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Legislative Council - Fifty-First Parliament, Third Session (51-3)
2009-09-24 Daily Xml
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FIRE AND EMERGENCY SERVICES (REVIEW) AMENDMENT BILL

Committee Stage

In committee.

Clause 1.

The Hon. R.L. BROKENSHIRE: I was not in a position to say much the other day. The bill clearly follows a review by the government which, I am pleased to say from my contacts, involved a good level of consultation and cooperation with relevant stakeholder groups, and I commend the government for that. I have some amendments that I have put forward after discussion with certain sectors, including the LGA, and I will go into those in further clauses.

Bushfire prevention is clearly coming into focus for all legislators since not only the Victorian bushfire tragedies but also the Eyre Peninsula fires. We still have more to do following the Tulka fires, and others as well. I understand that a bill will come through later with changes based on recommendations put forward by the South Australian bushfire task force following the Victorian bushfires inquest. I was pleased to see in its response via a media release on Thursday 10 September that the government will, among other things, develop a household bushfire shelter guide, which is something constituents have approached me about and I have advocated publicly. We will not debate the rest of those recommendations until another day.

One thing I want to raise under clause 1 is that we need to have a focus on volunteers, in particular, and resourcing our fire and emergency services adequately. When I was minister I was criticised for some aspects of ESAU, but I am concerned that SAFECOM has probably become much more of a bureaucratic monster. I think we need to ensure autonomy for the CFS, the MFS and the SES operationally, because that is the best way to service our community.

Again, I say we should be looking at focusing on volunteer support. They have lost the CFS board and do not have the autonomy they had before. I think that is a pity, and I have said so previously in another place. Having said that, it is good that the government has reviewed the Fire and Emergency Services Act, and I hope it will provide better outcomes for the protection of life, property and support of our emergency services operators and, particularly, our volunteers.

The Hon. CARMEL ZOLLO: I thank the Hon. Paul Holloway for making it possible for me to make a short contribution. I was not available the other day when the bill was being debated. I congratulate the Minister for Emergency Services (Hon. Michael Wright) for his commitment and work in introducing this important piece of legislation. As a former minister for emergency services (indeed, there are now two in this chamber), I will take this opportunity to make a few brief comments in relation to the bill.

All three bodies of work—the recommendations from the ministerial review of bushfire management in South Australia, the Deputy Coroner's recommendations from the Wangary bushfire, and the recommendations from the review of the Fire and Emergency Services Act 2005—have led to this legislation, which occurred under my watch. It clearly makes sense to see any changes arising from that work included in this bill, as well as the continued consultation that has occurred during the past year.

By way of background, the ministerial review of bushfire management in South Australia was an initiative that arose, first, because it was timely to see such a review (there had not been substantive changes to the bushfire management structure at community level for 20 years or so); and, secondly, obviously because of the Wangary bushfire. I was pleased that Vince Monterola accepted the invitation to chair that review, and I acknowledge the commitment he demonstrated, as he has done on so many other occasions when his expertise and experience has been called upon. He consulted widely throughout the whole state to ensure that any recommendations had the support of as many people as possible.

I was very pleased to see Vince Monterola recognised in the Order of Australia awards this year. One of the most important recommendations to come out of the ministerial review of bushfire management was the restructure of the bushfire committees from the current three tier to a two tier structure. The system will be streamlined with a state bushfire coordination committee, with 16 bushfire management committees sitting underneath the state committee.

I also take the opportunity to welcome the designated urban bushfire risk areas. Certainly, community education and bushfire awareness is an area the government has been working very hard on, and the government has funded communication and education programs in not only rural areas but the urban interface as well, which can be just as vulnerable. Again, it makes perfect sense to also use this opportunity to include in this bill any recommendations from the Deputy Coroner's Wangary bushfire inquiry. I remember at the time of handing down the Deputy Coroner's report that many of the recommendations had already been enacted or were in the process of being enacted.

