Legislative Council
The Hon. IAN GILFILLAN: On behalf of the Democrats I rise to support the Bill. We are fortunate in South Australia that we are not exposed to some of the unpleasant natural phenomena that beset other parts of the world: sizeable earthquakes are a very rare occurrence here, cyclones are unheard of, and snow is a very infrequent delight. However, as much as we love our natural environment and climate in South Australia, we do realise that, like every other place on earth, there are drawbacks to living here as well.
One of the few things that prevents our State from ever becoming a physical paradise is the perennial summer danger of bushfires. It is our curse and, as we know only too well from the experiences of the 1980s, we ignore it at our peril. Amending any legislation which deals with fire prevention, therefore, is of crucial importance to South Australians. Other Bills may affect livelihoods. A Bill which affects the Country Fires Act or the Metropolitan Fire Service Act may, in future, prove to be a matter of life and death.
Members may think I am exaggerating the position. After all, this Bill does not seek to make large changes to the law. When introducing the Bill in another place, the Minister for Local Government explained that, for purposes of clarity and coordination, this Bill transfers necessary powers from the Local Government Act to other Acts which cover those fields and repeals obsolete provisions. That certainly does not sound like matters of life and death. However, while we are engaged in the task of legislative tidying up, we must also turn our attention to the provisions which we are transferring. This Bill amends three Acts: the Country Fires Act 1989; the Local Government Act 1934; and the SA Metropolitan Fire Service Act 1936. It removes from the Local Government Act councils' power to make by-laws for fire prevention, and it removes from the Local Government Act councils' power to take measures for prevention and suppression of fires. Instead, both councils and the State Government are to find their powers concerning fire prevention contained solely within the other two Acts: that is, sections 40 and 41 of the Country Fires Act and new section 60B of the South Australian Metropolitan Fire Service Act. These sections contain order-making not by-law making powers. The Minister in his second reading explanation said that some councils prefer making orders to making by-laws. I approached the LGA to inquire whether, in fact, some other councils preferred to make by-laws. The LGA did not choose to make an issue of this. The LGA did raise another objection, though, and I will return to that in a moment. For owners of private land who fail to take steps to prevent or inhibit fire, this Bill increases maximum penalties. Fines in division 5 and division 6, $4 000 and $8 000 respectively, are to become $5 000 and $10 000 (a 25 per cent increase). I note that, according to the Minister, one of the intentions of the Bill is to `make councils' powers (in respect of fire prevention) more consistent over the whole State.' This is to be achieved by the insertion of new section 60B in the South Australian Metropolitan Fire Service Act. This section is to be very similar to section 40 of the Country Fires Act (as amended by this Bill). However, under this proposed regime, there will be a notable difference between country property owners and metropolitan property owners. Country property owners will be liable to a fine of up to $5 000 without warning, or up to $10 000 if they have failed to comply with a notice. Metropolitan property owners are, for the first time, also to be at risk of a fine. However, for them there is to be only the latter type of fine as an option: that is, a metropolitan property owner must first be warned by being given a notice to clear up the fire hazard on the property, and only if the warning is ignored are they to then be liable for the larger fine of up to $10 000. However, a country property owner (unlike those in the city) will still be liable to a fine (albeit the smaller $5 000 fine) without any warning or notice. When I put this to the LGA and asked for its comment I received the following reply from Brian Clancey: We do not have a position [on this] but I guess an argument can be made that the level of risk is generally much higher in the country. 517That may be so. I merely make the point that I am surprised that there is this difference between city and country in so far as the same behaviour or lack of behaviour can lead to a fine without any prior warning notice in the country but not in the city. I accept that the risk of fire damage is greater in country regions, so the distinction may be justified. However, it was the Minister himself who said that one of the purposes of the Bill was to make councils' powers with respect to fire prevention more consistent over the whole State. Before we deal with this Bill in Committee I would like some guidance from the Government as to the boundaries between city and country for the purpose of these fines. Where is the dividing line drawn? Persons on one side of the line are at risk of a $5 000 fine without notice and those on the other side of the line are not. The location of that line on the map presumably will be of great interest to those who live on either side. To return to the Local Government Association, I received correspondence on this Bill from the association on 12 February, the day after it had been dealt with in the other place. The correspondence states in part: The LGA sought comments from its membership in relation to this Bill and some concerns were raised. [However] being mindful of the time frame for passage of this Bill, the LGA has chosen to pursue only one of the issues raised. Our concern is that provision should be made for an expiation fee to apply in relation to the owner failing to take reasonable action. We wrote to the Minister for Local Government advising him of this and the LGA has suggested an expiation fee of not less than $200 should apply. The ability of councils to expiate the offence would be in addition to recovering the costs incurred by council for undertaking the work on behalf of the owner/occupier. The Minister is not prepared to accept the LGA recommendation. I ask the Government: why not? If councils can expiate this offence they are much more likely to take up the option of tackling the issue. Issuing $200 expiation notices will be much less onerous administratively than trying to pursue someone through the courts to get a fine of up to $5 000. If this is so, councils can be expected to take more seriously the task of fire prevention and pursuing property owners who have failed to do the right thing. This must be good for the community as a whole. Those who go to the trouble of ensuring that their property is properly cleared of undergrowth and fire fuel will, I believe, wholeheartedly support any campaign to ensure that others do the same. Empowering councils to issue $200 on-the-spot fines will lead to much more activity by private property owners to make their land safe. It may even, in the end, save lives. I have on file a simple amendment to give effect to what was the LGA's