STATUTES AMENDMENT (ANTI-FORTIFICATION) ACT 2003 (NO 46 OF 2003) - SECT 8

STATUTES AMENDMENT (ANTI-FORTIFICATION) ACT 2003 (NO 46 OF 2003) - SECT 8

8—Insertion of Part 16

After section 74B insert:

Part 16—Fortifications

74BA—Interpretation

In this Part, unless the contrary intention appears—

"Court" means the Magistrates Court of South Australia;

"fortification" means any security measure that involves a structure or device forming part of, or attached to, premises that—

            (a)         is intended or designed to prevent or impede police access to the premises; or

            (b)         has, or could have, the effect of preventing or impeding police access to the premises and is excessive for the particular type of premises,

and "fortified" has a corresponding meaning;

"fortification removal order" means an order under section 74BB;

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

"premises" includes—

            (a)         land; and

            (b)         a building or structure on land; and

            (c)         a part of premises;

"serious criminal offence" means—

            (a)         an indictable offence; or

            (b)         an offence prescribed by regulation for the purposes of this definition.

74BB—Fortification removal order

        (1)         If, on the application of the Commissioner, the Court is satisfied that—

            (a)         premises named in the application are fortified; and

            (b)         —

                  (i)         the fortifications have been created in contravention of the Development Act 1993 ; or

                  (ii)         there are reasonable grounds to believe the premises are being, have been, or are likely to be, used—

                        (A)         for or in connection with the commission of a serious criminal offence; or

                        (B)         to conceal evidence of a serious criminal offence; or

                        (C)         to keep the proceeds of a serious criminal offence,

the Court may issue a "fortification removal order" in respect of the premises.

        (2)         A fortification removal order is directed to the occupier of the premises or, if there is more than one occupier, any one or more of the occupiers of the premises, and requires the named occupier or occupiers to remove or modify the fortifications, as specified in the order.

        (3)         A fortification removal order may be issued on an ex parte application.

        (4)         The grounds of an application for a fortification removal order must be verified by affidavit.

        (5)         The Commissioner may identify any information provided to the Court for the purposes of the application as confidential if its disclosure might—

            (a)         prejudice the investigation of a contravention or possible contravention of the law; or

            (b)         enable the existence or identity of a confidential source of information to be ascertained; or

            (c)         endanger a person's life or physical safety,

and if the Court is satisfied (having regard to the principle of public interest immunity) that the information should be protected from disclosure, the Court must order that the information is not to be disclosed to any other person, whether or not a party to the proceedings.

        (6)         A person must not disclose information in respect of which an order has been made by the Court under subsection (5) unless—

            (a)         the disclosure is made by or with the consent of the Commissioner; or

            (b)         the disclosure is authorised or required by a court.

Maximum penalty: $60 000 or imprisonment for 3 years.

        (7)         A court must not authorise or require disclosure of information under subsection (6) without first having regard to the principle of public interest immunity.

        (8)         Proceedings in relation to an application under this section may, if the Court directs, be heard in a room closed to the public.

74BC—Content of fortification removal order

        (1)         A fortification removal order must include—

            (a)         a statement to the effect that specified fortifications at the premises must be removed or modified, as directed by the Court, within a period of time fixed by the order (which may not be less than 14 days after service of the order); and

            (b)         subject to subsection (2)—a statement of the grounds on which the order has been issued; and

            (c)         an explanation of the right of objection under section 74BE; and

            (d)         an explanation of the Commissioner's power to enforce the order under section 74BI.

        (2)         A statement of the grounds on which a fortification removal order has been issued must not contain information in respect of which an order has been made by the Court under section 74BB(5).

        (3)         A copy of the affidavit verifying the grounds on which the application was made must be attached to the fortification removal order unless disclosure of information included in the affidavit would be in breach of an order of the Court under section 74BB(5).

        (4)         If disclosure of information included in the affidavit would be in breach of an order of the Court under section 77BB(5), an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the fortification removal order.

74BD—Service of fortification removal order

        (1)         A fortification removal order must be served on the occupier or occupiers named in the order.

        (2)         If the owner of the premises in relation to which a fortification removal order has been made is not named in the order, a copy of the order must be served on the owner.

        (3)         Subject to subsection (4), service of a fortification removal order must be effected personally or by registered post.

        (4)         If service cannot be promptly effected, it will be sufficient service for the Commissioner to affix a copy of the fortification removal order to the premises at a prominent place at or near to the entrance to the premises.

74BE—Right of objection

        (1)         Subject to subsection (2), a person on whom a fortification removal order has been served may, within 14 days of service of the order, lodge a notice of objection with the Court.

        (2)         A notice of objection cannot be lodged if a notice has previously been lodged in relation to the fortification removal order (unless proceedings in relation to the earlier notice have been discontinued).

        (3)         The grounds of the objection must be stated fully and in detail in the notice of objection.

