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STATUTES AMENDMENT (BUSHFIRE SUMMIT RECOMMENDATIONS) BILL

The Hon. P.F. CONLON (Minister for Emergency Services) obtained leave and introduced a bill for an act to amend the Country Fires Act 1989 and the South Australian Metropolitan Fire Service Act 1936. Read a first time.

The Hon. P.F. CONLON: I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

statutes amendment (bushfire summit recommendations) bill 2003 At the Premier's Bushfire Summit, on 23 May, 2003, there was agreement to support amend­ments to the Country Fires Act 1989 to allow for the issue of expiation notices by SAPOL offic­ers and by local government en­forcement offic­ers.

At present, considerable investigation time is re­quired to prepare the necessary court docu­ments and the courts are required to spend time on hearing these matters. The use of expiation notices for minor offences can sub­stantial­ly reduce en­forcement costs. It also allows alleged offend­ers to save the costs of appear­ing in court, and the ben­efit of expiating an offence rather than incurring a conviction.

The Premier's Bushfire Summit identified of­fences of failing to undertake hazard reduction on private property, and minor of­fences of mis­using fire during the fire danger season, as of­fences suitable for expiation. Further consul­ta­tion with metropolitan and rural fire prevention officers subsequently identified the precise of­fences of a minor nature that were most suitable for expiation. This Bill gives effect to the rec­ommendations of the Premier's Bushfire Summit.

General principles of expiation

The expiation of an offence is not an admission of guilt. A person who expiates an offence is not thereby convicted. A person who receives an expiation notice may pay the fee, thereby expiat­ing the offence, or elect to be pros­ecut­ed, risking a conviction. A person who does neither will be convicted when the expiation notice is later enforced.

Because expiation fees are set at a level well below the maxi­mum penalty for an offence, most people elect to pay the fee rather than incur the risk and inconvenience of contesting the matter in court. Therefore, offences that can be expiated are usually dealt with in greater num­bers, and with greater efficiency than offences that are prosecut­ed.

Expiation is appropriate for high-volume regula­tory of­fences when penalties involved are not severe. However, expiation is not suitable for serious offences. For offences perceived as real crime, justice demands exposure to higher pen­alties, accompanied by the formality and pro­cedure of a court hearing.

Nor is expiation appropriate for offences which depend upon a subjective assessment of a per­son's intent, or whether an alleged offender's actions were “reasonable”. If there is room for disagree­ment over matters of this type, it is more likely that an alleged offender will want an impar­tial adjudication, and it is more appro­pri­ate that an assess­ment be made by a court. Therefore, the demands of both efficiency and justice dictate that expiation of offences ought to be reserved for minor offences that can be ob­jectively measured or assessed.

Lighting fires in the open air during the fire danger season

In addition to general property offences such as arson, there are presently three separate general statutory provi­sions, relevant to bushfire risk, under which the lighting of a fire is an offence.

At the highest end of the scale, section 85B of the Crimi­nal Law Consolidation Act 1935 pro­vides for a maximum penalty of 20 years impris­onment for causing a bushfire. This offence re­quires a mental element of either intention or reckless indiffer­ence. This offence came into operation on 31 October, 2002. It is an offence far too serious to expiate.

The next most serious offence, “endangering life or prop­erty” contrary to section 52 of the Country Fires Act 1989, carries a penalty of Division 5 fine (not exceeding $8 000) or division 5 imprisonment (up to 2 years). Statu­tory defences to this charge include taking “all reasonable precautions to prevent the spread of the fire.” Both the serious nature of the penal­ties, and the fact that “reason­able” precautions are a defence suggest that this offence should not be made expiable.

Thirdly, the offence of lighting or maintaining a fire in the open air during the fire danger season, contrary to s36(1) of the Country Fires Act carries a penalty, for a first of­fence, of a Division 6 fine, (not exceeding $4 000) or Division 6 imprison­ment (up to one year). For subsequent offences penalties are increased to Division 5 fine (not exceeding $10 000) or Division 5 imprisonment (up to 2 years). There are many statutory exceptions in s36(2), under which lighting a fire in the open during the fire danger season is not an offence.

