Fortification Removal Act 2013 (Victoria)

The Fortification Removal Act 2013 establishes a statutory process by which the Chief Commissioner of Police may apply to the Magistrates' Court for an order requiring the removal or modification of a "fortification" on specified premises (s 6; s 11). The Act defines "fortification" as a structure, device or combination attached to premises that either has, or is intended to have, the effect of preventing uninvited entry and that is beyond what is reasonably necessary to provide ordinary lawful security for that kind of premises (s 4(1)). The definition expressly includes electronic surveillance devices, such as CCTV, night-vision cameras and motion sensors (s 4(2)).

Mechanically, the Act sets out a court-led two-step process: application and determination (Parts 2 and 3). The Chief Commissioner must file a written application specifying premises and the fortification, and must attach affidavit evidence (s 7). The application must be served, where practicable, on a relevant owner and a notice of application must be affixed to or near the premises entrance (s 8). An owner or occupier may object by filing an affidavit and complying with prescribed service and timing requirements (s 9). The Magistrates' Court may make a fortification removal order if satisfied that there is a fortification and there are reasonable grounds to believe the premises are being used, have been used or are likely to be used for or in connection with a "specified offence", or to conceal evidence or keep proceeds of a specified offence (s 11(2)). The Court need not determine whether an offence has been committed to be satisfied of the relevant matters (s 11(3)).

A fortification removal order specifies the premises, the fortification, and whether removal or modification is required; it requires that removed fortifications not be replaced and that specified modifications not be undone (s 13). The order takes effect on the day made if the owner/occupier is present, or otherwise on the day a copy is affixed to the premises (s 14). A compliance period begins on the day the order takes effect and, unless extended, ends three months later (s 16(1)(a)). The Chief Commissioner may extend the compliance period on request, subject to time limits and a prohibition where a court application for extension is pending (s 18). Owners or occupiers may also apply to the Magistrates' Court for an extension (s 19-22). The Chief Commissioner may withdraw an order by filing a notice of withdrawal (s 23-24).

Version No. 005

Fortification Removal Act 2013

No. 48 of 2013

Version incorporating amendments as at
1 December 2023

TABLE OF PROVISIONS

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 1

4 Meaning of fortification 3

5 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 5

7 Form and content of application 5

8 Serving application and affixing notice of application 6

9 Owner or occupier may object to application 7

10 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 8

12 Order may be made in absence of objector 8

13 Form of fortification removal order 9

14 When fortification removal order takes effect 10

15 Duration of fortification removal order 10

16 Compliance period 11

17 Serving and affixing fortification removal order 11

Division 3—Extension of compliance period 12

18 Chief Commissioner may extend compliance period 12

19 Owner or occupier may apply to Magistrates' Court for extension of compliance period 13

20 Form and content of application 13

21 Service of application on Chief Commissioner 13

22 Magistrates' Court may extend compliance period 14

Division 4—Withdrawal of fortification removal order 14

23 Withdrawal of fortification removal order 14

24 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 17

28 Affixing notice of application 17

29 Owner or occupier may object to application 18

30 Court may extend or abridge the time within which an objection may be made 18

31 Order may be made in absence of objector 19

32 Magistrates' Court may make inspection order 19

33 Form of inspection order 19

34 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 22

37 Enforcement powers 22

38 Power to direct obstructive person to leave fortified premises 24

39 Power to use reasonable force to remove person from fortified premises 25

40 Chief Commissioner may recover cost of removing or modifying fortifications 25

41 Removed material forfeited to the Crown 25

42 Exemption from certain laws 26

Part 5—Offences 27

43 Obstructing inspection of fortified premises 27

44 Obstructing enforcement of fortification removal order 27

45 Failure to comply with direction to leave fortified premises 27

46 Obstructing removal of person from premises 27

47 Interfering with affixed documents 28

48 Constructing or installing fortification on certain premises 29

49 Constructing or installing fortification on certain premises if fortification removal order previously made 30

Part 6—General 31

50 Service 31

51 Delegation 32

52 Immunity 33

53 Regulations 33

Schedule 35

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Endnotes 46

1 General information 46

2 Table of Amendments 48

3 Explanatory details 49

Version No. 005

Fortification Removal Act 2013

No. 48 of 2013

Version incorporating amendments as at
1 December 2023

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.

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—

S. 3 def. of Chief Commis-sioner amended by No. 37/2014 s. 10(Sch. item 68.1(b)).

Chief Commissioner means the Chief Commissioner of Police appointed under section 17 of the Victoria Police Act 2013;

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);

S. 3 def. of member of Victoria Police repealed by No. 37/2014 s. 10(Sch. item 68.1(c)).

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 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;

S. 3 def. of police officer inserted by No. 37/2014 s. 10(Sch. item 68.1(a)).

police officer has the same meaning as in the Victoria Police Act 2013;

proceeds has the same meaning as in the Confiscation Act 1997;

S. 3 def. of specified offence amended by Nos 37/2014 s. 10(Sch. item 68.1(d)), 55/2014 s. 103.

specified offence means—

(a) an indictable offence that is punishable by at least 5 years imprisonment; or

(b) an offence against a provision specified in an item of the Schedule, being a provision of the Act specified in the heading to that item; or

Note

See also section 5.

(c) an offence against section 321, 321G or 321M of the Crimes Act 1958 in relation to an offence referred to in paragraph (a) or (b).

S. 3 def. of Victoria Police repealed by No. 37/2014 s. 10(Sch. item 68.1(e)).

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

(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

(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

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; and

Note

See section 11 for the grounds for making a fortification removal order.

(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.

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); and

Note

For service, see section 50.

(b) cause a notice of application to be affixed—

(i) to the entrance of the premises in respect of which the application is made; or

(ii) in a conspicuous place near that entrance.

(2) The fact that the Chief Commissioner does not serve a relevant owner under subsection (1)(a) after making all reasonable efforts to serve that owner does not affect the validity of the application.

(3) To avoid doubt, if there is more than one owner of the premises in respect of which the application is made, the Chief Commissioner is only required under subsection (1)(a) to make reasonable efforts to serve one of those owners.

(4) In this section—

notice of application means a notice that—

(a) includes the information required by section 7(1)(c), (d), (e) and (f); and

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

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

Note

For service, see section 50.

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).

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.

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

(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

S. 13(g) amended by No. 37/2014 s. 10(Sch. item 68.2).

(g) that a police officer 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

S. 13(h) amended by No. 37/2014 s. 10(Sch. item 68.2).

(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 4; and

(i) that an owner or occupier of the fortified premises may—

(i) request that the Chief Commissioner extend the compliance period in accordance with section 18; or

(ii) apply to the Magistrates' Court for an order extending the compliance period in accordance with section 19; and

(j) that until the fortification removal order ceases to have effect, it is an offence to obscure, damage or destroy the copy of the order affixed under section 17(1)(b).

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).

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); and

Note

For service, see section 50.

(b) cause a copy of the order to be affixed—

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

(ii) in a conspicuous place near that entrance.

(2) Subsection (1)(a) does not apply if a copy of the application in respect of the fortification removal order was served on any owner of the fortified premises.

(3) The fact that the Chief Commissioner does not serve a relevant owner under subsection (1)(a) after using all reasonable efforts to serve that owner does not affect the validity of the fortification removal order.

(4) To avoid doubt, if there is more than one owner of the fortified premises, the Chief Commissioner is only required under subsection (1)(a) to make reasonable efforts to serve one of those owners.

Division 3—Extension of compliance period

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.

(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.

20 Form and content of application

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

(a) be in writing; and

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

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

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

For service, see section 50.

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

(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—

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

(b) in a conspicuous place near that entrance.

Part 3—Inspections

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

S. 25 amended by No. 37/2014 s. 10(Sch. item 68.2).

25 Inspecting fortified premises while fortification removal order is in effect

While a fortification removal order is in effect, 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).