The third body of work that has shaped this bill is the requirement that the Fire and Emergency Services Act be reviewed after two years of operation. The review was carried out by Mr John Murray, a former assistant police commissioner in South Australia and deputy commissioner of the Australian Federal Police. The Murray legislative review looked at an act that creates a sector that has focused on prevention, preparedness, protection and recovery, whilst seeking administrative efficiencies that could be directed into operational capabilities.

I remember saying at the time the act came into being that it was the government's long-term view for the SAFECOM Board to be one of governance, to set a strategy and to create a whole of sector decision-making group committed to making decisions in line with agreed government policies that would be in the best interests of the safety of South Australians. After two years of operation, it is appropriate to see some fine tuning to ensure that it can deliver even better outcomes for the community.

This bill sees the SAFECOM Board expanded, with an extra representative and with everyone having voting rights. The advisory board is to be disbanded and replaced with an advisory committee, as it is believed to be a more appropriate forum, instead of a board for volunteers to raise issues affecting their members without being essentially constrained by governance concerns.

For historical reasons, the MFS used the District Court for promotional appeal processes. Following a request from the Chief Justice to both myself as the then minister and the Attorney-General, from memory, that appeal mechanism was transferred to the Industrial Relations Commission, where it properly belongs. I am pleased to see that, similarly, disciplinary appeals will also go from the District Court to the Industrial Relations Commission. That amendment is certainly sensible.

All our reviews are aimed at the better provision of community safety. The emergency services community is also affected by what happens in other states. Honourable members would be aware that South Australia established a task force following the Victorian bushfires earlier this year. More recently, the Premier announced that the state government would implement immediately a number of recommendations made by the bushfire task force, in readiness for the coming bushfire season. I obviously welcome the investment over the next five years of $12.4 million to establish and roll out a telephone-based emergency warning system, in tandem with the federal government. The introduction of a new nationally agreed graduated warning system is also a very positive step.

Returning to the bill before us, it goes without saying that I, like everyone else in this chamber, place on record my thanks to our tremendous volunteers, be they CFS or SES. The South Australian community is, indeed, indebted and grateful for their service. I also acknowledge and thank MFS personnel for all their work and service to our community.

I have picked up only on a couple of the amendments to comment on because the minister covered all the information in his contribution. My main purpose for this short contribution is to congratulate the minister in the other place for bringing this bill to fruition.

Clause passed.

Clauses 2 to 5 passed.

Clause 6.

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

Page 5, line 17 [clause 6, inserted section 4A(3)(d)]—Delete paragraph (d) and substitute:

(d) any council whose area would be, or is, within the designated urban bushfire risk area.

The Hon. P. HOLLOWAY: This amendment changes the provision that negotiation in relation to a fire in the designated urban bushfire risk area, rather than being with the LGA, would be with the individual council concerned. I understand this was the position of the Local Government Association. Whereas normally the state government agencies deal with the LGA as the peak body, in this situation it would make more sense to deal with local council. So, given that we understand it is the view of the LGA, the government is prepared to accept the amendment.

The Hon. T.J. STEPHENS: The Liberal Party also supports the amendment. As I said in my second reading contribution, it is very grateful to the LGA for the amount of time it spent with the opposition putting its point. I believe this amendment is quite sensible, in that they do not want to be the people in the middle and would prefer, when there is some sense of urgency, that the council be dealt with directly.

Amendment carried.

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

Page 5, line 18 [clause 6, inserted section 4A(4)]—Delete 'the LGA' and substitute 'a council'

This amendment is consequential.

Amendment carried; clause as amended passed.

Clauses 7 and 8 passed.

Clause 9.

The Hon. T.J. STEPHENS: I move;

Page 6, line 8 [clause 9(1)]—Delete '5' and substitute '6'

This amendment basically asks that someone from the farmers federation be included on the SAFECOM Board. Our rationale is that the rural community, owning probably the majority of the land, has incredible experience with fires, and we believe it is appropriate that someone from that community is represented at that level.

