This debate was delivered on 22/10/2014. You can see the original contribution here.

Mr DAVID SHOEBRIDGE [6.30 p.m.]: On behalf of The Greens I make a contribution to debate on the Rural Fires Amendment Bill 2014 and indicate at the outset that The Greens will support the bill. In doing so, I note that The Greens were the only party to oppose the Government’s reckless 10/50 clearing laws, which the same Minister was responsible for introducing. I only hope that this time the Minister is watching what he is signing and ushering through Cabinet. Hopefully, the rest of Cabinet have not been asleep while considering this bill, as they were with the 10/50 bill.

The Hon. Niall Blair: If you have nothing else to add, sit down.

Mr DAVID SHOEBRIDGE: The Parliamentary Secretary is a little fresh at this. He is a bit excited, but that is alright. No doubt he is deeply embarrassed by what the Government did with 10/50. The Greens understand that the Government is backpedalling and trying to do something to unscramble the appalling omelette the Opposition helped them to make by ushering through 10/50—awful stuff. The Rural Fires Amendment Bill 2014 proposes a number of measures, all of which are of reasonably tight compass. Indeed, they all seem focused on doing something sensible to address the fire risk as we approach the fire season, unlike the utterly ill thought out 10/50 bill that was introduced earlier this year. The objects of the bill are to amend the Rural Fires Act 1997 and some related legislation to do a number of things. The first is:
(a) to provide that if a person commits the offence of discarding a lighted tobacco product or match from a motor vehicle under section 99A of the Act:
(i) the owner of the vehicle is taken to be guilty of the offence unless the owner gives notice of the name and address of the person in charge of the vehicle at the relevant time—
I understand that that is to be done by way of statutory declaration—
(ii) the driver of the vehicle is taken to be guilty of the offence unless the driver gives notice of the name and address of the passenger who discarded the lighted tobacco product or match …
There are two levels of deeming: The owner is pinged unless they say they were not the driver, and the driver is pinged unless the driver says it was some third party who was in the vehicle at the time. We are told, and I readily accept, that this deeming provision is required because otherwise it is next to impossible to prove whether there is more than one person in a vehicle and who threw the lighted tobacco product or match. In those circumstances who would know? The driver or the other occupants of the vehicle would know. Whilst there are some concerns about there being a reverse onus on a penalty provision, given the serious harm that can be caused by lighted tobacco products that are thrown from motor vehicles and given that the occupants are in the distinct and unique position of being able to identify who did it, The Greens believe this is a sensible provision. Paragraph (b) provides that a further object of the bill is:
(b) to make the offence under section 100 (1) of the Act of setting fire to another person’s land or property, or permitting fire to escape from land, an offence for which a penalty notice may be served.
This is intended to allow for the less egregious breaches of that law to be dealt with through the penalty notice system, which is a quicker and more summary process. The Greens support that flexibility in the law. Paragraph (c) states the bill is:
(c) to provide that if a person sets fire to another person’s land or property, or permits fire to escape from land, where a total fire ban is in force a court must take the total fire ban into account as an aggravating factor in deciding the penalty to be imposed for the offence.
That seems to be entirely sensible. Indeed, I would be surprised if, in reality, sentencing judges were not already doing that when considering a matter. Paragraph (d) states the bill is:
(d) to create an aggravated offence of setting fire to another person’s land or property, or permitting fire to escape from land, knowing that a total fire ban is in force.
New section 100 proposes a very serious penalty for this offence. New section 100 (1B) provides:
(1B) A person who, without lawful authority:

(a) sets fire or causes fire to be set to the land or property of another person, the Crown or any public authority, or
(b) being the owner or occupier of any land, permits a fire to escape from that land under such circumstances as to cause or be likely to cause injury or damage to the person, land or property of another person or the land or property of the Crown or a public authority,

Knowing that a total fire ban … is in force in the part of the State in which the fire is set or permitted to escape, is guilty of an offence.

Maximum penalty: 1,200 penalty units—
which is in excess of $120,000—
or imprisonment for 7 years, or both.
They are very serious penalties for very serious offences, given the damage that can be caused by setting a fire while knowing that a total fire ban is in force. In the terrible Blue Mountains bushfires that occurred this time last year the Army recklessly set off explosives on a day when there was a total fire ban, which resulted in appalling damage to native vegetation and property and came very close to taking the lives of Blue Mountains residents—utter stupidity at best. If anyone does such a thing when a total fire ban is place they should know that they will face a particularly serious penalty.