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. 26(2) amended by No. 37/2014 s. 10(Sch. item 68.2).

(2) The Chief Commissioner may apply to the Magistrates' Court for an order authorising a police officer 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.

27 Form and content of application

(1) An application under section 26 must—

(a) be in writing; and

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

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

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

(b) in a conspicuous place near that entrance.

(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

(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

Note

For service, see section 50.

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).

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

S. 32(1) amended by No. 37/2014 s. 10(Sch. item 68.2).

(1) The Magistrates' Court, on an application under section 26, may order that a police officer 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. 33(1)(b) amended by No. 37/2014 s. 10(Sch. item 68.2).

(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 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—

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

(b) in a conspicuous place near that entrance.

Division 3—Conduct of inspections

35 Power to inspect and enter fortified premises

S. 35(1) amended by No. 37/2014 s. 10(Sch. item 68.3(a)).

(1) This section applies if a police officer is authorised to enter and inspect fortified premises under—

(a) section 25; or

(b) an inspection order.

S. 35(2) amended by No. 37/2014 s. 10(Sch. item 68.3(a)).

(2) A police officer 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

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

S. 35(3) amended by No. 37/2014 s. 10(Sch.
item 68.3(b)(i)).

(3) Before any police officer enters the fortified premises, a police officer must—

S. 35(3)(a) amended by No. 37/2014 s. 10(Sch. item 68.3(b)(ii)).

(a) announce that police officers are authorised to enter and inspect the premises; and

(b) state the basis of that authority; and

S. 35(4) amended by No. 37/2014 s. 10(Sch. item 68.3(c)).

(4) If permission to enter the premises is not given, a police officer may use reasonable force to gain entry.

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.

S. 36(2) amended by No. 37/2014 s. 10(Sch. item 68.4).

(2) At least 7 days before a police officer enforces a fortification removal order by exercising powers under section 37, 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—

S. 36(3)(a) amended by No. 37/2014 s. 10(Sch. item 68.4).

(a) specify the day or days on which a police officer 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

S. 37(1) amended by No. 37/2014 s. 10(Sch. item 68.5(a)).

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

(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.

S. 37(2) amended by No. 37/2014 s. 10(Sch. item 68.5(b)(i)).

(2) Before any police officer enters the fortified premises, a police officer must—

S. 37(2)(a) amended by No. 37/2014 s. 10(Sch. item 68.5(b)(ii)).

(a) announce that police officers are authorised to enter the premises and enforce the fortification removal order; and

(b) state the basis of that authority; and

Note

See section 44.

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

S. 37(3) amended by No. 37/2014 s. 10(Sch. item 68.5(c)).

(3) A police officer 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).

S. 37(4) amended by No. 37/2014 s. 10(Sch. item 68.5(c)).

(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.

S. 37(5) amended by No. 37/2014 s. 10(Sch. item 68.5(c)).

(5) A police officer 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

S. 38(1) amended by No. 37/2014 s. 10(Sch. item 68.6).

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

S. 38(1)(a) amended by No. 37/2014 s. 10(Sch. item 68.6).

(a) a police officer in the exercise of a power under section 37; or

S. 38(1)(b) amended by No. 37/2014 s. 10(Sch. item 68.6).

(b) a person who is assisting a police officer to remove or modify a fortification under section 37(1)(c).

S. 38(2) amended by No. 37/2014 s. 10(Sch. item 68.6).

(2) The police officer may direct the person 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.

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

S. 39(1) amended by No. 37/2014 s. 10(Sch. item 68.6).

(1) A police officer, 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.

S. 39(2) amended by No. 37/2014 s. 10(Sch. item 68.6).

(2) Nothing in this section limits any powers of arrest that a police officer 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 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.

Part 5—Offences

S. 43 amended by No. 37/2014 s. 10(Sch. item 68.6).

43 Obstructing inspection of fortified premises

A person must not, without reasonable excuse, hinder or obstruct a police officer 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

S. 44(1) amended by No. 37/2014 s. 10(Sch. item 68.6).

(1) A person must not, without reasonable excuse, hinder or obstruct a police officer who is exercising a power under section 37.

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

S. 44(2) amended by No. 37/2014 s. 10(Sch. item 68.6).

(2) 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 37(1)(c).

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

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.

S. 46 amended by No. 37/2014 s. 10(Sch. item 68.6).

46 Obstructing removal of person from premises

A person must not, without reasonable excuse, hinder or obstruct a police officer who is removing another person from fortified premises under section 39.

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);

(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 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

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.

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

(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.

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

(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

S. 51(1) amended by No. 37/2014 s. 10(Sch. item 68.7(a)).

(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 police officer of or above the rank of Commander.

S. 51(2) amended by No. 37/2014 s. 10(Sch. item 68.7(b)).

(2) Subsection (1) does not limit section 19 of the Victoria Police Act 2013.

52 Immunity

S. 52(1) amended by No. 37/2014 s. 10(Sch. item 68.8).

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

S. 52(1)(a) amended by No. 37/2014 s. 10(Sch. item 68.8).

(a) in the course of assisting the police officer; or

S. 52(1)(b) amended by No. 37/2014 s. 10(Sch. item 68.8).

(b) in the reasonable belief that the act or omission was in the course of assisting the police officer.

(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 to s. 52 repealed by No. 37/2014 s. 10(Sch. item 68.9).

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 specified class of person or body.

Schedule

Specified offences

Note to Sch. inserted by No. 55/2014 s. 104(1).

Note

In relation to provisions in the Crimes Act 1958, see paragraph (c) of the definition of specified offence in section 3.

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).

Sch. item 3 repealed by No. 55/2014 s. 104(2)(a).

4 Dangerous Goods Act 1985

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

Sch. item 5 repealed by No. 55/2014 s. 104(2)(b).

6 Firearms Act 1996

Sch. item 6.1 repealed by No. 55/2014 s. 104(2)(c).

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).

Sch. item 6.6 repealed by No. 55/2014 s. 104(2)(c).

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

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).

Sch. item 6.10 repealed by No. 55/2014 s. 104(2)(c).

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

Sch. item 6.12 repealed by No. 55/2014 s. 104(2)(c).

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).

Sch. item 6.14 repealed by No. 55/2014 s. 104(2)(c).

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

Sch. item 6.16 repealed by No. 55/2014 s. 104(2)(c).

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

Sch. item 6.18 repealed by No. 55/2014 s. 104(2)(c).

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).

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).

Sch. items 6.39, 6.40 repealed by No. 55/2014 s. 104(2)(c).

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).

Sch. items 6.43, 6.44 repealed by No. 55/2014 s. 104(2)(c).

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).

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).

Sch. item 6.55 repealed by No. 55/2014 s. 104(2)(c).

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).

Sch. item 6.58 repealed by No. 55/2014 s. 104(2)(c).

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

Sch. item 6.59A inserted by No. 2/2018 s. 41(a).

6.59A Section 112C(2) (offence to dispose of or give possession of a firearm to a person who is subject to a firearm prohibition order or enable such a person to possess, carry or use a firearm).

Sch. item 6.59B inserted by No. 2/2018 s. 41(a).

6.59B Section 112O(1) (offence for a person to whom a firearm prohibition order applies to enter or remain on certain premises).

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).

Sch. item 6.61A inserted by No. 2/2018 s. 41(b).

6.61A Section 121(1B) (improperly storing a paintball marker).

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).

Sch. item 6.66A inserted by No. 2/2018 s. 41(c).

6.66A Section 123(1A) (improperly storing a paintball marker 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).

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).

Sch. item 6.88 repealed by No. 55/2014 s. 104(2)(c).

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).

Sch. item 7 amended by No. 55/2014 s. 104(2)(d), repealed by No. 7/2022 s. 70.

═══════════════

Endnotes

1 General information

See www.legislation.vic.gov.au for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.

