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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-09 Daily Xml
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FIRE AND EMERGENCY SERVICES (REVIEW) AMENDMENT BILL

Introduction and First Reading

Received from the House of Assembly and read a first time.

Second Reading

The Hon. P. HOLLOWAY (Minister for Mineral Resources Development, Minister for Urban Development and Planning, Minister for Small Business) (18:29): I move:

That this bill be now read a second time.

I seek leave to have the second reading explanation inserted in Hansard without my reading it.

Leave granted.

The purpose of the Fire and Emergency Services (Review) Amendment Bill 2009 is to amend the Fire and Emergency Services Act 2005 to incorporate recommended legislative changes emanating from three bodies of work that relate directly to or impact on the Fire and Emergency Services Sector.

The Fire and Emergency Services Act 2005, creating the South Australian Fire and Emergency Services Commission and incorporating the previous Acts governing the Metropolitan and Country Fire Services and the State Emergency Service, was passed in Parliament and assented to in October 2005.

When the Act was assented to in 2005, it specified that the Minister must cause the operation of the legislation to be reviewed after the 2-year anniversary of its commencement. On 1 October 2007 the review of the Fire and Emergency Services Act commenced.

Mr John Murray, a former Assistant Police Commissioner South Australian Police, and Deputy Commissioner Australian Federal Police, was appointed to conduct the review.

The reviewer made 49 recommendations, which have been analysed and, after taking into account the views of sector stakeholders, responded to by the government. Some of the recommendations require legislative change while others relate to changes in practice and administrative policy.

In addition, this Bill contains proposed amendments arising from the recommendations of the Ministerial Review of Bushfire Management in South Australia and the recent work undertaken after the Coronial Inquest into the Wangary Fires to bolster fire prevention and mitigation strategies and compliance.

The Bill proposes the following changes:

The South Australian Fire and Emergency Services Commission Board is to be expanded and voting rights be given to all members. The newly constituted board will comprise of the presiding member being the SAFECOM Chief Executive, the three respective Chief Officers of the Emergency Services Organisations, two Ministerial appointments, one CFS Volunteer Association nominee, one SES Volunteer Association nominee and one United Fire-fighters Union nominee. This constitutes a total of nine members with deputy members to act as proxies

The role of the SAFECOM Board is to be more focussed on strategic responsibilities for the whole sector and less concerned with the day-to-day administration of the Commission. This will become the responsibility of the Chief Executive in a manner more consistent with other government agencies and departments.

The general view of the emergency services sectors key stakeholders is that the sector has matured and does not require two formal Boards. Accordingly, a sector advisory committee that reports directly to the SAFECOM Board is proposed to replace the Statutory Advisory Board. The Volunteer Associations and the Fire-Fighters Union, who are key stakeholders in the current Advisory Board, support this approach.

The current three-tiered bushfire committee structure will be condensed to a two-tiered structure. A State Bushfire Co-ordination Committee is to be established. This committee will have the power to recommend to the Governor the establishment of bushfire management areas. It will also be given the responsibility to establish a bushfire management committee for each designated area to undertake bushfire management and planning functions.

Bushfire and fire prevention powers and procedures in both the metropolitan and regional areas have been amended to place increased responsibility on owners of land to prevent or inhibit the outbreak of fire. The legislation will also recognise that bushfire risks may extend into SAMFS areas, by establishing a scheme under which the Commission may identify urban bushfire risk areas. Various controls and responsibilities traditionally associated with CFS areas will extend to these designated urban bushfire risk areas.

The sometimes costly and protracted process of appeals for disciplinary matters within SAMFS has been removed from the District Court to the jurisdiction of the Industrial Relations Commission.

The Local Government Association has been an advocate for flexibility in the amount of resources that councils can attribute to the risk factor of fire in their districts and this has been addressed through amendments relating to council fire prevention officers.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Fire and Emergency Services Act 2005

4—Amendment of long title

This clause amends the long title of the principal Act, to provide further clarification of the role of the South Australian Fire and Emergency Services Commission.

5—Amendment of section 3—Interpretation

This clause amends definitions used in the principal Act. Of particular note is the amendment to the definition of officer, with the designation of officers now to be done by the Chief Officer of the relevant emergency service.

6—Insertion of section 4A

This clause will facilitate a new scheme to designate areas of urban bushfire risk. The Commission will be required to undertake a consultation process before such an area is established.

7—Amendment of section 8—Functions and powers

This clause amends section 8 of the principal Act to clarify the role of the Commission in respect of its strategic role in emergency management.