The Hon. P. HOLLOWAY: The amendments moved by the Hon. Terry Stephens are a suite of three related amendments. The key issue is that of adding an extra person, someone nominated by the South Australian Farmers Federation, so perhaps we could use this as the test clause for the three amendments.

The government opposes the amendments. The first point that needs to be made is that the farmers federation has not a sought a position on the SAFECOM Board. It is important to understand that the SAFECOM Board deals with governance issues for the sector—that is, finance, human resources, sector planning, risk management, occupational health, safety and welfare—and the proposed constitution of the SAFECOM Board reflects this in the bill. The SAFECOM Board is not a representative or a policy forum.

Appropriately, the farmers federation has membership on the State Bushfire Coordination Committee, which deals with operational and coalface matters. The farmers federation could experience frustration by the statutory nature of the board, similar to volunteer associations and the Firefighters Union with advisory boards. If this amendment were to be accepted, it would just raise the issue, and no doubt other interest groups would also seek a position on the SAFECOM Board—for example, the Local Government Association, or other peak bodies such as the Real Estate Institute or the Urban Development Institute. It could be argued that they have just as much at stake as the farmers federation, and as much right to be on the governance board for the emergency services sector. So, I would argue first of all that it is not really relevant nor would the presence of the farmers federation contribute to the issues that the board deals with—namely, governance issues. But also, it would set a precedent for other groups who might wish to claim, and they might have an equal right to be on the board. For that reason the government opposes the amendment.

The Hon. T.J. STEPHENS: Our amendment is not so much about the fact that SAFF wants to be represented on this organisation. We feel that the people who are so far to be nominated are appropriate, but we have a concern that perhaps the group will lack land owner/farmer representation. They would not necessarily be taking the interests of SAFF to that board, but they would generally have experience appropriate to landholders in regard to fire prevention, probably more so than most city people and most bureaucrats.

The Hon. R.L. BROKENSHIRE: We will be supporting the government, not the opposition, on this amendment. I do not see that SAFF has a role in the governance at all. If there is to be an additional position, I personally would like to see it as that of a Volunteer Fire Brigades Association representative because they lost so much autonomy that they should have kept when they lost the Country Fire Service Board.

When you look at governance, management, finances and equipment provision, etc. it is really about people with expertise. With the greatest respect to the farmers federation, I do not see that it fits in to this category when it comes to this board. I agree with the minister that, if you are going to put SAFF on here, you need to include the LGA, and then where does it stop? You will end up with an unworkable, cumbersome board, and that is not want we want. We want a board that hones in on the proper provision of emergency services, fire and protection for life and property in our environment and our state. We will support the government in opposing this amendment.

Amendment negatived; clause passed.

Clauses 10 to 22 passed.

Clause 23.

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

Page 14, line 22 [clause 23, inserted section 72(2)(b)]—Delete 'take into account' and substitute:

undertake best endeavours to reflect

I believe that most members are aware that what I am proposing here is to delete 'take into account' and substitute 'undertake best endeavours to reflect'. It is wording to describe better the issues around the amendment.

The Hon. P. HOLLOWAY: The government opposes the amendment, which deletes the words 'take into account' and substitutes 'undertake best endeavours to reflect', so we are getting into semantics. So, it is really a matter of interpretation and how a court would interpret it because, ultimately, that is the relevance of legislation. If it is ever challenged, I think a reasonable person would say, 'Well, if you are taking something into account that is very similar to saying that you will undertake your best endeavours to reflect.' I think 'taking into account' means that you give it careful and proper consideration, which is probably just a little different to 'undertake best endeavours to reflect'. The government believes that 'taking into account' is the appropriate clause, if you like, to reflect what we require here.

The Hon. T.J. STEPHENS: The opposition will be supporting the government on this amendment. We believe that the words should be left as is. We believe it is more of a commitment.

Amendment negatived.