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."

The Fortification Removal Act 2013 was assented to on 10 September 2013 and came into operation on 6 October 2013: Special Gazette (No. 341) 1 October 2013 page 1.

INTERPRETATION OF LEGISLATION ACT 1984 (ILA)

Style changes

Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.

References to ILA s. 39B

Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.

Interpretation

As from 1 January 2001, amendments to section 36 of the ILA have the following effects:

• Headings

All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).

• Examples, diagrams or notes

All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).

• Punctuation

All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).

• Provision numbers

All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).

• Location of "legislative items"

A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.

• Other material

Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).

2 Table of Amendments

This publication incorporates amendments made to the Fortification Removal Act 2013 by Acts and subordinate instruments.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014

Assent Date:	3.6.14
Commencement Date:	S. 10(Sch. item 68) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2
Current State:	This information relates only to the provision/s amending the Fortification Removal Act 2013

Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014

Assent Date:	26.8.14
Commencement Date:	Ss 103, 104 on 1.10.14: Special Gazette (No. 330) 23.9.14 p. 1
Current State:	This information relates only to the provision/s amending the Fortification Removal Act 2013

Firearms Amendment Act 2018, No. 2/2018

Assent Date:	13.2.18
Commencement Date:	S. 41 on 9.5.18: Special Gazette (No. 209) 8.5.18 p. 1
Current State:	This information relates only to the provision/s amending the Fortification Removal Act 2013

Sex Work Decriminalisation Act 2022, No. 7/2022

Assent Date:	1.3.22
Commencement Date:	S. 70 on 1.12.23: s. 2(3)
Current State:	This information relates only to the provision/s amending the Fortification Removal Act 2013

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––

3 Explanatory details

No entries at date of publication.

1 Fortification Removal Act 2013

Version No. 005

Fortification Removal Act 2013

No. 48 of 2013

Version incorporating amendments as at
1 December 2023

TABLE OF PROVISIONS

Section Page

Part 1—Preliminary 1

1 Purpose 1

2 Commencement 1

3 Definitions 1

4 Meaning of fortification 3

5 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 5

7 Form and content of application 5

8 Serving application and affixing notice of application 6

9 Owner or occupier may object to application 7

10 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 8

12 Order may be made in absence of objector 8

13 Form of fortification removal order 9

14 When fortification removal order takes effect 10

15 Duration of fortification removal order 10

16 Compliance period 11

17 Serving and affixing fortification removal order 11

Division 3—Extension of compliance period 12

18 Chief Commissioner may extend compliance period 12

19 Owner or occupier may apply to Magistrates' Court for extension of compliance period 13

20 Form and content of application 13

21 Service of application on Chief Commissioner 13

22 Magistrates' Court may extend compliance period 14

Division 4—Withdrawal of fortification removal order 14

23 Withdrawal of fortification removal order 14

24 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

Fortification: The statutory core is the concept of a "fortification" (s 4). The Act describes fortification functionally: a structure or device attached to premises that prevents or is intended to prevent uninvited entry, subject to an objective test of whether the feature is beyond what is reasonably necessary for ordinary lawful security (s 4(1)(a)-(c)). The inclusion of electronic surveillance devices within the definition (s 4(2)) makes clear that the drafters intended the concept to capture non‑physical features as well as physical barriers. The qualifying phrase "beyond what is reasonably necessary to provide security for the ordinary lawful use of that kind of premises" embeds a proportionality and context test, requiring a comparison against ordinary lawful uses for that class of premises. That test will be applied by court fact-finders.

Specified offences: The Court's jurisdiction to make an order is tied to "specified offences" (s 3 definition). The definition is multi‑part: (a) indictable offences punishable by at least five years imprisonment, (b) offences listed in the Schedule (often statutory offences across multiple Acts), and (c) certain provisions of the Crimes Act 1958 where they relate to an offence referred to in (a) or (b). The Schedule enumerates numerous offences and, after successive amendments, contains an extended list with many firearm-related provisions and other statutory offences (Schedule; see also endnotes on amendments). The Act therefore ties property intervention to an identifiable, though broad, catalogue of serious offending.

Magistrates' Court discretion and evidential standard: The Magistrates' Court is empowered to make an order if satisfied on two matters: that a fortification exists and that there are reasonable grounds to believe the premises are connected with a specified offence (s 11(2)). Importantly, s 11(3) states the Court may be satisfied of those matters without having to determine whether any particular specified offence has been committed. That places the decision on a "reasonable grounds" or suspicion-like threshold rather than a criminal conviction or even a civil finding of liability for the underlying offence.

Process mechanics and service: The application must be in writing, specify the premises and fortification, and be supported by affidavit (s 7). The Chief Commissioner must, as soon as practicable, make reasonable efforts to serve a relevant owner and must affix a notice of application to the premises entrance or a conspicuous place nearby (s 8). Where more than one owner exists, the Chief Commissioner is required to make reasonable efforts to serve only one owner (s 8(3)). Owners and occupiers may object by filing affidavits within prescribed time frames (s 9), but the Court may hear and determine the application even in the objector's absence (s 12).

Compliance period and extensions: The compliance period defaults to three months from when the order takes effect (s 16(1)(a)); the Chief Commissioner may extend it on request, with a decision required within seven days (s 18). The Chief Commissioner cannot extend if an application to the Court for extension is pending (s 18(3)). Owners or occupiers denied an extension can apply to the Magistrates' Court (s 19-22). The Court determines extension applications on what is appropriate in all the circumstances (s 22(1)).

Inspection and enforcement powers: While an order is in effect, police may enter and inspect to determine compliance (s 25). After an order ceases to have effect, inspection orders may be obtained up to three years after cessation (s 26(3); s 33(2)). Enforcement powers include entry without warrant, bringing equipment and personnel, doing anything reasonably necessary to remove or modify fortifications, and using reasonable force to gain entry (s 37(1)-(3)). An enforcement notice must be affixed at least seven days prior (s 36(2)-(3)), and enforcement can only occur on days specified in that notice (s 36(3)(a); s 37(1)).

Financial and property consequences: Costs of removal or modification may be recovered as a debt from an owner or occupier who "caused or allowed" the fortification to be constructed or installed (s 40). Removed fortification material is forfeited to the Crown and may be sold or otherwise disposed of by the Chief Commissioner (s 41). The Act disapplies certain environmental, building and planning legislative constraints for removal or modification carried out under its enforcement provisions (s 42).

Offences and sanctions: The Act creates both process‑protection offences (obscuring affixed documents, obstructing inspections or enforcement) and substantive offences aimed at discouraging construction of fortifications on premises used, or likely to be used, for specified offending (ss 43-49). Penalties are significant for certain obstructive conduct (up to 240 penalty units or two years imprisonment; s 43-44), and maximum fines for construction of prohibited fortifications are different for individuals and corporations (ss 48-49).

Administrative delegation and immunities: The Chief Commissioner may delegate functions (s 51), and the Act provides immunity to persons assisting police in good faith during removal or modification, with liability shifted to the State (s 52).

Regulatory power: The Governor in Council may make regulations on matters required or permitted (s 53), including regulations of general or limited application and conferring discretionary authorities (s 53(1)-(2)).

Owners and occupiers of premises: The Act directly affects owners and occupiers of premises that contain, or are alleged to contain, a fortification. The definition of "owner" relies on the Transfer of Land Act 1958 for land in fee or in an identified folio (s 3 "owner"), and "occupier" is defined as a person who has or is entitled to possession or control (s 3). The Chief Commissioner must make reasonable efforts to serve only one owner where multiple owners exist (s 8(3); s 17(4)), so title multiplicity is recognised in process but only one owner needs to be served for validity. Owners or occupiers who caused or allowed a fortification to be constructed or installed face an exposure to debt recovery for removal/modification costs under s 40, and they face substantial offences if they construct or re‑install fortifications in contravention of ss 48-49.