8—Amendment of section 10—Establishment of Board

This clause amends section 10 of the principal Act to provide guidance in respect of the responsibilities of the Board in terms of the Board's management of the Commission.

9—Amendment of section 11—Constitution of the Board

This clause amends section 11 of the principal Act, changing the makeup of the Board by adding 1 additional member who is to be a person nominated by the UFU. The clause also corrects an obsolete reference.

10—Amendment of section 14—Proceedings

This clause amends section 14 of the principal Act to change the quorum of the Board from 4 to 5 to reflect the change in numbers on the Board, and further provides that all members may now vote at Board meetings, rather than simply the ex officio members (that is, the Chief Officers and the CE of the Commission) as is currently the case.

11—Repeal of section 15

This section deletes section 15 of the principal Act, as the relevant conflict of interest provisions are now to be found in the Public Sector Management Act 1995.

12—Amendment of section 16—Chief Executive

This clause amends section 16 of the principal Act to clarify the role of the Chief Executive of the Commission.

13—Insertion of section 17A

This clause inserts new section 17A into the principal Act. That section requires the CE of the Commission to submit a workforce plan to the Commission at least once each year for approval. Appointments of staff to the Commission must then only be done in accordance with the plan. This brings the staffing arrangements of the Commission into line with the emergency services.

14—Substitution of Part 2 Division 5

This clause substitutes Part 2 Division 5 of the principal Act, in effect abolishing the Advisory Board and committees established under that Division. In their place, the Commission will be required to establish a committee to advise the Commission in respect of matters pertaining to employees and volunteers of emergency services, with the capacity retained to refer any other matter to the committee for advice.

15—Amendment of section 42—Powers

The amendments to section 42 will facilitate greater coordination between SAMFS firefighters and the management of key classes of land—especially government reserves—in fighting certain classes of fire. The amendments 'mirror' the arrangements that already apply under section 97 of the Act in relation to the SACFS.

16—Amendment of section 48—Suspension pending hearing of complaint

This clause makes a consequential amendment to section 48 of the principal Act to reflect the fact that complaints may be determined by the Industrial Relations Commission rather than the District Court.

17—Amendment of section 49—Appeals

This clause amends section 49 of the principal Act to require appeals to be made to the Industrial Relations Commission rather than the District Court.

18—Amendment of section 50—Representation of parties

This clause makes a consequential amendment to section 50 of the principal Act to reflect the fact that proceedings will be before the Industrial Relations Commission rather than the District Court.

19—Amendment of section 51—Participation of assessors in appeals

This clause makes a consequential amendment to section 51 of the principal Act to reflect the fact that proceedings will be before the Industrial Relations Commission rather than the District Court.

20—Repeal of section 56

This clause repeals section 56 of the principal Act, as the substance of the section has been moved to section 105F in proposed Part 4A (inserted by this measure).

21—Amendment of section 68—Establishment of SACFS

This clause amends section 68 of the principal Act to allow the Chief Officer of the SACFS alone to set out requirements attaching to constitutions of SACFS organisations. The clause also deletes the express consultation requirements in relation to proposed dissolutions of SACFS organisations, with the consultation requirements to be shifted to the regulations.

22—Amendment of section 69—Country Fire Service Volunteers Association

This clause amends section 69 of the principal Act to correct an obsolete reference.

23—Substitution of Part 4 Division 7

This clause substitutes Division 7 of Part 4 of the principal Act as follows:

Division 7—Fire prevention authorities—country areas and urban bushfire risk areas

Subdivision 1—State Bushfire Coordination Committee

71—State Bushfire Coordination Committee

This clause establishes the State Bushfire Coordination Committee, and sets out procedural requirements in relation to the committee.

71A—Functions of the State Bushfire Coordination Committee

This clause sets out the functions of the State Bushfire Coordination Committee. The clause also provides that SACFS is to provide an Executive Officer for the committee, and further that the committee is subject to the general direction and control of the Minister.

71B—Power of delegation

This clause provides a standard power of delegation for the State Bushfire Coordination Committee.

71C—Use of facilities

This clause provides that the State Bushfire Coordination Committee may use the staff, equipment and facilities of certain bodies.

71D—Validity of acts

This clause provides that an act or proceeding of the State Bushfire Coordination Committee is valid despite a vacancy in its membership or a defect in the appointment of a member.

71E—Annual reports

This clause requires the State Bushfire Coordination Committee to provide an annual report to SACFS.

71F—Specific reports

This clause enables the Minister or the Commission to require the State Bushfire Coordination Committee to provide reports on specified matters.

