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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-05-14 Daily Xml
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NATIVE VEGETATION (MISCELLANEOUS) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. S.G. WADE: In relation to the bill as a whole, I reiterate that the opposition supports the bill. Indeed, the main thrust of the bill was proposed by a former Liberal government. We have proposed a number of amendments. Since the council last considered this matter there has been a number of discussions between members and, as a result, a number of amendments have been tabled. First, I apologise that this was necessary, but it was the result of consultation. It would be neater for everyone just to stick to their original position, but the nature of a consultative chamber is that ideas develop as discussions proceed. I indicate that, while we are open to further enhancements on the amendments, the Liberal opposition is fundamentally committed to the protection of human life as being the highest duty of this parliament, and that must take priority over native vegetation.

Clause passed.

Clauses 2 and 3 passed.

Clause 4.

The Hon. S.G. WADE: I move:

Page 3, after line 6—After subclause (1) insert:

(1a) Section 3(1), definition of 'clearance', (d)—delete paragraph (d)

This amendment seeks to remove burning from the definition of clearance under the act. I remind the committee that we need to appreciate that fire is part of the natural cycles of the Australian continent; fires are not a scourge introduced to this continent by European settlement, like rabbits and infectious diseases. The reality is that bushfires have been part of the ecology of our continent for hundreds of thousands of years.

At the beginning of the 2008-09 fire season, I had the privilege of being briefed on the upcoming season by Chief Officer Ferguson and Deputy Chief Officer Lawson of the CFS. They explained to me how the CFS monitored bushfire conditions, particularly using the Bureau of Meteorology network. I was stunned to see how this technology allows the CFS to monitor lightning strikes and to see the sheer magnitude of such strikes. The screen for South Australia for the night before was peppered with lightning strikes. In fact, in January 2009 the CFS issued a warning in relation to the fire risk from lightning strikes. It read:

The Country Fire Service (CFS) is asking farmers and landowners who may have experienced lightning and storm activity overnight to thoroughly inspect their properties today for any burning stumps. The Bureau of Meteorology recorded about 5,700 lightning strikes in South Australia over a 24-hour period up to 6am this morning…

CFS Region 2 Commander John Hutchins said a lightning strike can have a lingering effect by causing a fire. 'Even though the storm activity may have abated, the potential to start a fire as a consequence remains a concern' he said. 'We’re asking rural property owners and farmers to check where there may have been lightning strikes and if they find anything burning, such as tree stumps, to contact the CFS,' Commander Hutchins said. 'It’s not uncommon to have a wooden stump or even a tree smouldering for several hours after a lightning strike, to go unnoticed and later develop into a significant fire.'

I reiterate that the key statistic from that release is that in January this year 5,700 lightning strikes were recorded in South Australia in a 24-hour period.

In the modern era a lot of fires that result from lightning strikes are nipped in the bud by landowners and the CFS; however, before European settlement those fires would have run. Bushfires would have been a more common phenomenon in the past and would have provided a stable equilibrium of vegetation, flora and fauna. Europeans did not introduce lightning to the Australian continent; what we did introduce was fire suppression. In the past, lightning—and, for that matter, fires lit by indigenous people—had the effect of reducing the fuel load on a regular basis. European practices seek to suppress fires, whether they are started by lightning or otherwise, and we end up with an unnatural build-up of vegetation which results in unnatural risk.

If native vegetation is built up too long without a burn, the resulting fire may be so intense that it actually destroys the plant life; it destroys the capacity of the native vegetation to regenerate. More regular burning allows the fuel load to be reduced, respects the native patterns, and allows flora to regenerate. So let us be clear: there would be no vegetation left in South Australia if burning destroyed it because it has all been destroyed in the past.

We also need to accept that burning is part of fire protection. In South Australia a series of fires have demonstrated the danger presented by high fuel loads where the fires are fed by years of accumulated fuel. I remind the committee of fire events such as Ngarkat, Kangaroo Island and more recently the Proper Bay fire at Port Lincoln. The recent tragedy in Victoria also brought to national attention the importance of reducing fuel loads. Without proper preparation we are planting the seeds of fires that we may not be able to control, and that may risk life and property and the environmental assets of our state.