Residents, tenants and occupiers: Occupiers may be required to permit entry to police under inspection or enforcement provisions (s 35; s 37). They are the persons to whom directions to leave premises may be given during enforcement (s 38). Failure to comply with a direction to leave is an offence (s 45). Occupiers who are present during enforcement risk being removed with reasonable force if they obstruct (s 39), and those who intentionally obstruct enforcement or inspection may face serious penalties (ss 43-44).

Businesses and operators: Businesses that operate premises with security installations, or that install surveillance equipment, are captured by the fortification definition, including electronic surveillance (s 4(2)). Commercial landlords, licensed users of premises (for example, licensed firearms dealers listed in the Schedule), and businesses whose premises are used for activities linked to "specified offences" in the Schedule face potential risk. Corporations face higher monetary penalties in certain offences (for example, s 48: 300 penalty units for body corporate; s 49: 1200 penalty units for body corporate), exposing corporate entities to material financial risk.

Police and the Chief Commissioner: The Chief Commissioner of Police is the statutory applicant and administrative decision-maker for extensions and withdrawals (ss 6, 18, 23). The Act authorises police officers to enter without warrant, enforce orders, use reasonable force and remove persons where necessary (ss 35, 37-39). The Chief Commissioner may delegate functions to police officers at or above Commander rank (s 51). The Act confers immunities to persons assisting police in good faith, with liability shifting to the State (s 52).

Third-party contractors and tradespeople: Contractors engaged by police to remove or modify fortifications may be brought onto premises under s 37(1)(b)-(c) and s 37(4) permits persons brought onto premises to bring necessary equipment. The Act provides immunities for those assisting in good faith (s 52), and the State bears liability for acts or omissions that would otherwise attach to these third parties (s 52(3)).

Regulatory agencies and planning authorities: The Act carves out specific exemptions from the Environment Protection Act 1970, the Building Act 1993, the Planning and Environment Act 1987 and planning schemes regarding works carried out under s 37 (s 42). This reduces the role of other statutory regulators in the immediate enforcement activity and affects how those agencies engage with the aftermath of enforcement work.

Creditors and purchasers: The forfeiture provision (s 41) places removed fortification material in Crown ownership, reducing potential claims by third parties over confiscated material. Additionally, the Act's debt recovery mechanism (s 40) may give rise to Crown claims against owners/occupiers, which could affect secured lenders or purchasers dealing with properties subject to fortification removal proceedings.

Communities and neighbours: Although not direct statutory parties, neighbours may be affected by inspection or enforcement activity at neighbouring premises (s 36(2) requires notice affixed to the premises). The Act allows police to do anything reasonably necessary while at the premises (s 25(b); s 32(1)(b)), which may include temporary or ancillary works that affect neighbouring access or amenity.

Legal practitioners and advisers: Lawyers and advisors representing owners/occupiers are affected by the Act’s procedural deadlines and evidentiary requirements: applications and objections must be supported by affidavit evidence (s 7(2); s 9(2)(a); s 20(2)), objections must be filed within prescribed time periods (s 9(2)(b)-(c)), and the Magistrates' Court may hear matters in the objector’s absence (s 12; s 31). The Court's discretion to make orders without determining commission of the underlying offence (s 11(3)) shapes the litigation approach: practitioners will need to focus on demonstrating that a fortification is reasonably necessary for lawful use or that the Court’s "reasonable grounds" criterion is not met.

Public interest groups and researchers: Because the Act authorises interventions linked to suspected serious offending (s 11(2)), public interest or civil liberties groups may have an interest in how the definition of fortification is applied, how "reasonable grounds" is interpreted by courts, and the interface with privacy protections given the inclusion of surveillance devices (s 4(2)). The Act makes no specific provision for privacy warrants or detailed privacy safeguards for the use of surveillance evidence; those matters will be contextually relevant at inspection or enforcement stages and in any subsequent legal proceedings referenced to other statutes.

Duties of the Chief Commissioner and police

File and support applications: The Chief Commissioner must apply to the Magistrates' Court in writing, state grounds, specify premises and the fortification, and accompany the application with at least one affidavit addressing the facts relied upon (s 7(1)-(2)). The Chief Commissioner is also obliged to make "all reasonable efforts" to serve a relevant owner with a copy of the application and to affix a notice of application at the premises (s 8(1)(a)-(b)).
Affix and serve documents: After a fortification removal order is made, the Chief Commissioner must make reasonable efforts to serve a relevant owner and affix a copy of the order at the premises (s 17(1)). Likewise, enforcement notices must be affixed at least seven days before enforcement (s 36(2)-(3)).
Timing for extension decisions: If an owner or occupier requests an extension during the compliance period the Chief Commissioner must decide no later than seven days after the request (s 18(2)). The Chief Commissioner may not extend the compliance period if a court application for extension is pending (s 18(3)).
Enforcement obligations: Before entering for an inspection or enforcement action a police officer must announce the authority and state the basis for it and give anyone present a reasonable opportunity to permit entry (s 35(3); s 37(2)). If permission is refused, police may use reasonable force to gain entry (s 35(4); s 37(3)).

Duties of owners and occupiers

Provide opportunity for service and allow inspection: Owners and occupiers must be served in accordance with s 50 service rules; occupiers must give police a reasonable opportunity to permit entry when police announce and state authority (s 35(3); s 37(2)(d)). If an owner or occupier wishes to object to a application, they must file an objection accompanied by at least one affidavit and serve it on the Chief Commissioner within prescribed timeframes (s 9(2)(a)-(c)).
Remove or modify fortifications within the compliance period: Owners or occupiers subject to a fortification removal order must ensure the fortification is removed or modified as required under the order during the compliance period (ss 13(e)-(f); 16). They may request an extension of the compliance period from the Chief Commissioner (s 18) or apply to the Magistrates' Court for an extension (s 19).
Avoid prohibited acts: Owners and occupiers must not obscure, damage or destroy affixed documents (s 47) until the applicable day; obstruct inspections or enforcement (ss 43-44) or fail to comply with directions under s 38 (s 45). Constructing or installing a fortification on premises known or reasonably ascertainable to be used for specified offences is a criminal offence (s 48), and more severe penalties apply where a fortification is installed on premises previously subject to a fortification removal order (s 49).

Rights of owners and occupiers

Right to object and be heard: Owners and occupiers may object to a Chief Commissioner application (s 9) and may apply to the Magistrates' Court for an extension of the compliance period if denied (s 19). The Court must consider applications and may extend compliance periods if it is satisfied it is appropriate in all the circumstances (s 22(1)).
Procedural protections on service and notice: The Act requires reasonable efforts at service and mandatory affixation of notices to premises (ss 8; 17; 36). If the Chief Commissioner fails to serve a relevant owner after making all reasonable efforts, the application or order is not invalidated by that failure (s 8(2); s 17(3)), but the requirement to attempt service is explicit.
Right to be afforded a reasonable opportunity to permit entry: Before entry under either inspection or enforcement powers, police must give anyone at the premises a reasonable opportunity to permit entry (s 35(3)(c); s 37(2)(d)). This functions as a procedural safeguard recognising private presence at the premises.
Ability to seek judicial review/extension/stay: An owner or occupier may apply to the Magistrates' Court for extension of the compliance period (s 19), and fortification removal orders remain subject to judicial stays (s 15(2)-(3)), so court processes and orders can alter the operational effect of an order.

Obligations on third parties and contractors

Assistance immunity and State liability: Persons assisting police in good faith to remove or modify fortifications are given immunity for acts or omissions done in good faith in the course of assistance (s 52(1)). Liability that would otherwise attach to that helper instead attaches to the State (s 52(3)).
Contractors may be brought onto premises: Police may bring persons and equipment reasonably required to remove or modify fortifications (s 37(1)(b)-(c)), and such persons may bring equipment under s 37(4). These persons receive the statutory immunities described above.

