VersionNo. 001
Fortification Removal Act 2013
No. 48 of 2013
Version as at
6 October 2013
TABLE OF PROVISIONS
SectionPage
1
SectionPage
Part 1—Preliminary
1Purpose
2Commencement
3Definitions
4Meaning of fortification
5Descriptions of offences in the Schedule
Part 2—Fortification Removal Orders
Division 1—Applications for fortification removal orders
6Chief Commissioner may apply for fortification removal order
7Form and content of application
8Serving application and affixing notice of application
9Owner or occupier may object to application
10Court may extend or abridge the time within which an
objection may be made
Division 2—Determination of applications
11Magistrates' Court may make fortification removal order
12Order may be made in absence of objector
13Form of fortification removal order
14When fortification removal order takes effect
15Duration of fortification removal order
16Compliance period
17Serving and affixing fortification removal order
Division 3—Extension of compliance period
18Chief Commissioner may extend compliance period
19Owner or occupier may apply to Magistrates' Court for
extension of compliance period
20Form and content of application
21Service of application on Chief Commissioner
22Magistrates' Court may extend compliance period
Division 4—Withdrawal of fortification removal order
23Withdrawal of fortification removal order
24Affixing notice of withdrawal
Part 3—Inspections
Division 1—Authority to inspect while fortification removal
order is in effect
25Inspecting fortified premises while fortification removal
order is in effect
Division 2—Inspection orders for inspecting after fortification removal order ceases to have effect
26Chief Commissioner may apply for inspection order after fortification removal order ceases to have effect
27Form and content of application
28Affixing notice of application
29Owner or occupier may object to application
30Court may extend or abridge the time within which an
objection may be made
31Order may be made in absence of objector
32Magistrates' Court may make inspection order
33Form of inspection order
34Affixing inspection order
Division 3—Conduct of inspections
35Power to inspect and enter fortified premises
Part 4—Enforcement of Fortification Removal Orders
36Enforcement notice
37Enforcement powers
38Power to direct obstructive person to leave fortified premises
39Power to use reasonable force to remove person from
fortified premises
40Chief Commissioner may recover cost of removing or
modifying fortifications
41Removed material forfeited to the Crown
42Exemption from certain laws
Part 5—Offences
43Obstructing inspection of fortified premises
44Obstructing enforcement of fortification removal order
45Failure to comply with direction to leave fortified premises
46Obstructing removal of person from premises
47Interfering with affixed documents
48Constructing or installing fortification on certain premises
49Constructing or installing fortification on certain premises if fortification removal order previously made
Part 6—General
50Service
51Delegation
52Immunity
53Regulations
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SCHEDULE—Specified Offences
1Classification (Publications, Films and Computer Games) (Enforcement) Act1995
2Control of Weapons Act 1990
3Crimes Act 1958
4Dangerous Goods Act 1985
5Drugs, Poisons and Controlled Substances Act 1981
6Firearms Act 1996
7Sex Work Act 1994
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ENDNOTES
1. General Information
2. Table of Amendments
3. Explanatory Details
1
VersionNo. 001
Fortification Removal Act 2013
No. 48 of 2013
Version as at
6 October 2013
1
Part 2—Fortification Removal Orders
Fortification Removal Act 2013
No. 48 of 2013
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purpose
The purpose of this Act is to provide for the Magistrates' Court, on application by the Chief Commissioner of Police, to require the removal or modification of fortifications on premises that are connected to certain criminal offences.
2Commencement
(1)Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.
(2)If a provision of this Act does not come into operation before 1 November 2013, it comes into operation on that day.
