Criminal Law Consolidation (Bushfires) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 3 February 2021.)

Dr HARVEY (Newland) (10:48): I move:

That this order of the day be postponed.

Mr ODENWALDER: Sir, a point of clarification.

The SPEAKER: The member for Elizabeth rises on a point of order.

Mr ODENWALDER: I believe I was on my feet before the member for Newland and I am ready to speak on the bill.

The SPEAKER: That may or may not be the case. I saw the member for Newland and the member for Newland had the call. The motion has been moved and seconded.

Ayes 22

Noes 22

Majority 0

The SPEAKER: There being 22 ayes and 22 noes, I have a casting vote in accordance with standing order 180, and I cast that vote with the noes.

The SPEAKER: Member for Elizabeth.

Mr ODENWALDER (Elizabeth) (10:55): I thank you for your wisdom, sir, and I rise to speak on the Criminal Law Consolidation (Bushfires) Amendment Bill and indicate that the opposition will be supporting this particular bill in this house. What the devastating fires of last summer showed us, if we needed showing at all, was that first of all climate change and the effects of climate change mean that bushfires are going to be an ever present and more and more dangerous part of living not only in the rural areas of our state but in the peri-urban and even the urban parts of our state, when we talk about small townships and communities on the edges, in the foothills, in places like the member for Waite's electorate and the member for Davenport's electorate.

We need to be prepared to throw everything we have at the fight against bushfires. We need to be able to fight on all fronts, which means not only, of course, properly equipping and resourcing our firefighters and the agencies that support our firefighters but also making it very clear to the community that causing bushfires, committing arson and associated offences, simply cannot be tolerated in this new environment we find ourselves in. I think the member for Waite's bill goes some way to demonstrating that and demonstrating that this parliament believes that we should have no more tolerance for these activities.

I have spoken in this place many times on bushfires. Last summer, when the leader and I went up to the site of the Cudlee Creek fire, to the community meetings, one thing that struck me and was very pleasing was the community spirit that evolves from those things in rural and regional townships but also in peri-urban areas. I note that the member for Kavel particularly, the member for Morialta and the federal member for Mayo were all there and all were acting as lightning rods for their community in a time of great need.

In that vein, then, I hope that, given the growing danger to peri-urban areas, the member for King, for instance, and the member for Newland are within their party rooms telling the relevant ministers that these measures are necessary and that we should be throwing everything at the bushfires. The member for Mawson, I know, will be supporting this bill because he knows from his own experience last year, acting in a similar way as a lightning rod for the concerns of his own community and as a hub for his community, how essential these things are. We need to send these messages very strongly.

Similarly, although I think the member for Kavel acquitted himself extremely well last summer in terms of his community actions, I hope that he was in the party room saying in no uncertain terms that this bill should be supported and that we should be throwing everything at the fight against bushfires. I hope all regional MPs—the member for Davenport, the member for MacKillop—are in there pointing to the Minister for Emergency Services, the Attorney-General and other potential naysayers.

An honourable member interjecting:

Mr ODENWALDER: Excellent. I think I know who the potential naysayers probably would be.

Mr Whetstone: What's a potential naysayer?

Mr ODENWALDER: Get a dictionary, mate.

Members interjecting:

Mr ODENWALDER: That's right.

The SPEAKER: Order! The member for Elizabeth will resume his seat.

Members interjecting:

The SPEAKER: Order! The member for Chaffey will cease interjecting.

Members interjecting:

The SPEAKER: The member for Chaffey is called to order! Members on my left will cease responding to interjections. The member for Elizabeth has the call. The member for Elizabeth.

Mr ODENWALDER: I thank the bard of the Riverland for his advice; it's always welcome. Having said all that, in fact, I hope the bard of the Riverland was in the party room, too, facing off potential naysayers, such as the Minister for Emergency Services and the Attorney-General, who may not like this kind of legislation. But I think it is essential. Let's go through the bill. It is a simple bill. The first provision—

The Hon. V.A. Tarzia: You like the simple ones, don't you Lee?

Mr ODENWALDER: I do like the simple ones.

The SPEAKER: Order! The member for Elizabeth will not respond to interjections.

Mr ODENWALDER: I will be interested—

The Hon. V.A. Tarzia interjecting:

The SPEAKER: The minister is called to order!