Judicial and administrative decision‑makers

Magistrates' Court discretion: The Magistrates' Court is the decision-maker for applications (s 11), and has powers to hear and determine applications in the absence of objectors (s 12; s 31). The Court may extend compliance periods "if the Court is satisfied that it is appropriate to do so in all the circumstances" (s 22(1)), and may abridge or extend objection timelines (s 10; s 30).
Chief Commissioner decision roles: The Chief Commissioner controls application initiation (s 6), has delegated authority to extend compliance periods outside the Court (s 18), and can withdraw orders by filing a notice (s 23). The Chief Commissioner may delegate powers to senior police (s 51).

Interactional duties and constraints

Time limits and notice requirements: Owners and occupiers face short statutory timelines: objections must be filed seven days before the hearing and served on the Chief Commissioner at least five days before the hearing (s 9(2)(b)-(c)). For enforcement, police must affix a notice at least seven days before planned enforcement days (s 36(2)). The Chief Commissioner must decide extension requests within seven days (s 18(2)). These deadlines create tight procedural windows for interested persons.
Service rules: Service on owners is governed by s 50, which sets out separate rules for individuals, companies, incorporated associations and bodies incorporated elsewhere (s 50(1)). Service on the Chief Commissioner also has specified modes (s 50(2)).

Enforcement architecture: The Act creates a staged enforcement architecture. First, the Magistrates' Court may make a fortification removal order (Part 2). A compliance period then runs (s 16). If the fortification is not removed or modified during the compliance period, enforcement may proceed under Part 4, but only after a notice of enforcement has been affixed at least seven days before planned enforcement (s 36(2)-(3)). On the days specified in the notice, a police officer may enter the premises without a warrant, bring persons and equipment, and do anything reasonably necessary to remove or modify the fortification (s 37(1)). Police must announce authority and offer a reasonable opportunity to permit entry; reasonable force may be used if entry is not permitted (s 37(2)-(3)).

Criminal offences tied to process: The Act establishes offences intended to protect the statutory process and aid enforcement:

Obstruction of inspection: Hindering or obstructing a police officer exercising a power under s 35 is an offence with a maximum penalty of 240 penalty units or two years imprisonment or both (s 43). That is a high‑level penalty aligned to obstruction of serious state activity.
Obstruction of enforcement: Hindering or obstructing a police officer exercising a power under s 37 (enforcement) or a person assisting such a police officer is similarly penalised by 240 penalty units or two years imprisonment or both (s 44(1)-(2)).
Failure to comply with direction to leave: A person who, without reasonable excuse, refuses or fails to comply with a direction to leave given under s 38 faces a penalty of 20 penalty units (s 45).
Obstructing removal of a person: Hindering or obstructing removal of a person from premises under s 39 carries a penalty of 60 penalty units or imprisonment for six months or both (s 46).
Interfering with affixed documents: It is an offence to obscure, damage or destroy specified affixed documents (for example, notices of application, copies of orders, inspection orders, notices of enforcement) before the "applicable day" with a penalty of 120 penalty units or imprisonment for one year or both (s 47(1)-(2)). The "applicable day" for each class of affixed document is set out in s 47(2).

Substantive criminal offences about fortification construction

Constructing or installing fortification on certain premises: A person must not construct or install a fortification on premises that they know, or ought reasonably to know, are being used or likely to be used for or in connection with a specified offence, to conceal evidence, or to keep proceeds of a specified offence. Penalties are 60 penalty units or six months imprisonment for individuals; 300 penalty units for bodies corporate (s 48).
Re-construction after prior removal order: Constructing or installing a fortification on premises that are or have been subject to a fortification removal order, where the person knows (or ought to know) of that fact and knows (or ought to know) the premises are used, or likely to be used, for specified offences, attracts higher penalties: for individuals 240 penalty units or two years imprisonment; for bodies corporate 1,200 penalty units (s 49).

Civil recovery and forfeiture

Cost recovery: The Chief Commissioner may recover costs of removing or modifying a fortification in a court of competent jurisdiction as a debt from an owner or occupier who caused or allowed the fortification to be constructed or installed (s 40). That is a civil recovery mechanism rather than a penal fine, recoverable as a debt.
Forfeiture of removed material: Fortification material removed under s 37, and material removed from fortifications in the course of modification, are forfeited to the Crown (s 41(1)). The Chief Commissioner may sell, destroy or otherwise dispose of such material (s 41(2)). Forfeiture transfers property rights to the Crown and permits disposal without recourse to usual property‑return mechanisms.

Use of force and direction powers

Directions to leave and reasonable force: During enforcement, police may direct persons hindering or obstructing enforcement to leave and may remove them using no more force than is reasonably necessary if they refuse to comply (s 38-39). The Act also clarifies that nothing in s 39 limits other powers of arrest under other laws (s 39(2)).

Exemptions from other regulatory controls

Carve-out from environmental and planning/building laws: The Act explicitly states that nothing in the Environment Protection Act 1970 applies in respect of noise resulting from removal or modification under s 37, and that nothing in the Building Act 1993, the Planning and Environment Act 1987 or a planning scheme requiring an authority, licence or permit for carrying out works applies to removal or modification under s 37 (s 42(1)-(2)). Those carve-outs lessen procedural regulatory constraints on enforcement operations but also remove planning and building protections that might otherwise apply to works carried out.

Operational constraints on enforcement

Timing and notice: Enforcement can only be exercised on days specified in the notice affixed under s 36(3)(a). The notice must be affixed at least seven days before enforcement begins (s 36(2)). Police must make announcements before entry and offer an opportunity to permit entry (s 37(2)). The fortification removal order must be in effect at the time enforcement powers are exercised (s 37(5)). These provisions impose procedural checks on enforcement activity.

Delegation and immunity

Delegation to senior officers: The Chief Commissioner may delegate functions, except the delegation power itself, to a police officer of or above the rank of Commander (s 51(1)). Delegation consolidates operational authority within police command.
Immunity and State liability: Persons assisting police are not liable for acts or omissions done in good faith in the course of assisting (s 52(1)), and liability that would otherwise attach to such a person attaches to the State (s 52(3)). This shifts potential civil exposure from helpers to the Crown.

Penalties summary (selected)

s 43-44 obstructing inspection/enforcement: 240 penalty units or 2 years imprisonment or both.
s 45 failure to comply with direction to leave: 20 penalty units.
s 46 obstructing removal of person: 60 penalty units or 6 months imprisonment or both.
s 47 interfering with affixed documents: 120 penalty units or 1 year imprisonment or both.
s 48 constructing fortification on certain premises: 60 penalty units or 6 months imprisonment for individuals; 300 penalty units for corporations.
s 49 constructing fortification if prior order: 240 penalty units or 2 years imprisonment for individuals; 1,200 penalty units for corporations.

These penalties combine criminal sanctions, civil recovery and property forfeiture to enforce compliance and to deter the installation and use of fortifications in connection with specified offences.

Cross-reference in definitions: The Act integrates and cross-references multiple other statutes. "Chief Commissioner" and "police officer" are defined by reference to the Victoria Police Act 2013 (s 3). "Owner" uses the Transfer of Land Act 1958 to identify registered proprietors and owners of the fee or equity of redemption (s 3). "Proceeds" adopts the definition in the Confiscation Act 1997 (s 3). The definition of "specified offence" incorporates indictable offences punishable by at least five years imprisonment and offences listed in the Schedule, and also captures specified provisions of the Crimes Act 1958 where linked to (a) or (b) (s 3).

Schedule of specified offences: The Schedule lists particular statutory offences (for example, many Firearms Act provisions and other offences) which are treated as "specified offences" for the Act's purposes. The presence of firearms-related offences throughout the Schedule (Schedule items under the Firearms Act 1996, as amended) indicates a designed intersection between fortification removal powers and gun-related regulatory offences. The Schedule has been amended over time; entries show items repealed or inserted by later amending Acts (endnotes and Schedule annotations). When assessing a case, practitioners must check the current Schedule and relevant amending Acts.