3Definitions
In this Act—
Chief Commissioner means the Chief Commissioner of Police appointed under Part I of the Police Regulation Act 1958;
compliance period, for a fortification removal order, means the period that applies to that order under section 16;
fortification has the meaning given by section 4;
fortification removal order means an order made under section 11(1);
fortified premises means the premises specified in a fortification removal order in accordance with section 13(b);
inspection order means an order made under section 32(1);
member of Victoria Police means a member of the force within the meaning of the Police Regulation Act 1958;
occupier, in relation to premises, means a person who has, or is entitled to, possession or control of the premises;
ownermeans—
(a)in relation to land which has been alienated in fee by the Crown and is under the operation of the Transfer of Land Act 1958 (other than land in an identified folio under that Act), a person who is registered as proprietor of an estate in fee simple in the land;
s. 3
(b)in relation to land which has been alienated in fee by the Crown and is land in an identified folio under the Transfer of Land Act 1958, means a person who is an owner of the fee or equity of redemption;
proceeds has the same meaning as in the Confiscation Act 1997;
specified offence means—
(a)an indictable offence that is punishable by at least 10 years imprisonment; or
(b)an offence against a provision specified in an item of the Schedule, being a provision of the Act specified in the heading to that item; or
Note
See also section 5.
(c)an offence against section 321, 321G or321M of the Crimes Act 1958 in relation to an offence referred to in paragraph (a) or (b);
Victoria Police means the force within the meaning of the Police Regulation Act 1958.
4Meaning of fortification
s. 4
(1)For the purposes of this Act, a fortification is a structure, device, or combination of structures and devices that—
(a)forms part of or is attached to premises; and
(b)either—
(i) has, or could have, the effect of preventing uninvited entry to the premises or part of the premises; or
(ii) would be considered by a reasonable person to be intended or designed to prevent uninvited entry to the premises or to part of the premises; and
(c)is beyond what is reasonably necessary to provide security for the ordinary lawful use of that kind of premises.
(2)For the purposes of this Act, fortification includes an electronic surveillance device (such as closed-circuit television equipment, a night-vision camera or motion sensor).
5Descriptions of offences in the Schedule
s. 5
In the Schedule, a description following a reference to a provision of an Act—
(a)is provided for convenience of reference only; and
(b)does not affect—
(i) the operation of the provision or this Act; or
(ii)the nature or elements of an offence against the provision; and
(c)must be disregarded if it is inconsistent with the provision.
______
Part 2—Fortification Removal Orders
Division 1—Applications for fortification removal orders
6Chief Commissioner may apply for fortification removal order
s. 6
The Chief Commissioner may apply to the Magistrates' Court for an order that a fortification must be removed or modified.
7Form and content of application
(1)An application under section 6 must—
(a)be in writing; and
(b)state the grounds on which the fortification removal order is sought; and
Note
See section 11 for the grounds for making a fortification removal order.
(c)specify the premises from or at which a fortification is sought to be removed or modified; and
(d)identify the fortification that is sought to be removed or modified; and
(e)if the fortification is sought to be modified—specify details of the modifications sought; and
(f)state that an owner or occupier of the premises in respect of which the application is made may object to the application.
(2)An application must be accompanied by at least one affidavit that addresses the facts, matters and circumstances on which the application relies.
8Serving application and affixing notice of application
(1)As soon as practicable after an application under section 6 is made, the Chief Commissioner must—
(a)make all reasonable efforts to serve a copy of the application on the owner, or if there is more than one owner, only one owner, of the premises in respect of which the application is made (a relevant owner); and
Note
For service, see section 50.
(b)cause a notice of application to be affixed—
(i) to the entrance of the premises in respect of which the application is made; or
(ii)in a conspicuous place near that entrance.
s. 8
(2)The fact that the Chief Commissioner does not serve a relevant owner under subsection (1)(a) after making all reasonable efforts to serve that owner does not affect the validity of the application.
(3)To avoid doubt, if there is more than one owner of the premises in respect of which the application is made, the Chief Commissioner is only required under subsection (1)(a) to make reasonable efforts to serve one of those owners.
(4) In this section—
notice of application means a notice that—
(a)includes the information required by section 7(1)(c), (d), (e) and (f); and
(b) states that it is an offence to obscure, damage or destroy the notice before the day after the application is finally determined.
9Owner or occupier may object to application
s. 9
(1)A person may object to an application under section 6 if the person is an owner or occupier of the premises in respect of which the application is made.
