40Provisions about total fire bans

40 Provisions about total fire bans (1) The Authority may when it thinks fit declare a day or partial day of total fire ban in respect of the whole or any part or parts of Victoria and may at any time amend or revoke such a declaration. (2) The Authority shall cause to be broadcast from a broadcasting station in Victoria any declaration made under subsection (1) and any amendment to or revocation of any such declaration. S. 40(2A) inserted by No. 17/2003 s. 6(1). (2A) The Authority may transmit by electronic means a declaration or any amendment or revocation of a declaration to a broadcasting station for broadcasting under subsection (2). S. 40(3) amended by Nos 50/1989 s. 9(b), 77/2000 s. 10. (3) The Chief Executive Officer of the Authority may authorize in writing the Chief Officer or an officer exercising the powers of the Chief Officer (either generally or in a particular instance) to cause any broadcast referred to in subsection (2) and may withdraw any such authority by notice in writing. S. 40(4) amended by Nos 10235 s. 11(d), 5/2012 s. 29(1). (4) Notwithstanding the provisions contained in section 38 or 38A, a person in a part of Victoria where and at a time when a declaration of total fire ban applies— (a) shall not light a fire in the open air or allow a fire in the open air to remain alight; or (b) use or leave in operation any producer-gas equipment on or in connexion with any vehicle. Penalty: 240 penalty units or imprisonment for 2 years or both. S. 40(4A)(4B) inserted by No. 10149 s. 10(1), repealed by No. 5/2012 s. 29(2). S. 40(4C) inserted by No. 10149 (4C) Subsection (4) does not apply to a person who, in a fixed appliance, lights a fire or allows a fire to remain alight for the sole purpose of meal preparation, where— (a) the area within a distance of three metres from the outer perimeters of the appliance is clear of flammable material; (b) there is at hand and available for immediate use— (i) a hose connected to a reticulated water supply; or (ii) a vessel containing at least ten litres of water; and S. 40(4C)(c) substituted by No. 5/2012 s. 29(3). (c) at all times when the fire in the appliance is alight the appliance is attended by an adult who has the capacity and the means to extinguish the fire. S. 40(4D) inserted by No. 10149 s. 10(1), substituted by No. 5/2012 s. 29(4). (4D) For the purposes of subsection (4C)— ***fixed appliance*** means— (a) a properly constructed and permanently fixed structure of stone, metal, concrete or any other non-flammable material designed exclusively for meal preparation and fired by gas or electricity; or (b) an appliance that is designed and commercially manufactured exclusively for meal preparation and that— (i) uses only gas or electricity; and (ii) when alight is placed in a stable position. S. 40(4E) inserted by No. 10149 (4E) Subsection (4) does not apply to a person who— (a) is engaged in a business of preparing meals for other persons; and (b) lights a fire or allows a fire to remain alight— (i) for the sole purpose of meal preparation in the course of the person's business; and (ii) in accordance with a permit granted by a person, and in the circumstances, referred to in paragraph (a), (b), (c) or (d) of subsection (5). S. 40(4F) inserted by No. 17/2003 s. 7(1), amended by No. 5/2012 s. 29(5). (4F) For the purposes of subsection (4E), ***person*** includes a community organisation, a charitable organisation or an organisation involved in fund raising. Example to s. 40(4F) inserted by No. 5/2012 s. 29(6). **Example** A school or sporting group involved in fund raising. S. 40(5) amended by Nos 45/1986 s. 5(a), 12/1989 s. 4(1)(Sch. 2 item 17.10), 17/2003 s. 7(2), 5/2012 s. 29(7). (5) Subsection (4) does not apply to a person who, in a part of Victoria where and at a time when a declaration of total fire ban applies, lights a fire in the open air or allows a fire in the open air to remain alight for a purpose specified in subsection (5A) for which a fire is necessary in accordance with a permit granted— S. 40(5)(a) amended by Nos 10043 s. 4(3)(a), 5/2012 s. 29(8), 20/2019 s. 157. (a) where the fire is to be lighted or allowed to remain alight in the Fire Rescue Victoria fire district, by the Fire Rescue Commissioner within the meaning of the **Fire Rescue Victoria Act 1958** or by any other officer whom he may authorize in writing; S. 40(5)(b) amended by No. 10043 s. 4(3)(b). (b) where the fire is to be lighted or allowed to remain alight in the country area of Victoria (other than on lands within a fire protected area) by the Chief Officer of the Authority; S. 40(5)(c) amended by Nos 10087 s. 3(1)(Sch. 1 item 22), 45/1986 s. 5(b), 46/1998 s. 7(Sch. 1) (as amended by No. 12/1999 s. 3(Sch. 1 item 5)), 5/2012 s. 29(9). (c) where the fire is to be lighted or allowed to remain alight in a fire protected area, by the person for the time being holding the