Interaction with planning, building and environmental laws: The Act expressly disapplies certain environmental, building and planning requirements in relation to works done under s 37. Specifically, s 42(1) excludes the application of the Environment Protection Act 1970 in respect of noise resulting from removal or modification under s 37. Section 42(2) states that the Building Act 1993, the Planning and Environment Act 1987, or a planning scheme that requires an authority, licence or permit for carrying out works, do not apply to removal or modification under s 37. That creates a direct legal override, permitting enforcement action that might otherwise intersect with local planning approvals, building permits or environmental noise controls.

Forfeiture and confiscation regimes: The Act provides that removed fortification material is forfeited to the Crown and may be sold or otherwise disposed of by the Chief Commissioner (s 41). The Act also references "proceeds" as defined in the Confiscation Act 1997 (s 3). While the Act does not itself establish a confiscation mechanism, its use in the context of premises used to keep proceeds of specified offences suggests operational coordination with confiscation regimes.

Criminal law interface: The Magistrates' Court may be satisfied of the requisite nexus between fortification and specified offences without determining whether any particular specified offence has been committed (s 11(3)). This creates a statutory mechanism for property intervention linked to suspected criminality without a prerequisite finding of criminal liability. However, the Act also creates independent criminal offences (ss 43-49) relating to constructing fortifications and obstructing enforcement, which may operate in parallel with prosecutions under other Acts for the underlying criminal conduct.

Civil recovery and debt enforcement: Section 40 permits the Chief Commissioner to recover costs for removal or modification as a debt in a court of competent jurisdiction from an owner or occupier who "caused or allowed" the fortification to be constructed or installed. That civil enforcement mechanism interacts with ordinary creditor and debt recovery law, and potentially with insolvency and property rights regimes. It is separate from criminal penalties and forfeiture.

Delegation and police powers under other statutes: The Act’s delegation provision (s 51) operates subject to s 19 of the Victoria Police Act 2013 (s 51(2)). The Act affirms that nothing in s 39 limits other arrest powers a police officer has under any other law (s 39(2)). Operationally, enforcement under the Act will sit alongside other police powers and obligations under the Victoria Police Act and ordinances concerning use of force, arrest and property seizure.

Service and procedural law: Service and notices are governed by s 50 and must align with the service rules it sets out for individuals, companies, incorporated associations and bodies incorporated in other States/Territories. The Act’s procedural requirements for affidavit support and timelines for objections (ss 7(2), 9(2), 20(2)) interact with general court practice and evidence rules in the Magistrates' Court.

Regulatory instruments: Section 53 permits regulations necessary to give effect to the Act, and such regulations could create further procedural or substantive interactions with other regulatory frameworks (s 53(1)-(2)). The Governor in Council may make regulations that differ by time, place or circumstance and may impose duties or discretionary authorities on specified persons (s 53(2)).

Legislative amendments and consequential changes: The endnotes list several amending Acts , Victoria Police Amendment (Consequential and Other Matters) Act 2014 (No. 37/2014), Criminal Organisations Control and Other Acts Amendment Act 2014 (No. 55/2014), Firearms Amendment Act 2018 (No. 2/2018), and Sex Work Decriminalisation Act 2022 (No. 7/2022). Many in-text annotations (for example s 3, s 13, s 25, Parts of s 35 and s 37) show where amendments touched definitions, powers and Schedule items. Practitioners must read the Act as currently in force, including amendment notes and the consolidated Schedule, to determine current statutory interactions.

Primary enactment and commencement

The Fortification Removal Act 2013 was assented to on 10 September 2013 and came into operation on 6 October 2013 (endnotes "Interpretation of Legislation Act 1984" commentary and endnotes 1). The long title and explanatory materials noted the Act's purpose to provide for the Magistrates' Court, on application by the Chief Commissioner, to require removal or modification of fortifications connected to certain criminal offences (s 1; Endnotes).

Subsequent amendments recorded in endnotes

Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014: Assent 3 June 2014; commencement for s 10 (Schedule item 68) on 1 July 2014 (endnotes 2). Numerous in-text annotations show amendments effected by this Act, for example to the definitions of "Chief Commissioner" and "police officer" in s 3, amendments to s 13(g)-(h), s 25, s 35 and s 37, and other provisions (see in-text "S. ... amended by No. 37/2014 s. 10(Sch. item 68.*)" annotations). These style of notations in the consolidated text indicate that the 2014 Act made consequential changes aligning terminology and to operational powers, consistent with the introduction of the Victoria Police Act 2013.
Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014: Assent 26 August 2014; ss 103, 104 commenced on 1 October 2014 (endnotes 2). The consolidated text records multiple Schedule items as repealed by No. 55/2014 s. 104(2) and inserts (see Schedule annotations). The Act adjusted the Schedule of specified offences, removing, amending or updating references to particular statutory provisions to reflect changes in criminal organisation control and related offences.
Firearms Amendment Act 2018, No. 2/2018: Assent 13 February 2018; commencement of s 41 on 9 May 2018 (endnotes 2). The consolidated text shows insertions such as Schedule item 6.59A (s 112C(2)) and 6.59B (s 112O(1)) inserted by No. 2/2018 s. 41(a)-(b), and 6.66A inserted by s. 41(c). These amendments expanded or updated firearm-related Schedule entries, reflecting ongoing legislative changes in firearms regulation.
Sex Work Decriminalisation Act 2022, No. 7/2022: Assent 1 March 2022; commencement s 70 on 1 December 2023 (endnotes 2). The consolidated text indicates that Schedule item 7 was amended by No. 55/2014 and repealed by No. 7/2022 s. 70. The 2022 Act's amendments affected how certain Schedule items were included or removed, consistent with decriminalisation changes.

In-text amendment annotations and their effect

Many sections contain inline annotations indicating which subsections were amended by later Acts, for example the frequent "S. X amended by No. 37/2014 s. 10(Sch. item 68.*)" notations throughout Parts 2-5 and Part 6. Those annotations indicate structural and terminological changes (for example, updating references to "Chief Commissioner" and "police officer" to reflect the Victoria Police Act 2013). The consolidated text, as presented, incorporates these amendments up to 1 December 2023.
The Schedule contains a large number of items that were either repealed or inserted by later amending Acts; the endnotes show specific items (for instance, several items under the Firearms Act 1996 were repealed by No. 55/2014 s. 104(2)(c)). The presence of repealed items in the Schedule with annotations shows the Schedule has been actively adjusted over time.

Legislative notes on commencement technicalities

Section 2 sets out a commencement provision with a saving clause: the Act comes into operation on a day or days to be proclaimed, but if a provision does not commence before 1 November 2013 it comes into operation on that day (s 2). The endnotes indicate proclamation and operation dates referencing the Special Gazette citation.

Practical implications of amendment history

The amendment history demonstrates legislative responsiveness to developments in policing law, firearms offences and broader criminal organisation legislation. Amendments include definitional alignment with the Victoria Police Act 2013 and substantive updates to the Schedule and operational provisions. For practitioners, the consolidated Act must be read with these amendments in mind, and the endnotes identify the amending Acts and commencement dates to assist in historical or transitional analysis.
The Act’s current consolidated form includes all annotated amendments up to 1 December 2023 (Version No. 005). The Schedule and in-text annotations should be reviewed alongside the amending Acts where historical interpretation or transitional provisions are material to a matter.

No reported cases, appeals or judicial interpretations are provided or cited in the Act text or the accompanying endnotes. The consolidated text does not include a litigation history section, and the endnotes (3 Explanatory details) state "No entries at date of publication." That absence of reported judicial decisions within the statutory materials supplied means the Act’s statutory provisions have not been annotated in the consolidation with case law.

