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Legislative Council - Fifty-Fourth Parliament, Second Session (54-2)
2020-04-28 Daily Xml
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Bills

Fire and Emergency Services (Miscellaneous) Amendment Bill

Second Reading

Adjourned debate on second reading.

(Continued from 24 March 2020.)

The Hon. F. PANGALLO (15:29): I have left my speech in the office, Mr President; I am sorry. I can say that SA-Best will be supporting this bill, the Fire and Emergency Services (Miscellaneous) Amendment Bill (No. 4), although we will not be supporting the Labor Party amendment. The reason for that is we firmly believe in and support the recommendations of the committee that reported on this issue some time back. It recommended that it should, in fact, be the police that have the call on whether or not to enter properties and speak to property owners.

I understand the Labor amendment is that before the police could move in they would first need to have some consultation or engagement with the chief fire officer in that particular area. Of course, it has been pointed out to me that there are rural areas where there are no chief fire officers thereabouts. I think it has also been pointed out that police were saying—certainly the Police Association—that perhaps they were not qualified enough to make calls on particular catastrophic days.

Quite frankly, I think the police are qualified to make those types of calls. That is what they are trained for, to make decisions and judgements—pun not intended—in the heat of the moment, and I cannot see that their judgement would be clouded on a catastrophic fire day when they lobbed up to a property and saw a farmer, who probably should not be using an angle grinder, using an angle grinder. They could then instruct him to cease doing that. I also cannot see why they would then need to consult with a CFS officer from somewhere to get the okay to do that.

An honourable member interjecting:

The Hon. F. PANGALLO: Maybe not. I will now refer to my speech, Mr President, after that bit of padding out. As I indicated, we will be supporting the bill but not the amendment. It incorporates recommendations made from the 2013 review under then Labor minister Mr Paul Holloway and select committees that investigated the powers for the cessation of harvesting on high-risk days.

This was quite a contentious issue amongst the farming community. There was fiery debate about whether CFS volunteers had the power to direct landowners from conducting activities that could result in fires. This also had the potential of unintended consequences in creating conflict in personal relationships. These activities include harvesting, and other machinery and equipment; as we know, there have been bushfires caused by accidents involving machinery or tools. In fact, I was surprised to learn that a particular and very popular make of diesel four-wheel drive had caused paddock fires because of an exhaust burn-off feature.

There are some good measures in this bill, including work protections for CFS and SES volunteers who need to leave their place of full-time employment to protect the community. We saw this play out in a dramatic way with the summer bushfires around Australia. It even prompted the federal government to provide payments to cover loss of income for volunteers; however, I note this is not covered in the bill.

The bill will also bestow certain authority to the MFS when it comes to securing buildings and other property. Another worthy measure is the formation of industry brigades in forestry and mining areas. These will bring together a level of understanding and experience in these environments, although it is not quite clear the amount of resourcing that will be necessary or who would be responsible for budgeting these initiatives.

The provision that has been the subject of some consternation is which authority has the power to direct the halting of practices which may be fire risks on particular days when the weather is deemed to create catastrophic conditions, like those experienced in the Cudlee Creek and Kangaroo Island bushfires.

Under this bill, the power will be conferred to SAPOL, and I would imagine there would have to be some consultation with the relevant fire and regional authorities, regardless, on these given days of high fire danger. The opposition in its amendment believes that this should be done only if SAPOL first receives direction from an authority, such as CFS, rather than SAPOL making the call independently.

I was rather taken aback by comments made by Assistant Commissioner Bamford when he appeared before the select committee—comments like, 'We certainly don't see it as a police role to be the first people to turn up and tell someone to stop using a header,' and, 'We don't see it's appropriate for a police officer to be driving around the countryside trying to measure local indicators and then giving instructions.' Other quotes were: 'really not police core business', and, 'We are not really in the business of determining what the fire danger is and whether it is appropriate'.

I would dispute that. I beg to differ with him on what he thinks is or is not core police business. What he is saying here is that police are not qualified to make fire risk assessments. Why not? And if they are not, why aren't they receiving training in this area? They are not lawyers, yet they can run a range of prosecutions in our court system, based on training they receive.