recommendation, and I urge the council to support it. Just prior to concluding my remarks I will dwell momentarily on the justification for the distinction between what may be metropolitan and rural in that it is incumbent on people who live in fire prone areas—and that would embrace most rural dwellings, except in the larger country towns—to be constantly alert to what are fire hazards on their properties. I do not have any qualms that those who do not do so, and are found by their councils to have been deficient in applying reasonable diligence in removing fire hazards from their properties, should face the risk of an immediate expiation fee of $200. However, to leave it so that those same people, if found to be in default of cleaning up their property, are suddenly hit with action which could fine them $5 000 is in my view an excessive up-front impact which is likely to be counterproductive because councils will be reluctant to follow it through. In some ways it is reasonable that in the metropolitan area people with properties with fire hazardous material on them should also have the same obligation. It is an unreal provision to expect that there is a clear line that divides some of the hills suburbs and some of the areas where there are now houses from the rural areas of South Australia. To our cost the most tragic fires have occurred in the Adelaide Hills. I commend the emphasis being placed on landholders to be ever mindful to clear fire hazard material from their properties, but on reflection I believe that the Government may see the wisdom of introducing an expiation fee. In my opinion this is much more likely to be followed up quickly early in the season so that we minimise the amount of flammable material left unattended on fire prone properties. With that amendment in mind I indicate Democrat support for the second reading.The Hon. DIANA LAIDLAW (Minister for Transport and Urban Planning): I thank honourable members for their contribution and support for this Bill. A number of issues were raised by the Hon. Carmel Zollo and I advise as follows. The issue of trees on private property creating a hazard to neighbouring private property is primarily a common law issue. An excellent booklet Neighbours—Trees and the Law has been produced by the Community Mediation Services of South Australia, with the support of the Law Foundation of South Australia, and it explains this matter in full and provides advice on dealing with such problems. The Local Government Act comes into play when public land is involved.
First, the Local Government Bill, which has been introduced and is being debated in another place at this time, contains powers for councils to issue orders to deal with hazards on land adjoining a public place, including overhanging or overgrown vegetation. Secondly, the Bill sets out revised provisions relating to vegetation planted on, or authorised by councils to be planted on, roads and deals with issues of council responsibility and liability. In terms of the contribution of the Hon. Ian Gilfillan, I am not sure whether he wants me to explain now; it may be preferable to wait until he moves his amendment to explain why the Government does not support his initiative. Bill read a second time. In Committee. Clauses 1 to 3 passed. Clause 4. The Hon. IAN GILFILLAN: As I indicated in my second reading speech, I move: Page 1, after line 25—Insert:Expiation fee $200.
Its aim is to recognise that an upfront hazard of a $5 000 fine for people who have had no warning that they are at risk of infringing this requirement is, quite frankly, illogical and virtually cancels any opportunity for a council to take action, unless it does so on a vindictive basis. It is most unlikely that councils would institute proceedings to deal with what could be the tens of landholders who have infringed this requirement. It is short sighted of the Government to so abruptly turn down this matter. It obviously has not taken the advice of the LGA, which is much closer to the action. It is very hard to diagnose whether the Government reacts from stubbornness and the fact that it did not think of it, whether it does not listen to the arguments of people who put forward amendments or whether it genuinely has thought it through and has reasons for opposing it. The Hon. Diana Laidlaw: The last one. The Hon. IAN GILFILLAN: Well, I have not heard evidence of that yet. I have pleasure in moving the amendment and hope that it is successful.The Hon. DIANA LAIDLAW: Out of all the options presented by the Hon. Mr Gilfillan, the Government has a very genuine reason for not supporting the amendment. It is a well considered reason and, I hope, persuasive. The focus of the Bill and the existing provision in the Country Fires Act 1989 is to encourage rectification of a dangerous situation or community hazard, and where an owner-occupier fails to do so it provides power for the council to take action and recover its costs.
I have further advice from the Minister for Local Government that a significant offence provision is provided where a person fails to maintain their property free of fire hazards. Making it expiable could trivialise the hazard and treat it as a behavioural problem, such as dropping litter, which could be dismissed by payment of an expiation fee. The Government in no way wants to see the issue that the Hon. Mr Gilfillan has raised trivialised in any way, and that is our considered view of the matter. We believe that the approach taken by the Hon. Mr Gilfillan in this amendment would trivialise the matter.
I have further advice from the Minister that the preferred response is for the owner or councils to take action to remedy the situation. If it is a hazardous or dangerous situation we believe that action should be taken, and that is what is provided for in the Bill that is before us without the amendment of the Hon. Mr Gilfillan. The existing and proposed fire prevention provisions parallel existing order-making provisions passed by the Parliament, and it involves authorities taking urgent action in the event of a person failing to do so. Examples include the emergency and enforcement orders under the Development Act. Similarly, these provisions do not provide for an expiation of the offence.
There are other provisions in other Bills—and I highlight the Development Act—where there is an emergency situation that requires enforcement—it may be dangerous and requires rectification, as is the hazard that has been identified here—and the emphasis is on taking urgent action and not on treating the matter in terms of an expiation for an offence. That is why, based on precedence in other Acts for dangerous or emergency situations and the enforcement of urgent action, we do not believe it appropriate in this instance to advance the proposition of expiation notices.
The Hon. CARMEL ZOLLO: We oppose the Hon. Ian Gilfillan's amendment and support the Government. We regard the offences as being very serious and we agree that having an expiation notice would tend to trivialise this very important matter.
Clause passed. Title passed. Bill read a third time and passed.(a)constitute a fire district;
(b)alter the boundaries of a fire district; or
(c)abolish a fire district.