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House of Assembly - Fifty-Fifth Parliament, First Session (55-1)
2022-11-29 Daily Xml
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Criminal Procedure (Monitoring Orders) Amendment Bill

Second Reading

The Hon. J.K. SZAKACS (Cheltenham—Minister for Police, Emergency Services and Correctional Services) (17:17): I move:

That this bill be now read a second time.

I rise to introduce the Criminal Procedure (Monitoring Orders) Amendment Bill 2022. The bill will give effect to the government's election commitment to require convicted firebugs to be electronically monitored during the bushfire season. It is a notorious reality in Australia that bushfires can cause widespread catastrophic damage to property, interruption to businesses, as well as injury and death to people, animals and wildlife.

The potential for bushfires in this state is significant, giving rise to great anxiety in the community, particularly in people living in rural and semirural areas of the state. We have all seen in recent years the devastation that bushfires can unleash across our state, most recently on Kangaroo Island and also in the Adelaide Hills. Significant police and emergency service resources are devoted each summer to monitoring suspected firebugs and battling bushfires to prevent widespread damage to property and risk to lives.

The Parole Board has in practice previously imposed electronic monitoring during the fire danger season as a condition of release on parole of a person convicted of a bushfire offence; however, the duration of electronic monitoring that may be ordered as a condition of a sentence or parole is limited to the duration of an offender's sentence.

Although an extended supervision order under the Criminal Law (High Risk Offenders) Act may then be available on application, extended supervision orders are more intensive orders that include multiple conditions and require the high-risk offender to be under the supervision of a community corrections officer. In many cases, the duration of a bushfire offender's sentence and parole will be significantly less than the prescribed maximum penalty for the bushfire offence, which is life imprisonment.

Court statistics indicate that, of the six defendants convicted of this offence in the four-year period from 1 January 2017 to 31 December 2020, four were sentenced to imprisonment, ranging from a sentence of one year and nine months to a sentence of three years and seven months. Two offenders received in each case a two-year suspended sentence bond. More recently, a woman was sentenced in September 2022 to imprisonment for 5½ years after pleading guilty to two of six charges of causing a bushfire.

Modelled on existing provisions for paedophile restraining orders in the Criminal Procedure Act 1921, the bill would amend the Criminal Procedure Act to provide for a new bushfire offender monitoring order. An application will be able to be made by a police officer to the Magistrates Court for an order requiring that a person who has been convicted of the offence of causing a bushfire contained in section 85B of the Criminal Law Consolidation Act be indefinitely subject to electronic monitoring during the declared fire danger season each year.

The court would be empowered to make the order on the basis that the person has previously been convicted or found guilty of a bushfire offence, and the court is satisfied that the defendant is at risk of committing a further bushfire offence. The court would be required to take the following factors into account in considering whether to make an electronic monitoring order in respect of a person previously convicted of a bushfire offence, these being:

where the defendant has engaged in any conduct that indicates that they might commit a further bushfire offence;

any psychological or psychiatric condition that indicates that the defendant may be at risk of committing a further bushfire offence; and

any other matter that, in the circumstances of the case, the Magistrates Court considers relevant.

On application made by a police officer, or by the defendant, the court will be able to revoke a monitoring order if the court is satisfied that the person is no longer at risk of committing a further bushfire offence, or will be residing in a place outside the state of South Australia.

Provision is also made for the court to suspend a monitoring order for a specified period if the court is satisfied that the defendant is not at risk of committing a further bushfire offence during that period or that it is otherwise appropriate to do so; for example, for periods where the person travels temporarily out of the state or is immobile due to ill health.

The Malinauskas Labor government is committed to doing everything we can to prevent bushfires from being deliberately lit. The electronic monitoring of suspected firebugs during bushfire season will give police and our emergency services another tool in their arsenal to protect our community.

I commend this bill to members and seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

These clauses are formal.

Part 2—Amendment of Criminal Procedure Act 1921

3—Insertion of Part 4 Division 8

This clause inserts a new Division in the Act allowing a police officer to apply to the Magistrates Court for an order allowing the electronic monitoring of a bushfire offender during each fire danger season. The Court must assess whether there is an appreciable risk that the defendant may commit a further bushfire offence (i.e. an offence against an offence against section 85B of the Criminal Law Consolidation Act 1935), taking into account certain specified matters. The order may be suspended or revoked by further order of the Magistrates Court.

Mr TEAGUE (Heysen) (17:22): I indicate at the outset that I am the lead speaker on this side of the house and indicate opposition support for the bill. I will just make some brief remarks. I note the debate that has occurred in the other place, and I note the contribution of the Minister for Police just now.