Right now, the Commissioner of Police is in charge of the emergency response to the COVID-19 pandemic in South Australia. He is not an expert in this medical field, nor do we expect him to be. He takes advice and acts accordingly, but he is also capable of making decisions that are in the best interests of the community, and we must put our trust in that.

I would have thought police are trained to deal with all manner of emergency situations impacting on the community, from terror related crime to emergencies created as a result of adverse weather conditions. I would like to think they are trained to make snap judgement calls. The core business of police is to protect the community, not just from criminal elements. I do not see them as being just crime fighters. They are a vital part of our emergency response network of agencies.

On my trips to Kangaroo island during the summer, speaking with various individuals, the clear message I received from many of them was that the CFS could not be solely relied upon to make timely calls. There were the typical bureaucratic hurdles to overcome in the chain of command that led to unnecessarily long delays in making important tactical decisions. I cannot imagine the frustration that would arise if, under the opposition's plan, police had to first wait for an authorised CFS or SES officer to issue an instruction.

It was put to me by very experienced personnel that a breakdown in the chain of command at the CFS was blamed, or could be blamed, for the rapid expansion of the Ravine fire that ultimately destroyed Flinders Chase National Park, many farms and probably contributed to the deaths of Dick Lang and his son.

Based on the accounts conveyed to me, I believe police need to take the lead, while of course also taking advice. It does not take a rocket scientist to determine that on a stinking hot, dry and windy day when the temperature hovers above 40 degrees there are activities that should not be taking place, whether that is using a header, angle grinder or welding equipment. My belief is that in confronting and challenging situations authorities need to err on the side of caution. With that, we support the bill.

The Hon. D.W. RIDGWAY (Minister for Trade and Investment) (15:39): I just have a few words to sum up. I think it was my colleague the Hon. Stephen Wade who may have handled the bill initially. Obviously, he has a whole range of COVID-19 issues he is dealing with again this afternoon, so I am very happy to continue taking this bill to summing-up now and shortly into the committee stage.

I want to thank all members for their contributions. We know this bill and its gestation many years ago. We had strong input from the select committee in the last parliament that informed the drafting of this bill and of course also strong input from Grain Producers SA, who have been involved and consulted through the whole process as well. I reiterate that I thank honourable members for their contributions to this debate.

Bill read a second time.

Committee Stage

In committee.

Clauses 1 to 19 passed.

Clause 20.

The CHAIR: There are two amendments in the name of the Hon. K.J. Maher. Are there any contributions?

The Hon. K.J. MAHER: I move:

Amendment No 1 [Maher–1]—

Page 15, line 9 [clause 20, inserted section 105IA(1)]—After 'If' insert:

, on the advice of an authorised officer of an emergency services organisation,

Some time ago in my second reading speech, I gave quite a comprehensive outline of what the amendments are. The amendments insert 'on the advice of an authorised officer of an emergency services organisation'. That is amendment No. 1 [Maher—1]. Amendment No. 2 [Maher—1] then defines the authorised officer as a member of the emergency services, either being the chief officer of the emergency services, that is the Country Fire Service, or their delegate as the initial one to make the call.

I think the Hon. Frank Pangallo outlined some of his views on this bill. I understand and accept the Hon. Frank Pangallo's views. We are not saying that police officers are not the appropriate person to enforce this law in any way, shape or form. Quite often, they will be the appropriate persons to enforce this law. We are just suggesting that it is highly likely that those from fire services will be in a better position to say whether the law needs to be enforced and police officers can then enforce it, so we are very clear that it is on the advice of an authorised officer. It does not necessarily need to replace an authorised officer.

The Hon. D.W. RIDGWAY: I rise on behalf of the government to say that we will not be accepting or supporting the opposition's amendment and I will quickly outline why. The proposed power to direct was referred to a bipartisan select committee with two specific questions: (1) is the power to direct still required, and (2) if so, who should have the power?

That was what was put to the select committee and the select committee came back with, yes, the power to direct was required and it should be SAPOL. I remember the Hon. Frank Pangallo's contribution just a few moments ago, where SAPOL gave a significant amount of evidence and were witnesses to that select committee, but the select committee was still happy to recommend that the power to direct was required and it should be SAPOL.

