DFES preamble

Currently offences, and corresponding penalties, are spread out across the three emergency services Acts and accompanying regulations. These offences cover a range of activities including, but not limited to operation of vehicles and machinery; burning rubbish; obstruction, interference and damage to property; and disposal of cigarettes.

 


 

7.1 DOLLARS VERSUS UNITS

The emergency services legislation in Western Australia has always prescribed penalties as a dollar value.  Throughout Australia, there are a number of jurisdictions including Victoria and Queensland that have adopted a unit model to stipulate the penalty value of an offence. Within Western Australia, the Road Traffic Act 1974 and the Australian Crime Commission (Western Australia) Act 2004 identify the penalties in units.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.1.1 Penalty amounts should be specified in units

AVBFB comments:

The Association acknowledges this option as being consistent with current practice across government and therefore offers its support.

OTHER OPTIONS NOT SUPPORTED

7.1.2 Retain penalties as dollar amounts

 


 

7.2 ENFORCEMENT

The basic model of issuing penalties for less serious offences under the Bush Fires Act 1954 (Bush Fires Act) is that the enforcement agency issues an Infringement Notice for non-compliance and, depending on the outcome, court action may follow to enforce the penalty. A number of different parties are empowered to prosecute offences.

Section 59 of the Bush Fires Act states:

A person authorised by the Minister, a person employed in the Department for the purposes of this Act, an authorised CALM Act officer, a member of the Police Force, or a local government, may institute and carry on proceedings against a person for an offence alleged to be committed against this Act [1].

In addition, the same parties may issue Infringement Notices in terms of s 59A of the Bush Fires Act.

The Fire Brigades Act 1942 (Fire Brigades Act) and the Fire and Emergency Services Act 1998 (Fire and Emergency Services Act) do not provide for infringement notices and are silent on specific enforcement powers. Offences in terms of these Acts are dealt with under the Criminal Procedure Act 2004 [2] (the Criminal Procedure Act) and the Director of Public Prosecutions Act 1991.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.2.1 Assign enforcement powers to the parties as set out in Section 59 of the Bush Fires Act

AVBFB comments:

This option is supported.

OTHER OPTIONS NOT SUPPORTED

7.2.2 Provide enforcement powers to additional parties

7.2.3 Remove enforcement powers from certain parties

 


 

7.3 OPTIONAL WARNING NOTICES

The basic model of issuing penalties under the current legislation is largely that the enforcement agency issues an Infringement Notice for non-compliance and, depending on the outcome, court action may follow to enforce the penalty.

A number of stakeholders suggested the introduction of some type of formal warning prior to the issuing of an Infringement Notice. Where specific action is required in terms of the new emergency services Act, a formal warning could be issued, requiring certain works be undertaken by a date or requiring the taking of measures to reduce risk. These warning notices could be utilised as an optional interim measure prior to issuing infringement notices, fines or formal requisitions.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.3.1 Continue to allow enforcement agencies to issue warnings as they deem necessary

AVBFB comments:

The Association endorses the DFES preferred option.

OTHER OPTIONS NOT SUPPORTED

7.3.2 Introduce formal warning notices that may be issued prior to Infringement Notices

 


 

7.4 STRUCTURE OF PENALTIES FOR DAILY AND REPEAT OFFENDERS

Some parts of the current emergency services legislation provide for daily penalties where there is an ongoing offence [1].  However, there is no existing provision for graduated penalties for repeat offenders. Stakeholder engagement identified examples where such options would have been beneficial in generating compliance.

DFES PREFERRED OPTIONS; AVBFB PREFERRED OPTION

7.4.1 Improve daily penalty provisions

7.4.2 Introduce graduated penalties for repeat offences

AVBFB comments:

The AVBFB supports these options subject to the support of the Department of the Attorney General.

OTHER OPTIONS NOT SUPPORTED

7.4.3 Retain penalty arrangements as set out in current legislation

 


 

7.5 INFRINGEMENT PROCEDURE WITHIN THE CRIMINAL PROCEDURE ACT 2004

Section 59A of the Bush Fires Act currently provides a specific procedure to be undertaken in the event that a prosecutor elects to proceed against an alleged offender in terms of an infringement notice. Part 2 of the Criminal Procedure Act 2004 (Criminal Procedure Act) outlines an extensive regime for the issuing of infringement notices as well as the form and content of the notices and methods of service. The new emergency services Act could either contain all required infringement procedures or be listed as a prescribed Act under the Criminal Procedure Act.

