A person who enters or remains on premises for an unlawful purpose, or without lawful excuse, commits an offence according to Section 17 of the Summary Offences Act 1953 (SA). The law applies both to general premises and to primary production premises, with harsher penalties for the latter.
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Summary offence
Magistrates Court of South Australia
Maximum penalty of 2 years imprisonment
Being on Premises for an Unlawful Purpose Key Facts
| Offence |
Being on premises for an unlawful purpose - a person who has entered, or is present on, premises for an unlawful purpose or without lawful excuse commits an offence. Primary production premises - a person who has entered, or is present on, primary production premises for an unlawful purpose or without lawful excuse commits an offence. Premises includes any land, building or structure, and any aircraft, vehicle, ship or boat. Primary production premises are premises used for agricultural, pastoral, horticultural, viticultural, forestry or apicultural activities, poultry or dairy farming, soil cultivation, crop gathering, rearing or processing of livestock, commercial fishing, aquaculture, or propagation/harvesting of aquatic organisms. [Summary Offences Act 1953 (SA) s 17] |
| Maximum Penalty |
Other premises (s 17(1)) Unlawful purpose punishable by ≥ 2 years: 2 years’ imprisonment. Other cases: $2,500 or 6 months’ imprisonment. Primary production premises (s 17(a1)) Unlawful purpose punishable by ≥ 2 years: 2 years’ imprisonment. Other cases (aggravated): $10,000 or 12 months’ imprisonment. Other cases (not aggravated): $5,000 or 6 months’ imprisonment. Failure to comply with police direction to leave (s 17(2)-(3)): $2,500 or 6 months’ imprisonment. Compensation (s 17(3a)-(3b)): For aggravated primary production offences, the court must order compensation for injury, loss or damage unless exceptional circumstances exist. |
| Aggravating Circumstances |
For primary production premises, aggravated if any of the following apply [s 17(a2)]: - interference with (or intent to interfere with) primary production activities; - accompanied by 2 or more persons; - conduct giving rise to a serious risk to safety; - conduct giving rise to risk of disease/pest spread or contamination (or other prescribed risks); - intentional or recklessly indifferent damage to operations or activities connected to the primary production activities. |
| Typical Sentence | Outcomes range from fines to short terms of imprisonment for non-aggravated matters, with higher penalties for unlawful purpose offences (punishable by ≥ 2 years) and aggravated primary production cases, especially where risk to biosecurity, safety, or operational damage is shown. |
| Which Court? | Usually dealt with in the Magistrates Court as summary offences. More serious matters (e.g. linked offending punishable by ≥ 2 years) may justify sterner penalties but remain within summary jurisdiction unless accompanied by indictable charges. |
| Process Timeline |
Police attendance → Order to leave (where applicable) → Charge/summons → First appearance and bail → Mention/negotiations → Contested hearing or plea → Sentencing and any compensation orders. (Average: 3–9 months, case dependent) |
| Possible Defences |
- lawful excuse (e.g. consent from occupier, emergency, lawful authority); - no unlawful purpose (mere presence without intent to commit an offence); - mistake of fact (honest and reasonable belief in consent or licence to be there); - identity not proved; - for aggravated primary production: aggravating circumstance not made out (no interference, no risk, not accompanied by 2+ persons, etc.). Note: The prosecution bears the onus to prove absence of lawful excuse [s 17(1a)]. |
| What The Prosecution Must Prove |
- Entry or presence on the premises, and absence of lawful excuse. - Intent to commit an offence (and, where relied upon for elevated penalty, that the intended offence is punishable by ≥ 2 years’ imprisonment). - One or more statutory aggravating circumstances under s 17(a2)(for aggravated primary production charges) |
Being on Premises for an Unlawful Purpose Case Scenarios
Below are examples of how being on premises for an unlawful purpose may be charged and sentenced in South Australia. These examples are not indicative of a specific outcome and are for informational purposes only.