Since 1990, there have been 427 prosecutions for of­fences of lighting or maintaining a fire in the open air during the fire danger season, con­trary to section 36(1) of the Country Fires Act. 313 defendants (73%) were ordered to pay fines. 60% of fines exceed­ed $500. 40% of fines ex­ceeded $1 000. Only 2% of fines were below $200. 34 defendants (8%) were sentenced to perform community service. Only three times has an offender been sen­tenced to a term of imprisonment, and on two of those occasions the sentences were suspended.

Section 36(1) is subject to subsection (2). In other words, subsection (2) provides a list of circumstances that consti­tute exceptions to the prohibition in s36(1). There­fore a person who lit a fire in circumstances permitted by s36(2) would not commit an offence against s36(1). The fires permitted by s36(2) include small camp fires, incin­erators, welding, soldering, gas or electric barbe­cues, or a fire that is permitted by a permit obtained under s38. In most cases, however, fires permitted by s36 (including those author­ised by a permit issued under s38) are subject to conditions that:

× the fires must be proper­ly contained,

×land around the fire must be cleared of all flam­mable material to a distance of at least four metres,

×a supply of water ad­equate to extin­guish the fire must be at hand, and

×a person who is able to control the fire must be present.

A person who breached one of these conditions would have committed an offence against s36(1). If a breach was of a minor nature, it would not necessarily be appropriate to pursue a convic­tion for an offence against s36(1). It would be more appropriate and convenient if local government fire protection officers or SAPOL had the discretion to deal with minor offences of this nature by the issue of an expi­ation notice.

This does not mean that every time a person lights a fire in the open air during the fire danger season, the of­fence ought to be expiable. A person who caused a bush­fire with intent or reckless indifference could and should be pros­ecuted under s85B of the Criminal Law Consoli­dation Act. A person who caused a fire that endangered life or proper­ty could and should be prosecuted under s52 of the Country Fires Act. Likewise the more serious cases of “lighting a fire in the open air during the fire danger seas­on” that do not fall under either of the other two provi­sions could and should be prosecuted under s36(1) of the Country Fires Act.

Therefore this Bill allows for the issue of an expiation notice only for a “prescribed offence” against s36(1). In an unusual step, I have in­structed Parliamentary Counsel to draft pro­posed Regula­tions to indicate the offences that the Government intends to prescribe, so that they would be­come expiable under this provi­sion. Copies of these draft regulations are avail­able to Honourable Members. They indicate that expiation is intended to be possible only for offences of a relatively minor nature, when an offender has done no more than breach one of the specific conditions listed in s36(2), or one of a number of specific conditions of a permit issued under section 38.

The expiation fee for a prescribed offence is to be set at $210, which is a relatively minor amount compared to the serious penal­ties, in­cluding imprisonment, that would be available to a court if a person were to be prosecuted for an offence against section 36(1).

Restriction on the use of certain appliances etc

Section 46 of the Act provides that:

A person must not, during the fire danger seas­on, operate an engine, vehi­cle or appli­ance of a pre­scribed kind in the open air, or use any flam­mable or explosive material of a prescribed kind, or carry out any pre­scribed activity, except in accordance with the relevant regulations.

For the purposes of section 46, regulations 36 through to 45 prescribe:

36. Stationary engines

37. Internal combustion engines

38. Vehicles

39. Aircraft

40. Welders and other tools

41. Bee smoking appliances

42. Rabbit fumigators

43. Bird scarers

44. Fireworks

45. Explosive materials for blasting trees or timber

The Regulations also prescribe various condi­tions for the use of each of these prescribed appliances during the fire danger season. Some of the conditions are of a subjec­tive nature and hence not suitable for expiable offences. How­ever this Bill pro­poses that expiation be permit­ted for breaches of prescribed conditions. The draft Regulations prescribe a limited number of the existing regulatory provisions for this pur­pose. These condi­tions are

×that space immediately around and above the appliance is cleared of all flam­mable material to a distance of at least four metres, and/or

×that a shovel, or rake, and/or a port­able water spray in good working order are at hand.

Contravening either of these existing require­ments, when applicable, would be a “prescribed offence”. In these circum­stances, an expiation notice could be issued. The expiation fee pro­posed by this Bill is $210 which is, again, a relatively minor amount compared to the serious penal­ties that would be available to a court if a person were to be prosecuted for an offence against section 46.

Other Expiable offences

There are two other existing offences that this Bill propos­es to make expiable. They are of­fences against section 45, requiring caravans to carry fire extinguishers, and section 47(1) which prohibits smoking in the open air within two metres of flammable bush or grass (outside the area of a municipality or township). In each case the expi­ation fee is to be set at $160.

