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This is a Bill, not an Act. For current law, see the Acts databases.
TASMANIA
__________
REMOVAL OF FORTIFICATIONS BILL 2017
__________
CONTENTS
PART 1 - PRELIMINARY
1. Short title
2. Commencement
3. Definitions
4. Meaning of fortification
PART 2 - FORTIFICATIONS GENERALLY
5. Constructing or installing fortification on certain premises
6. Constructing or installing fortification on certain premises if
fortification removal order previously made
PART 3 - FORTIFICATION REMOVAL ORDERS
Division 1 - Applications for fortification removal orders
7. Commissioner may apply for fortification removal order
8. Serving application and affixing notice of application
9. Owner or occupier may object to application
Division 2 - Determination of applications
10. Court may make fortification removal order
11. Form of fortification removal order
12. When fortification removal order takes effect
13. Duration of fortification removal order
14. Compliance period
[Bill 16]-IX
15. Serving and affixing fortification removal order
Division 3 - Extension of compliance period
16. Commissioner may extend compliance period
17. Owner or occupier may apply to court for extension of
compliance period
18. Service of application on Commissioner
19. Court may extend compliance period
Division 4 - Withdrawal of fortification removal order
20. Withdrawal of fortification removal order
21. Serving and affixing notice of withdrawal
PART 4 - INSPECTIONS
Division 1 - Authority to inspect while fortification removal order is in effect
22. Inspecting fortified premises while fortification removal order is
in effect
Division 2 - Inspection orders after fortification removal order ceases to have
effect
23. Commissioner may apply for inspection order after fortification
removal order ceases to have effect
24. Serving application and affixing notice of application
25. Owner or occupier may object to application
26. Court may make inspection order
27. Form of inspection order
28. Serving and affixing inspection order
Division 3 - Conduct of inspections
29. Power to inspect and enter premises
PART 5 - ENFORCEMENT OF FORTIFICATION REMOVAL
ORDERS
30. Enforcement notice
31. Enforcement powers
32. Power to direct obstructive person to leave fortified premises
33. Power to use reasonable force to remove person from fortified
premises
2
34. Commissioner may recover cost of removing or modifying
fortifications
35. Removed material forfeited to Crown
36. Exemption from certain laws
PART 6 - OFFENCES
37. Obstructing a police officer
38. Obstructing enforcement of fortification removal order
39. Failure to comply with direction to leave fortified premises
40. Interfering with affixed documents
PART 7 - POLICE POWERS
41. Power to require information
42. Power to detain persons
43. Power to arrest without warrant
PART 8 - MISCELLANEOUS
44. Proceedings under this Act
45. Appeals
46. Delegation
47. Immunity
48. Regulations
49. Administration of Act
50. Consequential amendments
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
3
4
REMOVAL OF FORTIFICATIONS BILL 2017
This Public Bill originated in the House of Assembly, and, having this day passed, is
now ready for presentation to the Legislative Council for its concurrence.
SHANE DONNELLY, Clerk of the House
11 April 2017
(Brought in by the Minister for Police, Fire and Emergency
Management, the Honourable Marinus Theodoor Hidding)
A BILL FOR
An Act to provide for the removal or modification of
fortifications on premises that are connected to certain
criminal offences and to consequentially amend the Police
Offences Act 1935
Be it enacted by Her Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
PART 1 - PRELIMINARY
1. Short title
This Act may be cited as the Removal of
Fortifications Act 2017.
2. Commencement
This Act commences on the day on which this
Act receives the Royal Assent.