Previously, the government asserted that to remove burning from the definition of 'clearance' would not save other consequences of burning from becoming 'clearance' for the purpose of the act. If that is the view of government members then they should fulfil their responsibilities as members of this place, as legislators, and identify where they believe the act would need amendment.

Further, the government asserted that in an emergency the CFS can destroy native vegetation to protect life and limb; however, the CFS cannot be everywhere. We need to appreciate that we are seeing a decline in volunteer numbers and the increasing use of private fire-fighting units. In the Wangary colonial inquest, the Deputy Coroner highlighted the crucial role of private fire-fighting units, and the need to coordinate and support them. It is all well and good to say that the CFS can act in an emergency, but they may not be there.

We in the Liberal Party believe that we need to hold local landholders accountable. We hold them accountable to manage the bushfire risk on their properties, but we also believe that the corollary of that is that we provide them with tools to give them the opportunity to manage the hazards on their land.

The Hon. G.E. GAGO: The government is opposed to this amendment proposed by the opposition relating to fire management, which would remove burning from the definition of clearance.

I take this opportunity to address the nature of most of the proposed opposition amendments. The amendments seek to change the current system for approving clearance of native vegetation by removing a number of the checks and balances that the government believes are vital to protect the native vegetation we have left in this state. We should recognise that in South Australia's agricultural areas less than 20 per cent native vegetation remains—in some regions it is lower than 10 per cent.

The government does not disagree that the current system could be improved and, in fact, this bill is just one of a number of steps the government is taking to improve the current system. As flagged during the second reading, the regulations will be reviewed to reduce red tape, and changes have already been made to speed up decision-making on clearance applications. Importantly, the government's reforms in this area are informed by a consultation process that sought input from a range of key interest groups. On the other hand, the opposition's proposed amendments have not been subject to the same scrutiny.

In relation to bushfire risk management, the amendments appear to seek quick and local decision-making in relation to fire safety measures. The government agrees that this should be the case but disagrees with the opposition's proposed way of achieving it. It is the government's view that, on the grounds of sound management of bushfire risks alone, the opposition's amendments cannot be supported. For example, by providing for clearance of native vegetation through burning without CFS knowledge or potential logistical support, the amendments actually create risks to life and property of neighbouring landholders due to the potential for a fire to escape.

It is accepted that there are some landholders who would have the fire management expertise to prevent this type of thing happening, but there would be many others who do not—and, unfortunately, there have been many examples of this in previous fire events, especially when we consider the growing number of 'tree changers' moving into the bushfire prone areas. Consequently, the government believes that the proposed amendments create unnecessary risks that far outweigh the benefits. That it is unnecessary to run these risks is supported by evidence that the Chief Officer of the CFS has given to a parliamentary committee on more than one occasion, when he has stated his belief that the native vegetation laws do not pose a hindrance to landholders wanting to undertake effective bushfire risk management works.

Additionally, the government is already well advanced on changes that will increase the level of local decision-making. The code of practice for the management of native vegetation to reduce the impact of bushfire is central to these changes and has been developed in consultation with the Conservation Council, the SA Farmers' Federation, and the Local Government Association. The code adopts a zoned approach to the management of fuel loads and clarifies existing arrangements for clearance of native vegetation for fire protection purposes. Higher levels of clearance are provided for around homes and other buildings. Application of the code at the local level would be through delegations to authorised regionally based CFS officers and, where appropriate for our larger regional cities, appropriate MFS officers.

It is intended that these local CFS and MFS officers will have power to authorise clearance works for fuel reduction purposes, including controlled burning, provided the works are consistent with the relevant bushfire plan or guidelines prepared by the Native Vegetation Council, or they fall within asset protection and bushfire buffer zones. These zones are described in the code and are about enabling the clearance necessary for protecting life and property, and reducing the rate of the spread of bushfires respectively.

