Fortification Removal Act 2013 - ocpc.vic.gov.auFILE/13-048a.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01

Fortification Removal Act 2013 No. 48 of 2013

TABLE OF PROVISIONSSection Page

PART 1—PRELIMINARY 1

1 Purpose 12 Commencement 23 Definitions 24 Meaning of fortification 35 Descriptions of offences in the Schedule 4

PART 2—FORTIFICATION REMOVAL ORDERS 5

Division 1—Applications for fortification removal orders 5

6 Chief Commissioner may apply for fortification removal order 57 Form and content of application 58 Serving application and affixing notice of application 69 Owner or occupier may object to application 710 Court may extend or abridge the time within which an objection

may be made 7

Division 2—Determination of applications 8

11 Magistrates' Court may make fortification removal order 812 Order may be made in absence of objector 813 Form of fortification removal order 914 When fortification removal order takes effect 1015 Duration of fortification removal order 1016 Compliance period 1117 Serving and affixing fortification removal order 11

Division 3—Extension of compliance period 12

18 Chief Commissioner may extend compliance period 1219 Owner or occupier may apply to Magistrates' Court for

extension of compliance period 1320 Form and content of application 1321 Service of application on Chief Commissioner 1322 Magistrates' Court may extend compliance period 14

1

Division 4—Withdrawal of fortification removal order 14

23 Withdrawal of fortification removal order 1424 Affixing notice of withdrawal 14

PART 3—INSPECTIONS 16

Division 1—Authority to inspect while fortification removal order is in effect 16

25 Inspecting fortified premises while fortification removal order is in effect 16

Division 2—Inspection orders for inspecting after fortification removal order ceases to have effect 16

26 Chief Commissioner may apply for inspection order after fortification removal order ceases to have effect 16

27 Form and content of application 1728 Affixing notice of application 1729 Owner or occupier may object to application 1830 Court may extend or abridge the time within which an

objection may be made 1831 Order may be made in absence of objector 1932 Magistrates' Court may make inspection order 1933 Form of inspection order 1934 Affixing inspection order 20

Division 3—Conduct of inspections 20

35 Power to inspect and enter fortified premises 20

PART 4—ENFORCEMENT OF FORTIFICATION REMOVAL ORDERS 22

36 Enforcement notice 2237 Enforcement powers 2238 Power to direct obstructive person to leave fortified premises 2439 Power to use reasonable force to remove person from fortified

premises 2540 Chief Commissioner may recover cost of removing or

modifying fortifications 2541 Removed material forfeited to the Crown 2542 Exemption from certain laws 25

PART 5—OFFENCES 27

43 Obstructing inspection of fortified premises 2744 Obstructing enforcement of fortification removal order 27

45 Failure to comply with direction to leave fortified premises 2746 Obstructing removal of person from premises 2747 Interfering with affixed documents 2848 Constructing or installing fortification on certain premises 2949 Constructing or installing fortification on certain premises if

fortification removal order previously made 30

PART 6—GENERAL 31

50 Service 3151 Delegation 3252 Immunity 3353 Regulations 33

__________________

SCHEDULE—Specified Offences 35

1 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 35

2 Control of Weapons Act 1990 353 Crimes Act 1958 354 Dangerous Goods Act 1985 365 Drugs, Poisons and Controlled Substances Act 1981 366 Firearms Act 1996 367 Sex Work Act 1994 44

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ENDNOTES 46

Fortification Removal Act 2013†

No. 48 of 2013

[Assented to 10 September 2013]

The Parliament of Victoria enacts:

PART 1—PRELIMINARY

1 Purpose

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.

Victoria

1

2 Commencement

(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.

3 Definitions

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;

owner means—

(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

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s. 2

identified folio under that Act), a person who is registered as proprietor of an estate in fee simple in the land;

(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; orNote

See also section 5.

(c) an offence against section 321, 321G or 321M 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.

4 Meaning of fortification

(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

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s. 4

(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).

5 Descriptions of offences in the Schedule

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.

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s. 5

PART 2—FORTIFICATION REMOVAL ORDERS

Division 1—Applications for fortification removal orders

6 Chief Commissioner may apply for fortification removal order

The Chief Commissioner may apply to the Magistrates' Court for an order that a fortification must be removed or modified.