office of or acting as the Chief Fire Officer in the Department; or (d) by the Minister under subsection (8). S. 40(5A) inserted by No. 5/2012 s. 29(10). (5A) For the purposes of subsection (5), the following purposes are specified— (a) the purpose of carrying on the work of— (i) a community organisation; or (ii) a charitable organisation; or (iii) an organisation involved in fund raising; or (iv) a statutory corporation; or (v) a municipal council; or (vi) an industrial operation or trade; (b) the purpose of public entertainment; (c) religious or cultural purposes. S. 40(6) amended by No. 10149 s. 10(2)(a). (6) A permit granted under subsection (4E) or (5)— (a) shall be in writing; (b) shall be subject to any prescribed conditions, and to any other conditions specified in the permit by the person granting the permit; and (c) may be limited to the day in respect of which a total fire ban has been declared, or may be granted for that day and any specified subsequent days or generally for any specified period. S. 40(7) amended by No. 10149 s. 10(2)(b). (7) A person who may grant a permit under subsection (4E) or (5)— (a) may in any particular case authorize another person to sign and issue a permit on his behalf; and (b) may at any time revoke a permit. S. 40(8) amended by No. 10149 s. 10(2)(c). (8) A person who has been refused a permit under subsection (4E) or (5)(a), (b) or (c) or who has been granted such a permit subject to conditions to which he objects or whose permit has been revoked under subsection (7) may apply to the Minister for a permit and the Minister may grant a permit subject to such conditions as he thinks fit or may refuse to grant a permit, and may at any time revoke any permit granted by him. S. 40(9) amended by Nos 10149 s. 10(2)(d), 10235 s. 11(e), substituted by No. 5/2012 s. 29(11). (9) A person who has been granted a permit under subsection (4E), (5) or (8) must not, in a part of Victoria where and at a time when a declaration of total fire ban applies, light a fire in the open air or allow a fire in the open air to remain alight without complying with every condition to which the relevant permit is subject. Penalty: 240 penalty units or imprisonment for 2 years or both. (10) Nothing in this section shall prevent a fire being lit or being allowed to remain alight— S. 40(10)(a) amended by No. 5/2012 s. 29(12). (a) by any brigade or statutory corporation having responsibility for the prevention or suppression of fire where the fire is lit for that purpose; S. 40(10)(b) repealed by No. 50/1989 (c) in any apparatus approved by the Chief Officer being used for the drying of fruit, grain or other primary produce in accordance with the terms and subject to the conditions of its approval. S. 40(11) repealed by No. 50/1989 (12) The Chief Officer may by declaration in writing declare subject to such terms and conditions as he thinks fit any apparatus to be approved apparatus for the purposes of subsection (10)(c) and revoke or vary any approval so given. S. 40(13) amended by Nos 50/1989 s. 9(c), 39/1992 s. 5(3)(c), 77/2000 s. 10. (13) In any proceedings for an offence against this section a certificate purporting to be signed by the Chief Executive Officer to the effect that a declaration of a day or partial day of total fire ban in the whole or any part or parts of Victoria was pursuant to this section broadcast from a broadcasting station in Victoria in respect of any specified day shall be prima facie evidence of the facts set out in the certificate. S. 40(14) amended by No. 68/2009 s. 97(Sch. item 34.2). (14) In any proceedings for an offence against this section, where the declaration under subsection (1) was made in respect of part of a day and first broadcast on that day, it is sufficient defence for the accused to prove that at the time of the commission of the offence he did not know and could not reasonably have known of the declaration of total fire ban, and that having regard to all the circumstances he had taken all necessary precautions to prevent the spread of the fire. S. 40(15) inserted by No. 17/2003 s. 6(2). (15) In any proceedings for an offence against this section, it is sufficient for the purposes of subsection (13), if a certificate purporting to be signed by the Chief Executive Officer is given to which is attached a copy of the declaration, or any amendment of the declaration, made by the Authority and transmitted under subsection (2A) to a broadcasting station for broadcasting. Nos 5040 s. 42, 5191 s. 30. S. 41 amended by Nos 6887 s. 2(a)(b), 7318 s. 2, 7476 s. 2(a)–(e), 7606 s. 2(a)(b)(c)(i) (d), 7876 s. 2(3), 7877 ss 9(b), 21(a)(iv), 8257 s. 9(a)–(c), 8933 s. 4, 9389 s. 3, 9488 s. 2(a), 10004 s. 10, 10149 ss 11(a)–(c), 12(a)(i)(ii)(b), 21(1)(d)(i)(ii)(e) (as amended by No. 10173 s. 4), 10235 s. 11(f), 45/1986 s. 6, 12/1989 s. 4(1) (Sch. 2 items 17.11–17.13), 50/1989 s. 14, substituted by No. 2/1995 s. 5.