(2) An objection must—
(a)be accompanied by at least one affidavit addressing the facts, matters and circumstances on which the objection relies; and
(b)be filed with the Magistrates' Court at least 7days before the day on which the application is listed to be heard; and
(c)be served on the Chief Commissioner at least 5days before the day on which the application is listed to be heard.
Note
For service, see section 50.
10Court may extend or abridge the time within which an objection may be made
(1)The Magistrates' Court, by order, may extend or abridge the time within which an objection may be made under section 9.
(2)The Magistrates' Court may extend time under subsection (1) before or after the time expires.
(3)More than one extension of time may be granted under subsection (1).
Division 2—Determination of applications
11Magistrates' Court may make fortification removal order
s. 11
(1)The Magistrates' Court, on an application under section 6, may order the removal or modification of a fortification in place at the premises in respect of which the application is made.
(2)The Magistrates' Court may make an order under subsection (1) if the Court is satisfied that—
(a)there is a fortification in place at the premises in respect of which the application is made; and
(b)there are reasonable grounds to believe the premises are being used, or have been used or are likely to be used—
(i) for or in connection with the commission of a specified offence; or
(ii)to conceal evidence of a specified offence; or
(iii)to keep the proceeds of a specified offence.
(3)For the purposes of subsection (2), the Magistrates' Court may be satisfied of the matters specified in paragraph (b) of that subsection without having to determine whether any particular specified offence has been committed.
12Order may be made in absence of objector
The Magistrates' Court may hear and determine an application under section 6 even if a person who objects under section 9 does not appear at the hearing of the application.
13Form of fortification removal order
s. 13
A fortification removal order must specify—
(a)that the Magistrates' Court is satisfied of the matters referred to in section 11(2); and
(b)the premises from or at which the fortification is to be removed or modified; and
(c)the fortification that is to be removed or modified; and
(d)if the fortification is to be modified—themanner in which the fortification is to bemodified; and
(e)that a fortification that must be removed must not be replaced or restored; and
(f)that a fortification that must be modified must not have that modification removed or undone; and
(g)that a member of Victoria Police may enter and inspect the fortified premises in accordance with Part 3—
(i) while the order is in effect; or
(ii)under an inspection order after the order has ceased to have effect; and
(h)that if the fortification is not removed or modified as required under the order during the compliance period, a member of Victoria Police may remove or modify that fortification in accordance with Part 4; and
(i) that an owner or occupier of the fortified premises may—
(i) request that the Chief Commissioner extend the compliance period in accordance with section 18; or
(ii)apply to the Magistrates' Court for an order extending the compliance period in accordance with section 19; and
(j)that until the fortification removal order ceases to have effect, it is an offence to obscure, damage or destroy the copy of the order affixed under section 17(1)(b).
14When fortification removal order takes effect
s. 14
A fortification removal order takes effect on—
(a) if the Magistrates' Court makes the order in the presence of an owner or occupier of the fortified premises—the day on which the order is made; or
(b)in any other case—the day that a copy of the order is affixed to or near the entrance of the fortified premises under section 17.
15Duration of fortification removal order
(1)A fortification removal order remains in effect for the period commencing on the day it takes effect under section 14 and ending on—
(a)the day that is 12 months after the day on which the compliance period ends in accordance with section 16; or
(b)if the order is withdrawn before that day—the day on which the order is withdrawn.
(2)A fortification removal order does not have effect for any period during which its operation is stayed by a court.
(3)A period during which a fortification removal order does not have effect because it is stayed by a court does not count for the purposes of the period specified under subsection (1).
16Compliance period
(1)The compliance period for a fortification removal order begins on the day that the order takes effect and ends on the later of—
(a)the day that is 3 months after the day on which the order takes effect; or
(b)the day specified by—
(i) the Chief Commissioner under section18; or
(ii)the Magistrates' Court by order under section 22.
(2)The compliance period for a fortification removal order does not include any period during which the operation of the order is stayed by a court.
(3)A period during which a fortification removal order does not have effect because it is stayed by a court does not count for the purposes of the period specified under subsection (1)(a).