7 Form 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; andNote

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.

s. 6

Fortification Removal Act 2013No. 48 of 2013

5

8 Serving 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); andNote

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.

(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

s. 8


6

(b) states that it is an offence to obscure, damage or destroy the notice before the day after the application is finally determined.

9 Owner or occupier may object to application

(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 7 days before the day on which the application is listed to be heard; and

(c) be served on the Chief Commissioner at least 5 days before the day on which the application is listed to be heard.Note


10 Court 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).

s. 9


7

Division 2—Determination of applications

11 Magistrates' Court may make fortification removal order

(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.

12 Order 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.

s. 11


8

13 Form of fortification removal order

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—the manner in which the fortification is to be modified; 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

s. 13


9

(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).

14 When fortification removal order takes effect

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.

15 Duration 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).

s. 14


10

16 Compliance 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 section 18; 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).

17 Serving and affixing fortification removal order

(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 (a relevant owner); andNote


(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.

s. 16


11

(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

18 Chief Commissioner may extend compliance period

(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.

s. 18


12

(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).

19 Owner 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.


(1) An application under section 19(1) must—


(b) state the grounds on which the order extending the compliance period is sought.


21 Service 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


s. 19


13

22 Magistrates' 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

23 Withdrawal of fortification removal order

(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.

24 Affixing 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—

s. 22


14

(a) to the entrance of the premises to which the order applied; or

(b) in a conspicuous place near that entrance.

__________________

s. 24


15

PART 3—INSPECTIONS

Division 1—Authority to inspect while fortification removal order is in effect

25 Inspecting fortified premises while fortification removal order is in effect

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

(iv) another fortification has been constructed or installed on the premises; and

(b) while at the premises, do anything that is reasonably necessary to make a determination referred to in paragraph (a).

Division 2—Inspection orders for inspecting after fortification removal order ceases to have effect

26 Chief Commissioner may apply for inspection order after fortification removal order ceases to have effect

(1) This section applies if a fortification removal order has ceased to have effect.

s. 25


16

(2) The Chief Commissioner may apply to the Magistrates' Court for an order authorising a member of Victoria Police to enter and inspect the fortified premises.

(3) The Chief Commissioner must not make an application more than 3 years after the day on which the order ceased to have effect.


(1) An application under section 26 must—


(b) state the grounds on which the inspection order is sought; and

(c) specify the premises that are sought to be inspected.


28 Affixing notice of application

(1) As soon as practicable after an application under section 26 is made, the Chief Commissioner must cause a notice of application to be affixed—

(a) to the entrance of the fortified premises; or


(2) In subsection (1)—

notice of application means a notice that—

(a) includes the prescribed information; and

(b) states that—

(i) an owner or occupier of the premises in respect of which the application is made may object to the application; and

s. 27


17

(ii) it is an offence to obscure, damage or destroy the notice before the day after the day on which the application is finally determined.

29 Owner or occupier may object to application

(1) A person may object to an application under section 26 if the person is an owner or occupier of the fortified 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 7 days before the day on which the application is listed to be heard; and

(c) be served on the Chief Commissioner at least 5 days before the day on which the application is listed to be heard.Note


30 Court 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 29.

(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).

s. 29


18

31 Order may be made in absence of objector

The Magistrates' Court may hear and determine an application under section 26 even if a person who objects under section 29 does not appear at the hearing of the application.

32 Magistrates' Court may make inspection order

(1) The Magistrates' Court, on an application under section 26, may order that 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 that was removed as required under the order has been replaced or restored; or

(ii) a fortification that was modified as required under the order has had the modification removed or undone; or

(iii) another fortification has been constructed or installed on the premises; and

(b) while at the premises, do anything that is reasonably necessary to make a determination referred to in paragraph (a).

(2) The Magistrates' Court may make an order under subsection (1) if the Court is satisfied that it is appropriate to do so in all the circumstances.

