SERIAL NO. 54

EXPLANATORY STATEMENT

CRIMINAL CODE AMENDMENT (BUSHFIRES) BILL 2009

GENERAL OUTLINE

The Bill amends the Criminal Code to create a new bushfires offence, with a maximum penalty reflecting the seriousness of the creation of the risk of bushfire which may eventuate in catastrophic damage to life, property, or environment, unpredictable in extent and consequences.  

NOTES ON CLAUSES

Clause 1.	Short Title

This is a formal clause which provides for the citation of the Bill.  
The Bill when passed may be cited as the Criminal Code Amendment (Bushfires) Act 2009.
Clause 2.	Commencement

The Act will commence on a date set by the Administrator.

Clause 3.	Act amended

This Act amends the Criminal Code.

Clause 4.	New section 240A

This clause inserts a new section 240A into the Criminal Code.

New section 240A creates a new bushfires offence based on the model bushfires offence in Chapter 4 of the Model Criminal Code.

New section 240A makes it an offence for a person to: 

·	intentionally or recklessly cause a fire; and
·	be reckless as to the spread of the fire to vegetation on property belonging to another person.

It is an indictable offence punishable by a maximum penalty of 15 years imprisonment.

New section 240A(2) provides circumstances in which a person will not be criminally responsible for the offence in new section 240A(1).  The new offence does not apply to a person who causes a fire for the purposes of fire management or land management where the activity was done:

a)	in accordance with a law in force in the Territory; or

b)	in accordance with an agreement entered into by the Territory.

Examples of activities to which the exemptions would apply are:
·	causing a fire in the course of hazard reduction under the 
Fire and Emergency Act;
·	lighting fires in accordance with permits under the 
Fire and Emergency Act or the Bushfires Act; and
·	savanna burning under the West Arnhem Fire Management Agreement.

A court is also free to consider other circumstances in which a person would not be criminally responsible, in particular because they have not been reckless as to the spread of the fire.  For example, if a person lit a campfire for the purpose of cooking or heating they would only be criminally responsible under the new offence if the prosecution could prove beyond reasonable doubt that:
·	the person was aware that there was a substantial risk of the fire spreading;
·	the person not being able to stop the spreading; and 
·	the taking of the risk was unjustifiable in the circumstances.

Clause 5.	Amendment of Schedule 1
Schedule 1 is amended to include section 240A, confirming it is subject to the provisions of criminal responsibility contained in Part IIAA of the Criminal Code.