Mr ODENWALDER: Yes, sometimes these things are simple, minister, and I hope that you were one of those people in the party room, or will be one of those people in the party room, saying that we need to do this. The first provision, as I said, is a simple one. It increases the penalty from 20 years to life imprisonment for causing a bushfire. In—I could be wrong—2007 or 2006, the Rann government moved to make life imprisonment the penalty for arson and other related offences and I think this is just simply keeping up with that. I think that is a pretty easy one. I think even perhaps the Minister for Emergency Services could bring himself to support that. It might take him two years to come around, but perhaps he will support it at some point.

The second one, of course, is about mandating the provision of compensation under section 124 of the Sentencing Act. Of course, section 124 already allows compensation to be paid. This mandates the order for compensation to be made in the event of causing a bushfire. I think there is plenty of room in that. There is plenty of room, in fact, in other arson offences to look at that and perhaps that is something for the Minister for Emergency Services to do over the next year or so, to have a look at that.

We need to send very, very clear messages to these people. There are perhaps sometimes complex reasons why these people light bushfires or cause arson. But, in the current environment—and we saw last summer the devastating effects of the new nature of the fires we are facing—we need to throw everything at this fight. If it requires very, very harsh penalties, if it requires mandated compensation, then that is what we should do. I urge all members to support the bill, particularly those, as I said, in peri-urban and regional areas. I urge them to urge their own party room to support this measure and I hope that we can all come together and fight these fires together.

The Hon. V.A. CHAPMAN (Bragg—Deputy Premier, Attorney-General, Minister for Planning and Local Government) (11:02): May I indicate that the government side has given consideration to this bill and, whilst there are very important sentiments sitting behind it, it will be the position from the government side that this be opposed. The, perhaps, misunderstanding of the mover, which I have attempted to explain directly to him, has not been, perhaps, fully appreciated.

Perhaps if I could just outline the position. On 3 February 2021, in wake of the Adelaide Hills bushfires, the mover introduced this bill, and that is unsurprising given the background of that. It seeks 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 to life imprisonment. It also requires the court that finds a defendant guilty of the offence to make an order under section 124 that the defendant must pay compensation for injury, loss or damage resulting from that offence.

This is the situation in South Australia in respect of someone who deliberately causes a bushfire or is guilty of arson. With regard to property damaged by fire or explosives, section 85 of the Criminal Law Consolidation Act 1935 makes it an offence for a person to either intentionally or recklessly damage property (e.g., a building or motor vehicle) by fire or explosives, without lawful excuse. The maximum penalty is life imprisonment, which is consistent with Queensland and Western Australia, and significantly higher than some other jurisdictions such as the Australian Capital Territory and Victoria, which are 15 years and 25 years respectively.

Secondly, section 85B of the CLCA creates a specific offence for causing a bushfire. The maximum penalty is 20 years' imprisonment. This specific offence was created in recognition of the seriousness of bushfires and the danger they pose to human life, wildlife and vegetation. In fact, I was in the parliament at the time when Premier Rann introduced this initiative. I remember my first question was: why are we doing a new offence when we have already got life imprisonment for arson? The answer was: you have to actually have caused the death of somebody to be guilty of arson or property damage over a certain value. Therefore, this was without direct loss in that way, specifically, but recognising loss of vegetation and loss of wildlife, even if there was no loss of human life or property, as such, as we know it. That is the genesis of that initiative as he explained it to me at the time.

Thirdly, in circumstances where there is a risk to human life, where arson or a bushfire does pose a risk to human life or results in the death of a person, it is open to charge an arsonist with endangering life (section 29 of the CLCA), which attracts a maximum penalty of 15 years' imprisonment and 18 years' imprisonment for an aggravated offence, that is it occurs more than once, etc., or murder or manslaughter, both of which attract a maximum penalty of life imprisonment.

Additional sanctions relate to this proposal in respect of requiring a mandated compensation payment for those guilty. Section 124 of the Sentencing Act already, currently, provides that the court may make an order for a defendant to pay compensation for injury, loss or damage resulting from the offence, or any offence taken into account by the court in determining sentence for the offence. Introducing a sentence is one thing but introducing an obligation to pay compensation is clearly a futile exercise, most likely, when the offender, the guilty party, has no assets with which to meet that situation.