33 Form of inspection order

(1) An inspection order must specify—

(a) the fortified premises to be entered and inspected; and

s. 31


19

(b) subject to subsection (2), the period during which a member of Victoria Police is authorised to inspect the premises; and

(c) that it is an offence to obscure, damage or destroy a copy of an inspection order that is affixed in accordance with section 34 before the day after the last day of the period specified under paragraph (b).

(2) The last day of the period specified under subsection (1)(b) must not be after the day that is 3 years after the day on which the fortification removal order ceased to have effect.

34 Affixing inspection order

As soon as practicable after an inspection order is made, the Chief Commissioner must cause a copy of the order to be affixed—



Division 3—Conduct of inspections

35 Power to inspect and enter fortified premises

(1) This section applies if a member of Victoria Police is authorised to enter and inspect fortified premises under—

(a) section 25; or

(b) an inspection order.

(2) A member of Victoria Police may, without warrant, enter and inspect the fortified premises on—

(a) if the inspection is authorised under section 25—any day on which the fortification removal order is in effect; or

s. 34


20

(b) if the inspection is authorised under an inspection order—any day that is within the period specified in the order.

(3) Before any member of Victoria Police enters the fortified premises, a member of Victoria Police must—

(a) announce that members of Victoria Police are authorised to enter and inspect the premises; and

(b) state the basis of that authority; and

(c) give anyone at the premises a reasonable opportunity to permit entry to the premises.

(4) If permission to enter the premises is not given, a member of Victoria Police may use reasonable force to gain entry.

__________________

s. 35


21

PART 4—ENFORCEMENT OF FORTIFICATION REMOVAL ORDERS

36 Enforcement notice

(1) This section applies if—

(a) a fortification removal order is in effect but the compliance period has ended; and

(b) the fortification has not been removed or modified as required by the order.

(2) At least 7 days before a member of Victoria Police enforces a fortification removal order by exercising powers under section 37, a member of Victoria Police must cause a notice of enforcement of the order to be affixed—



(3) The notice must—

(a) specify the day or days on which a member of Victoria Police will exercise powers under section 37; and

(b) state that it is an offence to obscure, damage or destroy the notice before the day after—

(i) the last day specified under paragraph (a); or

(ii) if the fortification removal order ceases to have effect before that day—the day on which the order ceases to have effect.

37 Enforcement powers

(1) On a day specified in the notice under section 36(3)(a), a member of Victoria Police may do any of the following—

s. 36


22

(a) enter the fortified premises without a warrant;

(b) bring onto the premises any person, equipment or materials that are reasonably required to remove or modify the fortifications that the order requires to be removed or modified;

(c) do anything reasonably necessary, with or without the assistance of a person who is brought onto the premises under paragraph (b), to—

(i) remove the fortifications that the order requires to be removed; and

(ii) modify, in the manner specified in the order, the fortifications that the order requires to be modified;

(d) leave and return to the premises.

(2) Before any member of Victoria Police enters the fortified premises, a member of Victoria Police must—

(a) announce that members of Victoria Police are authorised to enter the premises and enforce the fortification removal order; and

(b) state the basis of that authority; and

(c) state that it is an offence to obstruct or hinder the enforcement of the fortification removal order; andNote

See section 44.

(d) give anyone at the premises an opportunity to permit entry to the premises.

s. 37


23

(3) A member of Victoria Police may use reasonable force—

(a) to gain entry if permission to enter the premises is not given; and

(b) to exercise any other power under subsection (1).

(4) A person who is brought onto the fortified premises by a member of Victoria Police under subsection (1)(b) may also bring onto the premises any equipment or materials that are reasonably required to remove or modify the fortifications that the order requires to be removed or modified.

(5) A member of Victoria Police must not exercise a power under this section unless the fortification removal order is in effect.

38 Power to direct obstructive person to leave fortified premises

(1) This section applies if, on a day specified in the notice under section 36(3)(a), a member of Victoria Police believes on reasonable grounds that a person at the fortified premises is hindering or obstructing—

(a) a member of Victoria Police in the exercise of a power under section 37; or

(b) a person who is assisting a member of Victoria Police to remove or modify a fortification under section 37(1)(c).

(2) The member of Victoria Police may direct the person to leave the fortified premises in the manner directed.