It ought to be borne in mind as a matter of principle to start with that a regime such as this is unusual. It ought to be rare and apply only in circumstances of sufficient utility in risk management that outweigh what is otherwise an imposition upon a person who is not presently serving a sentence—someone who has completed a sentence.

The provision that is the subject of the bill applies specifically and only to a person who has been convicted of a bushfire offence, and that is an offence against section 85B of the Criminal Law Consolidation Act. Importantly, it ought be borne in mind that the maximum penalty for that offence is life imprisonment. The analogy might therefore relevantly be drawn to the circumstances of other serious offenders, including those convicted of murder and most clearly in that event where there is life imprisonment, and therefore a person convicted of murder will always, if they are not incarcerated, be subject to conditions of parole.

In the context of section 85B, yes, it is true that an offender may not be the subject of a sentence of imprisonment for life, but in considering what is a particularly onerous regime—and it should be borne in mind that this is an offence which carries such a maximum penalty—I note that for the context in which this occurs, section 85B provides an offence for conduct that is in the most serious category of criminal conduct. It applies where:

(1) A person causes a bushfire—

(a) intending to cause a bushfire; or

(b) being recklessly indifferent as to whether or not his or her conduct causes a bushfire, is guilty of an offence.

As I have indicated, the maximum penalty is life imprisonment. Those who are the subject of this bill are within that category of offending. In that way, the reference has been made in the course of the debate to the analogy to those provisions the subject of division 7 and section 99AA of the Criminal Procedure Act.

It will be borne in mind that that regime does not apply in quite the same way and that it does not apply only to those convicted of particular offences, but goes somewhat further. This admittedly onerous process applies only to those who have been convicted of that section 85B offence, and I just emphasise that point. To put it in a practical and local context, I recall and bring to the house's attention the horrendous consequences of such offending and the reason why the community ought to take steps to mitigate the risk of this occurring.

In the way that these designations occur, the fire was named the Cherry Gardens fire the summer before last, which burned in such a dangerous way at Cherry Gardens and, subsequently, at Dorset Vale, Scott Creek and then all those areas in the Hills on both the Mount Bold Reservoir side and the Scott Creek Conservation Park side, through Bradbury and towards the surrounding areas over a period of days in late January.

This is in many ways an example of the extraordinary capacity of local volunteer brigades, as well as the tremendous, particularly airborne capacity to respond to fires and is ultimately an example of a bushfire that caused—as they all do—significant destruction of native vegetation and significant destruction of property and harm to the lives of local residents. It was a fire that could have literally destroyed vast swathes of the Adelaide Hills were it not for the combination of an expert dedicated response in the first 24 hours combined with, thankfully, relatively benign conditions to follow.

I bring that particular event to the attention of the house in the circumstances of this bill for the reason that if a person who is relevantly the subject of the bill can be monitored in a specific way that may have some effect to reduce the risk that either they engage in that sort of conduct again or they might be dissuaded from doing so, the result of being monitored in this way, then that price to liberty is one that is worth paying in the interests of community safety.

When one sees firsthand not only the physical consequences of bushfire but also the unseen human consequences that last sometimes for a lifetime that affect lives, foreshorten lives, there is no difficulty associating the imposition of a maximum life penalty for the offence in section 85B with that of murder or indeed terrorist-related offences, such are the serious consequences to community.

I really do highlight that this is an unusual regime and that it should be understood that way. Pursuant to the provisions of the bill, it is within the responsibility of police to determine the circumstances under which it is appropriate to make an application, and it is for the court to determine the duration and the application of that regime.

I indicate as well that I turn my mind to whether or not there ought to be provision for somebody who themselves has been convicted of the offence to make the application to the court for the monitoring. There may be circumstances in which that is desirable. It may be that someone who has offended may see that they need protecting from themselves and might seek to have that applied to them.

I also think there is merit in the counter argument, which is that that is a matter properly within the responsibility of police to determine whether that may be appropriate. I certainly will urge that there be an attitude of communication and risk management associated with the administration of these provisions such that any individual who might find themselves monitored in this way can recognise that this is not an extension of sentence but, rather, the application of a risk management measure that is in the interests of both themselves and community safety.

We are here in late November at the commencement of a fire season in a year when we have seen long rain and weather that have contributed to an enormous amount of growth. For the time being, we have cool conditions and green grass. That will change rapidly, and we will have to navigate a fire season that, as we get further into the summer, I expect is going to be as risky as ever. So it is appropriate that this legislation be considered now, with a view to its introduction as soon as that may be practicable.

