior to 1970, squatting was not illegal in NSW. It was a civil offence.
That meant that if someone occupied a place (i.e., trespassed) and the
owner wanted them out, then they would have to apply to a court to get a
'possession order' allowing them to take the place back from the
squatters. All of this could take some time meaning that squatters enjoyed
a bit of security. While things were in court they could work out what
they wanted to do / where they wanted to go etc.

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. To do this they proposed to
pass a law that made it illegal to demonstrate without prior police
permission. And they quietly passed a law making 'sit-ins' - and
therefore, squatting - on private property illegal.

Squatting was not always a crime and it still isn't illegal in many other
places. In England, for example, the Tory government tried to criminalize
squatting in 1974. A very visible and effective campaign by squatters,
workers, trade unions and civil liberties groups led to these plans to be
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. 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.
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'.

Squatting Today

Today, squatting in NSW is covered by the Inclosed Lands Protection Act
(NSW). Under that law it is illegal to either :

1. enter upon inclosed lands without consent from the owner or
representative of the owner.

OR

2. remain upon inclosed lands after being requested to leave by the owner
or the agent.


If there is no evidence that you actually entered without 'lawful excuse'
or 'consent' - i.e., a witness' account, surveillance camera footage,
crowbars and broken locks lying around - then you cannot be charged under
the 'entering' provision. It's important to not admit to entering without
consent. If asked, say something like the door was open when you - or some
imaginary third person who used to live there - walked in and decided to
secure the place and stay.

This means that once you are inside and have secured your place then you
cannot be evicted until the owner, or the owner's representative or agent
[eg, security guard, hired henchperson etc] actually asks 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 authorization that they
are acting on behalf of the owner. Police and neighbours cannot just ask
(or try and force) you to leave without prior direction from the owner. So
knowing who the owner is and what they plan to do with the place is
important because it will help you see through the lies that potential
evictors are likely to tell you - i.e., that they are the owners and they
need you out because they need to start construction of a fun park or
something. Also, you may be able to bluff them into thinking that you have
made a mutual agreement with the owner regarding your living there. When
demanding to see their ID, do not reveal who the owner actually is and
don't say who you are unless they specifically ask - this will only make
it easier for wannabe evictors to get you out. If they do not or cannot
prove that they are authorized to act, then tell them that they are not
legally empowered to ask you to leave and ask them to go away. Be careful
but be assertive, and don't be intimidated into leaving when you don't
have to.

If they are authorized and they ask you to leave then try and negotiate
for some time or try talking them into letting you stay. Sometimes they
may go away and not bother you for months. Other times they may come back
with some police when you are even less prepared. Either way it will give
you some time to work out want you want to do - open up another squat,
move your stuff out, organize an eviction party/protest/media event,
fortify the place etc. If they are authorized to act and they ask you to
leave and you refuse, then you could be arrested for trespass under the
Inclosed Lands Protection Act. However, this rarely happens. Arrests of
squatters are very uncommon. Most owners will just want you off the
property and are not interested in pressing charges.

If you are arrested then you need only tell the police your name and
address. 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 (i.e., name
and address of your squat). You do not have to answer any questions at
all, 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. But give your name and the address of your squat for bail.
You must be 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. However, if you don't have ID then this could be difficult and
you will have to verify it some other way. The police may hold you if they
think that you will re-offend (re-squat) which may be likely for squatters
who cannot prove alternative means of accommodation. If this happens, you
may have to tell them that you will be staying at a friend's house. If you
are not bailed you must be brought before a magistrate within a
'reasonable' time. The magistrate will either bail you, 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 are usually referring to is the doctrine of 'adverse possession'
- an old English common law (i.e., judge-made not parliament-made) rule
that allows squatters to get legal title (i.e., 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. There are, however, certain
steps the owner, owners representative or police have to follow if they
are to evict you. And there are plenty of extra-legal things that you can
do to postpone eviction or stay there indefinitely [see section on
'important extra-legal stuff'].

Legal Help

If you are squatting it is a good idea to get in touch some community
legal centres/tenancy services, or at least have their phone numbers
handy. Though they are generally underfunded and overworked they should be
able to give you some legal advice/information if you need it. Try and
find someone with some knowledge of the law who is prepared to help in the
time of eviction - they may prove valuable in negotiating with the
police/owners.

Better still, be your own lawyer. The Activists Rights Handbook -
published by Redfern Legal Centre Publishing - is a good source of
information on police powers, what to do if arrested etc. Find yourself a
copy, familiarize yourself with its contents and have it handy in times of
owner/police negotiation or confrontation. Get a copy of the Inclosed
Lands Protection Act and familiarize yourself with the relevant bits -
quoting section 4 may be enough to get an unauthorized wannabe evictor to
back off for a while. You can find legislation in the NSW state library or
in most university libraries. Or if you can access the internet, you can
find all current Australian laws at the Australasian Legal Information
Institute site @
http://www.austlii.edu.au. The Law Handbook - published by RLC Publishing - is available in most
libraries and is a good source of information on legal rights. The Tenants
Rights Manual - edited by Philipa Bellmore and published by RLC Publishing
- also has a small section on squatting. This information is of limited
use and merely highlights the disadvantages of squatting as compared to
renting.

Be confident and learn what little 'rights' you have as a squatter.
Knowing where you stand legally will help you act effectively at eviction
time.

 

  Important Extra-Legal Stuff

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