CRIMINAL LAW CONSOLIDATION (LOOTING) AMENDMENT BILL

Second Reading

Adjourned debate on second reading.

(Continued from 30 April 2009. Page 2518.)

Ms SIMMONS (Morialta) (10:49): The government opposes the Criminal Law Consolidation (Looting) Amendment Bill 2009. Although the government understands the sentiment behind the proposal, as I will discuss in my contribution, this bill is fundamentally flawed and inadequate policy.

This bill seeks to make an aggravating feature of offending against division 2 or 3 of part 5 of the Criminal Law Consolidation Act 1935—that is, offences of theft or robbery if they are committed in a place where, at the time of the offence, there was either:

a declaration under part 4 of the Emergency Management Act 2004 in force; or

residents and others in the place, or in the vicinity of the place, had been advised by radio broadcast by the South Australian Country Fire Service that they should activate their bushfire action plans and that advice had not been withdrawn or ceased to apply; or

residents and others had not been able to return to the place after leaving in response to a declaration or broadcast.

This bill also amends the penalty provision applicable to the offence of theft under section 134(1) of the Criminal Law Consolidation Act 1935 by prescribing a maximum penalty for an aggravated offence of 15 years' imprisonment. For a basic offence of theft, the maximum penalty is to remain unchanged at 10 years' imprisonment.

As the second reading explanation for this bill reveals, it was introduced in response to bushfires in South Australia, Victoria and Western Australia where there have been reports of people scavenging through people's burnt out houses and businesses and stealing from them. There is no doubt that the extent and horrific circumstances of the bushfire tragedy experienced in Victoria earlier this year caused all states and territories, in some way, to consider their respective arson and bushfire prevention measures. Indeed, bushfire and arson prevention is being considered at a national level in consultation with each of the respective jurisdictions.

This bill does not include the offence of serious criminal trespass as prescribed under part 6A of the Criminal Law Consolidation Act 1935. Given that most looting occurs at businesses or residences, this is a significant omission. I am curious about the member for Davenport's reasons for admitting this most relevant offence.

Further, the bill suggests that a declaration under part 4 of the Emergency Management Act 2004 or an announcement by the CFS to residents to activate their bushfire action plans forms the basis of aggravation. Regarding declarations, I am advised that declarations under part 4 of the Emergency Management Act 2004 are, thankfully, not common, with very few made in the past few years.

Sections 22 to 24 of the Emergency Management Act 2004 prescribe three classifications of emergency levels where declarations can be made. Whether an emergency is declared to be either a major incident, a major emergency or a disaster, dictates the method and means by which it is communicated. For instance, where a declaration of a major incident is made by the state coordinator, who is also the Commissioner of Police, it may be made orally, but must be reduced to writing as soon as possible and a copy provided to the minister. This remains in force while response operations are being carried out in relation to the emergency for a period not exceeding 12 hours.

By contrast, a declaration that the emergency is a disaster must be made by the Governor and must be made in writing and published in a manner and form determined by the minister. This remains in force for a period specified in the declaration, but must not exceed 30 days unless an extension of time is approved by a resolution of both houses of parliament.

There is a problem in using an announcement by the Country Fire Service to activate a bushfire action plan as a trigger for substantially heavier maximum penalties. How will the prosecution be able to prove that an alleged offender knew that an announcement had been made for residents to activate a bushfire action plan? To consider this scenario further, members must understand the criteria that the CFS uses to make such announcements.

In consulting with the CFS about the criteria used to determine whether an announcement will be made and the statistics on announcements made in recent years, it was advised that the CFS has two key triggers for making a public announcement for residents to activate their bushfire action plan. These are: when a total fire ban is declared, a bushfire information message is released specifically for ignition or development messages. The wording is standard and recommends that people activate their bushfire action plan.