I indicate my appreciation for those in the Attorney's office and the Attorney for facilitating what has been a helpful process of briefing and feedback in relation to the bill. I certainly commend its speedy passage through the house.

Ms THOMPSON (Davenport) (17:36): I rise to offer my support for the Criminal Procedure (Monitoring Orders) Amendment Bill presently before the house. Each year, bushfire arsonists endanger lives. They cause a considerable amount of damage to property, environment and wildlife and tie up the resources of our fire services.

This bill will help safeguard our community from dangerous firebugs by boosting surveillance for those who present the greatest risk. The bill amends the Criminal Procedure Act 1921 to provide for a new bushfire offender monitoring order, whereby a police officer can apply to the Magistrates Court for an order that will require offenders found guilty of causing a bushfire to be indefinitely subject to electronic monitoring during the fire danger season each year.

Electronic monitoring consists of a person being fitted with a GPS-enabled ankle bracelet and an accompanying unit being stored at the person's residence. The GPS device monitors the person's movements and can also detect when a person attempts to remove the bracelet. Under the bill, a person subject to a monitoring order is required to wear the electronic monitoring device for the purposes of the order at all times during the fire danger season. The order will operate indefinitely beyond any period of sentence, parole or extended supervision order, with the maximum penalty for noncompliance being $10,000 or imprisonment for two years.

An application for revocation or suspension of a monitoring order may only go ahead with the permission of the Magistrates Court, and permission is only to be granted if the court is satisfied that there has been a substantial change in the relevant circumstances since the order was made. An offender is at liberty under the legislation to apply in the future to have that order removed but, unless that happens, it applies to every fire danger season. This is intended to target arsonists who pose the greatest risk.

Police already keep watch on suspected arsonists through existing measures, such as Operation Mandrake, which includes provisions for increased patrols through high-risk bushfire areas. The better the tools that we can give our police to better monitor and better track firebugs, the safer our community will be. Electronic monitoring is a simple but effective way to prevent fires being lit in the first place. In 2021, my local community was impacted by the Cherry Gardens fire. Most of the affected land was state conservation park, but several private properties were impacted.

Two homes, 19 outbuildings and two vehicles were lost in that fire that burnt more than 2,700 hectares of scrub and grassland. I remember visiting affected residents and their saying that it looked like someone had just driven down the road throwing flaming tennis balls out the window. Fires had just been lit all over the place. Visiting the ignition sites, it was absolutely sickening to think how anyone could have deliberately lit those fires in locations where they would have been able to see people's backyards so close by, knowing the potential catastrophic damage they could have been about to impose.

I was particularly distressed to see the scorched wildlife whose homes had been destroyed. The koalas that survived the blaze were hanging onto charcoal branches surrounded by a burnt-out forest that would offer no shelter or food for months. Police charged a man from Hallett Cove with 12 counts of intentionally causing a bushfire and 10 counts of property damage. It was just so lucky that no-one was killed.

The new monitoring orders aim to reduce the risk of reoffending that could cause widespread catastrophic damage to property, significant interruption to businesses, and possible injury and death to people and animals. By requiring convicted firebugs to be electronically monitored during the bushfire season, this bill delivers on another one of the Malinauskas Labor government's election commitments. With that, I commend this bill to the house.

Mr PEDERICK (Hammond) (17:40): I rise to speak to the Criminal Procedure (Monitoring Orders) Amendment Bill 2022. I note that the Hon. Kyam Maher introduced the Criminal Procedure (Monitoring Orders) Amendment Bill in the other place on 3 November 2022. The bill would amend the Criminal Procedure Act 1921. The operation of the bill is that it would insert in the act a new part 4 division 8—Bushfire offender monitoring orders, which would provide for a police officer to apply to the Magistrates Court for an order for a bushfire offender to wear an electronic monitoring device during each fire danger season.

The information we have had is that the government asserts that the bill would give effect to an election commitment to require firebugs convicted under section 85B of the Criminal Law Consolidation Act 1935 to be electronically monitored during the bushfire season. Division 8 outlines how the court must assess such an application, including the ability to suspend or revoke that order.

In his second reading explanation, the Hon. Kyam Maher asserted that the bill is modelled on existing provisions for paedophile restraining orders under the Criminal Procedure Act 1921. The provisions are similar in relation to the mechanisms by which police can apply to the court for a restraining or monitoring order. However, the introduction of a monitoring device is a rare event in circumstances outside of parole or circumstances of an extended supervision order.