(3) A direction under subsection (2)—

s. 38


24

(a) may be given orally or in writing; and

(b) must be reasonable in all the circumstances.

39 Power to use reasonable force to remove person from fortified premises

(1) A member of Victoria Police, using no more force than is reasonably necessary, may remove a person from fortified premises after the person has refused to comply with a direction under section 38.

(2) Nothing in this section limits any powers of arrest that a member of Victoria Police has under any other law.

40 Chief Commissioner may recover cost of removing or modifying fortifications

The costs of removing or modifying a fortification under section 37 may be recovered by the Chief Commissioner in a court of competent jurisdiction as a debt from an owner or occupier of the fortified premises who caused or allowed the fortification to be constructed or installed.

41 Removed material forfeited to the Crown

(1) The following are forfeited to the Crown—

(a) a fortification that is removed from fortified premises under section 37;

(b) material that is removed from a fortification in the course of modifying that fortification under section 37.

(2) The Chief Commissioner may sell, destroy or otherwise dispose of a fortification or material that is forfeited to the Crown under subsection (1).

42 Exemption from certain laws

(1) Nothing in the Environment Protection Act 1970 applies in respect of noise resulting from the

s. 39


25

removal or modification of a fortification under section 37.

(2) Nothing in the Building Act 1993, the Planning and Environment Act 1987 or a planning scheme requiring an authority, licence or permit for the carrying out of works applies to the removal or modification of a fortification under section 37.

__________________

s. 42


26

PART 5—OFFENCES

43 Obstructing inspection of fortified premises

A person must not, without reasonable excuse, hinder or obstruct a member of Victoria Police who is exercising a power under section 35.

Penalty: 240 penalty units or imprisonment for 2 years or both.

44 Obstructing enforcement of fortification removal order

(1) A person must not, without reasonable excuse, hinder or obstruct a member of Victoria Police who is exercising a power under section 37.


(2) A person must not, without reasonable excuse, hinder or obstruct a person who is assisting a member of Victoria Police to remove or modify a fortification under section 37(1)(c).


45 Failure to comply with direction to leave fortified premises

A person must not, without reasonable excuse, refuse or fail to comply with a direction given to the person under section 38.

Penalty: 20 penalty units.

46 Obstructing removal of person from premises

A person must not, without reasonable excuse, hinder or obstruct a member of Victoria Police who is removing another person from fortified premises under section 39.

s. 43


27

Penalty: 60 penalty units or imprisonment for 6 months or both.

47 Interfering with affixed documents

(1) A person must not, without reasonable excuse, obscure, damage or destroy an affixed document before the applicable day.

Penalty: 120 penalty units or imprisonment for 1 year or both.

(2) In subsection (1)—

affixed document means—

(a) a notice of application that is affixed in accordance with section 8(1)(b);

(b) a copy of a fortification removal order that is affixed under section 17(1)(b);

(c) a notice of application that is affixed in accordance with section 28(1);

(d) a copy of an inspection order that is affixed in accordance with section 34;

(e) a notice of enforcement that is affixed in accordance with section 36(2);

applicable day, for an affixed document, means the day after—

(a) in the case of a notice of application that is affixed in accordance with section 8(1)(b)—the day on which the application is finally determined;

(b) in the case of a copy of a fortification removal order that is affixed under section 17(1)(b)—the day on which the order ceases to have effect;

(c) in the case of a notice of application that is affixed in accordance with

s. 47


28

section 28(1)—the day on which the application is finally determined;

(d) in the case of a copy of an inspection order that is affixed in accordance with section 34—the last day of the period specified in the order under section 33(1)(b);

(e) in the case of a notice of enforcement that is affixed in accordance with section 36(2)—

(i) the last day specified in the notice under section 36(3)(a); or

(ii) if the fortification removal order to which the notice of enforcement relates ceases to have effect before that day—the day on which that order ceases to have effect.

48 Constructing or installing fortification on certain premises

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—

(a) for or in connection with the commission of a specified offence; or

(b) to conceal evidence of a specified offence; or

(c) to keep the proceeds of a specified offence.