Practical consequences of the absence of litigation in the source

Unsettled interpretations: Key concepts in the Act are fact‑sensitive and likely to generate litigation and judicial interpretation. In particular, "fortification" contains a reasonableness and necessity element (s 4(1)(c)) and includes electronic surveillance devices (s 4(2)). The proper application of the "beyond what is reasonably necessary" test, and how courts weigh ordinary lawful use against alleged security excess, remains to be developed by case law absent authoritative judicial statements in the provided materials.
Reasonable grounds threshold: Section 11(2) and particularly s 11(3) indicates the Magistrates' Court may be satisfied of the requisite nexus without determining whether any particular specified offence has been committed. The contours of the "reasonable grounds to believe" standard, including admissible evidence types, sufficiency of affidavit material, and the weight given to intelligence or hearsay, are matters a court will define in litigation. The statutory materials do not report how courts have dealt with applications in practice.
Procedural disputes: The Act sets out tight timelines and particular service and affixation requirements (ss 7-9; s 8; s 17; s 36). Disputes about the sufficiency of "all reasonable efforts" to serve a relevant owner (s 8(1)(a); s 17(1)(a)) and whether affixation requirements were properly observed are likely triggers for judicial review or interlocutory proceedings. Absent reported cases in the supplied text, practitioners must anticipate such disputes and prepare to argue the statutory standard.
Enforcement and use of force: Sections concerning the use of reasonable force for entry and removal (s 35(4); s 37(3); s 39) raise issues that commonly attract litigation where force is used. The Act does not report any judicial scrutiny of the exercise of those powers or of the interaction with other statutory arrest or use-of-force requirements. Future cases will be informative about proportionality and police conduct standards in enforcement operations.
Affixed documents and criminal offences: The statutory offence of interfering with affixed documents (s 47) and high-penalty obstruction offences (ss 43-44) may give rise to prosecutions. The absence of reported litigation in the Act text means the application of defences such as reasonable excuse, necessity, or contest of the statutory classification, remains to be judicially developed.

Guidance for practitioners in the absence of reported cases

Prepare evidentiary material carefully: Given the Court’s capacity to act without finding an underlying offence (s 11(3)), applicants will rely heavily on affidavit material; objectors must likewise prepare affidavits that address the facts and circumstances relied upon (s 7(2); s 9(2)(a); s 20(2)). Anticipate judicial scrutiny of the "reasonable grounds" articulation.
Document service and affixation: Since service effort is an express legislative requirement (s 8(1)(a); s 17(1)(a)) and affixation is central to the commencement of orders (s 14(b)), keep detailed records of who was served and the steps taken to affix notices and orders. In contested matters, such records will underpin arguments about procedural compliance.
Custody of removed materials: Parties should be prepared for the statutory forfeiture regime (s 41) and the Chief Commissioner’s power to dispose of removed materials. Where property rights are in issue, early interlocutory applications may be necessary, although the Act’s forfeiture provision is clear.
Monitor legislative developments: Given the Act’s history of amendment, and the Schedule’s sensitivity to broader criminal law changes, practitioners should monitor further amendments and any future judicial decisions that develop the statutory tests.

In sum, the Act as provided contains no reported litigation history; the statutory text sets out numerous areas where future judicial interpretation is likely. Practitioners should plan for evidentiary and procedural challenges and be prepared to litigate interpretive points that the statute leaves to judicial elaboration.

Affixation and service technicalities: The Act repeatedly requires the Chief Commissioner to affix notices and copies of orders "to the entrance of the premises" or "in a conspicuous place near that entrance" (ss 8(1)(b), 17(1)(b), 34, 36(2)). Affixation triggers key time‑effects: an order not made in the presence of the owner/occupier takes effect only when a copy is affixed (s 14(b)); enforcement must be preceded by a notice affixed at least seven days before enforcement days (s 36(2)); and interfering with affixed documents is an offence until the "applicable day" (s 47). Practitioners should note that affixation creates legal effects and that destruction or obstruction of an affixed notice is itself an aggravated offence (s 47), so clients may unexpectedly find that the failure to maintain a posted copy will expose them to criminal liability.

Service on one owner sufficient when multiple owners exist: Where multiple owners exist, the Chief Commissioner is required to make reasonable efforts to serve only one owner (s 8(3); s 17(4)). That may surprise parties who assume all registered owners must be served. The Act also states that failure to serve a relevant owner after making reasonable efforts does not affect the validity of the application or order (s 8(2); s 17(3)). In practical terms this limits certain procedural objections; owners must be alert to service attempts and consider filing an affidavit to ensure their interests are heard.

Low threshold for making an order: The Court need not determine whether any particular specified offence has been committed to be satisfied of the matters in s 11(2) (s 11(3)). The standard is "reasonable grounds to believe" rather than a criminal or civil finding of guilt/liability. This means orders can be obtained on the basis of reasonable suspicion; evidence of intelligence or circumstantial factors may be sufficient to support an application. Owners and occupiers cannot rely on the absence of a conviction to resist an order.

Definition of "fortification" is context-dependent and includes surveillance: The definition contains an objective "reasonable person" test and a proportionality element comparing to "ordinary lawful use" (s 4(1)(b)-(c)). Electronic surveillance devices are expressly included (s 4(2)), so common security measures such as CCTV and motion sensors may be captured. A business installing surveillance for legitimate security or liability reasons will need to document the ordinary lawful use to resist claims that installations are "beyond what is reasonably necessary."

Short compliance period by default with narrow procedural rights: The compliance period begins upon the order taking effect and by default ends after three months (s 16(1)(a)). The Chief Commissioner may extend on request, but must decide within seven days (s 18(2)), and cannot extend if the owner has applied to the Court for extension (s 18(3)). Owners and occupiers denied an administrative extension have the right to apply to the Magistrates' Court (s 19), but that process can occur before or after the compliance period ends (s 19(2)). Practically, owners should act quickly to seek extensions or to carry out work within short timeframes.

Enforcement only after notice but may use reasonable force: Enforcement may only be exercised on days specified in the enforcement notice affixed under s 36(2), and that notice must specify the day(s) and warn of the offence for the destruction of the notice (s 36(3)). Nonetheless, on those days police can enter without warrant, bring personnel and equipment, and use reasonable force if entry is refused (s 37(1)-(3)). Property owners faced with affixation should plan for a forced entry scenario and the potential for rapid physical intervention. Contracts with contractors should consider insurers’ and licence obligations for works performed under state direction.

Costs recovery and causation concept "caused or allowed": The Chief Commissioner may recover costs as a debt from an owner or occupier who "caused or allowed" the fortification to be constructed or installed (s 40). The causation and "allowed" standard may produce factual disputes about who authorised or permitted a fortification and whether the owner had constructive knowledge; owners should keep records demonstrating lack of causation or lack of allowance to resist cost claims. Lenders and purchasers of property should perform due diligence to identify any prior fortification removal orders or enforcement actions.

Exemptions from building, planning and environmental laws: Section 42 explicitly excludes application of certain environmental and planning/building controls to works carried out under s 37. While this expedites enforcement, it also means owners cannot rely on those regimes to delay enforcement or to require police to satisfy building/planning conditions. This may affect engineering assessments, insurance claims and post-enforcement rectification costs.

Forfeiture of removed material: Material removed under s 37 is forfeited to the Crown and may be disposed of (s 41). Owners lose property rights in removed materials, and recovery of the material from police is unlikely. If property contains unique or valuable fittings, owners should consider protective steps or interlocutory relief where possible.

High penalties and corporate exposure: The Act sets large penalties for obstructing inspection/enforcement and for re-installation on premises previously subject to an order. Corporations face higher fine caps (s 49). Commercial actors must be aware that their exposure is not merely reputational or administrative but includes significant monetary and criminal penalties.