An electronic monitoring device means an electronic device of a class or kind approved by the minister under section 4 of the Correctional Services Act 1982. As a matter of principle, an order pursuant to the bill should not be punitive in nature but, rather, a risk management measure. However, the language used to refer to the offender remains the defendant and the government indicates that it adopts this language to be consistent with the provisions applicable to monitoring of a person convicted of a paedophilia offence under the Criminal Procedure Act 1921.

I note there are other CFS members in this place. As a CFS member and as a private individual with my private unit, I have fought many fires—too many. It has become apparent over time that some people, for whatever reason, get a kick out of being arsonists and it is disgraceful behaviour. We have had recent cases over the years where people were finally tracked down after multiple events of lighting fires over time and, sadly, sometimes these are the very people who volunteer to put out these fires—not all the time, of course. But sometimes we find out that these are volunteers in their own right who, for whatever reason, get a kick out of starting fires.

Obviously in any area a fire is a dangerous thing, but in the more built-up areas close to the city and in the Hills, as has been described by the member for Davenport, we have populations living in built-up areas where there are areas that are hard to access. In areas like Blackwood, for example, in a big event, like an Ash Wednesday event, some people say there could be the potential to lose up to 300 lives.

I hope it never happens, but as good as all the services are, whether it is the Metropolitan Fire Service or the Country Fire Service, and with the planes and now the helicopters we have on board—and we have fantastic assets that can be utilised—if you get the right day, or I suppose I should say the wrong day, with high winds and temperatures well into the 40s, literally all hell breaks loose. There is enough trouble in managing fires without having idiots running around lighting these fires.

As I said, bushfires are a major risk to the community and a major risk to assets. In recent years, we have seen major fires right across the state, whether they have been at Cudlee Creek in the Hills, which burnt down through Harrogate in my electorate, or whether it was the Pinery fire, a massive fire that came down through the Mid North. It almost got to Gawler before it was pulled up, because it was burning through such heavy crops on the way through. We lost massive amounts of property, and sadly there were some lives lost and injuries as well.

We had Wangary on the West Coast years ago, a terrible fire with lives lost there, and fires down through the South-East, whether they were at Kingston or Keilira or Carcuma (one I was involved in a couple of years ago) or Yumali-Netherton a couple of years ago, just down from home. They happen all over the place. As I said, we certainly do not need idiots running around making matters worse for our 13,000-plus CFS volunteers and our MFS retained firefighters and full-time firefighters.

We saw the carnage that happened on Kangaroo Island. As I have said in this place before, I note the work that both the MFS and the CFS performed working side by side. It was excellent to see that synchronicity between the services to get the job done and protect what could be protected in very, very dire circumstances.

As has been mentioned, the police have various powers at the moment under Operation Mandrake. I have seen them in the Hills, when we get the hot summer days. You will see the police cars just parked there. They are usually on winding roads, so they are probably not there looking for speeding; they looking for potential firebugs. It is good work, but it does tie up resources.

With these events, we need all the resources we can throw at them, especially when we see the huge catastrophe of many hundreds of thousands of hectares burnt down on Kangaroo Island and so much property, so many thousands and thousands of hectares burnt around Cudlee Creek, which put so many properties at risk. I am still amazed that there was not more loss of life and more injury in some of these instances.

It is courageous work from all our firefighters, not forgetting the people with their farm fire units, who play a vital role in helping fight fires. Everyone works together. Certainly, flying crews like Aerotech, and now we have the Black Hawk helicopters as well (we used to have Elvis, but that seems to be yesterday's technology now) can come in to get to those tight situations. At times, we have also had the big aeroplane come in—it is very expensive, evidently—to assist in operations.

At the end of the day, you cannot put out a bushfire without the people on the ground working alongside all the other resources. They are the vital cogs that make it work to save property and lives. Legislation like this will assist the community and especially push back on the very worst cases of arsonists who have been convicted. They are the ones who could end up with an ankle bracelet, and obviously they will be able to be monitored electronically so that the police can track where they are. I commend the legislation, and I wish all our services, no matter what part they play in bushfire management and prevention, all the best. I hope you have a very, very quiet Christmas and new year.

Ms HOOD (Adelaide) (17:51): I also rise to speak in support of the Criminal Procedure (Monitoring Orders) Amendment Bill. Living in Australia, we are acutely aware of the impact of bushfires in our communities, the devastation that ripples through communities, the loss of livelihoods, homes, crops, stock and life. Each summer, our regional towns are on high alert for the slightest glimpse of smoke on the horizon, sending a shudder down the spine of you and your neighbours.