Penalty: In the case of an individual, 60 penalty units or imprisonment for 6 months or both;

In the case of a body corporate, 300 penalty units.

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49 Constructing or installing fortification on certain premises if fortification removal order previously made

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

(a) the premises are or have been subject to a fortification removal order; and

(b) the person knows, or ought reasonably to know, that the premises are or have been subject to a fortification removal order; and

(c) the person knows, or ought reasonably to know, that the premises are being 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.

Penalty: In the case of an individual, 240 penalty units or imprisonment for 2 years or both;

In the case of a body corporate, 1200 penalty units.

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PART 6—GENERAL

50 Service

(1) For the purposes of this Act, if a document is to be served on an owner of premises—

(a) in the case of an owner who is an individual and who has served on the Chief Commissioner notice of an address in Victoria for service for the purposes of this Act—it must be personally delivered, or sent by prepaid ordinary post, to that address; or

(b) in the case of any other owner who is an individual—it must be personally served on the individual or personally delivered, or sent by prepaid ordinary post, to the individual's usual or last known place of residence or business; or

(c) in the case of an owner that is a company or a registered foreign company within the meaning of the Corporations Act—it must be served in accordance with section 109X or 601CX of that Act, as the case may be; or

(d) in the case of an owner that is an incorporated association—it must be served in accordance with section 217 of the Associations Incorporation Reform Act 2012; or

(e) in the case of an owner that is a body or association incorporated under a law of another State or a Territory—it must be served—

(i) by leaving a copy of the document at the registered office or principal place of business of the body or association; or

s. 50


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(ii) by sending a copy of the document by prepaid ordinary post to the registered office or principal place of business of the body or association.

(2) For the purposes of this Act, if a document is to be served on the Chief Commissioner it must be served—

(a) if the Chief Commissioner has previously notified the person serving the document that the document is to be served at a particular address—by sending it by prepaid ordinary post to that address; or

(b) in any other case—

(i) by delivering it personally to the Chief Commissioner; or

(ii) by sending it by prepaid ordinary post to the Chief Commissioner at his or her office address; or

(iii) by leaving it at the Chief Commissioner's office address with an individual on the premises who is apparently employed there.

51 Delegation

(1) The Chief Commissioner, by instrument, may delegate any function or power he or she has under this Act, other than this power of delegation, to a member of Victoria Police of or above the rank of Commander.

(2) Subsection (1) does not limit section 6A(1) of the Police Regulation Act 1958.

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52 Immunity

(1) A person assisting a member of Victoria Police to remove or modify fortifications under section 37(1)(c) is not liable for anything done or omitted to be done in good faith—

(a) in the course of assisting the member of Victoria Police; or

(b) in the reasonable belief that the act or omission was in the course of assisting the member of Victoria Police.

(2) A person bringing equipment or materials onto fortified premises under section 37(4) is not liable for anything done or omitted to be done in good faith in the course of bringing the equipment or materials onto the premises.

(3) Any liability resulting from an act or omission that, but for subsection (1) or (2), would attach to a person, attaches instead to the State.

Note

Section 123 of the Police Regulation Act 1958 provides an immunity to a member of Victoria Police in relation to anything necessarily or reasonably done or omitted to be done in good faith in the course of his or her duty.

53 Regulations

(1) The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed to give effect to this Act.

(2) Regulations made under this Act may—

(a) be of general or limited application;

(b) differ according to differences in time, place or circumstance;

(c) confer a discretionary authority or impose a duty on a specified person or body or a

s. 52


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specified class of person or body.

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s. 53


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SCHEDULE

SPECIFIED OFFENCES

1 Classification (Publications, Films and Computer Games) (Enforcement) Act 1995

1.1 Section 15(2) (sale of a commercial quantity of X 18+ films).

1.2 Section 23A(4) (possession of a commercial quantity of X 18+ films with the intention of selling or exhibiting them).

1.3 Section 23A(5) (copying a commercial quantity of X 18+ films with the intention of selling or exhibiting them).

1.4 Section 24(1) (making an objectionable film).

1.5 Section 32(1) (producing an objectionable publication).

2 Control of Weapons Act 1990

2.1 Section 5(1) (importing, manufacturing, displaying or advertising for sale a prohibited weapon without an exemption or approval).