Duties to prevent fires on private land

A major initiative of this Bill is to give local councils greater power to enforce a private landowner's existing obligation to reduce fire hazards.

Under both section 40 of the Country Fires Act, and s60B of the South Australian Metropolitan Fire Service Act, a council has the power to issue a notice to a land­owner, requiring the land­owner to reduce fire hazards, such as flam­mable vegetation, or any flammable material on the land.

A landowner who fails to comply with such a notice com­mits an offence. In these circum­stances, a council might arrange to have the necessary hazard reduction work per­formed, and recover its costs from the landowner as a debt. However this would not necessarily be a deter­rent to a landowner. In the past, councils have found it difficult to prosecute landowners for these offences, and as long ago as 1999, the Local Government Association requested the power to issue expiation notices for these of­fences.

In the past, this request was denied, on the grounds that the Government did not want to trivialise the offence, or reduce its seriousness in any way. Nevertheless, the Government now recog­nises that obtaining the power to issue expiation notices would significantly increase coun­cils' capacity to enforce these offences. If failure to comply with a notice is made expiable, then some offenders who previously might not have been prosecuted would at least be invited to expiate their offences. This would presum­ably increase awareness of fire safety, and re­duce the risk of bushfires.

Therefore this Bill permits expiation of this offence, with­out reducing the significant penalty that is to remain as a deterrent for a wilful of­fence of failing to comply with a notice. To achieve these dual purposes, the Bill proposes two significant changes to section 40 of the Country Fires Act.

First, the Bill provides that a council's power to issue a hazard reduction notice need not be dependent upon an assessment of the land­owner's actions or lack of actions. Rather, the council's power is to arise in any circumstances where the council believes that there is an unrea­sonable risk. This is equivalent to the provision that already exists at s60B(2) of the South Australian Metropolitan Fire Service Act.

Second, the Bill abolishes the defence of “rea­sonable excuse” and instead creates two catego­ries of offenders. Those who “wil­fully” fail to comply with a notice will be subject to a maxi­mum penalty of $10 000, as they are at present. For all others, the Bill proposes an offence of strict liability, and a maximum penalty of $1 250. An expiation notice may be given to the latter category of offender. The expiation fee is $160. The Bill proposes this change in both section 40 of the Country Fires Act, and in the equivalent section 60B of the South Australian Metro­politan Fire Service Act.

Who may issue expiation notices?

Section 6(3) of the Expiation of Offences Act 1996 rel­evantly provides:

(3) An expiation notice may only be given by—

(a) a mem­ber of the police force; or

(b) a person who is authorised in writing by—

(i)the Min­ister respon­sible for the admin­istra­tion of the Act against which the offence is al­leged to have been com­mitted; or

(ii)the statu­tory authority or council re­spon­sible for the en­force­ment of the provision against which the offence is alleged to have been commit­ted,

to give expi­ation notices for the alleged of­fence; or

It is proposed that the relevant statutory authori­ty, being the CFS Board, would appoint only suitably trained fire prevention officers, em­ployed by councils, as persons who may issue expi­ation notices for most of the expiable of­fences under the Country Fires Act.

For the sake of consistency, the Bill provides that where a council is responsible for the en­forcement of particular provisions (as it is for offences against section 40) then the council may not authorise anyone other than a fire pre­vention officer to do so.

Expiation notices could also be issued by police offic­ers, under section 6(3) of the Expiation of Offences Act. How­ever there is no suggestion that either CFS (or MFS) fire­fighters will be authorised to issue expiation notices.

Conclusion

This Bill represents a commitment by the Government to one of the main recommenda­tions arising from the Premi­er's Bushfire Summit. It is a sensible initiative to allow for the expiation of a limited number of offences, with­out reducing the penalties for serious bushfire-related of­fences.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

This clause is formal.

2—Commencement

This clause provides that the measure will come into operation on a day to be fixed by proclamation.

3—Amendment provisions

This clause is formal.

Part 2—Amendment of Country Fires Act 1989

4—Amendment of section 34—Fire preven­tion officers

Under section 34(4) of the Country Fires Act 1989, fire prevention officers may delegate powers or functions. The amend­ment proposed by this clause has the effect of prevent­ing fire prevention officers from delegating functions or powers provided under an Act other than the Country Fires Act 1989. This would mean, for example, that a fire preven­tion officer given the power to issue expi­ation notices under the Expi­ation of Of­fences Act 1996 would not be able to delegate that power to another person.

