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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-12-02 Daily Xml
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BAIL (ARSON) AMENDMENT BILL

Second Reading

Second reading.

The Hon. S.G. WADE (23:58): I move:

That this bill be now read a second time.

This bill was moved by the member for Davenport in the other place. The electorate of Davenport includes Mitcham Hills, one of the most fire prone areas in the world. The member for Davenport is proactive in promoting initiatives to reduce the risk of bushfire for both his electorate and the state as a whole.

Section 10 of the Bail Act 1985 provides a statutory presumption in favour of bail deriving from the common law principle that a person is innocent until proven guilty. In ordinary language the presumption means that bail should be granted unless there are good reasons for it being refused. This bill reverses the presumption of bail for people charged with causing a bushfire against bail for the offence of intentionally or recklessly causing a bushfire under section 85B of the Criminal Law Consolidation Act 1935. Already under the act there is the ability for certain offences for the presumption of bail to be reversed. This bill brings bushfire offences into that class of offences.

The opposition takes the view that lighting bushfires is such a serious offence with such a potentially devastating impact on lives, property and the environment, that the presumption of bail should be reversed. The practical effect of the bill is that, if a person is charged with arson rather than the prosecution having to argue why bail should not be allowed, the accused, through their lawyers, would have to argue why bail should be allowed.

I thank the government for its support of this bill in the other place, and look forward to its continued support and the support of other members in this place.

The Hon. B.V. FINNIGAN (00:01): The bushfire disaster in Victoria in February this year was a timely reminder of the devastation caused by fires and the ongoing need to combat the small minority of individuals who deliberately set these fires. The government is heavily focused on preventing such bushfire devastation in South Australia this season, particularly in light of the CFS having predicted that a busy fire season is ahead, owing to dry conditions and long periods of hot weather expected.

Aside from investing an extra $5.2 million on community awareness education, the state government has announced that police will be targeting more than 100 known arsonists during the bushfire season, with the help of a new mobile number plate recognition system. This system allows mobile surveillance cameras mounted on police control cars to identify the number plates of vehicles of interest in the daytime or at night and in all weather conditions.

In launching the official statewide fire danger season at Belair National Park, Assistant Commissioner Brian Fahey said that the number of people monitored by the Anti-Arson Police Task Force Operation Nomad had more than doubled from about 50 in the past year. Already this fire season 11 arsonists have been caught lighting fires. Last year 179 people were apprehended for lighting fires during the fire danger season, and 92 expiation notices relating to fires were issued. This demonstrates that the police are committed to achieving the government's tough stance on fire lighting.

Operation Nomad was launched this week to promote a zero tolerance attitude towards arson offences in South Australia. South Australia also has some of the toughest penalties for bushfire arson, with up to 20 years' imprisonment for anyone convicted of this crime. The government intends to further crack down on bushfire lighters through this bill.

The government is pleased to support this bill as a result of the other place passing a government amendment that limits the reversal of the presumption in favour of bail to the offence of intentionally or recklessly causing a bushfire under section 85B of the Criminal Law Consolidation Act 1935.

Section 10 of the Bail Act 1985 creates a statutory presumption in favour of bail where a person is charged with but not convicted of an offence. This means that a person is presumed to be granted bail unless, having regard to the matters in subsection (10)(1), the bail authority believes it should be refused. Some of the factors in section 10(1) of the Bail Act 1985 that could cause the bail authority not to release the applicant on bail include the likelihood of reoffending or absconding, the need for physical protection of the victim, or the gravity of the offence in respect of which the applicant has been taken into custody.

By contrast, section 10A of the Bail Act 1985 provides that bail is not to be granted unless the applicant establishes the existence of special circumstances justifying the applicant's release on bail. This bill seeks to expand the current definition of a prescribed applicant to include a person who has been taken into custody for an offence committed against section 85B of the Criminal Law Consolidation Act 1935, intending to cause or recklessly causing a bushfire.

Section 10A of the Bail Act 1985 commenced on 30 July 2006 and was originally introduced to deal with drivers who commit serious driving offences in the course of attempting to escape police. The relevant offences were limited to manslaughter where the victim's death was caused by the applicant's use of a motor vehicle, an offence against section 19A and reckless endangerment where the act or omission constituting the offence was done or made by the applicant in the course of the applicant's use of a motor vehicle.

Section 10A of the Bail Act 1985 was amended on a further two occasions by the Statutes Amendment (Victims of Crime) Act 2007 and the Serious and Organised Crime (Control) Act 2008 respectively. Therefore, the legislative history of section 10A of the Bail Act 1985 indicates that it is subject to amendment, or indeed expansion, where there is a public policy reason or necessity to do so. Given recent bushfire tragedies, there are indeed good public policy reasons to include the offence of intentionally or recklessly causing a bushfire under section 85B of the Criminal Law Consolidation Act 1935.

Deliberately or recklessly causing a bushfire creates a very real and serious risk to the public of injury or death and can damage or destroy property. The Bail (Arson) Amendment Bill should be confined to target the main offenders who do pose a risk to the public, namely, those who light bushfires, and this bill now achieves that. The government supports the bill.

Bill read a second time and taken through its remaining stages.

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