At its meeting on 25 January 2009, the Native Vegetation Council endorsed the principles behind the delegation of fuel reduction works to appropriate CFS and MFS officers. Implementation of this approach is partly dependent on amendments to the Public Sector Management (Consequential) Amendment Bill, which is currently before the parliament. To address issues of liability protection for delegates, some amendments to the native vegetation regulations may also be required.

Subject to the parliament's consideration of the necessary legislative changes, the government is committed to having this more regionalised decision-making process in place before the start of the next fire season. Until that time, the government believes that the current system of providing clearance approval for fire control purposes, where approval is needed, should be maintained. This system includes a Native Vegetation Council fire subcommittee, with the Deputy Chief Officer of the CFS as one of its three members. The committee has the delegated authority to approve clearance of native vegetation for fire protection purposes, including urgently, when necessary.

Obviously, there are lessons to be learnt from the unprecedented fire behaviour and weather conditions associated with the Victorian bushfires. The review of the current arrangements for managing the interaction of native vegetation and bushfires already announced by the Minister for Environment and Conservation will see that any amendments to the code of practice and, if necessary, to the native vegetation legislation are informed by a strong evidence base and are not simply a knee-jerk reaction.

Since the opposition has placed its amendment on file, the government has sought the opinion of the South Australian Farmers' Federation, which has indicated its support for the government's position on the opposition amendments, with one qualification relating to the extension of watering points, which I will speak to more fully later. So, the Farmers' Federation is supporting the government's position.

On a more technical point in relation to this specific amendment, the government is advised that the removal of 'burning' from the definition of 'clearance' does not by that fact permit the burning of native vegetation, because the act also defines clearance as 'the killing or destruction of native vegetation', 'the removal of native vegetation' or 'any other substantial damage to native vegetation', all of which could be the result of burning. So, simply removing this term could lead to confusion and possibly unlawful clearance of native vegetation if a person took the removal of the term to mean that burning of native vegetation was lawful. For those reasons, the government does not support this amendment.

The Hon. R.L. BROKENSHIRE: I appreciate what the minister has said, and I am sorry that she has to try to get through this bill while suffering the effects of a cold. I have a question for the mover of the amendment. Family First has some sympathy for what the honourable member is trying to do, that is, to absolutely ensure that, where life and significant structural property are at risk, this circumvents delays that ultimately see worse situations occur.

That is something that Family First and all members do not want to see happen, but as the act is set up at the moment I see weaknesses there. We have seen in recent times with Victoria what can happen. The concern we have with this amendment—and I ask for clarification and qualification from the Hon. Mr Wade—is that it does not seem to replace the existing clause with a specific definition. If it is absolutely imminent, we can qualify that in the wording. We are a little concerned that a common law view of clearance could come in and make it quite broad. Before Family First could support this amendment we would want an assurance that this is not a back door way of providing an open opportunity for substantial clearance of native vegetation when it is not specifically reducing the risk to life or property structurally.

The Hon. S.G. WADE: To answer the honourable member's question, I characterise my amendments in clusters: there are a set of amendments that are trying to accord to landholders the tools of the trade they need to promote bushfire protection that go with their responsibility. The opposition is in no way trying to detract from the responsibility that private and public landholders have to manage the bushfire risk on their land.

We believe that burning, as it currently sits under the definition of 'clearance', is not respecting the presence of burning within the ecology of Australia. Slashing was not part of the natural ecology and provides no benefit to native vegetation or the environment, whereas burning has a place. Lightning has meant that burning has been part of our continent's story well before indigenous people arrived here (I do not recall the time frame); certainly it would have been part of our ecology for hundreds of thousands of years.

We very much respect the position of Family First, which is to maintain a balance between the values of protecting human life and the values of respecting our environment. We, too, share that. It may be that there is a better form of words. I thank the minister for providing more clarity today in terms of other aspects of the act that the government thinks would preclude burning in the context of this amendment. However, I reject her suggestion that there would be confusion in the mind of landholders because, whilst there may be a few landholders who look up the act to see what they can do, few would look up the legislative history to see what previous allowances have been removed, so they would not get any indication that burning is being encouraged.