2.2 Section 5(1A) (possessing, carrying or using a prohibited weapon in licensed premises without an exemption or approval).

3 Crimes Act 1958

3.1 Section 21 (making a threat to inflict serious injury).

3.2 Section 30 (threatening injury to prevent arrest).

3.3 Section 31 (assault).

3.4 Section 31B (being armed with criminal intent).

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3.5 Section 83A(5C) (making, possessing or controlling a thing that is designed or adapted to make forged documents).

Note

See also paragraph (c) of the definition of specified offence in section 3.

4 Dangerous Goods Act 1985

4.1 Section 54(5) (dealing with an unauthorised explosive).

5 Drugs, Poisons and Controlled Substances Act 1981

5.1 Section 71C (possession of a tablet press).

5.2 Section 71D (possession of a prescribed precursor chemical).

6 Firearms Act 1996

6.1 Section 5(2) (prohibited person possessing, carrying or using a silencer).

6.2 Section 6(1) (non-prohibited person possessing, carrying or using a registered category A longarm without a licence).

6.3 Section 6(2) (non-prohibited person possessing, carrying or using a registered category B longarm without a licence).

6.4 Section 6(3) (non-prohibited person possessing, carrying or using a registered category C longarm without a licence).

6.5 Section 6(4) (non-prohibited person possessing, carrying or using a registered category D longarm without a licence).

6.6 Section 6(5) (non-prohibited person possessing, carrying or using a registered category E longarm without a licence).

6.7 Section 6(6) (non-prohibited person possessing, carrying or using other longarm).

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6.8 Section 6A(1) (non-prohibited person possessing, carrying or using an unregistered category A or B longarm).

6.9 Section 6A(2) (non-prohibited person possessing, carrying or using an unregistered category C or D longarm).

6.10 Section 6A(3) (non-prohibited person possessing, carrying or using an unregistered category E longarm).

6.11 Section 7(1) (non-prohibited person possessing, carrying or using a registered general category handgun without a licence).

6.12 Section 7(2) (non-prohibited person possessing, carrying or using a registered category E handgun without a licence).

6.13 Section 7(3) (non-prohibited person possessing, carrying or using a registered pre-1947 general category handgun for collection purposes without a licence).

6.14 Section 7(4) (non-prohibited person possessing, carrying or using a registered category E handgun for collection purposes without a licence).

6.15 Section 7(5) (non-prohibited person possessing, carrying or using a registered general category handgun for collection purposes without a licence).

6.16 Section 7(6) (non-prohibited person possessing, carrying or using a registered post-1947 category E handgun for collection purposes without a licence).

6.17 Section 7A(1) (holder of handgun target shooting licence possessing, carrying or using certain types of handguns).

6.18 Section 7B(1) (possessing, carrying or using an unregistered general category handgun).

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6.19 Section 36(1) (holder of longarm licence for category A or B longarms contravening a condition of the licence).

6.20 Section 36(2) (holder of licence for category C or D longarms or general category handguns contravening a condition of the licence).

6.21 Section 36(3) (holder of licence for category E longarms or category E handguns contravening a condition of the licence).

6.22 Section 45(3) (disposing of category A or B longarm other than to a licensed firearms dealer).

6.23 Section 45(4) (disposing of category C or D longarm, or general category handgun, other than to a licensed firearms dealer).

6.24 Section 45(5) (disposing of category E longarm, or category E handgun, other than to a licensed firearms dealer).

6.25 Section 53(1) (failing to surrender firearm or cartridge ammunition once a licence is suspended or cancelled).

6.26 Section 57(1) (non-prohibited person possessing, carrying or using a silencer without, or in contravention of, a permit).

6.27 Section 57A(1) (holder of handgun security guard licence possessing, carrying or using restricted ammunition without, or in contravention of, a permit).

6.28 Section 59(1) (being a firearms dealer in category A or B longarms or paintball markers without, or in contravention of, a licence).

6.29 Section 59(2) (being a firearms dealer in other firearms without, or in contravention of, a licence).

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6.30 Section 83 (failing to surrender firearms or cartridge ammunition once a dealers licence is suspended or cancelled).

