Statutes Amendment Bill

Statutes Amendment Bill

05 March 2025

The Hon. S.E. CLOSE CLOSE (Port Adelaide—Deputy Premier, Minister for Climate, Environment and Water, Minister for Industry, Innovation and Science, Minister for Workforce and Population Strategy) :

Part 4—Criminal Law Consolidation Act 1935

Part 4 of the bill amends section 85B(3)(b) of the Criminal Law Consolidation Act to achieve greater consistency with section 201A of the Victorian Crimes Act 1958, with the intent of tightening the operation of the back-burning defence in relation to the offence of causing a bushfire.

Section 85B(1) of the Criminal Law Consolidation Act provides that a person who causes a bushfire intending to cause a bushfire, or being recklessly indifferent as to whether their conduct causes a bushfire, is guilty of an offence which carries a maximum penalty of imprisonment for life.

Section 85B(3)(b) provides that no offence is committed if the bushfire results from operations genuinely directed at preventing, extinguishing or controlling a fire. Concerns have been raised that this provision may appear to permit a situation where the fire was originally lit by a person for genuine fire prevention purposes, e.g. back-burning, and the person loses control or fails to extinguish the fire and the fire spreads onto a neighbouring property without the consent of the neighbouring property owner and the fire destroys the neighbour's property.

To address these concerns, section 85(3)(b) has been recast to tighten the operation of the back-burning defence in line with section 201A of the Victorian Crimes Act. This will ensure that the defence will only be available where the bushfire is caused in the course of carrying out a fire prevention, suppression, or other land management activity and, at the time that the activity was carried out, there was a provision made by or under an act, or by a code of practice approved under an act, in force, that regulated or otherwise applied to carrying out the activity and that the person acted in accordance with that provision in carrying out the activity and the person believed that their conduct in carrying out the activity was justified having regard to all of the circumstances.

Mr McBRIDE (MacKillop) (16:16): It gives me great pleasure to add a few comments to the Statutes Amendment (Attorney-General's Portfolio and Other Justice Measures) Bill 2025 and particularly around part 4, Criminal Law Consolidation Act 1935. Part 4 of the bill wants to amend and change the laws in regard to the words 'back-burning', 'fire prevention' and 'bushfires' and the like that have been mentioned here. I want to make it very clear that the parliament understands what is written here in a number of areas that I think should be concerning for all those who have the chance to witness, listen or observe what has been put before them.

One of the things I want this parliament to understand is that there has been great resistance by fire authorities around back-burning in South Australia. I will add that back-burning in Queensland, Northern Territory and Western Australia is considered commonplace, mandatory, important and part of the firefighting mechanisms of containing wildfires in those three states. That is not the case here in South Australia.

In my briefing this morning about this legislation and this change in this amendment here, I did ask whether there has been a charge or has there been an arsonist pursuing back-burning practices that says he is now doing something different other than being an arsonist and the answer was no. My real concern is: where is this coming from and why is this written before us and changing what is being done?

Everyone in this parliament should be aware that in the case of horrific, catastrophic, fast-moving bushfires in the state, we now have an abandonment of firefighting and we go into a code called protection and wait. What does that mean? It means that a fire is out of control, it is a wildfire. We have had several of them since I have been in politics: Kangaroo Island, Adelaide Hills, Blackford, Keilira, Sherwood, Pinery to name a few that were catastrophic, huge in their intent, really hard to monitor and very destructive.

One of the things that is really, really frustrating to see and observe is that on the positive side of today's technology the government's intent, be it Liberal or Labor, to have water bombers, Black Hawk helicopters, even Boeing aeroplanes dump thousands of litres of water on wildfires are all positive. But the complete abandonment of a fire other than those resources sometimes would beggar belief in today's modern age.

What I mean by that is I am not suggesting for one minute that I want to see life, resources and fire trucks being put at risk like they used to 20, 30, 50 and further years ago. What we are now not seeing is the prevention of back-burning in front of fire fronts, and it will not even be considered. There is good technology and good resources and good science around lighting more fire into the landscape on these catastrophic days. There are some strong supporters in this area that can back it up with science, feel and perhaps old knowledge, including Indigenous knowledge, around back-burning in front of fires for their control.