5—Amendment of section 36—Fires during fire danger season

This clause amends section 36 of the Act, which pro­hibits a person from lighting or maintaining a fire in the open air during the fire danger season, by making the offence expiable in certain cir­cum­stances. The circum­stances in which the offence is expiable will be pre­scribed by regula­tion. The amount of the proposed expiation fee is $210.

6—Amendment of section 40—Private land

Section 40(2) requires owners of private land in the country to take reasonable steps to protect property on the land from fire and to prevent or inhibit the outbreak of fire on the land, or the spread of fire through the land. Under subsection (4), the respon­sible authority (a council or the Board) may, if the owner of the land has failed to comply with subsec­tion (2), require the owner to take specified action to remedy the default within a specified time. As a consequence of the amend­ment pro­posed to be made by this clause, the respon­sible authority will also be able to require an owner of pri­vate land to take specified action if the authority be­lieves that condi­tions on the land are such as to cause an unreason­able risk of the out­break of fire on the land, or the spread of fire through the land.

Under section 40(5), failure to comply with a notice under subsection (4) with­out rea­sonable excuse is an offence. This clause amends subsec­tion (5) by re­mov­ing the words "without reason­able ex­cuse". This clause also inserts a new penalty provision. The new provision retains the existing penalty, a fine of $10 000, for a wilful failure to comply with a notice. The maxi­mum penalty for a failure to comply with a notice in any other case is a fine of $1 250. An expi­ation fee of $160 is also inserted. Expi­ation is not available in the case of a person who wilfully fails to comply with a notice.

7—Amendment of section 45—Fire extin­guishers to be carried on cara­vans

Section 45 prohibits a person from using a cara­van unless an efficient fire extin­guisher that complies with the regula­tions is car­ried in the caravan. This clause inserts an expiation fee of $160 for the of­fence of fail­ing to comply with section 45.

8—Amendment of section 46—Restriction on the use of cer­tain appliances etc

Section 46 prohibits a person from using applian­ces of a prescribed kind, or carrying out pre­scribed activity, during the fire danger season, except in accord­ance with the regulations. As a result of the amend­ment made by this clause, the offence will be expi­able in certain cir­cumstances. The circum­stances in which the offence is to be expiable will be pre­scribed by regula­tion. The pro­posed expiation fee is $210.

9—Amendment of section 47—Burning ob­jects and material

Section 47(1) prohibits a person from smoking in the open air within two metres of flammable bush or grass (other than within a municipality or township). This clause inserts an expi­ation fee of $160 for the offence of failing to comply with section 47(1).

10—Insertion of section 62A

Section 6(3) of the Expiation of Offences Act 1996 provides that a statutory auth­ority or council respon­sible for the enforcement of a provision may author­ise a person to give expi­ation notices for alleged offences against the provision. Proposed section 62A limits the power of a council to authorise per­sons to give expi­ation notices. A council may author­ise a person to give expiation notices only if the person is a fire prevention officer.

Part 3—Amendment of South Australian Metro­poli­tan Fire Service Act 1936

11—Amendment of section 60B—Fire preven­tion on private land

This clause amends section 60B of the South Australian Metropolitan Fire Service Act 1936. Under section 60B(2), a council that believes condi­tions on private land in a fire district are such as to cause an unrea­son­able risk of the outbreak of fire on the land, or the spread of fire through the land, be­cause of the presence of flammable under­growth or other flammable or com­bus­tible materials or sub­stances may re­quire the owner of the land to take speci­fied action to remedy the situa­tion within a specified time.

Under subsection (4), a person to whom a notice under subsection (2) is ad­dressed must not, with­out reason­able excuse, fail to comply with the notice. This clause amends subsection (4) by removing the words "without reasonable excuse". A new penalty provision is also inserted. The existing maximum penalty, a fine of $10 000, is retained for the offence of wilfully failing to comply with a notice. A new penalty, a fine of $1 250, is inserted for any other case of failing to comply. An expiation fee of $160 is also insert­ed. The expiation fee does not apply in the case of a person who wilfully fails to comply with a notice.

Mr HAMILTON-SMITH secured the adjournment of the debate.