The select committee recommended the bill should provide clarity. The proposed amendment introduces uncertainty and ambiguity, which will again raise concerns of how the powers would operate in practice. This section gives SAPOL the power to direct persons to refrain from an activity as prescribed by regulations, with specific reference to the grain harvesting code of practice. The CFS will develop supporting regulations and policies to assist SAPOL in carrying out these powers.

As I may have introduced in my summing-up, the select committee's decision is fully backed by industry. In April of last year, Grain Producers SA was very clear: they welcomed the finding that the power to direct was more appropriately exercised by South Australia Police and called on the parliament to adopt the select committee's recommendations.

A working group has been formed between SAFECOM, the CFS and SAPOL to establish an operational model for when a police officer decides to issue a direction to cease activity. They will have access to qualified CFS personnel who can assess and interpret the information to support a decision under the supporting regulations and policies.

The Hon. T.A. FRANKS: I rise to indicate the Greens' support for the Labor opposition's amendment to ensure that, in the act, we have clarity around the lines of delegation. I remind members of the correspondence that we received from the Police Association of South Australia on this matter. I note that Mark Carroll, the President of the Police Association, wrote to members of parliament late last year with regard to the previous incarnation of this bill, noting that:

It is concerning that legislation would empower a police officer to direct a person (or a farmer) in this manner, without advice from an authorized expert possessing the requisite skills, knowledge and training.

I also have concern for members who fail to give a direction, and are subsequently blamed for a fire and loss of life or property. Without some form of legislated interaction with an authorized expert, police officers will be set up to fail.

In the view of the Police Association, without that clarity that we here as members of parliament can provide and the advice that we provide as to how the law should run, the Police Association believes that we are setting police officers up to fail.

When the Hon. Frank Pangallo was making his contribution, I interjected, which was possibly unparliamentary, that police do not want to find themselves in the Coroners Court and that is why they seek this clarity. No-one wants to find themselves in the Coroners Court. The police have made it very clear that they want very defined lines of direction when it comes to these serious matters.

The original incarnation of this bill was referred to a select committee, which showed that the due diligence and appropriate consultation had not been done to get it here. That select committee process gave voice to those, including the CFS volunteers, who we rely on, and the police, who we rely on, and those voices asked the parliament to make it clear and that their preference was that the expert advice apply; that is, in the case of a fire, the CFS.

I do not know how negligent parliament can be, but I think we are about to find out if parliamentarians absolutely do not take the advice of the experts in the field—in this case, the police and the CFS—as to how they wish to operate. The minister, because of ego or whatever has driven him to bring a bill here without that clarified when it could have been corrected and fixed in what will become the act, could assure everyone that he does not disagree with their sentiments and he does not disagree on the principle of the argument.

In fact, the minister agrees with the Police Association and the CFS volunteers about how this act should operate. The minister, just through his ego, does not agree that we should fix it in the act rather than wait for regulations. I, for one, as a member of this parliament, as a legislator, think it is our responsibility to make sure that the act gets it right in the first place. It does not take a rocket scientist to advise me that. As members of parliament today, if we do not listen to the expert advice from those at the coalface here, then we are negligent in our duties. Hopefully, it will never be us fronting the Coroners Court to explain why the act is deficient.

I note that previously the Hon. John Darley had indicated his support for the Labor amendment via a staffer text to me. I would like the government to clarify whether they have consulted on whether or not that position has changed. Does the Hon. John Darley continue to support the Labor amendment or do they have other specific advice on this amendment?

The CHAIR: The Hon. Mr Pangallo, would you like to indicate your position on the amendment?

The Hon. F. PANGALLO: I think we already have. We will be opposing it. We are opposing the Labor amendment.

The Hon. D.W. RIDGWAY: I thank honourable members for their contributions. I will start by answering the Hon. Tammy Franks' question. This is an email received on 23 April, last Thursday, from the Hon. Mr Darley's office to the Government Whip's office. It states:

Good afternoon,

John Darley has advised that during his Leave of Absence (until 8 September 2020) he will be voting in support of all Government matters unless he specifically instructs otherwise.

