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Legislative Assembly for the ACT: 2002 Week 5 Hansard (7 May) . . Page.. 1191 ..

MR STEFANIAK (continuing):

The new section 118A covers persons intentionally lighting bushfires, something that has been missing from our law. The opposition is very happy to support this piece of legislation.

MS TUCKER (10.48): This bill creates a clear basis for prosecuting people who light bushfires or who are reckless as to whether a fire they have lit and are in a position to put out or contain presents a substantial risk of spreading to burn vegetation on land not belonging to that person.

The proposed offence is closely based on the Model Criminal Code Officers Committee recommendations for an addition to the model criminal code which were developed after considering submissions from various groups around Australia. The proposals and discussion of issues raised in submissions are in the report on the model criminal code, chapter 4, "Damage and computer offences, amendments to chapter 2", published in January 2001.

Importantly, although this bill closely follows the bushfires at Christmas last year, the work underlying the bill was carried out well before these events and involved a considered process.

The offence does not require proof that injury or damage was likely. In cases of bushfire where there was injury or death, the committee expected that under the code specific harm provisions would apply in addition to the bushfire offence. Similarly, if property is damaged, then arson provisions may apply. Of course, the code does not strictly apply here, but this does explain the intended context of the offence.

The nature of the offence is recklessness rather than malice. In answer to the question of the Law Society of New South Wales on this point, the committee says that in current legal argument recklessness adequately represents malice and there is much less confusion over its precise definition. I have checked with the Law Society, and they were satisfied with this response. Certainly fire presents an obvious hazard in Australia, and recklessness with fire is not difficult to understand.

That said, some individuals may not be capable of grasping the significance of threat posed by a fire they have lit. This will be for the courts to assess in particular cases.

The maximum penalty is 15 years imprisonment. The committee notes that penalties for arson have been greater traditionally than penalties for other forms of destruction of property. The MCCOC conclude that this is because of the potentially uncontrollable nature of fire and, by extrapolation, the fear that surrounds out of control fires. While penalties are set in an attempt to reflect the relative seriousness of the crime, in sentencing there will be some consideration of the effectiveness in each case. For instance, in some cases it may be decided that community service with fire victims may be a far more stark and effective message of the unacceptability and consequences of fire lighting.

It is interesting that in the past there has been no specific bushfire offence and therefore no capacity to charge people for fire lighting if it has not threatened property. The Greens support the definition of the offence here. As the officers committee points out,

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