Removal of Fortifications Act 2017

Removal of Fortifications Act 2017

This Act may be cited as the Removal of Fortifications Act 2017.

This Act commences on the day on which this Act receives the Royal Assent.

In this Act –

Commissioner means Commissioner of Police;

compliance period, for a fortification removal order, means the period that applies to that order under section 14;

exercise a power includes perform a function;

fortification– see section 4;

fortification removal order means an order made under section 10(1);

fortified premises means the premises specified in a fortification removal order in accordance with section 11(a);

inspection order means an order made under section 26(1);

occupier, in relation to premises, means a person who has, or is entitled to, possession or control of the premises;

owner, in relation to premises, includes every person who jointly and severally, whether at law or in equity – is entitled to the building or land for any estate of freehold in possession; or has contracted to buy the building or land; or is entitled to receive or is in receipt of the rents and profits of the building or land, whether as beneficial owner, trustee, mortgagee in possession or otherwise;

premises includes – land and a structure, building, caravan, vehicle and vessel, whether – temporary or not; and under construction or not; and used for residential purposes or not; and a place, whether enclosed or built on or not and whether on, within, over or under land or water; and a part of premises, including premises referred to in paragraph (a) or (b);

proceeds has the same meaning as in the Crime (Confiscation of Profits) Act 1993;

specified offence means – an indictable offence under the laws of Tasmania or the Commonwealth, including an indictable offence triable summarily; or an offence under the Firearms Act 1996; or an offence under the Misuse of Drugs Act 2001; or an offence under the Sex Industry Offences Act 2005; or a prescribed offence.

For the purposes of this Act, a fortification is a structure or device, or a combination of structures and devices, that – forms part of, or is attached to, premises; and is beyond what is reasonably necessary to provide security for the ordinary lawful use of that kind of premises; and either – has, or could have, the effect of preventing uninvited entry to the premises or part of the premises; or 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.

For the purposes of subsection (1), an electronic surveillance device (such as closed-circuit television equipment, a night-vision camera or motion sensor) is a device that may be a fortification.

For the avoidance of doubt, this Act applies in relation to a fortification in place on premises, whether or not the fortification was in place before or after the commencement of this Act.

A person must not construct or install a fortification on premises that the person knows, or ought reasonably to know, are being used, or are likely to be used – for or in connection with the commission of a specified offence; or to conceal evidence of a specified offence; or to keep the proceeds of a specified offence. In the case of – an individual, a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 1 year, or both; or a body corporate, a fine not exceeding 300 penalty units.

Subsection (1) does not apply if the person proves that he or she constructed or installed the fortification before the commencement of this Act.

A person must not construct or install a fortification on premises if –

the premises are or have been subject to a fortification removal order; and the person knows, or ought reasonably to know, that the premises are or have been subject to a fortification removal order; and the person knows, or ought reasonably to know, that the premises are being used, or are likely to be used – for or in connection with the commission of a specified offence; or to conceal evidence of a specified offence; or to keep the proceeds of a specified offence.

In the case of – an individual, a fine not exceeding 100 penalty units or imprisonment for a term not exceeding 2 years, or both; or a body corporate, a fine not exceeding 600 penalty units.

The Commissioner may apply to a court of petty sessions for an order that a fortification on premises must be removed or modified, if the Commissioner reasonably believes that the premises are being used, or have been used or are likely to be used – for or in connection with the commission of a specified offence; or to conceal evidence of a specified offence; or to keep the proceeds of a specified offence.

An application under subsection (1) is to – be in writing; and state the grounds on which the order is sought; and specify the premises from or at which a fortification is sought to be removed or modified under the order; and identify the fortification that is sought to be removed or modified under the order; and if a modification of a fortification is sought – specify details of the modification sought; and state that an owner or occupier of the premises in respect of which the application is made may object to the application.

An application must be accompanied by at least one affidavit that addresses the facts, matters and circumstances on which the application relies.

As soon as practicable after an application under section 7 is made, the Commissioner must – ensure that all reasonable efforts are made to serve a copy of the application on the owner or, if there is more than one owner, on at least one owner, of the premises in respect of which the application is made; and cause a notice to be affixed – to the entrance of the premises in respect of which the application is made; or in a conspicuous place near that entrance.

An application under section 7 is not invalid if, after making all reasonable efforts, the Commissioner is unable to serve a copy of the application on an owner of the premises in accordance with subsection (1)(a).

A notice under subsection (1)(b) is to – include the information specified in section 7(2)(c), (d), (e) and (f); and state that it is an offence to remove, obscure, damage or destroy the notice before the day after the application to which the notice relates is finally determined.

An owner, or an occupier, of premises in respect of which an application under section 7 is made may object to the application on the basis that the application is unreasonable in the circumstances.

An objection made under subsection (1) must be – accompanied by at least one affidavit addressing the facts, matters and circumstances on which the objection relies; and filed with a court of petty sessions at least 7 days before the day on which the application is listed to be heard; and served on the Commissioner at least 5 days before the day on which the application is listed to be heard.

If an objection is made under subsection (1), a court of petty sessions may, in hearing an application made under section 7 – take into account any information accompanying the objection; and receive further evidence in respect of that information.

A person who makes an objection under subsection (1), at the hearing of the application to which the objection relates, may – appear and adduce evidence; and be represented.

A court of petty sessions may accept an objection under subsection (1) made outside one or both of the time limitations specified in subsection (2)(b) and (c) if satisfied that it is reasonable in the circumstances to do so.

On receipt of an application under section 7, a court of petty sessions may order the removal or modification of a fortification in place at the premises in respect of which the application is made.

A court of petty sessions may make an order under subsection (1) if the court is satisfied that – there is a fortification in place at the premises in respect of which the application is made; and there are reasonable grounds to believe that the premises are being used, have been used, or are likely to be used – for or in connection with the commission of a specified offence; or to conceal evidence of a specified offence; or to keep the proceeds of a specified offence.

For the purposes of subsection (2), a court of petty sessions may be satisfied of the matters specified in paragraph (b) of that subsection without having to determine whether the relevant specified offence has been committed.

A court of petty sessions may hear and determine an application under section 7 whether or not a person, who has made an objection under section 9 in respect of the application, appears at the hearing of the application.

A fortification removal order is to specify –

the premises from, or at which, the fortification is to be removed or modified; and that a court of petty sessions is satisfied that there is a fortification in place at those premises; and that a court of petty sessions is satisfied that there are reasonable grounds to believe those premises are being used, have been used, or are likely to be used – for or in connection with the commission of a specified offence; or to conceal evidence of a specified offence; or to keep the proceeds of a specified offence; and the fortification to which the order relates; and if the fortification is to be modified – the manner in which the fortification is to be modified; and that the modification must not be removed or undone; and if the fortification is to be removed, that the fortification must be removed, and not be replaced or restored; and that a police officer may enter and inspect the premises in accordance with Part 4 – while the order is in effect; or under an inspection order after the order has ceased to have effect; and that, if the fortification is not removed or modified as required under the order during the compliance period, a police officer may remove or modify that fortification in accordance with Part 5; and that an owner or occupier of the fortified premises may – request that the Commissioner extend the compliance period in accordance with section 16; or apply to a court of petty sessions for an order extending the compliance period in accordance with section 17; and that until the fortification removal order ceases to have effect, it is an offence to remove, obscure, damage or destroy the copy of the order affixed to the premises under section 15(1)(b).