        (4)         A copy of the notice of objection must be served by the objector on the Commissioner personally or by registered post at least 7 days before the day appointed for hearing of the notice.

74BF—Procedure on hearing of notice of objection

        (1)         In any proceedings in relation to a notice of objection, the Court must, if convenient to the Court, be constituted of the Magistrate who issued the fortification removal order to which the notice of objection relates.

        (2)         The Court must, when determining a notice of objection, consider whether, in the light of the evidence presented by both the Commissioner and the objector, sufficient grounds exist to satisfy the Court as to the requirements of section 74BB(1).

        (3)         The Court may, on hearing a notice of objection, confirm, vary or withdraw the fortification removal order.

        (4)         If, on the hearing of a notice of objection, the fortification removal order is confirmed or varied, the period of time allowed for compliance with the order, as fixed by the order, is (unless the Court specifies otherwise) taken to commence on the day of the Court's determination.

74BG—Appeal

        (1)         The Commissioner or an objector may appeal to the Supreme Court against a decision of the Court on a notice of objection.

        (2)         An appeal lies as of right on a question of law and with permission on a question of fact.

        (3)         An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.

        (4)         If an appeal is commenced under this section, enforcement of the fortification removal order is stayed until proceedings in relation to the appeal are finalised.

        (5)         If an appeal under this section results in confirmation or variation of the fortification removal order, the period of time allowed for compliance with the order, as fixed by the order, is (unless the Supreme Court specifies otherwise) taken to commence on the day of the Supreme Court's decision.

74BH—Withdrawal notice

        (1)         If the Commissioner determines that a fortification removal order will not be enforced, the Commissioner must lodge a withdrawal notice with the Court.

        (2)         The withdrawal notice must identify the premises, refer to the fortification removal order and state that the Commissioner has decided not to enforce the order.

        (3)         The withdrawal notice must be served on the occupier or occupiers named in the order and all persons on whom a copy of the fortification removal order was served.

        (4)         The withdrawal notice may be served in any way that section 74BD would enable a fortification removal order to be served.

74BI—Enforcement

        (1)         If, in relation to a fortification removal order—

            (a)         a withdrawal notice is not lodged; and

            (b)         —

                  (i)         a notice of objection is not lodged; or

                  (ii)         the fortification removal order is confirmed or varied by the Court under section 74BF and an appeal in relation to the decision of the Court is not commenced; or

                  (iii)         an appeal under section 74BG results in confirmation or variation of the fortification removal order; and

            (c)         the fortifications at the premises are not, within the period of time specified in the fortification removal order or any further time allowed by the Commissioner under subsection (2), removed or modified to the extent necessary to satisfy the Commissioner that there has been compliance with the order,

the Commissioner may cause the fortifications to be removed or modified to the extent required by the order.

        (2)         The Commissioner may extend the time allowed by the order if, before the time allowed elapses, application is made to the Commissioner for it to be extended.

        (3)         For the purposes of causing fortifications to be removed or modified, the Commissioner, or any police officer authorised by the Commissioner for the purposes of this section, may do one or more of the following:

            (a)         enter the premises without warrant;

            (b)         obtain expert or technical advice;

            (c)         make use of any person or equipment he or she considers necessary.

        (4)         The Commissioner may seize anything that can be salvaged in the course of removing or modifying fortifications under this section, and may sell or dispose of it as the Commissioner considers appropriate.

        (5)         The proceeds of any sale under subsection (4) are forfeited to the State and, to the extent that they are insufficient to meet the costs incurred by the Commissioner under this section, the Commissioner may recover those costs as a debt from any person who caused the fortifications to be created.

74BJ—Hindering removal or modification of fortifications

        (1)         A person must not do anything with the intention of preventing, obstructing, interfering with or delaying the removal or modification of fortifications in accordance with a fortification removal order.

Maximum penalty: $2 500 or imprisonment for 6 months.

        (2)         Subsection (1) applies to the removal or modification of fortifications by a person who—

            (a)         is, or is acting for or on the instructions of, an occupier or owner of the premises; or

            (b)         is acting under section 74BI.

74BK—Liability for damage

        (1)         Subject to subsection (2), no action lies against the Crown or any person for damage to property resulting from enforcement of a fortification removal order.

        (2)         However, an owner of premises may recover the reasonable costs associated with repair or replacement of property damaged as a result of creation of fortifications or enforcement of a fortification removal order as a debt from any person who caused the fortifications to be created.

74BL—Delegation

The Commissioner may delegate any of the Commissioner's functions or powers under this Part to any police officer holding a rank not lower than that of inspector, subject to any limitations or conditions that the Commissioner thinks it proper to impose.

74BM—Application of Part

        (1)         If the provisions of this Part are inconsistent with any other Act or law, the provisions of this Part prevail.

        (2)         No application for approval is required under the Development Act 1993 for work required by a fortification removal order.