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Arson

Arson involves intentionally and maliciously destroying or damaging property by using fire. In the case of bushfires, AIC research indicates that Australia has an average of 52,000 bushfires a year with possibly half being either deliberately lit or suspicious. As part of its extensive research on this crime, the AIC has developed a comprehensive bushfire arson prevention handbook to help reduce the number of deliberately lit fires in Australia.


Within the definition of arson there are four core elements:

  • the lighting of fire - fire is the fundamental element of arson; if there is no fire lit, there is no arson (some legal definitions also include lighting explosives);
  • intention or wilfulness - excludes fires started by natural causes or accidents;
  • malice - excludes fires started intentionally with positive or legitimate intent; and
  • property - there must be some kind of property or object that is burned.

The element of intent is critical to a definition of arson. People deliberately light fires for many reasons, including for some legitimate and legal purposes. For example, people may light fires at home in a fireplace, or at a camp site in an approved place when there are no fire bans in force, or prescribed burning conducted in a controlled manner for fuel and land management purposes. In all these cases the fire is deliberately lit but does not constitute arson as there was no intention to cause damage or harm and no breach of the law.

Source: What is arson? Australian Institute of Criminology, November 2004


Arson legislation in Australia

All Australian states and territories have legislated offences resulting from the unlawful and malicious use of fire. In each jurisdiction it is an offence to use fire to destroy or damage property. In addition there is a Commonwealth offence of destroying or damaging property which has no special provisions regarding the use of fire, though fire could certainly be used to commit the offence.

Some jurisdictions have specific offences to do with the use of fire to endanger life, while others prosecute such offences under general provisions that prohibit endangering life or committing injury. Where a fire results in the death of a person, this would be prosecuted under general manslaughter or murder provisions.

Most jurisdictions have specific offences concerned with the setting of bushfires. In some cases these specifically identify bushfires and were typically legislated following significant bushfire incidents where some of the fires were known or suspected to have been deliberately lit.

All states and territories regard arson as a serious indictable offence with heavy penalties. In many cases arson provisions are established as an extension of criminal damage provisions, with additional penalties where the damage is carried out by means of fire or explosives. This appears to be a recognition of the potential for destruction that fire has, above and beyond most other means of committing damage. Indictable offence provisions relating to arson are summarised in the table Summary of arson legislation - indictable offences.

In addition to legislation establishing indictable offences under the criminal law for the deliberate and malicious use of fire, most jurisdictions have a range of summary offences relating to the inappropriate lighting of fires in national parks, forests and other open areas. These are typically enacted under legislation covering land management activities such as forestry or national parks legislation, or legislation establishing and governing rural and country fire services.

A range of summary provisions are set out in the table Summary of arson legislation - summary offences (bushfires). This list is not fully comprehensive. As well as other provisions that may exist in land management-related legislation, there are other prohibitions on the inappropriate use of fire that, for instance, arise incidentally in local council bylaws and legislation governing the use of particular facilities or public areas. The list in this table nonetheless will give an appreciation of the range and type of provisions that exist.

Contents

Summary of arson legislation - indictable offences

Statute Section Offence Max. penalty
Commonwealth
Crimes Act 1914 29
Destroying or damaging Commonwealth property
Intentionally destroying or damaging any Commonwealth property 10 years
Australian Capital Territory
Criminal Code 404(1) Causes damage to a building or vehicle by fire or explosive and intends to cause or is reckless about causing damage to that or any other building or vehicle 15 years or 1,500 penalty units or both
Criminal Code 2002 404(2) Threatens to damage a building or vehicle by fire or explosive and intends to cause, or is reckless about causing, fear to the person receiving the threat 7 years or 700 penalty units or both
Criminal Code 2002 405
Causing bushfires
Intentionally or recklessly causes a fire and is reckless about the spread of the fire to vegetation or property belonging to someone else 15 years or 1,500 penalty units or both
Crimes Act 1900 117(1)
Arson
Destroys or damages any property by fire or explosive 15 years
Crimes Act 1900 117(2) Dishonestly, with view to gain, destroys or damages, by fire or explosive, any property 20 years
New South Wales
Crimes Act 1900 195 Maliciously destroying or damaging property by fire or explosive 10 years
Crimes Act 1900 196 Maliciously destroying or damaging property by fire or explosive 14 years
Crimes Act 1900 197 Dishonestly destroying or damaging property by fire 14 years
Crimes Act 1900 198 Maliciously destroying or damaging property with the intention of endangering life 25 years
Crimes Act 1900 203E Intentionally causes a fire and is reckless as to the spread to vegetation 14 years
Rural Fires Act 1997 100(1) Sets fire to land and permits fire to escape so as to cause or be likely to cause damage 5 years or 1,000 penalty units
Young Offenders Regulations 1997 19A Outcome plans for bushfire/arson juvenile offenders Provides for youth conferencing and specific reparative outcomes
Northern Territory
Criminal Code Act 239
Arson
Unlawfully setting fire to building, ship, vegetable produce, mine or aircraft Life
Criminal Code Act 240
Attempt to commit arson
Attempting to unlawfully set a fire in accordance with section 239 14 years
Criminal Code Act 241
Setting fire to crops and growing plants
Unlawfully setting fire to crops, trees or pasture (in each case whether indigenous or cultivated) 14 years
Queensland
Criminal Code Act 1899 461
Arson
Wilfully and unlawfully setting fire to building or structure, vessel, fuel, cultivated vegetable produce, mine, aircraft or motor vehicle Life
Criminal Code Act 1899 462
Attempt to commit arson
Attempting to set a fire contrary to section 461 14 years
Criminal Code Act 1899 463
Setting fire to crops and growing plants
Wilfully and unlawfully setting fire to crops, indigenous or cultivated hay or grass, indigenous or cultivated trees, saplings or shrubs, or heath, gorse, furze or fern 14 years
South Australia
Criminal Law Consolidation Act 1935 85
Damaging property
Intending to damage property by fire or being recklessly indifferent as to damage by fire or explosives

If completed:
Where damage exceeds $30,000, life; damage over $2,500 to $30,000, 5 years; damage $2,500 or less, 2 years

For an attempt:
Where damage would have exceeded $30,000, 12 years; where damage would have been over $2,500 to $30,000, 3 years; where damage would have not exceeded $2,500, 18 months

Criminal Law Consolidation Act 1935 85A
Recklessly endangering property
Doing an act knowing that the act creates a substantial risk of serious damage to the property of another, with lawful authority 6 years
Criminal Law Consolidation Act 1935 85B
Special provision for causing a bushfire
Intending to cause or recklessly indifferent as to causing a bushfire 20 years
Tasmania
Criminal Code Act 1924 268
Arson
Unlawfully setting fire to any structure, vegetable produce, timber, fuel, mine, ship or other vessel, etc. 21 years or discretionary fine or both
Criminal Code Act 1924 268A
Unlawfully setting fire to crops, forest, moorland, peat, etc.
Unlawfully setting fire to any vegetation, living or dead (including forests, trees, saplings, shrubs, grass, litter, bark, logs, etc.) 21 years or discretionary fine or both
Criminal Code Act 1924 269
Unlawfully setting fire to property
Unlawfully setting fire to any property not covered by sections 268 or 268A 21 years or discretionary fine or both
Criminal Code Act 1924 269A
Causing a fire with intent to injure person or property
Unlawfully placing flammable or combustible material or doing any other act for the purpose of causing a fire with the intent to injure any person or property 21 years or discretionary fine or both
Victoria
Crimes Act 1958 197
Destroying or damaging property
Intentionally and without lawful excuse destroying or damaging property by fire (‘arson’), whether or not intending to endanger the life another, and whether or not with a view to dishonestly gaining 15 years
Crimes Act 1958 197A
Arson causing death
Committing arson as defined in section 197 and thereby causing the death of another person 25 years
Crimes Act 1958 198
Threats to destroy or damage property
Without lawful excuse making, for the purpose of causing fear, a threat to destroy or damage property belonging to another, or his or her own property in a way which the offender knows or believes will endanger the life of the victim or a third person 5 years
Crimes Act 1958 201A
Intentionally or recklessly causing a bushfire
Intentionally or recklessly causing a fire, and being reckless as to the spread of the fire to vegetation on property belong to another 15 years
Country Fire Authority Act 1958 39C
Causing fire in a country area with intent to cause damage etc. an indictable offence
On any land in country Victoria, doing any act causing a fire or for the purpose of causing a fire with intent to destroy any vegetation, produce, stock, crop, fodder or property belonging to another 12 months to 20 years
Western Australia
Criminal Code 444
Criminal damage
Wilfully and unlawfully destroying or damaging any property by fire 14 years
Criminal Code 554
Attempts and incitement
Attempting to commit an offence or inciting another to commit an offence (in this case under s 444) 7 years
Bush Fires Act 1954 32
Offences of lighting or attempting to light a fire likely to injure
Wilfully lighting or causing to be lit or attempting to light a fire; or placing a match or other inflammable or combustible substance etc. in a position that may cause a fire, with the intent of causing a fire - under circumstances likely to injure or damage a person or property (whether or not the fire was actually caused) 14 years or $250,000 or both
Source: Australasian Legal Information Institute (AustLII)

Model Criminal Code

The legal position on arson was examined closely in 2001 by the Model Criminal Code Officers Committee (MCCOC) of the Standing Committee of Attorneys-General (MCCOC 2001). The idea of developing a national model criminal code was proposed by the standing committee in 1990. MCCOC's analysis of arson is a useful starting point not only for understanding the various state and territory legislative provisions, but for understanding the nature of arson as a criminal offence and the elements that comprise it. MCCOC saw arson as a form of criminal damage, distinguished only by the need to prove the damage had been caused by fire or explosive, with accompanying higher penalties (MCCOC 2001: 37). In arguing for the need to retain arson as an offence distinct from general criminal damage, MCCOC noted the particular abhorrence with which arson is regarded by the community, and the inherently unpredictable risk of destruction arising from an uncontrolled fire. At the same time, the committee saw the essential point as being that property had been damaged or destroyed and that it should be the fact or extent of the damage that was at issue, rather than the means of causing it. MCCOC concluded that a separate offence of arson was justifiable on a number of grounds, including familiarity and public support (MCCOC 2001: 37-39).

Following its consideration of state and territory legislation, MCCOC (2001: 36) proposed a model criminal code offence of 'arson' which establishes an offence where:

a person causes damage to a building or conveyance by means of fire or explosive and intends to cause, or is reckless as to causing, damage to that building or conveyance.

A penalty of 15 years imprisonment was proposed, in accord with penalties in the ACT and Victoria.

The model criminal code provision for arson also establishes an offence of:

making a threat to cause damage to a property or conveyance by means of fire or explosive and intending the victim of the threat to fear that the threat will be carried out. (MCCOC 2001: 36)

It was proposed that the threat offence carry a penalty of seven years' imprisonment.

MCCOC also proposed a separate model criminal code offence of bushfire arson. The committee argued that criminal damage offences, which are concerned with harm to individual property interests, do not adequately reflect the harm to community interests that arise from bushfires (MCCOC 2001: 47). The committee distinguished the model bushfire offence from other arson offences partly on the basis of the risk of catastrophe that comes with a bushfire, rather than on the actual infliction of harm that is the case with other arson offences (MCCOC 2001: 51). The committee argued that the scale of the risk involved with bushfires affects the whole community, rather than individual property owners, and the offence needs to embrace this potential rather than focusing solely on the actual harm, which may - through the efforts of firefighters or otherwise - be minimal.

Noting that the 15-year proposed penalty for bushfire arson under the model code exceeded the 10-year model penalty for endangering life by other means, MCCOC drew on connections with some of the major bushfire incidents of the past (MCCOC 2001: 53). The committee felt this history was a fair basis for establishing an offence which does not require proof that the offender knowingly endangered life or was reckless about the risks of harm to life or property:

So long as the offender realises the risk that the fire will spread, there is no need for proof of realisation of the extent of the horror which may follow. (MCCOC 2001: 53)

MCCOC therefore proposed an offence, under the title 'bushfires', which arises where:

a person causes a fire, and intends or is reckless as to causing a fire and is reckless as to the spread of the fire to vegetation of property belong to another. (MCCOC 2001: 46)

The maximum penalty under this model offence is 15 years.