Low-Level Offence
Mid-Level Offence
Aggravated Primary Producer Offence
Low-Level Offence
Scenario:
A person is found after hours in the stairwell of a commercial building without permission, intending to sleep inside to avoid the weather. No theft or damage is planned or occurs.
What to expect:
Charged with being on premises without lawful excuse (other premises). The court imposes a $900 fine and no conviction recorded, noting the absence of unlawful purpose punishable by ≥ 2 years and no aggravation.
Mid-Level Offence
Scenario:
Three individuals enter a poultry farm without authorisation, film inside sheds, and open a service door. Biosecurity protocols are breached, creating contamination risk and requiring a vet inspection and disposal of stock.
What to expect:
Convicted of being on primary production premises in aggravated circumstances. The court imposes 2 months’ suspended sentence and orders compensation for vet, decontamination and stock losses.
Aggravated Primary Producer Offence
Scenario:
A person enters a farm and released cattle as part of activist activity.
What to expect:
Convicted of being on primary production premises for an unlawful purpose punishable by ≥ 2 years. The court imposes 9 months’ imprisonment partially suspended after serving a month.
Disclaimer: The examples above are provided for informational purposes only and do not guarantee a specific result in your matter. Sentencing decisions can vary significantly depending on individual circumstances, including the severity of the offence, intent, prior criminal history and other legal factors. For case-specific advice, get in touch with one of our expert criminal lawyers.
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Being on Premises for an Unlawful Purpose FAQ’s
If you need more information about being on premises for an unlawful purpose in South Australia, these FAQs answer the most common questions.
What does “unlawful purpose” mean?
It refers to being on premises intending to commit an offence. Where the intended offence carries a maximum of 2 years or more, higher penalties apply.
What is a “lawful excuse”?
Examples include consent or licence from the occupier, emergency, or lawful authority. The prosecution must prove the absence of lawful excuse.
What counts as “premises”?
Any land, building or structure, and any aircraft, vehicle, ship or boat.
What are “primary production premises”?
Premises used for agriculture, livestock rearing/processing, viticulture, forestry, aquaculture, commercial fishing, apiculture, dairy and poultry, crop cultivation and similar activities.
When is a primary production offence aggravated?
If there is interference (or intended interference) with primary production, the person is accompanied by 2 or more persons, there is a serious risk to safety, a risk of disease/pest spread or contamination (or other prescribed risks), or intentional/recklessly indifferent damage to operations.
Can I be charged if nothing was actually stolen or damaged?
Yes. The offence turns on unlawful presence and (if alleged) unlawful purpose — not on completion of another crime.
What is the penalty for refusing a police direction to leave?
A police officer may order a person to leave where they reasonably believe an offence purpose. Failing to comply carries up to $2,500 or 6 months’ imprisonment.
How do penalties differ between “other premises” and “primary production premises”?
Primary production offences attract higher penalties and special aggravating factors due to biosecurity, safety and operational risks.
Does being with a group make it aggravated?
For primary production premises, being accompanied by 2 or more persons is expressly an aggravating circumstance.
Is peaceful protest a defence?
No automatic defence. Unauthorised presence can still be an offence; aggravation may arise if there is interference with operations, risks to biosecurity or safety, or group entry. Lawful excuse depends on the facts.
What if I thought I had permission to be there?
An honest and reasonable mistake about consent can be relevant. Consent obtained by force, threat or deception is invalid.
What court will hear my case?
These offences are generally heard in the Magistrates Court.
Can the court order compensation?
Yes. For aggravated primary production offences, the court must order compensation for loss/damage unless exceptional circumstances exist.
How is this different from “serious criminal trespass”?
Serious criminal trespass concerns unlawful entry with intent to commit theft, offences against the person, or serious property offences; residential cases carry much higher maximums including up to life imprisonment for an aggravated offence.
What evidence shows an unlawful purpose?
Tools for theft, reconnaissance, time/place of entry, attempts to bypass security, possession of masks/gloves or cutting equipment, and statements or messages can support an inference of intent.
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