‘Twas the night before Christmas, when all through the house
Not a creature was stirring, not even a mouse;
….
When out on the lawn there arose such a clatter,
[You spring] from your bed to see what [is] the matter
[You fear it’s a burglar, but lo and behold…it’s just Santa!]

Hold your reindeer... just Santa? The most relentless and efficient housebreaker of them all? Every year, this jolly old man breaks into homes around the world, deposits presents, and consumes milk and cookies – yet manages to escape the reach of the law. But does the law consider Santa a guest or an unwelcome intruder?

The offence of “breaking and entering” is governed by statute in Australia. In addition to an act of “breaking and entering”, “trespassing” or “unlawful entry” (terminology varies by jurisdiction) onto a property, it requires intent to commit, or actual commission of, an offence on the property. In visiting children’s homes, Santa is engaging in one of the purest acts of goodwill, so it could be said he neither commits, nor intends to commit, any offence. Therefore, a housebreaker Santa is not.

But Santa is not in the clear just yet, at least not in South Australia. In addition to its equivalent of “breaking and entering”, s 170A of the Criminal Law Consolidation Act 1935 (SA) creates a separate offence of “criminal trespass”, which has no element of intention or commission of an offence. A person need only trespass in a place of residence with another person lawfully present, if the trespasser knows of, or is reckless to, the other person’s presence.

It is safe to assume the families of households Santa visits are present on Christmas Eve, most likely fast asleep. Whether Santa is aware of this depends on the circumstances of each case. Actual knowledge aside, a convincing case can be made for Santa’s recklessness as to whether anyone is present. As Santa only wants to deposit goods, it is unlikely he will be taking steps to ascertain whether anyone is present or not, establishing the required recklessness. The only thing now left to determine is: is Santa actually trespassing?

The answer to this question is also crucial to establishing whether Santa could be sued in tort for trespass to land. Unauthorised entry onto another’s land is the essence of trespass. Santa’s visit to a home will only be unauthorised if he has entered in the absence of an express or implied licence from the occupier. If Santa has entered a home to leave gifts in response to a letter received from a child occupying that home asking for those gifts, then he may be entering the home pursuant to an express licence. Leaving out milk and cookies could constitute an implied licence to enter, as any reasonable person in Santa’s position would assume these had been left out in anticipation of his visit. However, the burden of establishing the existence of a licence rests on Santa as the entrant. Therefore, he would be wise to keep the child’s letter, or in the absence of a letter, whip out his smartphone and take a photo of the milk and cookies after parking his sleigh.

What if Santa enters a home with neither letter, nor milk and cookies? He would be entering in the absence of any authority and, despite all the goodwill in the world, the law would render him a trespasser. For your own sake, Santa, if it has not been made known to you that your presence is wanted, please leave your gifts at the front door!

Breaking and entering is discussed in The Laws of Australia Subtitle 10.4 “Offences of Dishonesty”, while trespass to land is discussed in Subtitle 33.8 “Trespass and Intentional Torts”.

For more information about The Laws of Australia, click here.