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Legislative Assembly for the ACT: 2002 Week 5 Hansard (7 May) . . Page.. 1198..

MR STANHOPE (continuing):

Some of us have been involved with bushfires over the years. I was a member of a bush fire brigade in my youth. I understand Mr Smyth is currently associated with a brigade. Mr Smyth would know first hand, as I do, of volunteer firefighters who have lost their lives fighting bushfires recklessly set. This is no laughing business. The fire in the ACT, we understand, caused $6 million worth of property damage. There is an argument to be had about what is an appropriate penalty for a fire that it is suspected was deliberately lit and cost this community perhaps $6 million, let alone the trauma, let alone the disruption to lives, let alone the threat to life.

This is serious business. These are serious offences, and they need to be dealt with seriously. But this is not some law and order lottery that we have entered into here. The penalties have not been ratcheted up. We have been restrained. We have taken the advice of the Standing Committee of Attorneys-General. We have adopted the model criminal code provision in relation to bushfires. We have adopted the penalties that were set out through the consultative process with every state and territory, and we have settled on an agreed penalty of 15 years.

This legislation is necessary. This is not about ratcheting up penalties. This is about finding an appropriate offence for the deliberate or reckless setting of bushfires. The fact situation is difficult. The proof requirements are extremely difficult in relation to the lighting of bushfires.

What is the intention when somebody sets a bushfire? Did they actually intend for it to escape? Did the person who lit the fire that burnt out Stromlo Forest at Christmas intend for it to get into Stromlo Forest? They probably did not. It probably did not enter their minds. That is the difficulty with these offences.

They lit the fire thinking that it would create a bit of smoke, a bit of fun and a bit of flare, to satisfy some need they were seeking to express. They thought the fire brigade or the volunteer bushfire fighters would come roaring down and put it out before it escaped across the sheep paddock.

That is not what happened. The wind whipped it up and it got into the forest, and it did $6 million worth of damage. But it is quite likely that the person who lit that fire, if that fire was deliberately lit did not for one minute contemplate that it would escape into the forest.

That is the difficulty, as Mr Stefaniak, an ex-prosecutor, would know. The criminal law requires a mental element to be associated with the act. It requires mens rea to be associated with the actus reus, and the mens rea is often not there in relation to bushfire offences. The intention was not to cause Stromlo Forest to burn down. The intention was something else.

The law needs to respond to those gaps in the law. This bill fills a gap in the law in the punishment of people who set fire to things. I resent the suggestion that was made and I regret that the feeling was developed that this was just a redneck knee-jerk response trying to be tough on crime, when that is not the philosophical approach this government takes.

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