17Serving and affixing fortification removal order
s. 16
(1)As soon as practicable after a fortification removal order is made the Chief Commissioner must—
(a)subject to subsection (2), make all reasonable efforts to serve a copy of the order on the owner, or if there is more than one owner, only one owner, of the fortified premises (arelevant owner); and
Note
For service, see section 50.
(b)cause a copy of the order to be affixed—
(i) to the entrance of the fortified premises; or
(ii)in a conspicuous place near that entrance.
(2)Subsection (1)(a) does not apply if a copy of the application in respect of the fortification removal order was served on any owner of the fortified premises.
(3)The fact that the Chief Commissioner does not serve a relevant owner under subsection (1)(a) after using all reasonable efforts to serve that owner does not affect the validity of the fortification removal order.
(4)To avoid doubt, if there is more than one owner of the fortified premises, the Chief Commissioner is only required under subsection (1)(a) to make reasonable efforts to serve one of those owners.
Division 3—Extension of compliance period
18Chief Commissioner may extend compliance period
s. 18
(1)At any time during the compliance period for a fortification removal order, the Chief Commissioner may extend the compliance period on the request of an owner or occupier of the fortified premises.
(2)The Chief Commissioner must make a decision about a request no later than 7 days after the day on which the request is made.
(3)Despite subsections (1) and (2), the Chief Commissioner must not extend the compliance period if an application under section 19 in respect of the compliance period has been made but has not been finally determined.
(4)If the Chief Commissioner agrees to the extension, the compliance period is taken to be extended for the period decided by the Chief Commissioner.
(5)The Chief Commissioner must give the person requesting the extension of the compliance period a written notice of the extension that specifies the period the compliance period has been extended.
(6)More than one extension of time may be made under subsection (1).
19Owner or occupier may apply to Magistrates' Court for extension of compliance period
(1)An owner or occupier of fortified premises may apply to the Magistrates' Court for an extension of the compliance period if the Chief Commissioner has denied a request for that extension.
(2)An application under subsection (1) may be made before or after the compliance period ends.
20Form and content of application
s. 19
(1)An application under section 19(1) must—
(a)be in writing; and
(b)state the grounds on which the order extending the compliance period is sought.
(2)An application must be accompanied by at least one affidavit that addresses the facts, matters and circumstances on which the application relies.
21Service of application on Chief Commissioner
An application under section 19(1) must be served on the Chief Commissioner at least 5 days before the day on which the application is listed to be heard.
Note
For service, see section 50.
22Magistrates' Court may extend compliance period
(1)The Magistrates' Court, on an application under section 19(1), may make an order extending the compliance period for a fortification renewal order if the Court is satisfied that it is appropriate to do so in all the circumstances.
(2) The Magistrates' Court may extend the compliance period even if the compliance period has ended before the Court makes its determination on the application.
Division 4—Withdrawal of fortification removal order
23Withdrawal of fortification removal order
s. 22
(1) The Chief Commissioner may withdraw a fortification removal order by filing a notice of withdrawal with the Magistrates' Court.
(2) The notice of withdrawal must—
(a)identify the fortification removal order to be withdrawn; and
(b)specify the fortified premises to which the order relates; and
(c)state that the Chief Commissioner is satisfied that the order is no longer necessary.
(3) On the notice of withdrawal being filed with the Magistrates' Court, the fortification removal order ceases to have effect.
24Affixing notice of withdrawal
As soon as practicable after a fortification removal order is withdrawn, the Chief Commissioner must cause a copy of the notice of withdrawal to be affixed—
(a)to the entrance of the premises to which the order applied; or
(b)in a conspicuous place near that entrance.
s. 24
______
Part 3—Inspections
Division 1—Authority to inspect while fortification removal order is in effect
25Inspecting fortified premises while fortification removal order is in effect
s. 25
While a fortification removal order is in effect, a member of Victoria Police is authorised to—
(a)enter and inspect fortified premises in accordance with Division 3 to determine whether—
(i) a fortification has been removed or modified as required under the order; or
(ii)a fortification that was removed as required under the order has been replaced or restored; or
(iii) a fortification that was modified as required under the order has had the modification removed or undone; or