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

Page 14, after line 35 [clause 23, inserted section 72A]—Insert:

(2a) However, the State Bushfire Coordination Committee must ensure that any council whose area is within a bushfire management area is given an opportunity to nominate a person for membership of the relevant bushfire management committee (and, if a council nominates a person, the membership of the relevant bushfire management committee must include that person).

I am moving this amendment because councils do have legal responsibilities in regard to bushfire management. When the act was changed early this century, it did not take away the responsibilities of local government to be heavily involved in bushfire management. I believe that a council that is within a bushfire management area where there is going to be a relevant plan should have the right to have a council officer involved, otherwise it is pretty difficult for you to get total inclusion in what we want to see as a holistic approach to bushfire management and bushfire prevention.

The Hon. P. HOLLOWAY: The government does not support the amendment, but I would like to put something on the record because, obviously, this has been the subject of some discussion with the LGA. The government will be opposing the amendment on councils being a mandated member of the proposed bushfire management area committee.

The bushfire management area committees—of which there are planned to be 16—do not have prescribed members or membership, unlike the proposed State Bushfire Coordination Committee, because if there is an interest by a body corporate or entity within a bushfire management area then they are quite within their rights to be a member of their local committee.

I acknowledge the work of the LGA on this aspect of the bill. The LGA concurs that there is more flexibility for involvement in bushfire management planning for all, rather than just councils. For example, the bushfire management area committee for the South-East of the state would have forestry input, but in the Far North of the state I suspect that this would not be the case. I am positive that local councils will continue their involvement in the bushfire management planning framework for their area and, indeed, the state, as they have done previously.

The Hon. T.J. STEPHENS: I indicate the Liberal Party's support for the proposal. We think it is a sensible addition.

The Hon. R.L. BROKENSHIRE: I am not convinced that the minister, on behalf of his government, has actually given this committee a clear explanation on why you would exclude a council representative, given the responsibilities of councils.

The Hon. P. HOLLOWAY: 'If they are not excluded' is the point to be made. The State Bushfire Coordination Committee will determine the membership. I do not think that anyone would suggest otherwise, but councils are not a key part of any bushfire mitigation effort. However, as I just indicated in that statement, there is involvement for others not just councils; and I gave the example where there will be different bodies such as Forestry in the South-East. However, if there is no forest, obviously, that is not relevant.

The point we are making is that the State Bushfire Coordination Committee should be the body that determines this; but, of course, under that relevant councils will have an appropriate role.

The committee divided on the amendment:

AYES (9)
Brokenshire, R.L. (teller) Dawkins, J.S.L. Hood, D.G.E.
Lawson, R.D. Lensink, J.M.A. Ridgway, D.W.
Schaefer, C.V. Stephens, T.J. Wade, S.G.
NOES (10)
Bressington, A. Darley, J.A. Finnigan, B.V.
Gago, G.E. Gazzola, J.M. Holloway, P. (teller)
Parnell, M. Winderlich, D.N. Wortley, R.P.
Zollo, C.
PAIRS (2)
Lucas, R.I. Hunter, I.K.

Majority of 1 for the noes.

Amendment thus negatived.

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

Page 17, after line 6 [clause 23, inserted section 73]—Insert:

(2a) The primary purpose of the plan is to identify major bushfire risks in the state and recommend appropriate action that will provide protection to life, property and the environment from the effects of bushfires.

The Hon. P. HOLLOWAY: The government accepts this amendment.

The Hon. T.J. STEPHENS: The opposition supports the amendment.

Amendment carried; clause as amended passed.

Clauses 24 to 34 passed.

Clause 35.

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

Page 23, after line 26 [clause 35, inserted section 105B]—Insert:

(4) A chief officer may, on application by a council, exempt the council from the requirement to appoint a fire prevention officer under this section.

This amendment provides that a chief officer (namely, the CFS or the MFS) may, on application by a council, exempt the council from the requirement to appoint a fire prevention officer. The amendment was moved by me after discussion with the LGA around the issues of council and consideration with respect to a fire prevention officer and the knowledge of the chief officers.