Subdivision 2—Bushfire management committees

72—Establishment of bushfire management areas

This clause enables the Governor to divide the State into bushfire management areas. Such division may only occur on the recommendation of the State Bushfire Coordination Committee, which must have regard to specified matters when formulating the recommendation.

72A—Establishment of bushfire management committees

This clause requires the State Bushfire Coordination Committee to establish a bushfire management committee for each bushfire management area in the State.

The clause provides that the bushfire management committee will have the composition determined by the State Bushfire Coordination Committee, and makes procedural provisions relating to the committees.

72B—Functions of bushfire management committees

This clause sets out the functions of the bushfire management committees. The clause also provides that SACFS is to provide an Executive Officer for each committee, and further that the committee is subject to the general direction and control of the State Bushfire Coordination Committee.

72C—Power of delegation

This clause provides a standard power of delegation for bushfire management committees.

72D—Use of facilities

This clause provides that a bushfire management committee may use the staff, equipment and facilities of certain bodies.

72E—Validity of acts

This clause provides that an act or proceeding of a bushfire management committee is valid despite a vacancy in its membership or a defect in the appointment of a member.

Division 7A—Bushfire management plans

73—State Bushfire Management Plan

This clause requires the State Bushfire Coordination Committee to prepare and maintain a plan to be called the State Bushfire Management Plan.

The clause sets out what must be in the plan, and provides for a 4-yearly review of the plan by the committee. It also sets out procedures in respect of consultation on the proposed creation or amendment of the plan. The public are also to be given an opportunity to inspect any proposed plan and certain amendments and to make submissions in respect of the proposal.

The plan must be approved by the Minister before it has effect, who must consult with the Chief Officer of SACFS before doing so.

73A—Bushfire Management Area Plans

This clause requires each bushfire management committee to prepare and maintain a Bushfire Management Area Plan for its area.

The clause sets out what must be in a plan, and provides for reviews of the plan by the relevant committee. It also sets out procedures in respect of consultation on the proposed creation or amendment of the plan. The public are also to be given an opportunity to inspect any proposed plan and certain amendments and to make submissions in respect of the proposal.

The plan must be approved by the State Bushfire Coordination Committee before it has effect.

24—Amendment of section 78—Fire danger season

This clause makes a consequential amendment to section 78 of the principal Act.

25—Amendment of section 79—Fires during fire danger season

This clause amends section 79 of the principal Act to delete the expiation fee provision for contravention of the section, which will be shifted to the regulations. This clause also deletes the circumstances in which a fire may be lighted or maintained in the open air, which will also be shifted to the regulations.

26—Amendment of section 81—Permit to light and maintain a fire

This clause amends section 81 of the principal Act to allow an application for a permit to light and maintain a fire to be made in a manner and form determined by the Chief Officer of SACFS. The clause also allows the regulations to establish a scheme for the review by the Commission of a decision to revoke a permit.

27—Repeal of Part 4 Division 8 Subdivision 5

This clause repeals sections 83, 84 and 85 of the principal Act. The relevant provisions are to be recast and will appear as part of proposed new Part 4A—Fire prevention.

28—Repeal of section 88

This clause repeals section 88 of the principal Act (dealing with fire extinguishers in caravans), with the requirements under that section to be shifted to the regulations.

29—Amendment of section 89—Restriction on the use of certain appliances etc

This clause amends section 89 of the principal Act to delete the expiation fee provision, which will be shifted to the regulations.

30—Repeal of section 90

This clause repeals section 90 of the principal Act (dealing with burning objects and materials), with the requirements under that section to be shifted to the regulations.

31—Amendment of section 91—Duty to report unattended fires

This clause amends section 91 of the principal Act to expand the list of government officers to whom an unattended fire can be reported.

32—Repeal of section 92

This clause repeals section 92 of the principal Act, as the substance of the section has been moved to section 105C in proposed Part 4A (inserted by this measure).

33—Insertion of section 95A

This clause inserts new section 95A of the principal Act to clarify that nothing in Part 4 Division 8 of the Act limits or prevents requirements or prohibitions under the Act from applying at any time.

34—Amendment of section 101—Annual reports

This clause makes a consequential amendment to section 101 of the principal Act in relation to annual reporting of the activities of the State Bushfire Coordination Committee and the bushfire management committees established under the Act as amended by this measure.

35—Insertion of Part 4A

This clause inserts a new Part 4A into the principal Act, consolidation requirements and powers in respect of fire prevention.