As I said in my second reading contribution and in my contribution on clause 1, the opposition is very open to amendments. We accept that this one in particular probably needs more work, but the reality is that this government has been in office since 2002. We have had the bushfire summit, the Tulka fire (with which I appreciate that the honourable member, as the then minister, was intimately involved), and we have had the Port Lincoln fire at Proper Bay, which threatened our second largest regional city, Port Lincoln—a huge regional city—which has been threatened three times in eight years. That is an unacceptable risk not only to the people of that community but to the people of this state.

As a community, we need to address a whole series of issues. The minister kindly gave us an overview of the bureaucratic flurry that continues in government, but after eight years is it too much to ask for some outcomes? We have had improvements on native vegetation, and a number of people have commended the leadership of Dennis Mutton as the head of the Native Vegetation Council and the NRM Board, but so many issues have been raised at the Premier's bushfire summit. Native vegetation is probably the most neglected set of limitations. This bill, considering the government has introduced it and opened the act—we did not open it—is an opportunity for this council and this parliament to say, 'No, after seven or eight years, the talking has gone on for long enough, and we want some issues resolved'.

I do not mind if the minister and other members of the government seek advice from the Native Vegetation Council, the CFS or what have you, but it is appropriate for the parliament to draw a line in the sand and say, 'Okay, this may not be perfect, but you are going to work with us to fix it; we're not going to leave it in the hands of the bureaucracy'. Whilst I appreciate that my humble amendment may not be perfect, it is much better than leaving it in the hands of the bureaucrats.

The committee divided on the amendment:

AYES (11)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lawson, R.D.
Lensink, J.M.A. Lucas, R.I. Schaefer, C.V.
Stephens, T.J. Wade, S.G. (teller)
NOES (8)
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Parnell, M. Winderlich, D.N.
Wortley, R.P. Zollo, C.
PAIRS (2)
Ridgway, D.W. Hunter, I.K.

Majority of 3 for the ayes.

Amendment thus carried; clause as amended passed.

Clause 5 passed.

New clause 5A.

The Hon. S.G. WADE: I move:

Page 3, after line 27—After clause 5 insert:

5A—Insertion of section 4A

After section 4 insert:

4A—Interaction with Fire and Emergency Services Act 2005

In the event of an inconsistency between this Act and the Fire and Emergency Services Act 2005, the Fire and Emergency Services Act 2005 will prevail to the extent of the inconsistency.

If I could continue the conversation with the Hon. Robert Brokenshire in terms of the clusters of amendments, this is the first amendment in what I would call the protection of human life cluster. The amendment proposes to insert a new section 4A, which asserts the primacy of the Fire and Emergency Services Act.

In response to a question in the other place, the member for Davenport was provided with the advice from the minister that the Native Vegetation Act takes precedence over the Fire and Emergency Services Act. Within the native vegetation regime, scope is allowed for some standard fire protection measures, a range of actions with approval and action in an emergency situation. All these measures enhance the protection of human life. However, as the minister said, the primacy is clear. The Native Vegetation Act takes precedence over the Fire and Emergency Services Act. As a matter of policy and as a matter of ethics, I believe that is inappropriate, and the Liberal Party opposition believes that is inappropriate.

The government argues that it would provide confusion if we were to insert an inconsistency clause. I assert that is a very hollow argument. After all, the commonwealth Constitution has an inconsistency clause. Section 109 says that, in the event of inconsistency, commonwealth laws override state laws. It is not at all uncommon to say that a particular act has primacy over another.

The government also challenged me to show where in the acts there were inconsistencies, but I think that also misses the point. Acts are not just matters of stale, black-letter law that sits on a shelf. Laws have to be applied and, in the application of those laws, inconsistencies may arise. The inconsistency may not be clear now but, once the courts and the bureaucrats need to apply a statute, inconsistencies may become clear.

The courts will look at the statute for guidance and the bureaucrats will probably look at both the statute and the Hansard debate. After all, they are subject to their minister, so they want to know what their minister thinks. The minister in the other place told his bureaucrats very loudly that native vegetation had primacy over the Fire and Emergency Services Act.