The Hon. P. HOLLOWAY: The government can support this amendment.

The Hon. T.J. STEPHENS: The opposition supports the amendment.

Amendment carried.

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

Page 24, after line 15 [clause 35, inserted section 105D]—Insert:

(4) If a fire prevention officer delegates a function or power under this section, he or she must report that fact to the council.

This is a simple amendment. It is really just to cover the councils that have a fire prevention officer who has certain delegations, functions or powers under the section. Councils want the situation where, at the relevant point after the decision is made, it is reported to the council so the council has protections through the chain of command to its chief executive officer, who is ultimately responsible for the running of the council.

The Hon. P. HOLLOWAY: The government does not oppose the amendment.

The Hon. T.J. STEPHENS: The opposition opposes the amendment. We feel that it is okay as it is so we do not think it is particularly necessary. However, I indicate that we will not divide on it.

Amendment carried.

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

Page 24, lines 20 to 25 [clause 35, inserted section 105E]—

Delete 'notice to a fire prevention officer, require the fire prevention officer to provide to the Commission, the State Bushfire Coordination Committee or the bushfire management committee within a period stated in the notice or at stated intervals, any report or reports relating to the performance, exercise or discharge of the fire prevention officer's functions, powers or responsibilities,' and substitute:

notice, require the council to provide to the Commission, the State Bushfire Coordination Committee or the bushfire management committee (within a period stated in the notice or at stated intervals) any report or reports relating to the performance, exercise or discharge of the functions, powers or responsibilities of the fire prevention officer or officers (if any) for the council's area,

This proposal was put by the LGA after consultation with its council members, and I am happy to move this amendment.

The Hon. P. HOLLOWAY: I think there was an original amendment moved in another place with which the government had some concerns. We do not have any problem in principle with the proposition: there were just some issues about wording. I understand this might be different from the amendment introduced in the House of Assembly so, on that basis, we do not oppose the amendment.

The Hon. T.J. STEPHENS: I indicate the opposition's support for the amendment.

Amendment carried.

The Hon. T.J. STEPHENS: I move:

Page 24, after line 33 [clause 35, inserted section 105F(1)]—After paragraph (c) insert:

and

(d) to minimise the threat to human life from a fire on the land.

The member for Waite in the other place talked about the emphasis in this bill on the protection of property. We feel this amendment makes it quite clear that the protection of human life is of paramount concern as well as property. So we think it is a sensible amendment.

The Hon. P. HOLLOWAY: The government does not have any particular issue with these amendments so we do not oppose them.

The Hon. R.L. BROKENSHIRE: We support it on the basis that we need, wherever possible, to emphasise the fact that the protection of human life is paramount in all issues regarding fire. Obviously, property and the environment should be protected also, but we need to have all our focus on the protection of human life.

Amendment carried.

The Hon. T.J. STEPHENS: I move:

Page 26, after line 37 [clause 35, inserted section 105G(1)]—After paragraph (e) insert:

and

(f) to minimise the threat to human life from a fire on the land.

This is a consequential amendment.

Amendment carried.

The Hon. T.J. STEPHENS: I move:

Page 28, after line 2 [clause 35, inserted section 105H(1)]—After paragraph (e) insert:

and

(f) to minimise the threat to human life from a fire on the land.

Amendment carried.

The Hon. J.S.L. DAWKINS: I move:

Page 28, after line 33—Insert:

105HA—Commonwealth land

(1) If in the opinion of the relevant Chief Officer conditions existing on Commonwealth land—

(a) in the country; or

(b) in a designated urban bushfire risk area,

present an undue risk to surrounding land (not being Commonwealth land) in the event of a bushfire on (or passing through) the Commonwealth land, the relevant Chief Officer must take reasonable steps to notify the person apparently in control of the Commonwealth land of the risk and the reasons for his or her opinion (and may provide advice as to the action that, in the opinion of the Chief Officer, should be taken in view of the risk).