I know this firsthand, growing up on a farm in Bool Lagoon in the South-East. My mum often tells me the story of Ash Wednesday. My brother Toby had just been born. He had asthma. He was a baby with asthma, and she said it was an incredibly terrifying experience. I also remember the very early mornings when my father's CFS pager would go off for the CFS Bool Lagoon unit, alerting him to a nearby bushfire. As a child, I only ever thought that fires were caused by an accident, by machinery or by an act of nature, like lightning.

It beggars belief that someone could be so selfish or so destructive to deliberately light a fire, but the reality is that it does happen, and we need to ensure that we are doing everything in our power to prevent it. That is why I am proud the Malinauskas Labor government is delivering on its election commitment to require convicted firebugs to be electronically monitored during the bushfire season.

This amendment bill will empower the court to keep a watch on those who have previously been convicted or found guilty of an offence of causing a bushfire if the court believes that they are at risk of committing another bushfire offence. The catastrophic damage to property, interruption to businesses and the potential injury or loss of life in our communities may be prevented with this amendment bill. We are willing to take these monitoring actions to reduce the risk of reoffending. This amendment bill will only affect those who have put others' lives at risk in the past to stop them from doing so in the future.

As we approach summer, I also want to take a moment to acknowledge and thank all the CFS volunteers who will be called to attend bushfires this bushfire season, in particular the Naracoorte CFS. I hope we do not have to call on your service, but if that is the case I thank all the volunteers for their bravery and their commitment to protecting our communities and wish them a safe return to their family and friends in the need that they have to be called out. I commend this bill to the house.

Mrs PEARCE (King) (17:54): I may be biased, but my neighbourhood is one of the most beautiful places to live in our state. Golden Grove and Greenwith are known for their fantastic landscaping, open spaces and parks, which are absolutely magical during autumn, when everything turns gold. We are also fortunate to have Cobbler Creek running through those two suburbs, winding all the way through to Salisbury East, where we have one of the best places for trail walking, starting at Kites and Kestrels and heading all the way up to Teakle ruins. But we are not done there.

We have the Little Para River that runs through Salisbury Heights through to Carisbrooke Park in Salisbury Park, which I absolutely love visiting, especially for Saturday morning parkruns. We have the Little Para reservoir surrounded by Greenwith, Hillbank, Gould Creek and One Tree Hill. How could I forget to mention that we have the incredible picturesque vineyards, rolling hills and farmland as we head through Gould Creek over to One Tree Hill? So you can appreciate, Mr Acting Deputy Speaker, my neighbourhood is surrounded by picturesque views, rolling hills and gorgeous open spaces.

However, with a geographical area such as this my neighbourhood needs to be extra vigilant and careful when it comes to keeping safe during bushfire season. We have had a few scares over the years. The worst that comes to mind is the Sampson Flat fires that led to the majority of the community needing to be evacuated. As we know, over the six-day period the fire destroyed more than 12,500 hectares of land, 24 homes and multiple sheds, and an estimated 900 animals were lost. Its impact on my community has never left. In fact, it is often raised with me when I am out doorknocking in the community and when I am at the local One Tree Hill Progress Association meetings because it is a key example of what can happen and why we need to be prepared.

It is important to be prepared but also equally important that we do what we can to help prevent fires in communities where possible, which is why today I am providing my support for a bill that will deliver on our election commitment to require convicted firebugs to be electronically monitored during the bushfire season. This bill will amend the Criminal Procedure Act 1921 to provide for a new bushfire offender monitoring order, which means that an application may be made by a police officer to the Magistrates Court for an order requiring that a person who has been convicted of the offence of causing a bushfire be indefinitely subjected to electronic monitoring during the declared fire danger season each year.

It would act as a strong deterrent for those who may be tempted to participate in such a dangerous activity, one that has threatened my community before. Only a couple of years ago, we had a scare, thanks to firebugs turning their attention to Salisbury Park. A number of grassfires were lit across Harry Bowey Reserve. Had it not been restrained and controlled quickly, it would have had a huge potential to spread not only through the suburb but across Carisbrooke Park through to Salisbury Heights, and from there who knows? Our open spaces link all the way up to Greenwith and beyond.

That is all it takes. One small fire lit has the potential to cause a tremendous impact on a local community, especially one like mine, and we must do what we can to prevent it from happening. By fitting a person with a GPS-enabled ankle bracelet and an accompanying unit being installed at the person's residence, the GPS on the electronic monitoring equipment would then be able to track the person's movements. Just as importantly, the system can also detect when a person attempts to remove their ankle bracelet. I seek leave to continue my remarks.

Leave granted; debate adjourned.

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