Review of the Police Powers (Drug Premises) Act 2001 - NSW ...

A fortification removal notice is reviewable by the Supreme Court.
If the fortifications are not removed within seven days, police may remove or modify the fortifications on the premises. To do so, they may
enter and secure the premises without a warrant and are authorised to use any reasonable force and equipment necessary. If the Police
Commissioner removes the fortification, the net costs of removal may be recovered from the owner of the premises as a debt. 156
3.3.3. South Australia’s Statutes Amendment (Anti-Fortifications) Act 2003
In 2003, the South Australian Government passed the Statutes Amendment (Anti-Fortifications) Act 2003 (the Anti-Fortifications Act),
inserting provisions into the South Australian Summary Offences Act 1953 in relation to fortified premises. The legislation was intended to
deal with similar issues to the Western Australian legislation, as some of the OMCGs of concern operate across both states.
The South Australian law appears to have been introduced to overcome the same operational difficulties faced by police in NSW and
Western Australia in gaining entry to fortified premises. However, like the Western Australian Act, the South Australian law is aimed at
OMCG clubhouses, rather than at premises that are specifically used for illicit drug manufacture or supply. The South Australian Attorney
General explained the impetus for the introduction of the legislation in the following way:
This bill … [is to] give effect to the government’s election promise to enact laws to prevent criminal organisations such as those
known as outlaw motorcycle gangs fortifying their clubrooms and other premises to prevent police access and to give the police
the power in appropriate circumstances to require the removal or modification of fortifications where they have been constructed
… If police officers cannot swiftly execute search warrants, for example, the criminals who occupy these fortresses are given an
opportunity to conceal or destroy evidence of their criminal behaviour. 157
The Anti-Fortifications Act provides that local councils in receipt of development applications forward these to the Commissioner for Police
if they believe that they involve the construction of fortifications. In the Act, fortifications are defined as:
… any security measure that involves a structure or device forming part of, or attached to, premises that -
(a)
is intended or designed to prevent or impede police access to the premises; or
(b) has, or could have, the effect of preventing or impeding police access to the premises and is excessive for the particular type
of premises. 158
If the Commissioner of Police determines that the application, or part of it, involves the creation of fortifications, the council must refuse the
application, or the part of the application that involves the construction of fortifications. 159
The legislation also enables police to deal with premises where fortifications already exist by permitting the Commissioner to apply to
the magistrate’s court for a fortification removal order. Such an order will be issued by the court if the fortifications are in contravention of
relevant planning laws, or if there are reasonable grounds to believe the premises are being, have been, or are likely to be used:
(a)
for or in connection with the commission of a serious criminal offence, or
(b) to conceal evidence of a serious criminal offence, or
(c) to keep the proceeds of a serious criminal offence. 160
The order must state that the fortifications are to be removed or modified within a specified time period, which cannot be less than 14
days. It must be served on the occupier/s of the premises or fixed to the premises “at a prominent place at or near to the entrance”. 161
Like the Western Australian legislation, statutory rights of appeal against the removal order are created. The Act also provides the
Commissioner with powers to give effect to the orders by removing the fortifications, and to recover the costs of removal.
156 The Hon. Dr Gallop. Hansard of the Legislative Assembly of Western Australia. 6 November 2001 p. 5038.
157 The Hon. M.J.Atkinson, Hansard of the South Australian House of Assembly, 16 September 2003.
158 Summary Offences Act 1953, s. 74BA.
159 Development Act 1993, s. 37A.
160 Summary Offences Act 1953, s. 74BB.
161 Summary Offences Act 1953, s. 74 BD.
NSW Ombudsman
Review of the Police Powers (Drug Premises) Act 2001 37