6.31 Section 93(1) (licensed firearms dealer acquiring a category A or B longarm other than from a specified person).

6.32 Section 93(2) (licensed firearms dealer acquiring a category C or D longarm, or a general category handgun, other than from a specified person).

6.33 Section 93(3) (licensed firearms dealer acquiring other firearm other than from a specified person).

6.34 Section 94(1) (licensed firearms dealer disposing of a category A or B longarm other than to a specified person).

6.35 Section 94(2) (licensed firearms dealer disposing of a category C or D longarm or general category handgun other than to a specified person).

6.36 Section 94(3) (licensed firearms dealer disposing of other firearm other than to a specified person).

6.37 Section 95(1) (person who is not a licensed firearms dealer acquiring a category A or B longarm from another person who is not a licensed firearms dealer).

6.38 Section 95(2) (person who is not a licensed firearms dealer acquiring a category C or D longarm from another person who is not a licensed firearms dealer).

6.39 Section 95(2A) (person who is not a licensed firearms dealer acquiring a general category handgun from another person who is not a licensed firearms dealer).

6.40 Section 95(3) (person who is not a licensed firearms dealer acquiring a category E longarm from another person who is not a licensed firearms dealer).

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6.41 Section 96(1) (person who is not a licensed firearms dealer disposing of a category A or B longarm to a person who is not a licensed firearms dealer).

6.42 Section 96(2) (person who is not a licensed firearms dealer disposing of a category C or D longarm to a person who is not a licensed firearms dealer).

6.43 Section 96(2A) (person who is not a licensed firearms dealer disposing of a general category handgun to a person who is not a licensed firearms dealer).

6.44 Section 96(3) (person who is not a licensed firearms dealer disposing of a category E longarm to a person who is not a licensed firearms dealer).

6.45 Section 98(1) (person who is not a licensed firearms dealer taking possession of a firearm without personally receiving it).

6.46 Section 98(2) (person who is not a licensed firearms dealer giving possession of a firearm without personally giving it).

6.47 Section 99(1) (licensed firearms dealer acquiring a category A or B longarm from an interstate person who does not hold an interstate dealers licence).

6.48 Section 99(2) (licensed firearms dealer acquiring a category C or D longarm, or a general category handgun, from an interstate person who does not hold an interstate dealers licence).

6.49 Section 99(3) (licensed firearms dealer acquiring a category E longarm, or a category E handgun, from an interstate person who does not hold an interstate dealers licence).

6.50 Section 100(1) (licensed firearms dealer disposing of a category A or B longarm to an interstate person who does not hold an interstate licence).

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6.51 Section 100(2) (licensed firearms dealer disposing of a category C or D longarm, or a general category handgun, to an interstate person who does not hold an interstate licence).

6.52 Section 100(3) (licensed firearms dealer disposing of a category E longarm, or a category E handgun, to an interstate person who does not hold an interstate licence).

6.53 Section 101B(1) (providing financial accommodation for the illegal acquisition or disposal of a category A or B longarm).

6.54 Section 101B(2) (providing financial accommodation for the illegal acquisition or disposal of a category C or D longarm or a general category handgun).

6.55 Section 101B(3) (providing financial accommodation for the illegal acquisition or disposal of a category E longarm or a category E handgun).

6.56 Section 102(1) (acquiring a category A or B longarm without a permit).

6.57 Section 102(2) (acquiring a category C or D longarm without a permit).

6.58 Section 102(2A) (acquiring a general category handgun without a permit).

6.59 Section 102(3) (acquiring a category E longarm without a permit).

6.60 Section 121(1) (improperly storing a firearm that is possessed under a longarm licence for a category A or B longarm).

6.61 Section 121(1A) (improperly storing cartridge ammunition that is possessed under a longarm licence for a category A or B longarm).

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6.62 Section 121(2) (improperly storing a firearm that is possessed under a licence for a general category handgun or a category C or D longarm).

6.63 Section 121(2A) (improperly storing cartridge ammunition that is possessed under a licence for a general category handgun, or a category C or D longarm).