When the words used here about back-burning as potentially trying to control, navigate and then criminalise, I am going to call them arsonists, and they use the word back-burning—then I think there is a misinterpretation on a huge scale here. I do not want to see and think that the CFS and the volunteers and the farm firefighting units, who potentially can add more fire into the landscape to protect, to stop, to slow down, to hinder these catastrophic fires that have been abandoned and going only into asset protection, are waiting for water bombers to come in place.

I remind this parliament that back in 2019, we had three fires, one on Kangaroo Island, one in the Adelaide Hills and one at Keilira. There was a shortage of resources, and planes were not even able to drop some of their loads of water let alone be in the places where they were needed all at once because there were too many or not enough helicopters or planes, and the idea of adding more fire into to the landscape would have been seen as criminal. I see before me right now that the words here in this amendment could put people in jail for life, when instead more fire could have been added to the landscape to prevent a bigger, more catastrophic fire.

Yes, these back-burns can get out of control. Yes, these back-burns can be swamped by a major fire that is coming up behind it. The fact is that what is going on is that there is no-one brave enough, no-one who has the development put in place yet to add fire, potentially, to slow down catastrophic fires because they will then see themselves looking at life imprisonment. We have to be very cognisant of what I can see here in the wording. I raised it in the briefing. I even asked how many arsonists we have in our history of lighting fires who say, 'I'm just doing a back-burn, your honour, I'm innocent,' when they are trying to start a new fire, a fire of some means, and to say, 'I am doing some back-burning'. It does not make any sense at all.

I can tell you that there are very wise hands, knowledge, minds out there in our rural community that have seen and used back-burning, including our Indigenous Australians, to prevent, control and manage fire. As soon as we start using the word back-burning here in the amendment, we can see people who are trying to do the right thing being punished, provoked or threatened with imprisonment for life, and I just cannot understand that. It just defies logic and makes me very sad that we do not have the intel here to potentially put those who are trying to do the right thing, people who would like to have the options and considerations of more fire in the landscape on these catastrophic days, but might face the full brunt of the law.

I am not saying that you cannot still pursue something like this if you think there is a loophole, that there are criminals out there putting fire into the landscape and that it has nothing to do with back-burning, but they are using it as an excuse. If the back-burning is in front of a fire front, is backed up by volunteer firefighters and units, and is backed up by even CFS trucks, and this fire still gets out of control, but it is a means to an end and an attempt to control the fire, then I do not want to see this amendment being used against those who are trying to do the right thing. They may not have got the authority from the head of the CFS or the head of the fire, or whoever is in charge, because they were not there.

What you do not want in these situations is to say, 'We are going to have a meeting, we are going to have a discussion. You had better meet on the southern eastern corner here. We're going to light a fire,' and by the time you get the okay and the all clear, the damn thing is 40 kilometres down the road. You do not want that situation either.

You think about that permission and that authority. Who is the authority and who is in control? These things are real life. You cannot prepare for all that you are faced with sometimes in these elements. It happens quickly. Wind changes can mean that what was the side of a fire can then be turned into the front of a fire. It happened in Keilira. The Keilira fire started in a spot. It headed south with strong northerly winds. It had a south-westerly change come through, which turned a 15 kilometre side fire into a front. Had they been allowed to do back-burning on that side front, we would not have had a 25,000 hectare fire. We could have saved a house. We did not lose any lives. I think there were 6,000 or 7,000 head of sheep that were burnt, if not more, and cattle and the like. Thousands of kilometres of fencing was also destroyed.

All I am trying to say to those with knowledge of legislation and amendments is please do not restrict, please do not tie people's hands up, please do not add more red tape to capture those who are trying to do the right thing out there in our community. What we are trying to do is handcuff and give life imprisonment to those who are lighting a fire for the simple sake of what arsonists think and do, not people who are back-burning, because that is a practice that is well noted, as I have already mentioned, in Queensland, Northern Territory and Western Australia for the control of wildfire. I do not want to see innocent people, who are trying to do the right thing, finding themselves foul of the law because we did not have a parliament that was representing the good intent of volunteers and those who have knowledge of wildfires and opportunities in the way we can manage fire. With that, I do not need to add any further points.

 

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