It is the view of the opposition that it is appropriate that the parliament makes clear that while native vegetation is very important we place human life above it. For this principle to be fully achieved, there may need to be a range of changes to these and, perhaps, other acts, but we believe it will be an important first step for this chamber to clearly state the principle by adopting this clause.

As an illustration of the sorts of amendments I am suggesting, in terms of demonstrating this primacy, in suggested amendments to the Hon. Mr Brokenshire's amendments, I am seeking to insert a clause which gives the chief officer of the fire services very limited power to override native vegetation. I believe that is an example of primacy. The government is telling us that the Native Vegetation Act takes primacy. I say as a matter of both policy and ethics that is inappropriate. I believe the parliament needs to make a statement and say that the protection of our population is our prime duty as parliamentarians.

The Hon. G.E. GAGO: The government opposes this amendment. The opposition has not identified what provisions of the Native Vegetation Act and the Fire and Emergency Services Act would be affected. As a result, the government believes that the amendment only adds complexity and confusion. In effect, the amendment would require individual landholders to assess both pieces of legislation, draw their own conclusions as to what inconsistencies may exist and determine what actions are lawful.

There would be a high potential for a range of interpretations and misunderstanding and, accordingly, the government does not support the amendment. I emphasise that in an emergency situation it is already clear that the Fire and Emergency Services Act takes precedence and that whatever clearance authorised fire officers deem necessary to protect lives and property can be undertaken.

Although the government opposes the amendment, I foreshadow that the government does intend to support the nature of Wade's No. 3 amendment to Brokenshire's No. 2 amendment, which gives powers to the chief officer.

The Hon. R.L. BROKENSHIRE: This clause needs consideration. It is a difficult set of circumstances. I do not think any member wants a situation where native vegetation is damaged or destroyed unless it is absolutely paramount. One only has to listen to well qualified people, such as the Chief Fire Officer, Euan Ferguson, or to go to a briefing to hear what is happening as a result of climate change with fire intensity and different scenarios of fire intensity to realise that we must have some clear and precise controls when it comes to life threatening situations.

For as long I can remember, there has been argy-bargy between the Department for Environment and Heritage and the Country Fire Service and people ultimately responsible for the protection of life. There have been inconsistencies. This is a bona fide attempt to try to qualify and clarify that, so we can do everything in our power to ensure that as much as possible we can save life.

The minister and the minister responsible in this council—who is a former environment minister—have to be incredibly responsible with their roles in relation to native vegetation. In this instance, I think it will give a clearer and more precise authority to those in senior positions from an operational point of view to know exactly who is responsible; and that has been a long time coming.

Now is the time to do this. We are out of the fire danger season and we have a window of opportunity. We can get these amendments through both houses fairly quickly so the issues can be addressed. If the parliament does support this amendment, I want to see action, cooperation and coordination by the authorities. We could very easily have a situation such as that which occurred in Victoria at any time. The last thing we would want to see is the loss of life and property and the absolute destruction of our native vegetation.

Finally, going back to 1983, Ash Wednesday, I will never forget the picture in my mind when we were fighting those fires. For example, our local brigade appealed year in, year out to the Department for Environment and Heritage to allow us to manage and control Cox Scrub. There was always a refusal. As volunteers we went there when the fires went up, but there was always a refusal for any proper management. The fact is that, depending on the wind on that day and how bad the fire intensity was, hitting that scrub with a northerly wind could have accelerated the intensity of that fire straight through to Goolwa. We could have seen significant losses of houses in Goolwa and Middleton, just like we saw, unfortunately, in some towns in rural Victoria.

On that day that scrub went up like an atomic bomb. I have seen pictures of the atomic bomb falling on Hiroshima, and when I was in a fire truck heading towards that scene it was exactly the same. When we got there, the whole of Cox Scrub was absolutely wiped out; it was bare. I know for a fact that a lot of plants and animals did not recover from the fire because it was so intense. It was a pristine area where certain migratory birds went. From an environmental point of view, we did not do anything for the environment, either.

