“Terror among the Gum Trees” – Is Our Criminal Legal Framework Adequate to Curb the Peril of Bushfire Arson in Australia?

Abstract

Many Australians choose to live in a natural environment which places them at risk of the devastating impact of bushfires. The threat of loss from bushfires appears to be on the increase assisted by the climatic conditions in Australia that are set to continue in the foreseeable future. Human activity is stated to be the single greatest cause of bushfire ignitions whether it is due to arson or from an accidental source. Against the backdrop of the catastrophic Victorian bushfires of February 2009 the authors examine the legal and regulatory frameworks relating to bushfire arson in Australia and also consider international perspectives as to both legislation and sentencing ideologies. Although a nationally co-ordinated approach is required in the formulation of substantive legislative provisions aimed at the crime of arson, the authors also advocate that the future way forward in the management of bushfire arson is to adopt a preventative rather than reactive approach. The creative role that courts can play with respect to sentencing options to address the needs of those involved in bushfire arson is also considered. Analysis of regulatory efforts both within and outside Australia reveal that the ‘terror’ in the bush is unlikely to be controlled by legal proscriptions alone but by an integrated approach involving police, the fire services and other correctional service agencies within the criminal justice system.

Key words:

• arson
• firesetting
• deterrence
• strict liability
• recklessness
• Model Criminal Code
• sentencing
• therapeutic jurisprudence
• non-adversarial justice
• restorative justice

Notes

 1. Black Saturday refers to the Victorian bushfires in February 2009 some of which resulted from arson and which caused extensive property destruction and loss of life in various towns north-east of Melbourne, Victoria, including Kinglake, Marysville and Whittlesea – http://www.abc.net.au/innovation/blacksaturday/#/stories/mosaic> and <http://www.blacksaturday.com.au> accessed 17 May 2010.

 2. See Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General (MCCOC) (2001) Model Criminal Code Report – Chapter 4 Damage and Computer Offences, 46–47 [clause 4.1.8 has not been formally incorporated into the Schedule to the Criminal Code Act (1995) Cth].

 3. Which is how the criminal offence of ‘arson’ is generally defined – see Australian Institute of Criminology, ‘What is arson?’ Bushfire Arson Bulletin No 1 (November 2004); and MCCOC (n 2) 39. It should be noted that although the ‘arson’ label is not used in New South Wales and Western Australian legislation it is commonly used by the courts in those jurisdictions when referring to this crime – see, for example, State of Western Australia v Bennett, 2009, and Brown v R; R v Brown, 2010.

 4. This offence was inserted into the Crimes Act (1958) Vic by s55, Sentencing and Other Acts (Amendment) Act (1999) Vic, which commenced operation on 1 September 1997. This legislative creation of a new offence took place in the aftermath of a number of serious bushfires in Victoria throughout the 1990s and particularly those which were deliberately lit in the Dandenong Ranges National Park in January 1997 and which resulted in the death of three people – see Parliament of Victoria, Parliamentary Debates-Hansard, 24 April 1997, (Mrs Jan Wade, Attorney-General).

 5. MCCOC, Model Criminal Code Report – Chapter 5 Non Fatal Offences Against the Person (September 1998), 64 [clauses 5.1.25, ‘recklessly endangering life’ and 5.1.26, ‘recklessly endangering serious harm’ have not been formally incorporated into the Schedule to the Criminal Code (1995) Cth].

 6. ‘Esperanza arsonist Raymond Lee Oyler sentenced to death’ http://articles.latimes.com/2009/jun/06/local/me-oyler6>accessed 2 March 2010.

 7. ‘Murder, Arson Charged in 2003 California Wildfire’, CBS News, 21 October 2009.

 8. http://www.interfire.org/features/worldclasstraining.asp sets out the investigative training programs now available through the Federal Law Enforcement Training Centre in the United States.

 9. Victorian Bushfires Royal Commission, Transcripts, Exhibit 442 - Statement of Hollowood (WIT.3010.009.0279), 2009 - [38].

10. s14, Civil Law (Wrongs) Act (2002) ACT; s69, Civil Liability Act (2002) NSW; s13, Personal Injuries (Liabilities and Damages) Act (2003) NT; s72, Civil Liability Act (2003) Qld; s75, Civil Liability Act (1936) SA; s7, Civil Liability Act (2002) Tas; s14J, Wrongs Act (1958) Vic; s5AH, Civil Liability Act (2002) WA.