Part 4A—Fire prevention by owners of land etc

Division 1—Interpretation

105A—Interpretation

This clause defines terms used in the Part. In particular, it sets out who are authorised persons in relation to particular land.

Division 2—Fire prevention officers

105B—Fire prevention officers

This clause requires each council that is a rural council or that has a designated urban bushfire risk area within its area to appoint at least 1 fire prevention officer. In doing so, the council must take into account any policy developed by SACFS for the purposes of the proposed section. A fire prevention officer must be suitably qualified or experienced.

105C—Functions of fire prevention officers

This clause sets out the functions of fire prevention officers.

105D—Delegations

This clause provides a power of delegation for fire prevention officers.

105E—Reports

This clause enables the State Bushfire Coordination Committee, or a relevant bushfire management committee, to require a fire prevention officer to provide reports on specified matters.

Division 3—Duties to prevent fires

105F—Private land

This proposed section imposes a duty on owners of private land—

(a) to prevent or inhibit the outbreak of fire on the land; and

(b) to protect the land from the spread of fire through the land; and

(c) to protect property on the land from fire.

Failure to comply with the duty can result in a $5,000 fine.

The clause sets out procedural matters in relation to determining whether a person has complied with the duty, and, most notably, deems compliance with a code of practice prescribed under the section to amount to compliance with the duty. Conversely, failure to comply with a code will be taken (in the absence of proof to the contrary) to be a failure to comply with the duty.

The clause also provides that an authorised person can require an owner to take certain action (and, in doing so, the authorised person must comply with guidelines published by the Minister). Failure to comply with the notice will result in a fine of up to $10,000.

105G—Council land

This section replaces section 83 of the principal Act. It will apply to council land in the country or in a designated urban bushfire risk area.

105H—Crown land

This section replaces section 84 of the principal Act. It will apply to land under the care, control or management of a Minister or an agency or instrumentality of the Crown if that land is situated in the country or in a designated urban bushfire risk area.

Division 4—Related provisions

105I—Additional provision in relation to powers of authorised persons

This clause sets out powers of authorised persons in respect of the administration, operation or enforcement of this proposed Part.

If an owner of land refuses or fails to comply with the requirements of a notice under proposed section 105F, an authorised person may proceed to carry out those requirements, with the costs of doing so recoverable from the owner. No compensation may be claimed by or on behalf of the owner in respect of action taken under the proposed section.

105J—Review by Chief Officer

This clause confers a right of review by the Chief Officer of SAMFS or SACFS on a person given a notice under proposed section 105F(5).

36—Amendment of section 116—SASES units

This clause amends section 116 of the principal Act to allow the Chief Officer of the SASES alone to set out requirements attaching to constitutions of SASES units. The clause also deletes the express consultation requirements in relation to proposed dissolutions of SASES units, with the consultation requirements to be shifted to the regulations.

37—Amendment of section 127—Protection from liability

This clause makes a consequential amendment to section 127 of the principal Act.

38—Amendment of section 148—Regulations

This clause amends section 148 of the principal Act to insert a standard regulation making power to adopt codes and standards etc by reference.

39—Repeal of section 149

This clause deletes a spent provision.

40—Amendment of Schedule 1—Appointment and selection of assessors for appeals under Part 3

This clause amends Schedule 1 of the principal Act to reflect the fact that matters are to be heard in the Industrial Relations Commission rather than the District Court.

41—Repeal of Schedule 3

This clause deletes Schedule 3 from the principal Act, the relevant provisions having been deleted from the Act by this measure.

42—Repeal of Schedule 4

This clause deletes Schedule 4 from the principal Act, the relevant provisions having been deleted from the Act by this measure.

43—Amendment of Schedule 5—Regulations

This clause amends Schedule 5 of the principal Act to make it clear that the regulations can be made to regulate or prohibit any activity, practice or act, or the use of any plant, equipment, apparatus or device. This is to enable certain matters to be shifted from the Act to the regulations. The clause also inserts a regulation-making power to make regulations of a saving or transitional nature following the amendment of the Act (including by this measure) and increases the maximum penalty available under the regulations to $10,000.

Schedule 1—Transitional provisions

1—Transitional provisions

This Schedule makes transitional provisions in relation to the measure by stating that certain amendments effected by the measure do not affect proceedings instituted before the commencement of the clause.

The clause also preserves any right of appeal in existence before the commencement of the clause by deeming the right to be a right of appeal under the Act as amended by the measure.

Debate adjourned on motion of Hon. S.G. Wade.

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