I think that is very clear that the Hon. Mr Darley is supporting the government on this particular matter. He has offered no advice to any other. I think he is confirming it again by another email.

As I said in the last paragraph, a working group has been formed between SAFECOM, the CFS and SAPOL to establish an operational model for when a police officer decides to issue a direction to cease activity. They will have access to qualified CFS personnel who can access and interpret information to support a decision under the supporting regulations and policies. This is about making sure the police officer has the relevant information to ask somebody to cease harvesting to prevent the start of a fire.

The Hon. John Dawkins and I are the only two who have been practising farmers in this chamber. It has been a fair while since I have driven a harvester and probably an even longer time since the Hon. John Dawkins has driven one. But things have changed by an exceptional amount now. Farmers are much more connected with mobile phones, radios and on-board computers in their harvesters and so there is a lot of data that farmers have.

That same data will be available to the CFS and the police who will be making those decisions. It is readily available, as is a whole range of things that were not previously available. Back 30 years ago, you would stick your finger in the air and think, 'Yes, it is not that bad. I think I can go harvesting.' Now we have all the data on relative humidity, wind speed, temperature, and there is a whole range of things that will now be provided to the police by the CFS, which will also be accessible to farmers.

We look back at the select committee report that has recommended that this is the path we take. I think we should also be mindful that we are often accused of not listening. That is the main sector, the industry that has asked for this. We have listened to them; we have listened to the select committee. They have all given evidence to the select committee. I think there are enough opportunities to provide the police officer with all of the relevant information via the procedures that I have outlined and having the supporting regulations and policies in place. I hope that satisfies the honourable member's question. I am not sure whether we have a final email from the Hon. John Darley—it is still on its way.

The Hon. T.A. FRANKS: Can the government representative (and I understand that minister Wade is not here, and you have just picked it up but you do have the adviser there) explain whether the government's position is in any way different from the opposition amendment's position with regard to the delegated authority, other than that it will be provided in regulations rather than the act?

The Hon. D.W. RIDGWAY: I am advised that the power to direct will sit with SAPOL, so it is not a power for decision-making, it is a power to direct.

The Hon. T.A. FRANKS: In terms of the advice to be taken, does the government believe that the advice should be from the expert sources, in this case the CFS?

The Hon. D.W. RIDGWAY: We have written into the legislation reference to the grain harvesting code of practice, and it will be published by the CFS. Industry has agreed on a code of practice: this is how it wants it to operate and it will be published by the CFS. The police officers will have all the information they need to make those decisions.

The Hon. K.J. MAHER: A question on the operation of this clause: the power by direction rests with the police officer and that does not change with the amendment, but after a direction is given what power is there to compel someone to follow the direction of the police officer?

The Hon. D.W. RIDGWAY: I thank the honourable member for his question. It is a breach of the legislation, so effectively a breach of the law, and the penalty for a first offence is a $5,000 fine or imprisonment for one year, and a second offence is a $10,000 fine and imprisonment for two years. I am not sure that too many farmers will want to experience that.

The Hon. K.J. MAHER: I thank the minister for his answer, which would have been a good answer to a different question. The question was not about what happens if a direction is breached, it is what power is there to compel someone to follow that direction so that you do not need to bring about a prosecution for the breach? To explain more clearly, what power is there for that police officer under clause 20 to compel someone to follow? Can they restrain someone who they know is going to breach that so that they do not put the community at risk, for example?

The Hon. D.W. RIDGWAY: I will clarify: if somebody fails to comply, they were the penalties. I am not sure about the honourable member's question. I cannot envisage a set of circumstances where a police officer will come to a person's farm, ask them to cease because the advice they have received and the information they have is that it is too dangerous to harvest, and that they will just turn their back and fail to comply. If they do, I am sure the police would take appropriate action.

I have already outlined the penalties, but we are in a pretty modern civilised society. If a police officer turns up on somebody's farm and asks them to cease because the information is that it is too dangerous to harvest, I am not sure which farmers the honourable member hangs out with but I cannot think of any who would disobey a police officer.

