The Law?
LAWS, BUSHFIRE SERVICES & NATIONAL PARKS
A large body of evidence shows that hazard reduction will prevent intense, unstoppable fires[i]. It is inevitable that intense, unstoppable fires from record fuel loads will cause death, injury or property or environmental damage[ii]. For this reason, the NSW Rural Fire Service Commissioners’ history of claiming NSW has adequate hazard reduction[iii] raises questions. These questions arise from the law of reckless indifference under Section 18 of the Crimes Act 1900 (NSW), Section 3A of the Crimes Act 1938 (Vic) [iv] and Section 20 of the Criminal Code 2002 (ACT)[v]. Reckless indifference is not a mitigating factor in deciding the gravity of a homicide[vi].
In accordance with the common law principles of reckless indifference, The Rural Fires Act 1997 (NSW) states it aims to protect people and property from fire[vii]. The NSW Rural Fires Act 1997 describes the RFS Commissioner’s role and responsibilities.
S.71.1 of the Rural Fires Act 1997 authorises the Commissioner to hazard reduce, stating the Commissioner may carry out bushfire hazard reduction on land failing to comply with a bushfire management plan.
Sections 65, 66, 67 and 74E of the Rural Fires Act describe how the Commissioner should manage bushfires:
1. The Commissioner is responsible for investigating the validity of written complaints of bushfire hazards in national parks and other government or private land.
2. The RFS is also responsible for monitoring non-compliance with bushfire management plans.
3. The RFS is responsible for enforcing landowners' requirements to hazard reduce either: to comply with specified bushfire management plans or after the Commissioner validates written complaints of a bushfire hazard.
4. Hazard management officers, RFS brigade officers, bushfire coordinating committee nominees, bushfire management plan authorities or authorized fire authority officers have the authority to hazard reduce.
S.67.8 imposes penalties of 50 units or 12 months in gaol for non-compliance with hazard reduction notices that a landowner or authority must hazard reduce within a specified timeframe of seven days or more. One penalty unit is a $110 fine in NSW.
Is the preventable firestorm crisis what parliaments intended when they passed laws on bushfires and the environment? S.128 of the Rural Fires Act (NSW) for example, protects NSW Government and its Bushfire Commissioner from liability for an act or omission. Is this Act authorising, justifying or excusing dangerous acts performed without due care and diligence?
Does s.128 authorise, justify or excuse the loss of recordings of emergency calls so tapes cannot be supplied to coronial inquiries and the police?
The current firestorm trend also raises questions of compliance with the Environment Protection and Biodiversity Conservation Act 1999[viii]. The Commonwealth Government is responsible for protecting areas with environmental and Heritage significance under this Act[ix]. This Act also gives the Commonwealth the power to protect threatened species, ecological communities and sites with national heritage value.
The preventable crisis continues to grow in six states and the ACT, interfering with Federal citizens' rights and privileges. This raises questions under the Australian Constitution:
COMMONWEALTH OF AUSTRALIA CONSTITUTION ACT - SECT 119
Protection of States from invasion and violence
The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
After the 2003 NSW and ACT fires, the Federal Government attempted to force bushfire services in
SE Australia to comply with well proven science. The head of an inquiry into the ACT 2003 fires, former
MP, Mr Gary Nairn threatened to cut funding if a bushfire service did not begin to adequately hazard reduce. Another bushfire season loomed and several bushfire services refused to hazard reduce adequately. It was checkmate. Mr Nairn had to untie the purse strings or SE Australia faced a bushfire season with no protection, even if the protection ignored science that showed record fuel loads would worsen firestorms. A swathe of green rather than red tape made, and still makes it almost impossible to adequately hazard reduce in SE Australia.
The Federal Government intervened on environmental grounds when the Tasmanian Government attempted to dam the Franklin River in 1983. This intervention was without the Tasmanian Government’s approval under the Australian Constitution.
Under environmental law, Barrington Tops National Park is World Heritage listed, giving the Commonwealth authority to protect the park from further damage by implementing adequate bushfire management. The park was burnt out in 2013 from record fuel loads. Most national threatened and endangered species are in national parks, where current practices are geared to worsen bushfires.
In NSW, the Rural Fires Act 1997 (NSW) authorises these practices by removing state liability from any acts or omissions. This is a conflict between state and Commonwealth law. Under s.117 of the Commonwealth of Australia Constitution Act, Commonwealth law overrides the Rural Fires Act 1997 to the extent of this inconsistency.
I lack the resources to fully research National Heritage-listed areas, endangered and threatened species that negligent bushfire management endanger. However, in the National Heritage-listed Australian Alps National Parks and Reserves, on the national critically endangered list are:
· Southern Corroboree Frogs
· Northern Corroboree Frogs
Flora and fauna on the endangered list in this area include:
· Mountain Pygmy Possums
· Konoom or Smoky Rats
· Spotted-Tail Quolls
· Baw Baw Frogs
· Booralong Frogs
· Leadbeater’s Possums
Threatened Ecological Communities in this area include:
· Alpine Sphagnum bogs and associated fens
· Siburian Limestone Pomaderris Shrubland
Flora and fauna on the vulnerable list in this area include:
· Brush-tailed Wallabies
· Rock Wallabies
· Alpine Tree Frogs
· Alpine Stone Flies
· Koalas
Because endangered sites and species proliferate in national parks, if I had the resources for further research, I would find a far more extensive list that current bushfire management practices unnecessarily endanger.
