Intentionally Causing a Bushfire

Intentionally or recklessly causing a bushfire is an offence in Victoria.[1] However, the offence does not apply to controlled burns or burn-offs authorised under legislation or a Code of Practice. In this article, we discuss the elements of the offence, relationship with other offences and possible defences available.

Elements of the Offence

The Police are required to prove several elements to establish the charge beyond reasonable doubt. The elements for the offence of intentionally causing a bushfire are:

• That you had the intention to cause (or were reckless to);
• Causing a fire; and
• Were reckless as to the fire spreading to either another person’s property or vegetation.[2]

A person is not reckless where the fire was started as part of a controlled burn-off, in accordance with a relevant legislation or Code of Practice and was carried out with the purpose of fire prevention or land management and was justified given the circumstances.[3]

Recklessness’ is not defined in legislation, but generally means acting in the knowledge that harmful consequences would result from your conduct.[4] For example, if you foresaw that it was a possibility that the fire you caused had the potential or probability to cause damage to property, person or vegetation.

‘Causing’ a fire includes lighting or maintaining a fire or failing to contain a fire.[5]

Penalties for Intentionally Causing a Bushfire

Intentionally causing a bushfire carries a maximum penalty of 15 years imprisonment.

It is also an offence to light fires in the open air or to carry flammable material that when lighted caused damage to property, destruction or endangers the lives of others.[6] However, the offence does not apply to a land-owner who burns vegetation, provided that adequate preparation of the area and notice of at least 2 hours has been given to adjoining property owners.[7] Lighting a fire carries a maximum penalty of 12 months.[8]

Defences for Intentionally Causing a Bushfire

You may have a defence available if you have been charged with intentionally causing a bushfire. Firstly, may be able to argue necessity or that the fire was started as part of a controlled burn-off, in accordance with legislation or Code of Practice, and that it was justified in the circumstances (e.g. carried out to protect vegetation or property). Secondly, you may be able to argue that you lacked intention or were not reckless as to potential damage to person, property or vegetation. Finally, you may also have a defence of reasonable mistake or a factual dispute relating to the charge.

We suggest that you should contact an experienced legal practitioner as soon as possible if you are to be interviewed in relation to this offence so that you can be provided with appropriate advice based on the circumstances relevant to your matter.

[1] Crimes Act 1958 (Vic) s 201A.
[2] Crimes Act 1958 (Vic) s 201A(1).
[3] Crimes Act 1958 (Vic) s 201A(2)(3).
[4] R v Crabbe (1985)156 CLR 464.
[5] Crimes Act 1958 (Vic) s 201A(4).
[6] Summary Offences Act 1966 (Vic) s 11(1)(a).
[7] Summary Offences Act 1966 (Vic) s 11(2).
[8] Summary Offences Act 1966 (Vic) s 11.