The Hon. K.J. MAHER: Just to clarify: we legislate for those examples where people do the wrong thing. If we just assumed that everyone always did the right thing, we would not need legislation.

In the circumstance where someone was doing the wrong thing, is the minister saying that if a police officer attends a farm and gives a direction—because there are catastrophic conditions and there is a very high likelihood that (having looked at that under subclause (2)(a), having looked at the harvesting code of practice, and the police officer has made a determination that it is catastrophic) if the farmer gets on the header and engages in the activity, a fire could be caused—to the farmer and that farmer in this situation decides that, no, he wants to undertake that activity, the only thing the police officer can then do is stand back and watch him undertake that activity, record what is going on and prosecute some time later? Is that what the minister is saying? There is no way to enforce that order at the time?

The Hon. D.W. RIDGWAY: My understanding is that this order would be a direction from a police officer. It would be no different to any other order or direction being given, and on failure to comply with an order the police are likely to detain and arrest the individual. It is no different to any other direction given by a police officer. That is why I find it a little unusual that the member opposite is going down this path.

The concept of a great big harvester, 30 foot wide, and one police officer and police car is a bit daunting, but I am sure that anybody who is farming in South Australia today will abide by any decision and direction of a police officer. If not, they will be charged and arrested as will anybody else in the community who disobeys an order from a police officer. We have had confirmation from the Hon. John Darley to the whip that that is still the case. He will be supporting all government legislation, unless he—I can read it here:

John has advised that he will be supporting the government on the Lobbyist (Restrictions on Lobbying) Amendment Bill—

That is not the one.

The Hon. D.G.E. Hood interjecting:

The Hon. D.W. RIDGWAY: I am advised by the whip that the Hon. John Darley is supporting the government's position.

The Hon. T.A. FRANKS: Is it the case that the Hon. John Darley's office emailed the whips on 24 March saying that he would support the Labor opposition amendment on this bill, and what has changed since then?

The Hon. D.W. RIDGWAY: Sorry, I missed that question. I was having a conversation seeking some clarity.

The CHAIR: The Hon. Ms Franks, again, please.

The Hon. T.A. FRANKS: Is it the case that the office of the Hon. John Darley emailed the whips on 24 March with an updated note saying that on this bill he supported the Labor opposition amendment, and has any specific change been noted since then to that position?

The Hon. D.W. RIDGWAY: As I read out earlier, this was dated 23 April, sent at 3.13pm, so last Thursday. It says:

John Darley has advised that during his Leave of Absence (until 8 September 2020) he will be voting in support of all Government matters unless he specifically instructs otherwise.

Then he goes on to give permission for the Hon. Nicola Centofanti to sit in his position in the chamber. I think it is very clear that he has not identified any pieces of government legislation that he is not supporting in that email.

The Hon. T.A. FRANKS: I asked about the email to the whips of 24 March. I still have not had an answer to that, about that specific direction that was made by the Hon. John Darley that he supported the Labor opposition amendment to this bill. Can the government representative confirm that that was the case?

The Hon. D.W. RIDGWAY: I can only assume that 23 April supersedes any email that he sent on 24 March. I am sure that if he felt strongly about it, it would be in the email of 23 April identifying that he supported all government business except the fire and emergency services bill.

The Hon. T.A. FRANKS: As we know, we are under a pandemic in terms of our operations. We are in extraordinary times, where we have the police commissioner as the State Coordinator, and I note that when this all began to take effect, given our social distancing requirements and in particular the Hon. John Darley's absence from this place, all respect would be given to members' wishes and the elected representation being kept true to in this place. So, while the minister currently says that the email of April supersedes the email of March, I ask again: is there a specific direction from the Hon. John Darley's office withdrawing his support for the Labor opposition amendment on this bill?

The Hon. D.W. RIDGWAY: My understanding is we do not have an email withdrawing but we have an email a month later saying that he supports all of the government legislation. He has some good, high-quality, hardworking staff, so I am sure if that was still the case they would have made sure that that was communicated to the Government Whip in the email of 23 April.