It should be noted that regardless of the option chosen, the new emergency services Act would still subscribe to the Fines, Penalties and Infringement Notices Enforcement Act 1994 which sets out the requirements and procedures in respect of the enforcement of infringement notices.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.5.1 The new emergency services Act is listed as a prescribed Act under the Criminal Procedure Act 2004

AVBFB comments:

The AVBFB supports this option subject to the support of the Department of the Attorney General.

OTHER OPTIONS NOT SUPPORTED

7.5.2 Retain infringement procedure set out in current legislation

 


 

7.6 OFFENCES THAT ALSO APPEAR IN OTHER LEGISLATION

There are a number of offences that appear in the current emergency services legislation that are also covered in other legislation. Some stakeholders have suggested that it is not necessary to have these duplicated offences in the new emergency services legislation. Most of the duplication is contained in the Criminal Code.  There are also other cases of overlap.  Some examples are set out below.

In the Criminal Code:

  • It is a crime to breach the duty to use reasonable care and take reasonable precautions to avoid lighting a fire that destroys or may destroy or cause damage to property that the person is not entitled to damage or destroy or to contain such fire [1].  The offender is liable to imprisonment for 15 years [2].
  • Any person who willfully and unlawfully destroys or damages any property is guilty of a crime and is liable, if the property is destroyed or damaged by fire, to life imprisonment [3].
  • An act which causes injury to the property of another, and which is done without his consent, is unlawful unless it is authorised, or justified, or excused by law [4].
  • A person who unlawfully destroys or damages the property of another person without that other person’s consent is guilty of an offence and is liable to imprisonment for 2 years and a fine of $24 000 [5].
  • It is an offence to impersonate a public officer [6].
  • A person who obstructs a public officer or a person lawfully assisting a public officer, in the performance of the officer’s functions is guilty of a crime and is liable to imprisonment for 3 years [7].

In the Road Traffic Code 2000:

  • A driver shall give way to, and make every reasonable effort to give a clear and uninterrupted passage to, every police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm[8].

In the Litter Regulations 1981:

  • Litter creating public risk which includes: lit cigarette; and container, whether empty or not, that is labeled or marked fire and explosive hazard [9].

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.6.1 Remove offences in the emergency services legislation when clearly duplicated in the Criminal Code or adequately addressed in another contemporary Act in Western Australia

AVBFB comments:

Consistent with the general principle of removing duplication where possible, the Association supports this option.

OTHER OPTIONS NOT SUPPORTED

7.6.2 Retain all offences in the new emergency services legislation regardless of any duplication in other legislation

 


 

7.7 DAMAGE TO CRITICAL INFRASTRUCTURE

There are provisions in place in the emergency services legislation which provide for offences in relation to damage to certain property [1]. Notwithstanding the offences of vandalism and damage to certain property, some stakeholders expressed the view that there needs to be a separate offence (or set of offences) that recognises that certain infrastructure is ‘critical’ for emergency services or to the State and the community. They proposed that damage to these assets should result in a higher penalty.

Critical Infrastructure can be defined as ‘a service or facility, or a group of services or facilities, the loss of which will have severe adverse effects on the physical, social, economic or environmental wellbeing or safety of the community’ [2].

Other stakeholders were of the view that ‘damage to property’ is already contained in the Criminal Code and any further reference to this type of offence is unnecessary.  In line with the preferred option 7.6.1, an analysis will be conducted into all offences, including ‘damage to property’ and, if the preferred option in this section is clearly covered in the Criminal Code, then this offence may not be included in the new emergency services Act.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.7.1 The new emergency services Act provides for a single provision containing an offence for damage to any property owned or operated by a person performing a function under the emergency services legislation

AVBFB comments:

The Association supports the concept of the provision for an offence regarding the wilful damage of critical infrastructure and notes that the preamble explains a thorough analysis of the Criminal Code has yet to be completed which could render the need for this clause redundant.

OTHER OPTIONS NOT SUPPORTED

7.7.2 A new offence is added for a person who damages critical infrastructure in addition to a general provision for damage to equipment owned or operated by a person performing a function under the emergency services legislation

 


 

7.8 OFFENCES RELATING TO DISPOSAL OF CIGARETTES, CIGARS OR MATCHES

A considerable number of bush and scrub fires are caused by lit cigarettes being discarded carelessly [1]. Internal DFES data places this figure at over 600 per annum.