The public communication for these is done through the media. For total fire bans a media release is produced and circulated to all media outlets across the state, including all print, radio and television stations, including regional outlets for all three mediums. Bushfire information messages are sent to all print, radio and television stations, including regional outlets for all three media, with specific verbal contact with ABC Radio and Radio FIVEaa to confirm receipt, as there is a memorandum of understanding with these two organisations which broadcast these messages immediately.

For the information of the house, I have obtained a summary presented by calendar year and by fire danger season. The information is provided in two main areas: the total number of fire bans imposed for the respective periods and the number of days fire bans were imposed as multiple fire bans may have been imposed for the same day.

The total number of fire bans declared for calendar year 2008 was 247, spread across a total of 48 days. Therefore, on 48 days we issued a media release recommending that people activate their bushfire action plan. The total number of fire bans declared for the 2008-09 fire danger season was 277, spread across 50 days. Therefore, on 50 days we issued a media release recommending that people activate their bushfire action plan.

As can be seen from the above statistics, it is clear that the use of bushfire action plans is fairly common during the bushfire season. The difficulty that arises with utilising announcements by the CFS for residents to activate their bushfire action plan will be for the prosecution to prove that the accused knew or was aware that such an announcement had been made.

The difficulty in establishing this will result in the prosecution not utilising this feature of aggravation, even if it was available. The extra penalty possibly available will not be worth the effort required to reach a possible result.

The Hon. I.F. EVANS (Davenport) (10:57): I will not hold the house long because I know that other members have bills that they wish to get to. I wish to touch on a couple of things that the member has said in relation to this bill. This bill seeks to introduce a heavier penalty for looters who seek to rob people's homes or buildings during the evacuation for a fire, or post fire.

I think there should be a message sent to looters that, when people are evacuating for safety reasons or when their buildings have been partly destroyed due to fire, they are going to suffer a heavier penalty. Looters, at that point, are essentially preying on people who are in a weaker position because they are evacuating for safety reasons or their buildings have been destroyed.

The government has taken an interesting position: that the robber may not have known. I guess the question might be asked whether the robber should have known. I guess the community will ask the question: does it really matter about that particular aspect?

The government has suggested that the bill could be broadened to take in other aspects. No-one from the government has approached me suggesting amendments. However, I will put it on the record now that, if the government votes for the bill, I am happy to accept amendments to the effect that the member for Morialta has outlined to improve the bill.

Everyone knows that, in private members' time, the opposition does not have all the resources of government to get all the advice from the CFS, etc., in relation to every aspect. If the government has consulted its agencies and has come up with a way of improving the bill, I am happy to accept amendments to that effect so that they can be moved in the other place and the bill can be corrected.

I do not think we should leave South Australians in a weaker position over summer simply because the two sides do not wish to cooperate in moving or accepting amendments. Let us make it crystal clear: I am happy to accept the amendments because I do not think it is acceptable that looters should get off lightly. The government's position is that the looters will be treated the same as any other robber or thief. The reality is that, at the point when you are evacuating your home to get away from a fire or when your house has been destroyed, you are at a point of weakness. I think, at that point, the message should be sent that you are going to get a higher penalty.

The government has announced that it is going to be directing evacuations. So, in my electorate, you would be directing 40,000 to leave, and every robber out there will know that every house in that area—9,000 to 10,000 homes—will be vacant. If that is not an invitation for the criminal element to waltz into the district and wreak havoc, under the shade, if you like, of an approaching fire or fire risk—

The Hon. M.J. Atkinson: And they might be from the district.

The Hon. I.F. EVANS: Yes, there would be people with criminal records living in my electorate. That is their democratic right and I represent them as well.

The Hon. M.J. Atkinson interjecting:

The Hon. I.F. EVANS: I represent them. I do not encourage them to be criminals but, if they live in my electorate, I represent them; that is my role. The principle behind this bill is common sense. I extend the offer to the government to put the bill through and that we work together on amendments between the houses so that the points the government has made can be dealt with so that looters are sent a strong message and householders are safer as a result. Why the government would oppose that, I am not sure. I thank members for their contribution.

Second reading negatived.