The Hon. K.J. MAHER: Just on this, can I clarify: is it the minister's position that, regardless of any specific directions the Hon. John Darley has given in relation to amendments—and I am not sure if that covered all opposition amendments—he said any opposition amendment will not be supported in preference for the government position? It may have said that, and I might have missed it, from what was read out. If there have been very specific directions in relation to, for instance, a crossbench or an opposition amendment, is it now the government's view that those specific directions are all null and void because the Hon. John Darley will only be supporting government bills completely unamended by the crossbench or opposition?

The Hon. D.W. RIDGWAY: That is my understanding of his most recent email, that he is supporting all government legislation. I would assume that would mean he supports it as it is drafted and introduced by the government and he is not entertaining any amendments. We are very flexible here and the Hon. Mr Darley's health and wellbeing is of paramount importance, so he has a leave of absence until September. But, as I said, he has a very well equipped office. They emailed the Government Whip on 23 April and said they will be supporting all government legislation, unless advised otherwise. There is no advice that they will be supporting any amendments to this current piece of legislation in the most recent email. I am advised by the whip that we should have an email to confirm that very shortly.

The Hon. K.J. MAHER: I have a further question in relation to the clause. The minister mentioned before the grain harvesting code of practice. Who develops that? I assume it is published by the CFS, but how is that developed, who has consulted on it and how specific is that in relation to what will be applied here?

The Hon. D.W. RIDGWAY: The code of practice was drafted in a collaborative effort between Grain Producers SA and the CFS. Our recollection is that it was eight to 10 years ago, but some time ago, and probably, I suspect, in response to one of the fires that we had at about that time, when we felt that the industry, and the community felt, needed a robust code of practice. That is published on the CFS website, so it is available for everybody to see. I assume that Grain Producers SA will be also publishing it.

I think most farmers and operators are well aware of the risks. I made some comments around the Pinery bushfire, that it was pre-harvest, a lot less sheep grazed, a lot less hay cut, we do not fallow paddocks, and obviously bigger equipment and bigger paddocks. So when fires do take off, people are saying, 'This is because of climate change that it was a particularly hot fire.' No, it is because we have some very skilful farmers who had grown some magnificent crops in very large acreages, and once the fire took off it became almost impossible to stop.

So things are changing and evolving and we expect our farmers to get the best yields and the biggest crops for their own financial benefit but also for the benefit of the state. My understanding is that is why this code of practice is reviewed, to make sure it is still contemporary and reflects the concerns of the CFS, the police, the community and the farming community.

I have here now, dated 28 April 2020 at 4.07pm, that the Hon. John Darley has advised he will be supporting the government on the fire and emergency services bill. He is not supporting the opposition's amendments.

Members interjecting:

The Hon. D.W. RIDGWAY: I am very happy to provide a copy of that email.

The CHAIR: I am sure the whips will be happy to share the information, and the Hon. Ms Franks. Are there are any further contributions to the amendment?

Members interjecting:

The CHAIR: Order! My trusty advisers advise me that the Hon. Mr Hood could print that email and table it, if that is the wish of the council.

The committee divided on the amendment:

Ayes 8

Noes 9

Majority 1

AYES
Bourke, E.S. Franks, T.A. Hanson, J.E.
Hunter, I.K. (teller) Ngo, T.T. Parnell, M.C.
Pnevmatikos, I. Scriven, C.M.
NOES
Bonaros, C. Centofanti, N.J. Dawkins, J.S.L.
Hood, D.G.E. Lee, J.S. Lensink, J.M.A.
Lucas, R.I. Pangallo, F. Ridgway, D.W. (teller)
PAIRS
Maher, K.J. Darley, J.A. Wortley, R.P.
Wade, S.G.

The CHAIR: I have another amendment in the name of the Hon. Mr Maher.

The Hon. K.J. MAHER: I can indicate to the committee that I will not be moving that. It relies upon a definition that relied upon the previous amendment having succeeded.

Clause passed.

Remaining clauses (21 to 28), schedule and title passed.

Bill reported without amendment.

Third Reading

The Hon. D.W. RIDGWAY (Minister for Trade and Investment) (16:17): I move:

That this bill be now read a third time.

Bill read a third time and passed.

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