[Bill 16] 5
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Act No. of
s. 3 Part 1 - Preliminary
3. Definitions
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 -
(a) is entitled to the building or land
for any estate of freehold in
possession; or
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Act No. of
Part 1 - Preliminary s. 3
(b) has contracted to buy the building
or land; or
(c) 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 -
(a) land and a structure, building,
caravan, vehicle and vessel,
whether -
(i) temporary or not; and
(ii) under construction or not;
and
(iii) used for residential
purposes or not; and
(b) a place, whether enclosed or built
on or not and whether on, within,
over or under land or water; and
(c) 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 -
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Removal of Fortifications Act 2017
Act No. of
s. 4 Part 1 - Preliminary
(a) an indictable offence under the
laws of Tasmania or the
Commonwealth, including an
indictable offence triable
summarily; or
(b) an offence under the Firearms
Act 1996; or
(c) an offence under the Misuse of
Drugs Act 2001; or
(d) an offence under the Sex Industry
Offences Act 2005; or
(e) a prescribed offence.
4. Meaning of fortification
(1) For the purposes of this Act, a fortification is a
structure or device, or a combination of
structures and devices, that -
(a) forms part of, or is attached to, premises;
and
(b) is beyond what is reasonably necessary
to provide security for the ordinary
lawful use of that kind of premises; and
(c) either -
(i) has, or could have, the effect of
preventing uninvited entry to the
premises or part of the premises;
or
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Act No. of
Part 1 - Preliminary s. 4
(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.
(2) 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.
(3) 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.
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Act No. of
s. 5 Part 2 - Fortifications Generally
PART 2 - FORTIFICATIONS GENERALLY
5. Constructing or installing fortification on certain
premises
(1) 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 -
(a) an individual, a fine not
exceeding 50 penalty units or
imprisonment for a term not
exceeding 1 year, or both; or
(b) a body corporate, a fine not
exceeding 300 penalty units.
(2) Subsection (1) does not apply if the person
proves that he or she constructed or installed the
fortification before the commencement of this
Act.
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Act No. of
Part 2 - Fortifications Generally s. 6
6. 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 -
(a) an individual, a fine not
exceeding 100 penalty units or
imprisonment for a term not
exceeding 2 years, or both; or
(b) a body corporate, a fine not
exceeding 600 penalty units.
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Act No. of
s. 7 Part 3 - Fortification Removal Orders
PART 3 - FORTIFICATION REMOVAL ORDERS
Division 1 - Applications for fortification removal orders
7. Commissioner may apply for fortification removal
order
(1) 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 -
(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.
(2) An application under subsection (1) is to -
(a) be in writing; and
(b) state the grounds on which the order is
sought; and
(c) specify the premises from or at which a
fortification is sought to be removed or
modified under the order; and
(d) identify the fortification that is sought to
be removed or modified under the order;
and
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Act No. of
Part 3 - Fortification Removal Orders s. 8
(e) if a modification of a fortification is
sought - specify details of the
modification 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.
(3) An application must be accompanied by at least
one affidavit that addresses the facts, matters and
circumstances on which the application relies.
8. Serving application and affixing notice of
application
(1) As soon as practicable after an application under
section 7 is made, the Commissioner must -
(a) 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
(b) cause a notice 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) An application under section 7 is not invalid if,
after making all reasonable efforts, the
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Act No. of
s. 9 Part 3 - Fortification Removal Orders
Commissioner is unable to serve a copy of the
application on an owner of the premises in
accordance with subsection (1)(a).
(3) A notice under subsection (1)(b) is to -
(a) include the information specified in
section 7(2)(c), (d), (e) and (f); and
(b) 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.
9. Owner or occupier may object to application
(1) 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.
(2) An objection made under subsection (1)
must be -
(a) accompanied by at least one affidavit
addressing the facts, matters and
circumstances on which the objection
relies; and
(b) filed with a court of petty sessions at
least 7 days before the day on which the
application is listed to be heard; and
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Act No. of
Part 3 - Fortification Removal Orders s. 10
(c) served on the Commissioner at least
5 days before the day on which the
application is listed to be heard.
(3) If an objection is made under subsection (1), a
court of petty sessions may, in hearing an
application made under section 7 -
(a) take into account any information
accompanying the objection; and
(b) receive further evidence in respect of that
information.
(4) A person who makes an objection under
subsection (1), at the hearing of the application
to which the objection relates, may -
(a) appear and adduce evidence; and
(b) be represented.
(5) 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.