Even today, Cox Scrub looks all right, but I believe that scientists would say that some plant life and certainly some migratory birds are no longer there. We have to be responsible, and for that reason we will be supporting this amendment.

The Hon. G.E. GAGO: The government is not supporting this amendment.

The committee divided on the new clause:

AYES (12)
Bressington, A. Brokenshire, R.L. Darley, J.A.
Dawkins, J.S.L. Hood, D.G.E. Lensink, J.M.A.
Lucas, R.I. Ridgway, D.W. Schaefer, C.V.
Stephens, T.J. Wade, S.G. (teller) Winderlich, D.N.
NOES (7)
Finnigan, B.V. Gago, G.E. (teller) Gazzola, J.M.
Holloway, P. Parnell, M. Wortley, R.P.
Zollo, C.
PAIRS (2)
Lawson, R.D. Hunter, I.K.

Majority of 5 for the ayes.

New clause thus inserted.

Clause 6 passed.

The CHAIRMAN: I remind members not to make second reading speeches. Speak to your amendment so that business flows.

Clause 7.

The Hon. R.L. BROKENSHIRE: I move:

Page 4, lines 1 to 4—Delete clause 7 and substitute:

7—Amendment of section 8—Membership of the Council

(1) Section 8(1)—delete subsection (1) and substitute:

(1) The Council consists of—

(a) 7 members appointed by the Governor of whom—

(i) 1 (who will be the presiding member of the Council) must be nominated by the Minister; and

(ii) 1 must be a person selected by the Minister from a panel of 3 persons nominated by the South Australian Farmers Federation Incorporated; and

(iii) 1 must be a person selected by the Minister from a panel of 3 persons nominated by the Conservation Council of South Australia; and

(iv) 1 must be a person selected by the Minister for the time being responsible for the administration of the Natural Resources Management Act 2004 from a panel of 3 persons nominated by the NRM Council established under that Act; and

(v) 1 must be a person selected by the Minister from a panel of 3 persons nominated by the Local Government Association of South Australia; and

(vi) 1 must be a person with extensive knowledge of, and experience in, planning or development nominated by the Minister; and

(vii) 1 must be a person with extensive knowledge of, and experience in, the preservation and management of native vegetation nominated by the Minister; and

(b) the Chief Officer of SACFS within the meaning of the Fire and Emergency Services Act 2005 (ex officio).

Note—The Chief Officer may delegate this function—see section 66 of the Fire and Emergency Services Act 2005.

(2) Section 8(2)—before 'members' insert: appointed

(3) Section 8(7)—delete 'a member' first occurring and substitute: an appointed member

As a point of clarification, am I able to give the committee an overview of the amendment?

The CHAIRMAN: As long as the scrub is not on fire again.

The Hon. R.L. BROKENSHIRE: First of all, I thank parliamentary counsel for their good work. Compared to the amendments of the opposition, I believe our amendments are middle of the road. We instructed parliamentary counsel to amend them, but they said that it was best to move our own, so that is what we have done.

In a nutshell, I am proposing that the chief fire officer or, indeed, the chief fire officer's proxy, be on the Native Vegetation Council. The reason for that is to bring in expertise to broaden and improve the council's knowledge and experience. I believe that this expertise would augur really well for the enhancement of our native vegetation, as well as for the prevention of major bushfire and damage and destruction of life, property and native vegetation. I am passionate about this amendment and I trust that the committee will support it.

The Hon. G.E. GAGO: We support this amendment. It will add the Chief Officer of the CFS to the membership of the Native Vegetation Council, and we think that will be a good thing.

The Hon. S.G. WADE: I indicate that the opposition will also be supporting the amendment. We think it is very important that the Native Vegetation Council has access to expertise and that bushfire prevention issues, including the protection of human life, are considered in the native vegetation regime at the highest level.

As an aside, I indicate that, certainly on behalf of opposition members, we appreciate the Hon. Robert Brokenshire's explanation of his clause. After all, the reference in the second reading was done in the context where all second reading speeches had not been made, nor had all amendments been tabled. We appreciate the opportunity to have the clause explained.

Amendment carried.

Progress reported; committee to sit again.

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