Criminal Law Consolidation (Bushfires) Amendment Bill

17 Mar 2021

Second Reading

Adjourned debate on second reading.

(Continued from 17 February 2021.)

The Hon. D.C. VAN HOLST PELLEKAAN (Stuart—Minister for Energy and Mining) (10:32): I rise on behalf of the people of Stuart to speak on the Criminal Law Consolidation (Bushfires) Amendment Bill, brought to us previously by the member for Waite. Quite understandably, the member for Waite brought this proposal to our parliament largely in the wake of the Adelaide Hills bushfires, not only for that reason but largely because of it.

I certainly understand it. As a member of parliament who has had several bushfires in my electorate over the last 11 years I have been in this place, I share the anger—I think 'anger' is probably the right sort of word to use—that I understand the member for Waite has with regard to people who deliberately light fires and the harm and damage that come out of that. The intent with regard to bringing this bill forward is something that I certainly understand.

The key feature of the bill is to amend section 85B of the Criminal Law Consolidation Act by increasing the maximum penalty for the offence of causing a bushfire from 20 years up to life imprisonment. It also requires a court finding a defendant guilty of the offence to make an order under section 124 of the Sentencing Act 2017 that the defendant pay compensation for injury, loss or damage resulting from the offence. There are some exceptions. Very briefly, that is what the member's bill seeks to do. I share the sentiment behind wanting to bring it forward.

In our electorate of Stuart, we have had numerous bushfires. Some started by accident and some started by nature. Some people contend that they could have been small bushfires started by accident or by nature that, through negligence, were not contained properly and then developed into much bigger and much more damaging bushfires. I can think of at least one bushfire we have had that was started allegedly through negligence, by careless and probably recklessly careless management of fire. We even had another bushfire started in our electorate, an out of control bushfire, that was started by a deliberate burn.

Although I was not there, I am very reliably informed by people who were right there—as in metres away—that the person under the previous government in charge of that government-managed prescribed burn to try to prevent bushfires and bushfire damage down the track was told by others, 'Don't do it. The weather has changed. It's the wrong day. Do not go ahead with this prescribed burn today. It will be a disaster.' The decision was made by the person in charge to continue anyway and, yes, it turned out to be a disaster. It was more environmental and commercial with regard to property than it was with regard to loss of homes or life. Thankfully, there were no losses of homes or lives or anything.

Bushfires can start in many different ways and often it is very difficult afterwards to know exactly what the cause was, and I use these examples: purely nature, lightning strike, somebody not managing a government-sanctioned burn-off, or perhaps even starting it when they should not have done so, or a person whose legal burn-off of rubbish on their own property gets out of control. It is very hard and, yes, of course, I take the point very clearly that this private member's bill is trying to address the very serious crime of deliberately starting a fire and when that fire does very serious damage.

I have to say that we already have those sorts of protections in place. This bill would duplicate penalties that are already available in South Australia's Criminal Law Consolidation Act 1935. In South Australia, currently there is a maximum penalty of life imprisonment when a person causes property damage by fire or explosives or in cases where there has been a loss of life. SA's laws are already consistent with those in Western Australia and Queensland and significantly stricter than those in other jurisdictions, such as the ACT and Victoria. I fully understand the sentiment behind this bill, but I am not convinced that it provides more than we already have in place at the moment and/or provides anything additional we need to have.

With regard to bushfires, we have had situations where farm machinery, agricultural equipment, has started a bushfire and people have died. Those circumstances are taken extraordinarily seriously and there is absolutely no suggestion whatsoever by me that in the case that occurred in the last 11 years since I have been a member of parliament it was anything other than an accident. I know the member is not looking to include situations like that in this bill.

If a person who had the authority to start a prescribed government burn was advised not to by other very capable people on the scene at the time and that person with authority chose to proceed anyway, and if, as was thankfully not the case, a circumstance like that ended up with, at the extreme, loss of life or any of the other potential outcomes suggested to be covered here, would that person fall under this bill?

That would have to go to the court. Yes, the person had the authority and, yes, the person had no intention of deliberately harming people but, yes, the person did light the fire that did cause that and did so in opposition to or without heeding the advice of others who believed that was a very likely outcome. It is very hard to say. Courts could spend years dealing with those issues.

I will say again that I am not sure this bill protects our state or, most importantly, the people the member for Waite and no doubt all of us want to protect. Would this bill actually give them greater protection? On the other hand, would it also provide greater penalties to people who fall foul of this and have clearly deliberately and knowingly done the wrong thing that ends up with this kind of catastrophic outcome? I do not think so.

I am not a lawyer. I take advice from friends and colleagues who are more learned than me in this area—at the top of the list, of course, is the Attorney-General. I do not claim to be a lawyer, but I do claim to be pretty well across the fundamentals of what happens on the ground when there is a bushfire. I am not only talking about fighting the fire but I am talking about dealing with people and the impacts on them during the fire and in the days and weeks and months and years following bushfires.

It is absolutely, completely, 100 per cent disgraceful, disgusting or whatever the strongest polite word I can think of for somebody to deliberately light a fire. Of course, it is even worse if the consequences are as grave as those considered in this bill. I think we already have the right tools at our disposal to deal with those unacceptable circumstances.