What is a fortification?
The Summary Offences Act 1953 (SA) defines a fortification as any security measure involving a structure or device forming part of, or attached to, premises that:
- is intended to prevent or delay police access to the premises; or
- has, or could have, the effect of preventing or delaying police access to the premises and is excessive for the type of premises concerned
Fortification removal orders
Under section 74BB of the Summary Offences Act 1953 (SA) the Commissioner of Police can apply to the Magistrates Court for an order requiring the fortifications be removed or modified within a fixed time period.
The Commissioner must show that the premises named in the application are fortified. In addition, the Commission must also show that:
- the fortifications have been created without approval under the Development Act 1993 (SA); or
- there are reasonable grounds to believe the premises are being used (or have been or are likely to be used) in connection with the commission of a serious criminal offence or to conceal evidence or keep the proceeds of a serious criminal offence; or
- the premises are owned, occupied or habitually used by a declared organisation or a member of a declared organisation (see declared organisations).
Fortification removal orders must be served on the occupier(s) of the premises with a copy to be served on the owner if they are not named in the order. Service of the order can be personally or by registered post. If service cannot be accomplished by these means then it is sufficient for the Commissioner to fix a copy of the order to the premises at a prominent place at or near the entrance.
Criminal intelligence can be presented by police in support of these applications and the Court, on application from the Commissioner, must takes steps to maintain the confidentiality of that information, including hearing argument and receiving evidence in private, without the parties to the proceeding being present [see s 74BGA]. Criminal intelligence is defined as relating to actual or suspected criminal activity, the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery or existence of a confidential source of information, or to endanger a person's life or safety [s 74BA].
Right of objection
A person served with a fortification removal order may lodge a notice of objection with the Magistrates Court. The notice of objection must be lodged within 14 days of service of the order.
Enforcement of fortification removal order
The Commissioner of Police can enforce a fortification removal order where it has not been complied with. For this purpose police can enter the premises the subject of such an order without a warrant to make the modifications or removals specified in the order. The Commissioner can also seize anything that can be salvaged in the removal of those fortifications and can recover costs of the removal of the fortifications from whoever caused the fortifications to be created [see generally s 74BI].
Hindering removal or modification of fortifications
It is an offence under s 74BJ of the Summary Offences Act 1953 (SA) for a person to do anything to prevent or delay the removal or modification of fortifications as provided in a fortification removal order.
Maximum penalty: $2 500 or 6 months imprisonment
Liability for damage
A property owner has no action against the Crown for damage to property resulting from enforcement of a fortification removal order. However, it may be possible for a property owner to recover reasonable costs associated with the repair or replacement of property damaged as a result of the removal of fortifications as a debt from any person who created the fortifications to be created.
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