Division 2 - Determination of applications
10. Court may make fortification removal order
(1) 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.
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Act No. of
s. 11 Part 3 - Fortification Removal Orders
(2) A court of petty sessions 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
that the premises are being used, 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), 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.
(4) 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.
11. Form of fortification removal order
A fortification removal order is to specify -
16
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Act No. of
Part 3 - Fortification Removal Orders s. 11
(a) the premises from, or at which, the
fortification is to be removed or
modified; and
(b) that a court of petty sessions is satisfied
that there is a fortification in place at
those premises; and
(c) 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 -
(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; and
(d) the fortification to which the order
relates; and
(e) if the fortification is to be modified -
(i) the manner in which the
fortification is to be modified;
and
(ii) that the modification must not be
removed or undone; and
(f) if the fortification is to be removed, that
the fortification must be removed, and
not be replaced or restored; and
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Removal of Fortifications Act 2017
Act No. of
s. 11 Part 3 - Fortification Removal Orders
(g) that a police officer may enter and
inspect the premises in accordance with
Part 4 -
(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 police
officer may remove or modify that
fortification in accordance with Part 5;
and
(i) that an owner or occupier of the fortified
premises may -
(i) request that the Commissioner
extend the compliance period in
accordance with section 16; or
(ii) apply to a court of petty sessions
for an order extending the
compliance period in accordance
with section 17; and
(j) 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).
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Act No. of
Part 3 - Fortification Removal Orders s. 12
12. When fortification removal order takes effect
A fortification removal order takes effect on -
(a) if a court of petty sessions 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 on which a
copy of the order is affixed to or near the
entrance of the fortified premises under
section 15.
13. Duration of fortification removal order
(1) A fortification removal order remains in effect
until -
(a) the expiry of a 12-month period,
commencing on the day on which the
compliance period for the order ends in
accordance with section 14; or
(b) if the order is withdrawn before the
expiry of the period referred to in
paragraph (a), 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 of competent jurisdiction.
(3) A period during which a fortification removal
order does not have effect because it is stayed by
a court of competent jurisdiction does not form
part of the period specified under subsection (1).
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Act No. of
s. 14 Part 3 - Fortification Removal Orders
14. Compliance period
(1) The compliance period for a fortification
removal order is the period beginning on the day
on which the order takes effect and ending on -
(a) the day that is 90 days after the day on
which the order takes effect; or
(b) if the order is extended under section 16
or 19, such day as is specified by -
(i) the Commissioner under
section 16; or
(ii) a court of petty sessions by order
under section 19.
(2) For the purposes of calculating the compliance
period for a fortification removal order under
subsection (1)(a), the compliance period is not
inclusive of any period during which its
operation is stayed by a court of competent
jurisdiction.
15. Serving and affixing fortification removal order
(1) As soon as practicable after a fortification
removal order is made, the Commissioner must -
(a) subject to subsection (2), ensure that all
reasonable efforts are made to serve a
copy of the order on the owner or, if
there is more than one owner, on at least
one owner, of the premises in respect of
which the order is made; and
20
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Act No. of
Part 3 - Fortification Removal Orders s. 16
(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) a copy of the application in respect of the
fortification removal order has been
served on an owner of the premises; or
(b) a court of petty sessions made the order
in the presence of an owner of the
premises; or
(c) a court of petty sessions determines that
there is no requirement to serve a copy of
the order as specified in
subsection (1)(a).
(3) An order under section 10(1) does not fail if,
after making all reasonable efforts, the
Commissioner is unable to serve a copy of the
order on an owner of the premises under
subsection (1)(a).
Division 3 - Extension of compliance period
16. Commissioner may extend compliance period
(1) An owner or occupier of fortified premises may
any time during the compliance period for a
fortification removal order, make a written
21
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Act No. of
s. 16 Part 3 - Fortification Removal Orders
request for the Commissioner to extend the
compliance period in relation to those premises.