Inspection orders post-cessation extend reach for three years: The Chief Commissioner may apply for an inspection order for up to three years after the fortification removal order has ceased to have effect (s 26(3); s 33(2) limits inspection orders to within three years). This extends enforcement or supervisory reach beyond the life of the original order and may catch parties who uninstall fortifications after the order’s cessation. Owners should keep records and be prepared for potential inspections during that three-year window.

Affidavit requirements and timelines: Applications and objections must be supported by at least one affidavit addressing facts relied upon (s 7(2); s 9(2)(a); s 20(2)). Objections must be filed at least seven days before the hearing and served on the Chief Commissioner at least five days before (s 9(2)(b)-(c)). These procedural timing constraints can be strict; missing them risks being heard in absence (s 12). Engage promptly and prepare affidavits early.

Delegation concentration: The Chief Commissioner may delegate powers to a senior police officer (s 51), which centralises operational authority within police command. For affected parties this means administrative decision rights such as extensions and withdrawals may be exercised by delegated senior officers rather than the Chief Commissioner personally.

No litigation history in the source: The Act includes no reported cases or judicial guidance in the provided materials; factual and legal standards such as "reasonable grounds" and the scope of "fortification" lack judicial gloss in this source. Parties should be cautious about relying on settled interpretation and should prepare for contested factual determinations.

Initial assessment and documentation

Immediately on receipt of an application, notice or affixed document, owners and occupiers should carefully record the time, date and content of any affixation and ensure they retain or photograph a legible copy of any document affixed to their premises. Affixed documents carry statutory protections and obligations: it is an offence to obscure, damage or destroy affixed documents before the applicable day (s 47). Preserve copies for use in any objection, extension or judicial proceeding.
Assess whether installed security measures fall within the statutory definition of "fortification" (s 4). Consider whether devices or structures could be characterised as "beyond what is reasonably necessary to provide security for the ordinary lawful use of that kind of premises." Establish contemporaneous records showing the legitimate, ordinary use of the premises, procurement records for security equipment, and risk assessments that justify the scale of security measures. Those records will be core to affidavit evidence if contesting an application.

Procedural responses to an application

If an application is served, owners or occupiers who wish to contest it must file an objection with the Magistrates' Court and serve it on the Chief Commissioner in compliance with s 9(2). The objection must be accompanied by at least one affidavit addressing the facts relied upon (s 9(2)(a)) and must be filed at least seven days before the hearing and served on the Chief Commissioner at least five days before the hearing (s 9(2)(b)-(c)). Timely legal advice is essential to meet these tight timeframes.
If the owner or occupier cannot comply with the objection filing deadline, the Court has a power to extend or abridge the time within which an objection may be made (s 10). Make any extension application as early as possible and provide reasons and supporting affidavit material.
If the owner or occupier is not served but a notice of application has been affixed, consider both the practical effect of affixation (s 14(b) starts the clock for when an order takes effect if the order is later made in absence) and the possibility of a Court hearing in the objector’s absence (s 12). Affixation itself does not require the owner to be served for the application to proceed (s 8(2)), so an affixed warning should trigger urgent legal engagement.

Dealing with a fortification removal order

If a fortification removal order is made, confirm its terms carefully. The order must specify the premises, the fortification to be removed or modified, and if modification is required, the manner of modification (s 13(b)-(d)). Ensure any work undertaken conforms precisely to the order’s technical specifications to avoid allegations of non-compliance.
Note when the order takes effect: if the order is made in the presence of an owner or occupier it takes effect that day; otherwise it takes effect when a copy is affixed at the premises (s 14). The compliance period begins on the day the order takes effect and runs for the later of three months or a day specified by the Chief Commissioner or the Magistrates' Court (s 16). Plan removal or modification works early in the compliance period to avoid enforcement.

Requesting and seeking extensions

If more time is needed, formally request an extension from the Chief Commissioner while within the compliance period (s 18(1)). The Chief Commissioner must decide no later than seven days after the request (s 18(2)). Keep written proof of the request and of any decision. If the Chief Commissioner denies the request, an owner or occupier may apply to the Magistrates' Court for extension (s 19). An application to the Court can be brought before or after the compliance period ends (s 19(2)), but the Chief Commissioner cannot extend the compliance period if a Court application is in progress (s 18(3)).

Preparing for inspections and enforcement

Comply with the requirement to give police a reasonable opportunity to permit entry when police announce authority (s 35(3); s 37(2)(d)). If police announce and state the basis of their authority, cooperate with a reasonable offer to allow inspection. If you have lawful reasons to refuse entry, document them and be prepared to articulate them promptly in court if necessary.
Arrange for competent contractors and insurance in advance if there is a realistic prospect of being required to remove or modify fortifications. Enforcement days are specified in a notice affixed at least seven days in advance (s 36(3)). If you are the responsible owner/occupier, proactively engaging a contractor to do the work within the compliance period often reduces exposure to police-enforced removal and potential recovery of costs under s 40.

Avoiding offences during process

Do not obscure, damage or remove any affixed notices or copies of orders until after the relevant "applicable day" has passed (s 47). That offence carries serious penalties.
Do not obstruct or hinder police officers exercising inspection or enforcement powers (ss 43-44). If you consider a direction unlawful or disproportionate, document the interaction and seek legal advice; raising a lawful excuse in court may be the appropriate route rather than physical obstruction.

Financial planning and risk management

Recognise that if a fortification was "caused or allowed" by an owner or occupier, the Chief Commissioner may recover removal or modification costs as a debt (s 40). Owners should maintain records showing that they did not cause or allow unauthorised works or that they promptly acted to remediate any breaches to reduce recovery risk.
If enforcement occurs and material is removed and forfeited, owners should expect disposal by the Crown (s 41). Insurance policies do not necessarily cover forfeiture; check cover and notify insurers early. Where high-value fixtures or equipment might be seized, consider interlocutory court steps if recovery is possible and immediate protection is required.

Administrative and compliance systems

Maintain registers and policies documenting why particular security measures and surveillance devices were installed, who authorised them, procurement records, and safety or compliance assessments. Such documentation will assist in making an evidentiary case that installations are proportionate to the ordinary lawful use of the premises (s 4(1)(c)).
For businesses, adopt written protocols for responding to affixed notices and police attendance, including designated contacts for legal counsel, contractors and insurers. Ensure tenancy or property management contracts include clauses that require tenants to notify landlords and to permit remedial works if an order affects communal security features.

Legal engagement and remedies

Seek prompt legal advice when a notice or order is affixed. Timeframes for objections and applications are short; delay can forfeit procedural rights and lead to enforcement. Consider applications to the Magistrates' Court to extend compliance periods (ss 19-22), apply for stays where enforcement would cause irreparable harm, or seek judicial review if the statutory decision-making process involves legal error.
If costs are recovered by the Chief Commissioner, owners should be prepared to contest the causation or "allowed" element in court or to negotiate payment terms. Ensure all arguments are supported by contemporaneous records and affidavit evidence.

Monitor legislative and evidential developments

Keep updated with amendments to the Schedule and related criminal statutes referenced by the Act (endnotes indicate multiple amending Acts). The identity of "specified offences" affects the scope of the Act’s use and potential future applications.
Anticipate that courts will develop the law on "fortification", "reasonable grounds", and proportionality; maintain files to support arguments on ordinary lawful use and proportionality considerations for any contested removal or modification.

By following these steps , document thoroughly, respond to notices promptly, engage legal counsel, prepare timely affidavit evidence, plan for technical compliance work, and manage insurance and contractor arrangements , owners and occupiers can materially reduce the operational risk and legal exposure that the Fortification Removal Act creates.

Fortification Removal Act 2013

Plain English Summary

Deep Dive

What it does

Current sections

Fortification Removal Act 2013

Source text: opening excerpt

1 Fortification Removal Act 2013

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply