Part 4AFire prevention

Part 4A—Fire prevention Division 1—Interpretation 105A—Interpretation In this Part— authorised person, in relation to particular land, means— (a) if the land is within a fire district— (i) the Chief Officer of SAMFS; (ii) the council; (iii) a fire prevention officer appointed by the council; (iv) an authorised person appointed by the council under the Local Government Act 1999 and authorised by the council for the purposes of this Part; (b) if the land is not within a fire district— (i) the Chief Officer of SACFS; (ii) if the land is within a council area— (A) the council; (B) a fire prevention officer appointed by the council; (C) an authorised person appointed by the council under the Local Government Act 1999 and authorised by the council for the purposes of this Part; (c) any other person declared by the regulations to be included within the ambit of this definition; council, in relation to particular land, means the council constituted under the Local Government Act 1999 for the area in which the land is situated; flammable undergrowth includes undergrowth that is likely to become flammable. Division 2—Fire prevention officers 105B—Fire prevention officers (1) Each council— (a) that is a rural council; or (b) that has within its area a designated urban bushfire risk area, must appoint at least 1 person as a fire prevention officer for its area. (2) A fire prevention officer must have qualifications or experience appropriate to the office. (3) A council must— (a) in determining the number of fire prevention officers that it should appoint under subsection (1); and (b) in assessing the qualifications or experience of a person for the purposes of subsection (2), take into account any policy developed by SACFS for the purposes of this section. (4) A Chief Officer may, on application by a council, exempt the council from the requirement to appoint a fire prevention officer under this section. 105C—Functions of fire prevention officers A fire prevention officer has the following functions: (a) to assess the extent of bushfire hazards within the relevant council area; (b) to assist the council in providing advice and information to any bushfire management committee whose area incorporates any part of the relevant council area in connection with the preparation or review of the committee's Bushfire Management Area Plan; (c) to provide advice to owners of property in respect of bushfire prevention and management; (d) to carry out any other functions assigned to the fire prevention officer by the regulations. 105D—Delegations (1) A fire prevention officer may delegate any of his or her functions or powers under this or any other Act— (a) to a member of SACFS; or (b) to a member of SAMFS; or (c) with the approval of the council—to any other person or body. (c) does not derogate from the ability of the fire prevention officer to act in any matter; and (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. (4) If a fire prevention officer delegates a function or power under this section, he or she must report that fact to the council. 105E—Reports The Commission, the State Bushfire Coordination Committee or a bushfire management committee in whose bushfire management area the relevant council area is wholly or partly located may, by written notice, require the council to provide to the Commission, the State Bushfire Coordination Committee or the bushfire management committee (within a period stated in the notice or at stated intervals) any report or reports relating to the performance, exercise or discharge of the functions, powers or responsibilities of the fire prevention officer or officers (if any) for the council's area, as the Commission, the State Bushfire Coordination Committee or the bushfire management committee (as the case may be) thinks fit. Division 3—Duties to prevent fires 105F—Private land (1) An owner of private land must take reasonable steps— (a) to prevent or inhibit the outbreak of fire on the land; and (b) to prevent or inhibit the spread of fire through the land; and (c) to protect property on the land from fire; and (d) to minimise the threat to human life from a fire on the land. (2) In determining the standard required to comply with subsection (1) (but subject to subsection (4)), the following matters are to be taken into account (insofar as may be relevant and without limiting any other relevant matter): (c) the activities carried out on the land (including whether flammable or combustible materials or substances are used or stored on the land); (4) In proceedings for an offence against subsection (1)— (a) if it is proved by the prosecution— (i) that a code of practice under subsection (3) relates to land of the kind to which the proceedings relate; and (ii) that the defendant is in breach of the code in 1 or more respects, then the defendant is, in the absence of proof to the contrary, to be taken to have failed to exercise the standard required under subsection (1); and (b) if it is proved by the defendant— (i) that a code of practice under subsection (3) relates to land of the kind to which the proceedings relate; and (ii) that the defendant has complied with the code in all relevant respects, then the defendant is to be taken to have exercised the standard required under subsection (1). (5) If an authorised person believes on reasonable grounds— (a) that an owner of private land has failed to comply with subsection (1); or (b) that measures should be taken in respect of particular private land for the purpose of— (i) preventing or inhibiting the outbreak of fire on the land; or (ii) preventing or inhibiting the spread of fire through the land; or (iii) protecting property on the land from fire, the authorised person may, by notice in writing that complies with any requirements set out in the regulations, require the owner of the private land to take specified action to remedy the default or to protect the land or property on the land, within such time as may be specified in the notice. (6) Without limiting the operation of subsection (5), a notice under that subsection may include directions— (a) to trim or remove vegetation on the land; or (b) to remove flammable or combustible materials or substances, or to store flammable or combustible materials or substances in a specified manner; or (c) to eliminate a potential ignition source; or (d) to create, establish or maintain fire breaks or fuel breaks. (7) An authorised person must, in acting under subsection (5), apply any guidelines prepared or adopted by the Minister for the purposes of that subsection and published by the Minister in the Gazette. (8) A person must not refuse or fail to comply with a notice under subsection (5). Maximum penalty: $10 000. (9) A notice under subsection (5) may be given— (a) personally; or (b) by post; or (c) if the authorised person cannot, after making reasonable inquiries, ascertain the name and address of the person to whom the notice is to be given— (i) by publishing the notice— (A) on a website determined by the Minister; or (B) in a newspaper circulating in the locality of the land; and (ii) by leaving a copy of the notice in a conspicuous place on the land. (10) An authorised person may, by further notice in writing, vary or revoke a notice under this section. (11) If a notice under subsection (5) is directed to an occupier of land, the authorised person must take reasonable steps to serve (personally or by post) a copy of the notice on the owner. 105G—Council land (1) A council that has the care, control or management of land— must take reasonable steps— (c) to prevent or inhibit the outbreak of fire on the land; and (d) to prevent or inhibit the spread of fire through the land; and (e) to protect property on the land from fire; and (f) to minimise the threat to human life from a fire on the land. (2) In determining the standard required to comply with subsection (1), the following matters are to be taken into account (insofar as may be relevant and without limiting any other relevant matter): (c) the activities carried out on the land (including whether flammable or combustible materials or substances are used or stored on the land); (4) If, in the opinion of the relevant Chief Officer, a council has failed to comply with subsection (1), the Chief Officer may refer the matter to the Minister. (5) The Minister must, on the referral of a matter under subsection (4), consult with— (a) the council; and (b) the Minister to whom the administration of the Local Government Act 1999 has been committed. (6) The Minister may then (if the Minister thinks fit), by notice in writing to the council after consultation with the relevant Chief Officer, require the council to take specified action (being action considered by the Minister to be reasonably necessary to comply with the requirements of subsection (1)). (7) A council must not fail to comply with a notice under subsection (6). (8) In this section— 105H—Crown land (1) A Minister, agency or instrumentality of the Crown that has the care, control or management of land— must take reasonable steps— (c) to prevent or inhibit the outbreak of fire on the land; and (d) to prevent or inhibit the spread of fire through the land; and (e) to protect property on the land from fire; and (f) to minimise the threat to human life from a fire on the land. (2) In determining the standard required to comply with subsection (1), the following matters are to be taken into account (insofar as may be relevant and without limiting any other relevant matter): (c) the activities carried out on the land (including whether flammable or combustible materials or substances are used or stored on the land); (4) If in the opinion of the relevant Chief Officer, a Minister, agency or instrumentality of the Crown has failed to comply with subsection (1), the Chief Officer may refer the matter to the Minister. (5) The Minister may, on the referral of a matter under subsection (4), undertake such consultation or other action as the Minister thinks fit in connection with the matter. (6) If the Minister considers that he or she cannot resolve the matter the Minister may, after consultation with the relevant Chief Officer, request another Minister (being the responsible Minister in the circumstances of the particular case) to take action to ensure that a management or other plan is put in place to secure compliance with the requirements of subsection (1). (7) In this section— 105I—Commonwealth land (1) If in the opinion of the relevant Chief Officer conditions existing on Commonwealth land— present an undue risk to surrounding land (not being Commonwealth land) in the event of a bushfire on (or passing through) the Commonwealth land, the relevant Chief Officer must take reasonable steps to notify the person apparently in control of the Commonwealth land of the risk and the reasons for his or her opinion (and may provide advice as to the action that, in the opinion of the Chief Officer, should be taken in view of the risk). Commonwealth land means land occupied by the Commonwealth (including the Crown in right of the Commonwealth or a Commonwealth Minister), or by an agency or instrumentality of the Crown; Division 4—Related provisions 105IA—Power of direction by police officer (1) If a police officer is satisfied— (a) that a person proposes to carry on an activity of a kind prescribed by the regulations or any other activity that the police officer is satisfied may cause a fire; and (b) that because of weather conditions the fire, if caused by the activity, might get out of control, the police officer may direct that person to refrain from carrying on the activity during a period specified in the direction. (2) Before giving a direction under subsection (1), a police officer must take into account any relevant information contained in— (a) the Grain Harvesting Code of Practice published by SACFS (as in force from time to time); and (b) any other code or policy prescribed by the regulations. (3) A person who contravenes, or fails to comply with, a direction under this section is guilty of an offence. (a) for a first offence—$5 000 or imprisonment for 1 year; (b) for a second or subsequent offence—$10 000 or imprisonment for 2 years. 