(2) The Commissioner is to, no later than 7 days
after the day on which a request under
subsection (1) is received by the
Commissioner -
(a) agree to extend the compliance period; or
(b) refuse to extend the compliance period;
or
(c) request further information in relation to
the request to extend the compliance
period and within 7 days after receiving
the further information -
(i) agree to extend the compliance
period; or
(ii) refuse to extend the compliance
period.
(3) Despite subsections (1) and (2), the
Commissioner must not agree to extend a
compliance period if an application has been
made to a court of petty sessions under
section 17 in respect of the compliance period
and that application has not been finally
determined.
(4) If the Commissioner agrees to extend the
compliance period under subsection (2), the
compliance period is taken to be extended until
the day decided by the Commissioner.
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Act No. of
Part 3 - Fortification Removal Orders s. 17
(5) If the Commissioner agrees to extend the
compliance period, the Commissioner must give
the person requesting the extension of the
compliance period a written notice of the
extension that specifies the day until which the
compliance period has been extended.
(6) A compliance period may be extended -
(a) more than once under this section; and
(b) even if an extension to that compliance
period has previously been made by a
court of petty sessions under section 19.
17. Owner or occupier may apply to court for extension
of compliance period
(1) An owner or occupier of fortified premises may
apply to a court of petty sessions for an
extension of the compliance period if the
Commissioner has refused a request for that
extension.
(2) An application under subsection (1) may be
made before or after the compliance period ends.
(3) An application under subsection (1) must -
(a) be in writing; and
(b) state the grounds on which the order
extending the compliance period is
sought.
(4) An application under subsection (1) must be
accompanied by at least one affidavit that
23
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Act No. of
s. 18 Part 3 - Fortification Removal Orders
addresses the facts, matters and circumstances
on which the application relies.
18. Service of application on Commissioner
An application under section 17(1) must be
served on the Commissioner at least 5 days
before the day on which the application is listed
to be heard by a court of petty sessions.
19. Court may extend compliance period
(1) On receipt of an application under section 17(1),
a court of petty sessions may make an order
extending the compliance period for a
fortification removal order if the court is
satisfied that it is appropriate to do so in the
circumstances.
(2) A court of petty sessions may extend the
compliance period even if the compliance period
has ended before the court makes its
determination on the application.
(3) If a compliance period for a fortification removal
order has ended before the court of petty
sessions makes an order extending the
compliance period under subsection (2) -
(a) the extension of the compliance period
for that order is taken to have had effect
from the day after the day on which the
compliance period initially ended; and
(b) the extension of the compliance period
does not affect the validity of an action
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Act No. of
Part 3 - Fortification Removal Orders s. 20
by a person, including a police officer,
undertaken in accordance with this Act
between the expiry of the initial
compliance period and the making of the
order.
Division 4 - Withdrawal of fortification removal order
20. Withdrawal of fortification removal order
(1) The Commissioner may withdraw a fortification
removal order by filing a notice of withdrawal
with a court of petty sessions.
(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 Commissioner is satisfied
that the order is no longer necessary.
(3) On the notice of withdrawal being filed with a
court of petty sessions, the fortification removal
order ceases to have effect.
21. Serving and affixing notice of withdrawal
As soon as practicable after a fortification
removal order is withdrawn under section 20, the
Commissioner must -
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Removal of Fortifications Act 2017
Act No. of
s. 21 Part 3 - Fortification Removal Orders
(a) ensure that all reasonable efforts are
made to serve a copy of the notice of
withdrawal on the owner or, if there is
more than one owner, on at least one
owner, of the premises in respect of
which the notice is given; and
(b) cause a copy of the notice of withdrawal
to be affixed -
(i) to the entrance of the premises to
which the order applied; or
(ii) in a conspicuous place near that
entrance.
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Act No. of
Part 4 - Inspections s. 22
PART 4 - INSPECTIONS
Division 1 - Authority to inspect while fortification removal
order is in effect
22. Inspecting fortified premises while fortification
removal order is in effect
While a fortification removal order is in effect in
respect of premises, a police officer 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).
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Act No. of
s. 23 Part 4 - Inspections
Division 2 - Inspection orders after fortification removal
order ceases to have effect
23. Commissioner may apply for inspection order after
fortification removal order ceases to have effect
(1) If a fortification removal order has ceased to
have effect in respect of premises, the
Commissioner may apply to a court of petty
sessions for an order authorising a police officer
to enter and inspect those premises.
(2) An application under subsection (1) must -
(a) be in writing; and
(b) state the grounds on which the inspection
order is sought; and
(c) specify the premises that are sought to be
inspected.
(3) An application must be accompanied by -
(a) at least one affidavit that addresses the
facts, matters and circumstances on
which the application relies; and
(b) a copy of the most recent fortification
removal order that previously applied in
respect of the premises.
(4) An application under subsection (1) may not be
made in respect of a fortification removal order
if 3 years or more have passed since the
fortification removal order has ceased to have
effect.
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Act No. of
Part 4 - Inspections s. 24
24. Serving application and affixing notice of
application
(1) As soon as practicable after an application under
section 23 is made, the Commissioner must -
(a) 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
(b) cause a notice 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) A notice under subsection (1)(b) is to state that -
(a) an owner or occupier of the premises in
respect of which the application is made
may object to the application; and
(b) it is an offence to remove, obscure,
damage or destroy the notice before the
day after the day on which the
application is finally determined.
25. Owner or occupier may object to application
(1) An owner, or an occupier, of the premises in
respect of which the application under section 23
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s. 25 Part 4 - Inspections
is made, may object to the application on the
basis that the application is unreasonable in the
circumstances.
(2) An objection under subsection (1) must be -
(a) accompanied by at least one affidavit
addressing the facts, matters and
circumstances on which the objection
relies; and
(b) filed with a court of petty sessions at
least 7 days before the day on which the
application is listed to be heard; and
(c) served on the Commissioner at least 5
days before the day on which the
application is listed to be heard.
(3) If an objection is made under subsection (1), a
court of petty sessions may, in hearing an
application made under section 23 -
(a) take into account any information
accompanying the objection; and
(b) receive further evidence in respect of that
information.
(4) A person who makes an objection under
subsection (1), at the hearing of the application
to which the objection relates, may -
(a) appear and adduce evidence; and
(b) be represented.
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Part 4 - Inspections s. 26
(5) A court of petty sessions may accept an
objection filed or served outside one or both of
the time limitations specified in subsection (2)(b)
and (c) if satisfied that it is reasonable to do so.
26. Court may make inspection order
(1) On receipt of an application under section 23, a
court of petty sessions may order that a police
officer is authorised to -
(a) enter and inspect 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) A court of petty sessions may make an order
under subsection (1) if the court is satisfied that
it is appropriate to do so in all the circumstances.
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s. 27 Part 4 - Inspections
(3) A court of petty sessions may hear and
determine an application under section 23
whether or not a person, who has made an
objection under section 25 in respect of the
application, appears at the hearing of the
application.
27. Form of inspection order
(1) An inspection order must specify -
(a) the premises to be entered and inspected;
and
(b) subject to subsection (2), the period
during which a police officer is
authorised to inspect the premises; and
(c) that it is an offence to remove, obscure,
damage or destroy a copy of an
inspection order that is affixed in
accordance with section 28 before the
day after the last day of the period
specified under paragraph (b).
(2) The period specified under subsection (1)(b)
must not end after the day that is 3 years after
the day on which the fortification removal order
ceased to have effect.
28. Serving and affixing inspection order
As soon as practicable after an inspection order
is made, the Commissioner must -
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Part 4 - Inspections s. 29
(a) ensure that all reasonable efforts are
made to serve a copy of the inspection
order on the owner or, if there is more
than one owner, on at least one owner, of
the premises in respect of which the
order is made; and
(b) cause a copy of the inspection order to be
affixed -
(i) to the entrance of the premises to
which the order applies; or
(ii) in a conspicuous place near that
entrance.
Division 3 - Conduct of inspections
29. Power to inspect and enter premises
(1) This section applies if a police officer is
authorised to enter and inspect premises to
which the authorisation relates under -
(a) section 22; or
(b) an inspection order made under
section 26.
(2) A police officer may, without warrant, enter and
inspect premises to which the authorisation
relates on -
(a) if the inspection is authorised under
section 22, any day on which the
fortification removal order is in effect; or
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s. 29 Part 4 - Inspections
(b) if the inspection is authorised under an
inspection order made under section 26,
any day that is within the period
specified in the order.
(3) Before any police officer enters the premises to
which the authorisation relates, at least one
police officer must -
(a) announce that police officers are
authorised to enter and inspect the
premises; and
(b) state that he or she is a police officer; and
(c) give anyone at the premises a reasonable
opportunity to permit entry to the
premises.
(4) A police officer may use reasonable force to -
(a) gain entry to premises, if permission to
enter the premises is not given; and
(b) exercise any other power under
subsection (2).
34
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Part 5 - Enforcement of Fortification Removal Orders s. 30
PART 5 - ENFORCEMENT OF FORTIFICATION
REMOVAL ORDERS
30. Enforcement notice
(1) This section applies if -
(a) a fortification removal order is in effect;
and
(b) the compliance period for that order has
ended; and
(c) the fortification has not been removed or
modified as required under the order.
(2) At least 7 days before a police officer intends to
enforce a fortification removal order in relation
to a fortified premises by exercising powers
under section 31, a police officer must cause a
notice of enforcement of the order to be
affixed -
(a) to the entrance of the fortified premises;
or
(b) in a conspicuous place near that entrance.
(3) The notice must -
(a) specify the day, or days, on which a
police officer intends to exercise powers
under section 31; and
(b) state that it is an offence to remove,
obscure, damage or destroy the notice
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s. 31 Part 5 - Enforcement of Fortification Removal Orders
before the day after the last day specified
under paragraph (a).
31. Enforcement powers
(1) On a day specified in the notice under
section 30(3)(a), a police officer may do any one
or more of the following to enforce a
fortification removal order that is in effect in
respect of a fortified premises:
(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 re-enter to the premises.
(2) Before any police officer enters the fortified
premises, at least one police officer must -
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Part 5 - Enforcement of Fortification Removal Orders s. 31
(a) announce that police officers are
authorised to enter the premises and to
enforce the fortification removal order;
and
(b) state that he or she is a police officer; and
(c) state that it is an offence to obstruct or
hinder the enforcement of the
fortification removal order; and
(d) give anyone at the premises an
opportunity to permit entry to the
premises.
(3) A police officer may use reasonable force -
(a) to gain entry in accordance with
subsection (1), 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 police officer 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 police officer must not exercise a power under
this section in respect of fortified premises
unless the fortification removal order is in effect
in respect of those premises.
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s. 32 Part 5 - Enforcement of Fortification Removal Orders
32. Power to direct obstructive person to leave fortified
premises
(1) This section applies if, on a day specified in the
notice under section 30(3)(a), a police officer
believes on reasonable grounds that a person at
fortified premises is hindering or obstructing -
(a) a police officer in the exercise of a power
under section 31; or
(b) a person who is assisting a police officer
to remove or modify a fortification under
section 31(1)(c).
(2) The police officer may direct the person who is
hindering, or obstructing, to leave the fortified
premises in the manner directed.
(3) A direction under subsection (2) -
(a) may be given orally or in writing; and
(b) must be reasonable in all the
circumstances.
33. Power to use reasonable force to remove person
from fortified premises
(1) In addition to any penalty imposed under
section 39, if a person has refused to comply
with a direction under section 32, a police officer
may use reasonable force to remove the person
from fortified premises.
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Part 5 - Enforcement of Fortification Removal Orders s. 34
(2) Nothing in this section limits any powers,
including the power of arrest, that a police
officer has under any other law.
34. Commissioner may recover cost of removing or
modifying fortifications
The reasonable costs of removing or modifying a
fortification under section 31 may be recovered
by the Commissioner in a court of competent
jurisdiction as a debt from an owner or occupier
of the premises who caused or allowed the
fortification to be constructed or installed on
those premises.
35. Removed material forfeited to Crown
(1) The following are forfeited to the Crown:
(a) a fortification that is removed from
fortified premises under section 31;
(b) material that is removed from a
fortification in the course of modifying
that fortification under section 31.
(2) The Commissioner may sell, destroy or
otherwise dispose of a fortification or material
that is forfeited to the Crown under
subsection (1).
36. Exemption from certain laws
(1) Nothing in the Environmental Management and
Pollution Control Act 1994 applies in respect of
39
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s. 36 Part 5 - Enforcement of Fortification Removal Orders
noise resulting from the removal or modification
of a fortification under section 31.
(2) Nothing in the Building Act 2016, the Land Use
Planning and Approvals Act 1993, the Historic
Cultural Heritage Act 1995 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 31.
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Removal of Fortifications Act 2017
Act No. of
Part 6 - Offences s. 37
PART 6 - OFFENCES
37. Obstructing a police officer
A person must not, without reasonable excuse,
hinder or obstruct a police officer who is
exercising a power under this Act.
Penalty: Fine not exceeding 100 penalty units
or imprisonment for a term not
exceeding 2 years, or both.
38. Obstructing enforcement of fortification removal
order
A person must not, without reasonable excuse,
hinder or obstruct a person who is assisting a
police officer to remove or modify a fortification
under section 31(1)(c).
Penalty: Fine not exceeding 100 penalty units
or imprisonment for a term not
exceeding 2 years, or both.
39. 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 32.
Penalty: Fine not exceeding 20 penalty units.
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s. 40 Part 6 - Offences
40. Interfering with affixed documents
(1) A person must not, without reasonable excuse,
remove, obscure, damage or destroy an affixed
document before the applicable day.
Penalty: Fine not exceeding 20 penalty units.
(2) An affixed document referred to in
subsection (1) means one of the following
documents affixed to premises:
(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 15(1)(b);
(c) a notice of application that is affixed in
accordance with section 24(1);
(d) a copy of an inspection order that is
affixed in accordance with section 28;
(e) a notice of enforcement that is affixed in
accordance with section 30(2).
(3) For the purposes of subsection (1) -
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; or
42
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Part 6 - Offences s. 40
(b) in the case of a copy of a
fortification removal order that is
affixed under section 15(1)(b) -
the day on which the order ceases
to have effect; or
(c) in the case of a notice of
application that is affixed in
accordance with section 24(1) -
the day on which the application
is finally determined; or
(d) in the case of a copy of an
inspection order that is affixed in
accordance with section 28 - the
last day of the period specified in
the order under section 27(1)(b);
or
(e) in the case of a notice of
enforcement that is affixed in
accordance with section 30(2) -
(i) the last day specified in
the notice under
section 30(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.
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s. 41 Part 7 - Police Powers
PART 7 - POLICE POWERS
41. Power to require information
(1) In the course of exercising a power under this
Act, a police officer may require any person to
provide his or her name, address and date of
birth.
(2) A person must comply with a requirement made
under subsection (1).
Penalty: Fine not exceeding 50 penalty units or
imprisonment for a term not exceeding
6 months, or both.
(3) In complying with a requirement made under
subsection (1), a person must not provide
information or an answer that the person knows
to be false or misleading in a material particular.
Penalty: Fine not exceeding 50 penalty units or
imprisonment for a term not exceeding
6 months, or both.
42. Power to detain persons
(1) A police officer may at any time stop or detain a
person if there are reasonable grounds for
suspecting that the person is committing, or has
committed, an offence under this Act.
(2) When exercising his or her powers under this
section, a police officer may use any reasonable
force and any assistance the police officer thinks
reasonable.
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Part 7 - Police Powers s. 43
(3) In this section, a power to stop or detain includes
the power to stop and detain.