(2) In this section—

Commonwealth land means land occupied by the Commonwealth (including the Crown in right of the Commonwealth or a Commonwealth Minister), or by an agency or instrumentality of the Crown;

relevant Chief Officer, in relation to particular land, means—

(a) if the land is within a fire district—the Chief Officer of SAMFS;

(b) if the land is outside a fire district—the Chief Officer of SACFS.

This amendment relates to the insertion of a new clause regarding commonwealth land. Basically, it ensures that the relevant chief officer must take reasonable steps to notify the person apparently in control of commonwealth land if that land is deemed by the chief officer to have an undue fire risk.

I appreciate the advice from the minister's officers and parliamentary counsel that we cannot make the commonwealth government do anything. However, I think we should take every step we can to reduce the fire risk in the significant amount of commonwealth land in this state. I mentioned some examples in my second reading speech but, since that time, after conversations with members of this chamber, one in particular noted as particularly sensitive is the Woodside army base. However, there are also other army facilities, such as El Alamein and Smithfield, and I think we could name many more not only in close proximity to Adelaide but also other parts of the state. I commend the amendment to the committee.

The Hon. P. HOLLOWAY: This amendment seeks to include the tenure of commonwealth land. The amendment can be read in two ways as it is currently drafted. It could be interpreted, first, in the sense of prevention and mitigation, which is what the Country Fire Service thinks is Mr Dawkins' intention. Secondly, it could also be interpreted in a response sense. This should not be the focus of the amendment, as the response provisions are outlined in an agreement I will explain. Currently, there is an agreement between the Commonwealth of Australia and the South Australian Country Fire Service. The key aspects of the agreement include the recitals, which state:

The commonwealth requires fire rescue and other emergency services for its property, facilities and personnel. The South Australian Metropolitan Fire Service and the South Australian Country Fire Service will provide the required services on the terms and conditions contained in this agreement. The services are described as those which the SAMFS and the SACFS are empowered to provide under the Fire and Emergency Services Act 2005, as amended from time to time. The services are not prescriptive, but emphasis is on the response aspects of service delivery.

So, while there is perhaps some ambiguity with the particular amendment, providing the interpretation is as we believe it should be—that is, that the emphasis the honourable member is trying to achieve is towards prevention and mitigation aspects of fire management—the government agrees with that. Of course, the fact that we have this MOU deals with the other aspect of it. With that sort of proviso we will not oppose the amendment.

The Hon. J.S.L. DAWKINS: I thank the minister for those comments. Certainly, I indicate that my focus is on prevention and mitigation. In the briefing we had, which was provided by the minister, I asked questions. I must say that is the first time I have heard that response about the relationship in relation to a response to a fire incident. It would have been appreciated if we had been informed of that earlier, because I did make that request in the briefing. However, I appreciate the fact that the minister has put it on the table in this chamber today. To avoid any ambiguity, I will make it clear that I am concerned about the ability of chief officers to alert the commonwealth to the need for fire prevention and mitigation.

The Hon. R.L. BROKENSHIRE: I rise to support the amendment and to congratulate the member on moving it. It is a real issue. I know the commonwealth has its own powers but, at the end of the day, commonwealth land can have a huge impact on life, property and the environment of our state as a whole. When you travel around, you think about the army bases and the large amount of commonwealth land not far from Murray Bridge and other places that may be leased out and not managed properly and only used from time to time.

In relation to all publicly owned land, it is really important that chief officers, or their delegates, have as much input as possible into fire prevention. If they can work with this sort of clause to put more pressure on and provide more advice to the commonwealth, I think it is a good thing. We need to see it with SA Water as well. When you look at the Tulka fires in Port Lincoln and those areas, hopefully we are moving in that direction with bipartisanship, and I am sure we are. I think this amendment will do nothing but good.

Amendment carried; clause as amended passed.

Clauses 36 and 37 passed.

Progress reported; committee to sit again.


[Sitting suspended from 13:06 to 14:17]


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