105J—Additional provision in relation to powers of authorised persons (1) An authorised person in relation to particular land, or any other person authorised by the Chief Officer of SAMFS or the Chief Officer of SACFS for the purposes of this section, may, for a purpose related to the administration, operation or enforcement of this Part— (a) at any reasonable time, after giving reasonable notice to the occupier of the land, enter the land; or (b) with the authority of a warrant issued by a magistrate, or in circumstances in which the authorised person reasonably believes that immediate action is required, use reasonable force to break into or open any part of, or anything in or on, the land. (2) A magistrate must not issue a warrant under subsection (1)(b) unless satisfied that the warrant is reasonably required in the circumstances. (3) An application for a warrant— (a) may be made either personally or by telephone; and (b) must be made in accordance with any procedures prescribed by the regulations. (4) In exercising a power under this Part, an authorised officer may— (a) give directions with respect to the stopping, securing or movement of a vehicle, plant, equipment or other thing; (b) take photographs, films, audio, video or other recordings; (c) give any other directions reasonably required in connection with the exercise of the power. (5) An authorised person may, in exercising a power under this Part, be accompanied by such assistants as may reasonably be required in the circumstances. (6) If an owner of land refuses or fails to comply with the requirements of a notice under section 105F(5), an authorised person may proceed to carry out those requirements. (7) Action taken by an authorised person under subsection (6) may be taken on the authorised person's behalf by a person authorised by the Chief Officer of SAMFS or the Chief Officer of SACFS, or by a council, for the purposes of this subsection. (8) The reasonable costs and expenses incurred by an authorised person in taking action under subsection (6) may be recovered by— (a) if the relevant notice was given by a council, or a fire prevention officer or an authorised person appointed by a council and authorised for the purposes of this Part—the council; or (b) in any other case—the Minister, as a debt from the person who failed to comply with the requirements of the relevant notice. (9) If an amount is recoverable from a person by a council or the Minister under subsection (8)— (a) in the case of an amount recoverable by a council—the council may recover the amount as if it were rates in arrears; or (b) in the case of an amount recoverable by the Minister— (i) the Minister may, by notice in writing to the person, fix a period, being not less than 28 days from the date of the notice, within which the amount must be paid by the person, and, if the amount is not paid by the person within that period, the person is liable to pay interest charged at the prescribed rate per annum on the amount unpaid; and (ii) the amount together with any interest charge so payable is, until paid, a charge in favour of the Minister on the land to which the notice under section 105F(5) relates. (10) A person cannot claim compensation from the Minister, the Crown, a council, an authorised person or any person acting under subsection (7) in respect of any action taken under this section. 105K—Review by Chief Officer compliance notice means a notice under section 105F(5); relevant Chief Officer means— (a) in relation to a compliance notice that relates to land within a fire district—the Chief Officer of SAMFS; (b) in relation to a compliance notice that relates to land outside a fire district—the Chief Officer of SACFS. (2) A person to whom a compliance notice is issued may apply to the relevant Chief Officer for a review of the notice under this section. (3) The application must be made within 14 days after the notice is served on the person unless the relevant Chief Officer, in his or her discretion, allows an extension of time. (4) Subject to a determination of the relevant Chief Officer to the contrary in relation to the particular matter, the operation of a notice subject to a review is suspended until the review has been determined or withdrawn. (5) The relevant Chief Officer must review the notice and, after taking into account such matters as the Chief Officer thinks fit, may— (a) confirm, vary or revoke any requirement under the notice and, if appropriate, discharge the notice; (b) substitute any requirement or notice that could have been made or given in the first instance; (c) dismiss the matter; (d) make any consequential or ancillary direction. (6) If the relevant Chief Officer— (a) confirms or varies a notice; or (b) substitutes a requirement or notice, the person to whom the notice or requirement is addressed must comply with the notice or requirement within a period specified by the Chief Officer. Maximum penalty: $10 000.