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EMERGENCIES REGULATIONS 2004 (NO 26 OF 2004)
2004
LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN
CAPITAL TERRITORY
EMERGENCIES REGULATIONS
2004
SL2004-26
EXPLANATORY
STATEMENT
Circulated by authority of the
Minister for Police and
Emergency Services
Mr Bill Wood MLA
The Emergencies Act 2004 (the Act) is in response to the Report of
the McLeod Inquiry into the Operational Response to the January 2003 Bushfires
in the ACT (the McLeod Report).
The McLeod Report into the January 2003
bushfires found inefficiencies in the structure of the ACT’s emergency
service arrangements that frustrated emergency workers and volunteers. Taking
into account the size of the Territory, the Inquiry considered it would be more
efficient if all of the ACT emergency services, including assets and personnel,
were contained and managed within a new authority set up outside the framework
of the ACT Public Service. The Inquiry also indicated that this change would
bring the various emergency service bodies closer together and would facilitate
a more flexible use of equipment and personnel.
The Act establishes the
Emergency Services Authority. The authority is responsible for the overall
strategic direction and management of the four services (the Fire Brigade,
Ambulance Service, Rural Fire Service and the State Emergency Service). The Act
also consolidates all emergency legislation, provides for different declarations
in an emergency or impending emergency, and substantially rewrites the
provisions of the Bushfire Act 1936, including providing for the
ACT Bushfire Council as an advisory body.
The Emergencies
Regulations (the Regulations) give effect to the Act. The Regulations exempt
fires from a total fire ban. This regulation is based on regulation 6 of the
Bushfire Regulations 1938. The Regulations also include two
offences from the Bushfire Regulations 1938 relating to steam
engines and internal-combustion engines.
The Regulations also
provide for attendance by members of the Fire Brigade at certain public events.
This is based on regulation 5 of the Fire Brigade Regulations
1958.
The Regulations also list contributions that are defined as
exempt contributions under schedule 1 of the Act dealing with the Ambulance
levy. This regulation is based on regulation 4 of the Emergency Management
Regulations 1999.
The Regulations also deal with a number of
transitional matters.
The Regulations includes a number of offences where
strict liability applies to the offence. Section 23 of the Criminal Code
provides that if a law that creates an offence provides for strict liability,
there are no fault elements for the physical elements of the offence.
Essentially, this means that conduct alone is sufficient to make the defendant
culpable. However, if strict liability applies, the defence of mistake of fact
is available where the person considered whether or not facts existed and was
under a mistaken but reasonable belief about the facts. Other defences, such as
intervening conduct or event (section 39), are also available.
Offences
incorporating strict liability elements are carefully considered when developing
legislation and generally arise in a regulatory context where for reasons such
as public safety or protection of the public revenue, the public interest in
ensuring that regulatory schemes are observed requires the sanction of criminal
penalties. As these offences are primarily aimed at conduct on the less serious
side of the criminal spectrum, the maximum penalty would rarely exceed six
months imprisonment.
Regulation 1 – Name of regulations – provides that the
regulations are the Emergencies Regulations 2004.
Regulation 2
– Commencement – provides that the regulations commence on the
day section 3 of the Emergencies Act 2004 commences.
Regulation 3 – Notes – provides that the notes
included in the Regulations are explanatory.
Regulation 4 –
Offences against regulations – application of Criminal Code etc –
provides that other legislation applies to the offences in these
Regulations.
Regulation 5 – Prescribed fires – Act,
s116(3)(d) – lists the types of fire that are exempt from a total fire
ban. This regulation is based on regulation 6 of the repealed Bushfire
Regulations 1938. The types of fire that are exempt are fires in
factories, fires for repairing or maintaining services, fires used to cook food
or heat liquid using a gas or electric heating appliance and for hot air
balloons. All of the exemptions include criteria that must be met for the
exemptions to apply.
Regulation 6 – Steam engines –
provides offences of failing to install and maintain effective spark arrestors
and sound ashpans in steam engines, failing to extinguish live coals that have
dropped from a steam engine and failing to take adequate steps to stop live
coals from dropping from a steam engine. These offences are based on offences
in the repealed Bushfire Regulations 1938. The maximum penalty for
these offences is 20 penalty units if committed within the bushfire season and
10 penalty units if committed at any other time.
These offences are
strict liability offences. Section 23 of the Criminal Code provides that if a
law that creates an offence provides that the offence is one of strict
liability, there are no fault elements for any of the physical elements of the
offence. Essentially this means that conduct alone is sufficient to make the
defendant culpable.
However, under the Criminal Code, all strict
liability offences will have a specific defence of mistake of fact. Section
23(3) of the Criminal Code makes it clear that other defences may still be
available for use in strict liability offences.
Regulation 7 –
Internal-combustion engines – provides an offence of using an internal
combustion engine that is not fitted with an effective spark arrestor. This
offence is based on an offence in the repealed Bushfire
Regulations 1938. The maximum penalty for this offence is 20 penalty
units if committed within the bushfire season and 10 penalty units if committed
at any other time.
This offence is a strict liability offence. Section
23 of the Criminal Code provides that if a law that creates an offence provides
that the offence is one of strict liability, there are no fault elements for any
of the physical elements of the offence. Essentially this means that conduct
alone is sufficient to make the defendant culpable.
However, under the
Criminal Code, all strict liability offences will have a specific defence of
mistake of fact. Section 23(3) of the Criminal Code makes it clear that other
defences may still be available for use in strict liability
offences.
Regulation 8 – Attendance by fire brigade members at
public events – provides for members of the Fire Brigade to attend
public meetings or public entertainment. This would occur when the Chief
Officer (Fire Brigade) considers that, because of the nature of the event, a
Fire Brigade presence is warranted. For example, Fire Brigade attendance may be
warranted for a theatre production where fireworks are used on stage.
This regulation is based on regulation 5 of the repealed Fire Brigade
Regulations 1958.
Regulation 9 – Exempt contributions
– Act, sch 1, s 2(a) – list contributions that are defined as
exempt contributions under schedule 1 of the Act dealing with the Ambulance
levy. The exemptions apply for persons holding a Commonwealth Health Care card,
pensioner concession card or pharmaceutical benefits concession card. The
exemptions also apply to service pensioners and people permanently living
outside of the Territory. This regulation is based on regulation 4 of the
repealed Emergency Management Regulations 1999.
Regulation 10
– Modification of Act, ch 11 – Act, s215(2) – provides
that chapter 11 of the Emergencies Act 2004 is modified by adding
the transition regulations set out in the schedule to these regulations. This
regulation and the schedule expire on 30 June 2005.
The transitional
regulations in the schedule provide for the continuation of the emergency plan
prepared under the repealed Emergency Management Act 1999, the fuel
management plans under the repealed Bushfire Act 1936 and the continued
approval of an ambulance fund under the repealed Emergency Management
Act 1999.