[i] See McArthy, GJ; Tolhurst, KG & Chatto, K (1999) Overall Hazard Guide 3rd edn Natural Resources and Environment page iii; Sullivan, Andrew (2008) Grassfires fuel, weather and fire behaviour 2nd edn pages 2-4, 17-21 & 29; Gould, JS, McCaw, WL, Cheney, NP, Ellis, PF & Matthews, S (2007) Field Guide Fuel Assessment and Fire Behaviour Prediction in Dry Eucalypt Forest Australia: Commonwealth Scientific & Industrial Research Organisation (CSIRO) and Department of Environment & Conservation, Western Australia; CSIRO (2003) submission to A Nation Charred: Inquiry into the Recent Australian Bushfires Canberra: Parliament of Australia & Gould, JS; McCaw, Wl; Cheney, N, Peter; Ellis, PF; Knight, IK & Sullivan, Andrew, L (2008) Project Vesta Fire in Dry Forest Fuel Structure Fuel Dynamics and Fire Behaviour CSIRO Publishing Retrieved January 31 2014 from http://www.publish.csiro.au/pid/5993.htm.
[ii] See Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[iii] See Parliament of New South Wales (2010) Corrected Proof GENERAL PURPOSE STANDING COMMITTEE No. 5 Friday 17 September 2010 Examination of proposed expenditure for the portfolio areas PRIMARY INDUSTRIES, EMERGENCY SERVICES, RURAL AFFAIRS The Committee met at 2.00 p.m. MEMBERS The Hon. I. Cohen (Chair) The Hon. R. L. Brown The Hon. R. H. Colless The Hon. S. Cotsis The Hon. D. J. Gay The Hon. M. J. Pavey The Hon. M. Veitch The Hon. H. Westwood, pages 31-32.
[iv] See Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[v] See ACT Government (2002) s.20 Criminal Code. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/act/consol_act/cc200294/
[vi] Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[vii] Parliament of New South Wales (1997) Rural Fires Act Retrieved February 25 2014 from http://www.austlii.edu.au/au/legis/nsw/consol_act/rfa1997138/ &Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm & Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[viii] See Parliament of Australia (1999) Environment Protection and Biodiversity Conservation Act. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/
[ix] Parliament of Australia (1999) Environment Protection and Biodiversity Conservation Act. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/
[iv] See McArthy, GJ; Tolhurst, KG & Chatto, K (1999) Overall Hazard Guide 3rd edn Natural Resources and Environment page iii; Sullivan, Andrew (2008) Grassfires fuel, weather and fire behaviour 2nd edn pages 2-4, 17-21 & 29; Gould, JS, McCaw, WL, Cheney, NP, Ellis, PF & Matthews, S (2007) Field Guide Fuel Assessment and Fire Behaviour Prediction in Dry Eucalypt Forest Australia: Commonwealth Scientific & Industrial Research Organisation (CSIRO) and Department of Environment & Conservation, Western Australia; CSIRO (2003) submission to A Nation Charred: Inquiry into the Recent Australian Bushfires Canberra: Parliament of Australia & Gould, JS; McCaw, Wl; Cheney, N, Peter; Ellis, PF; Knight, IK & Sullivan, Andrew, L (2008) Project Vesta Fire in Dry Forest Fuel Structure Fuel Dynamics and Fire Behaviour CSIRO Publishing Retrieved January 31 2014 from http://www.publish.csiro.au/pid/5993.htm.
[v] See Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[vi] See Parliament of New South Wales (2010) Corrected Proof GENERAL PURPOSE STANDING COMMITTEE No. 5 Friday 17 September 2010 Examination of proposed expenditure for the portfolio areas PRIMARY INDUSTRIES, EMERGENCY SERVICES, RURAL AFFAIRS The Committee met at 2.00 p.m. MEMBERS The Hon. I. Cohen (Chair) The Hon. R. L. Brown The Hon. R. H. Colless The Hon. S. Cotsis The Hon. D. J. Gay The Hon. M. J. Pavey The Hon. M. Veitch The Hon. H. Westwood, pages 31-32.
[vii] See Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[viii] See ACT Government (2002) s.20 Criminal Code. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/act/consol_act/cc200294/
[ix] Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[x] Parliament of New South Wales (1997) Rural Fires Act Retrieved February 25 2014 from http://www.austlii.edu.au/au/legis/nsw/consol_act/rfa1997138/ &Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm & Judicial College of Victoria (n.d.) Victorian Sentencing manual 26.3.3 Retrieved February 25 2014 from http://www.judicialcollege.vic.edu.au/eManuals/VSM/index.htm#17824.htm
[xi] See Parliament of Australia (1999) Environment Protection and Biodiversity Conservation Act. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/
[xii] Parliament of Australia (1999) Environment Protection and Biodiversity Conservation Act. Retrieved March 12 2014 from http://www.austlii.edu.au/au/legis/cth/consol_act/epabca1999588/