As can be seen in the tables below, the MCCOC model provisions are echoed in specific bushfire offences in the ACT, NSW and Victoria as well as the Western Australian offences on which MCCOC drew.

Summary of arson legislation - summary offences (bushfires)

Statute Section Offence Max. penalty
Australian Capital Territory
Emergencies Act 2004 116 Lighting, maintaining or using a fire in the open air in an area where a total fire ban is in place 50 penalty units
Emergencies Act 2004 125 Intentionally lighting, maintaining or using a fire in the open air or burning flammable material on any land, or engages in conduct reckless about whether it would cause a fire 12 months or 100 penalty units or both if during the bushfire season (otherwise 6 months or 50 penalty units or both)
Emergencies Act 2004 126 Lighting, maintaining or using a fire in the open air on any land, and leaving the fire without extinguishing it or leaving it under the control of a responsible adult 100 penalty units if during the bushfire season (otherwise 50 penalty units)
New South Wales
Forestry Regulation 1999 22 Leaving or depositing a lighted cigarette or other tobacco product, or a lighted match, in a forestry area 20 penalty units
National Parks and Wildlife Regulation 2002 14 Lighting a fire in a national park other than in a fireplace, when a total fire ban is in place; leaving a fire unattended; failing to report or extinguish a fire; handle any flammable substance in a way likely to cause a fire 30 penalty units
Rural Fires Act 1997 88 Lighting a fire on land within a fire district or rural fire district in circumstances in which doing so would be likely to be dangerous to any building 12 months or 50 penalty units
Rural Fires Act 1997 100(1) Sets fire to land and permits fire to escape so as to cause or be likely to cause damage 5 years or 1,000 penalty units
Rural Fires Act 1997 100(2) Leaves fire before extinguished 12 months or 50 penalty units
Northern Territory
Fire and Emergency Act 35
General offences
Dropping or discarding any burning material causing a fire, or in circumstances likely to cause a fire (as well as other acts relating to fire services and equipment) 2 years or $10,000
Fire and Emergency Act 36
Fires to be extinguished
Leaving a fire unattended without extinguishing it 2 years or $10,000
Queensland
Fire and Rescue Act 1990 62
Offence to light unauthorised fire
Lighting a fire not authorised by the act or by notification, notice or permit 6 months or 50 penalty units (if during a state of fire emergency - 12 months or 250 penalty units)
Fire and Rescue Act 1990 72
Offences re lighting fires
Leaving fires unattended; discarding burning article or substance so causing a fire endangering or likely to endanger a person, property or the environment, or in circumstances where this is likely 6 months or 50 penalty units (if during a state of fire emergency - 12 months or 250 penalty units)
South Australia
Country Fires Act 1989 36
Fires during fire danger season
Lighting or maintaining a fire in the open air during the fire danger seasons (other than in prescribed circumstances and for prescribed purposes) 12 months or fine ($300-$4,000) for first offence; 2 years or $8,000 for subsequent offences
Victoria
Country Fire Authority Act 1958 37
General prohibition against lighting open air fires
Lighting a fire in the open air in the country area of Victoria during a fire danger period unless authorised or directed 12 months or 50 penalty units or both
Country Fire Authority Act 1958 39
Prohibited actions near fires
During a fire danger period: leaving a burning fire without leaving another in charge or extinguishing it; being in the open air and throwing down or dropping a lighted cigarette, match or other burning material; undertaking certain other fire hazardous acts; failing to report a burning fire 12 months or 50 penalty units or both
Country Fire Authority Act 1958 39A
Causing fire in country area in extreme conditions of weather, etc. an offence
On any land in country Victoria, lighting any fire in circumstances of location, atmospheric temperature, wind velocity and flammable vegetation or other combustible substance that causes or is likely to cause a danger to life or property of others 3 months to 2 years
Forests Act 1958 63 Restrictions as to lighting etc. fires in certain areas Lighting - intentionally or negligently and where authority should have been obtained - or maintaining a fire in the open air in a state forest or national park; failing to prevent the spread of a fire; leaving a fire without taking reasonable precautions to prevent it spreading or causing injury 2 years or 100 penalty units
Source: Australasian Legal Information Institute (AustLII)

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