6.64 Section 121(3) (improperly storing a firearm that is possessed under a licence for a category E handgun or a category E longarm).

6.65 Section 121(3A) (improperly storing cartridge ammunition that is possessed under a licence for a category E handgun or a category E longarm).

6.66 Section 123(1) (improperly storing a category A or B longarm that is possessed under a dealers licence).

6.67 Section 123(2) (improperly storing a category C or D longarm, or a general category handgun, that is possessed under a dealers licence).

6.68 Section 123(3) (improperly storing a category E handgun, or a category E longarm, that is possessed under a dealers licence).

6.69 Section 123(4) (improperly storing ammunition that is possessed under a dealers licence).

6.70 Section 125 (disposing of cartridge ammunition to an unauthorised person).

6.71 Section 126(1) (carrying or using a category A or B longarm without keeping it safe).

6.72 Section 126(2) (carrying or using a category C or D longarm, or a general category handgun, without keeping it safe).

6.73 Section 126(3) (carrying or using a category E longarm, or a category E handgun, without keeping it safe).

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6.74 Section 126(4) (carrying or using cartridge ammunition without keeping it safe).

6.75 Section 127(1) (permitting a category A or B longarm to be carried or used by an unauthorised person).

6.76 Section 127(2) (permitting a category C or D longarm to be carried or used by an unauthorised person).

6.77 Section 127(3) (permitting a category E longarm to be carried or used by an unauthorised person).

6.78 Section 128 (damaging property with a firearm).

6.79 Section 129 (using a firearm in a dangerous manner).

6.80 Section 129A (unlicensed person storing a firearm or cartridge ammunition in an insecure manner).

6.81 Section 130(1) (carrying or using a firearm in certain places).

6.82 Section 131(1) (possessing, carrying or using a firearm on private property without consent).

6.83 Section 132(1) (carrying or using a firearm while intoxicated).

6.84 Section 132(2) (concealing a firearm for the purpose of committing an indictable offence).

6.85 Section 133 (disposing of a firearm to an intoxicated person).

6.86 Section 134(1) (shortening the barrel of a longarm).

6.87 Section 134(2) (altering an inoperable firearm so it can discharge any shot, bullet or missile).

6.88 Section 134(3) (defacing or altering identifying marks on a firearm).

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6.89 Section 134(4) (destroying, or rendering inoperable, a firearm or other item without the Chief Commissioner's approval).

6.90 Section 134C(1) (possessing a firearm on which there is no serial number).

6.91 Section 135(1) (owning a category A or B longarm without a licence to possess it).

6.92 Section 135(2) (owning a category C or D longarm, or a general category handgun, without a licence to possess it).

6.93 Section 135(3) (owning a category E longarm, or a category E handgun, without a licence to possess it).

6.94 Section 136 (disposing of a firearm to a minor).

6.95 Section 137(1) (altering the particulars on a licence, permit, certificate or other document).

6.96 Section 138 (making a false entry in a register or other record).

6.97 Section 140A(1) (making a false or misleading statement in making an application).

6.98 Section 140A(2) (being false or misleading in providing identification).

6.99 Section 140A(3) (making a false or misleading statement in supporting an application).

7 Sex Work Act 1994

7.1 Section 22(1) (knowingly or recklessly carrying on business as a sex work service provider other than in accordance with a licence).

7.2 Section 22(1A) (carrying on business as a sex work service provider other than in accordance with a licence).

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7.3 Section 22(3) (assisting in the carrying on of a sex work service providing business that is being carried on other than in accordance with a licence).

7.4 Section 57(1) (carrying on business as a sex work service provider in association with an unlicensed person).

7.5 Section 75(1) (having an interest in more than one brothel licence or permit).

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ENDNOTES

Endnotes


46

† Minister's second reading speech—

Legislative Assembly: 18 April 2013

Legislative Council: 22 August 2013

The long title for the Bill for this Act was "A Bill for an Act 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 and for other purposes."

Documents

Fortification Removal Act 2013 - ocpc.vic.gov.auFILE/13-048a.docx · Web viewOCPC-VIC, Word 2007, Template Release 2010 V5.01