A number of factors affect the likelihood of a discarded cigarette resulting in a fire including available fuel, moisture and temperature. Response to these fires often requires crews to work on or next to roads, resulting in a potential safety risk. Furthermore, this work is frequently undertaken on the inside road lane near traffic lights, further increasing risk.

Section 30 of the Bush Fires Act provides for offences relating to the disposal of cigarettes, cigars and matches:

(a) in circumstances that are likely to set fire to the bush; or

(b) by throwing it from a vehicle under any circumstances whatever [2].

The maximum penalty for an offence under s 30 of the Bush Fires Act is $5 000.

Proving each of the elements of an offence under this section is problematic and reduces its effectiveness as a deterrent. To prove that someone committed an offence in accordance with s 30(b) of the Bush Fires Act, the following must be established:

1           The area in which the cigarette was disposed was in a Restricted or Prohibited Burning Time zone;

2           The cigarette was thrown from a vehicle;

3           Notwithstanding knowing the vehicle from  which the cigarette was thrown, it must be proven which person in the vehicle disposed of the cigarette; and

4           The cigarette was lit when it was disposed of.

Feedback from a number of stakeholders supports the simplifying of these provisions.

DFES PREFERRED OPTION; AVBFB PREFERRED OPTION

7.8.1 Create a new, more general offence and simplify the elements required to prove the offence

AVBFB comments:

The AVBFB strongly recommends that any new offence in proposed future legislation should refrain from the use of terms such as “cigarette” in favour of more generic terms that include any item that may cause ignition in any circumstance (not just from a vehicle).

OTHER OPTIONS NOT SUPPORTED

7.8.2 Maintain the current provisions

 


 

7.9 THE LEVEL OF FINANCIAL PENALTY

Offences under current legislation are, in most cases, accompanied by a financial penalty. This penalty is intended to deter people from committing an offence by imposing a monetary loss on the offending party.  The feedback from stakeholder groups consistently indicated that the current prescribed penalties do not represent an adequate deterrent and do not appear to be consistent with the gravity of the offence. Local government in particular indicated that the current penalty levels mean that it is often cheaper for landowners to pay the fine than undertake the work required of them. For example in relation to the installation of firebreaks, under the Bush Fires (Infringement) Regulations 1978 the penalty for failing to comply with a notice to clear a firebreak is $250 [1].

In addition to raising the current penalties, stakeholders generally agreed that the penalty amounts needed to be regularly reviewed to remain an adequate deterrent.

The main costs for this option would be the increased fines that would be charged to offenders.  This is an intended impact of the change.

There may be some cost associated with the regular review of the penalty levels in order to keep them current, however it is unlikely to be significant.

AVBFB comments:

The Association supports the need for regular review and adjustment of penalties to ensure they remain in line with community expectations and serve as effective deterrents.

 


 

7.10 ADDITIONAL OFFENCES

Stakeholders highlighted a number of ‘offences’ they felt are missing from, or not adequately dealt with, in the current emergency services legislation. As part of the development of the new legislation these additional offences will be considered for inclusion and are listed below:

  • Failure to give way to an emergency vehicle (Note: Currently provided within r 60 of the Road Traffic Code 2000);
  • Stealing of water stored for firefighting;
  • Parking of vehicles on road reserves during periods of high fire danger;
  • Failure to maintain unoccupied buildings;
  • Failure to allow emergency services access to property for the purposes of responding to a hazard; and
  • Failure to adequately supervise a fire that was intentionally lit (e.g. a campfire; burning garden refuse; a mitigation burn etc.).

AVBFB comments:

The Association supports all endeavours to assist in the safer and more efficient delivery of emergency services, however urges caution and thorough consultation when considering new offences that may be included in future potential legislation.

 


 

NON-LEGISLATIVE ISSUES

AVBFB comments:

The AVBFB commends the author of the concept paper for observing non-legislative issues raised by stakeholders during consultation and notes that all such issues fall outside the scope of the “Concept Paper: Review of Emergency Services Acts”.

The Association considers some of these items to be extremely important and therefore wishes to put on the record that the lack of comment in this submission does not imply support or otherwise for any of the issues published under the heading of “non-legislative issues” in this or other chapters.

Further, the AVBFB respectfully but strongly urges the government to explicitly seek comment from the Association and other stakeholders before seeking to address any of the issues identified as not within the scope of this paper.

 


 

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