Some people might question whether setting fire to something that may escape without their knowledge should have a maximum penalty of seven years imprisonment. Anyone who sets a fire on a day when there is a total fire ban ought to know that his or her stupid act can cause gross loss of property and, in the worse incidences, loss of life. I think a penalty in the order of seven years imprisonment is appropriate. I ask the Minister to indicate in his speech in reply how new section 100 is meant to interact with section 203E of the Crimes Act. That section already provides for a very serious maximum penalty—a maximum penalty double that proposed in this bill through new section 100. Section 203E of the Crimes Act provides:

(1) A person:
(a) who intentionally causes a fire, and

(b) who is reckless as to the spread of the fire to vegetation on any public land or on land belonging to another
… is guilty of an offence.

Maximum penalty: Imprisonment for 14 years.
I do not understand why the drafters of these amendments have set the culpability at a higher level for intentionally setting a fire—and have required not only the intention but also the knowledge that it was on a total fire ban day—yet have set the penalty at half what it is under section 203E of the Crimes Act. Under the Crimes Act the intentional causing of a fire and being reckless as to the spread of that fire carries a maximum penalty twice what is proposed in the these amendments to the Rural Fires Act.

It appears that whoever drafted these amendments did not look at the existing legal regime under the Crimes Act that applies to exactly the same conduct. As I said, under that Act the moral culpability is only recklessness and one does not have to prove that there was a total fire ban. But it does not seem that an effort has been made to ensure parity with the existing provisions in the Crimes Act. We examined this more issue more closely in my office and it has the appearance of the Minister being told by a bunch of bureaucrats who do not know the existing regime that, by making these changes to the Rural Fires Act, he was doing something. Those bureaucrats apparently did not know that there is already on the statute books a penalty that is twice as severe as the penalty the Minister is seeking to impose in this legislation.

I find it troubling that the Rural Fire Service is seemingly giving advice to the Minister without understanding the full statutory background to what it is doing. It is very much like the Rural Fire Service is playing catch-up. I am troubled by what appears to be a failure to address the existing statutory arrangements. I am further troubled that the Minister does not appear to have staff who are adequately skilled to ask the most basic questions about how this new legislation marries with existing criminal penalties. It looks as though, as with 10/50, the blind are leading the blind in the Minister’s office and the Rural Fire Service. Nevertheless the proposals are not offensive. They probably double up on existing arrangements and impose half the penalty that currently exists, but we do no oppose them. Yet, again, warning lights are flashing. It looks as though a very amateur Minister is receiving very amateur briefings.

The Hon. NIALL BLAIR (Parliamentary Secretary) [6.39 p.m.], on behalf of the Hon. John Ajaka, in reply: I thank all members for their contributions to debate on the Rural Fires Amendment Bill 2014, including the Hon. Steve Whan, Reverend the Hon. Fred Nile and Mr David Shoebridge. I start my reply to the debate by addressing the issue raised by Mr David Shoebridge in his contribution regarding the different offences. I am advised that the different offences available to the NSW Police Force and the courts ensure there is a distinction between acts of criminal arson, or the intent to cause harm, and bushfire protection.

The New South Wales Government takes the protection of the community very seriously. Many natural disasters rage out of control, like floods or storms; but bushfires that are started intentionally can be even more damaging. Knowing that a fire has occurred because someone has ignored advice and lit a fire during a total fire ban just adds an extra layer of cruelty to the suffering that a natural disaster already brings. We tell our community to prepare for natural disasters. Good preparations can help, and we have seen many advertising campaigns about making sure that everyone has bushfire and evacuation plans in place for their family. When an emergency strikes families cope better and make better decisions thanks to such preparation.

This bill makes those who irresponsibly discard lit objects from a vehicle answerable to the courts. On the one hand, it ensures that those who wish to conduct hazard reduction safely and responsibly can do so with minimal red tape. On the other hand, this bill also ensures that those who foolishly start fires on days with total fire bans are punished for doing so. We will not stand by and let perpetrators go unpunished when they destroy what others have worked for many years to build. I thank our emergency services agencies for all the wonderful work they do when the safety of the community is on the line. I wish them all the best during the upcoming bushfire season. I commend the bill to the House.