43. Power to arrest without warrant
A police officer may arrest, without warrant, a
person who the police officer reasonably
believes is committing, or has committed, an
offence under this Act.
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Removal of Fortifications Act 2017
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s. 44 Part 8 - Miscellaneous
PART 8 - MISCELLANEOUS
44. Proceedings under this Act
(1) Proceedings on an application under this Act are
taken to be civil proceedings for all purposes.
(2) A court of competent jurisdiction dealing with
proceedings under this Act may do one or more
of the following:
(a) order that the whole or any part of the
proceedings is to be heard in closed
court;
(b) order that only persons, or classes of
persons, specified by the court may be
present during the whole or any part of
the proceedings;
(c) order that the publication of a report of
the whole or any part of the proceedings,
or of any information derived from the
proceedings, is prohibited.
(3) Except in relation to proceedings for an offence
under this Act -
(a) a rule of construction that is applicable
only in relation to the criminal law does
not apply in the interpretation of this Act;
and
(b) the rules of evidence applicable in civil
proceedings apply in proceedings under
this Act; and
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Part 8 - Miscellaneous s. 45
(c) the rules of evidence applicable only in
criminal proceedings do not apply in
proceedings under this Act; and
(d) a question of fact to be decided by a
court of competent jurisdiction in
proceedings on an application under this
Act is to be decided on the balance of
probabilities.
(4) A decision under this Act about the existence of
grounds for doing or suspecting anything may be
based on hearsay evidence or hearsay
information.
(5) An order or decision of a court of competent
jurisdiction made under this Act in relation to
property is not invalid only because the value of
the property exceeds the maximum value
permitted to be dealt with by the court that made
the order or decision.
45. Appeals
(1) A person who has an interest in premises that are
subject to a fortification removal order may
appeal against the order.
(2) The Commissioner may appeal against -
(a) a fortification removal order; or
(b) the refusal of a court of competent
jurisdiction to make such an order.
(3) Appeals are to be conducted in accordance with
Part XI of the Justices Act 1959 as if an order
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s. 46 Part 8 - Miscellaneous
under this Act were an order to which that Part
applies as defined for the purposes of that Part.
46. Delegation
The Commissioner may only delegate a function
or power under this Act, in accordance with
section 8 of the Police Service Act 2003, to a
member of the Police Service of or above the
rank of Commander.
47. Immunity
(1) A police officer is not liable for anything done or
omitted to be done in good faith in the course of
exercising his or her functions and powers under
this Act.
(2) A person assisting a police officer to remove or
modify fortifications under section 31(1)(c) is
not liable for anything done or omitted to be
done in good faith -
(a) in the course of assisting the police
officer; or
(b) in the reasonable belief that the act or
omission was in the course of assisting
the police officer.
(3) A person bringing equipment or materials onto
fortified premises under section 31(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.
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Part 8 - Miscellaneous s. 48
(4) Any liability resulting from an act or omission
that, but for this section, would attach to a
person, attaches instead to the State.
48. Regulations
(1) The Governor may make regulations for the
purposes of this Act.
(2) Regulations made under this Act may -
(a) be of general or limited application; and
(b) differ according to differences in time,
place or circumstance; and
(c) confer a discretionary authority or
impose a duty on a specified person or
body or a specified class of persons or
bodies; and
(d) provide that a contravention of any of the
regulations is an offence.
49. Administration of Act
Until provision is made in relation to this Act by
order under section 4 of the Administrative
Arrangements Act 1990 -
(a) the administration of this Act is assigned
to the Minister for Police, Fire and
Emergency Management; and
(b) the department responsible to the
Minister for Police, Fire and Emergency
49
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s. 50 Part 8 - Miscellaneous
Management in relation to the
administration of this Act is the
Department of Police, Fire and
Emergency Management.
50. Consequential amendments
The legislation specified in Schedule 1 is
amended as specified in that Schedule.
50
Removal of Fortifications Act 2017
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sch. 1
SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS
Section 50
Police Offences Act 1935
1. Division III of Part II is repealed.
Government Printer, Tasmania 51