Let me advise the house of the comparison with other jurisdictions. The mover's second reading speech suggested that his bill would bring South Australian laws in line with the maximum life sentence available for causing a bushfire under the Western Australian Criminal Code Act Compilation Act 1913. However, on this point, as I have indicated, he is incorrect, as the penalty of life imprisonment in Western Australia relates to the offence against section 444 of criminal (wilful or unlawful) damage of a property by fire, for which South Australia already has the equivalent offence of property damage by fire or explosives, as I have detailed earlier. This attracts a maximum penalty of life imprisonment. Further, the South Australian specific offence of starting a bushfire, as I have indicated, is broadly consistent with other jurisdictions, although not every jurisdiction expressly has one.

Clearly, the mover of the motion, meritorious as his sentiment behind this motion may be, has focused, however, on the potential loss of life and extensive damage to property and the environment that can be caused by bushfires as the main rationale for introducing the bill. I entirely understand that sentiment. Although these reasons are obviously compelling, the offences currently available in the CLCA, which attract the maximum penalty of life imprisonment, are applicable in circumstances where property damage is caused by fire or a fire has posed a risk to human life or resulted in the death of a person. I suggest respectfully that the bill is futile.

In the few minutes that I have left can I add to my contribution by saying that we have just had a state and royal commission status federal inquiry into bushfires and how we might address matters that other speakers have raised, namely the advent of effect on the whole hydrology of fires as a result of climate change and other factors. I think that is all important data, including the use, better use and more use of indigenous burning. These are all things that clearly all governments around the country, who are providing the resource and making determinations to support the management and prevention of bushfires, need to take heed of and need to consider.

Punishing the people who start bushfires is a feature in respect of how we deal with the day-to-day management of bushfires. Let us be under no illusion: for someone who has grown up in a bushfire region and was a victim again of significant loss of property in the Kangaroo Island bushfire of December 2019, this is something that we do live with and we do have to continue to manage. We also need to appreciate that the overwhelming majority of bushfires, and others—and we are talking about bushfires, in particular, today—start with lightning strikes. If we are lucky, it is followed by rain, which helps us put out the fire.

We had a bushfire just the other day in my local region on Kangaroo Island. It started in almost exactly the same spot as the 2019 fires. Within a couple of days, we had sufficient moisture and support on the ground to get that fire under control. Sadly but fortunately, as a result of the denuding of the conservation zones and national park down that end, there was not much to burn if it did jump the highway. This is the reality of what we live with.

The police are also a very important party to the management of the cohort in our community who come up against criminal sanctions but who do not actually ever get either prosecuted and/or sentenced in the manner in which we expect when we are so outraged that someone has gone and done this. I am talking about a cohort of people who have a propensity or a love for lighting fires. They are under impairment and/or mental incapacity. It is with us on a daily basis, which is alarming during a bushfire season.

Our South Australian police have a project every year in the lead-up to and during the bushfire season to alert and inform those who have to be kept under surveillance that they are being watched. That is a really important role of the police in the lead-up to the bushfire season. There are not one or two in South Australia who have to be watched but dozens at any one time. They have to be cautioned, monitored, kept an eye on, reminded that they are sometimes under surveillance and followed by police to make sure we are kept safe from behaviour that is going to cause a bushfire and/or loss of property or damage.

Just recently, someone was charged in respect of a fire in the Adelaide Hills, which is clearly proximate and a danger/threat to the mover of this motion. I do understand that. I am not going to mention the details of the case other than the fact that it was raised in the course of this debate. Whatever the circumstances are, I do not know. I make the point to the parliament that we are dealing with people who do the wrong thing, for which we have a very clear and severe set of parameters of laws that are already there. They are some of the highest in the country, so I do not know how we can make them any higher. Mandatory compensation will not resolve that for the people who clearly do not have any assets. Even reparation orders for someone who might be amateurish may not be the answer. We do not want them going in there putting up fences or things that are destroyed, as we do with graffiti.

I understand the merit of this. There are a lot of issues that we have to deal with to protect the community against bushfire, loss of life, damage and carnage to our sanctuaries, but I regret to say that this is not one of them.

Debate adjourned on motion of Ms Bedford.