Constitutional Law and Bushfire Regulation in Australia: Analysis

This report analyzes the constitutional law framework for regulating bushfires in Australia. It begins by outlining the severity of Australian bushfires, referencing the 2019-2020 season's impact. The report then investigates the Commonwealth's constitutional responsibilities for bushfire prevention, fighting, and recovery, including the role of the Department of Home Affairs and the Senate Select Committee on Agricultural and Related Industry. It examines the responsibilities of the Commonwealth, states, and territories, including funding, research, and coordination. The report also explores whether there is a case for constitutional change, citing relevant legislation and considering the impact of climate change. Finally, it concludes with a summary of key findings and recommendations for improved bushfire management at the national level, including the potential for a national bushfire agency. The report highlights the significance of the Environment Protection and Biodiversity Conservation Act of 1999 and other relevant legislation, emphasizing the need for a well-coordinated approach to wildfire management. The report is available on Desklib, a platform offering AI-based study tools and resources for students.

Running Head : Constitutional law for regualting bushfire in Australia
CONSTITUTIONAL LAW FOR REGULATING BUSHFIRE IN AUSTRALIA
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1Constitutional law for regualting bushfire in Australia
Introduction
Australian bushfire indicates the range of bushfires which is also known as wildfires
around worldwide. In the report of 14 January 2020, the bushfire of Australia is leading
specialist in the south-east zone and have burned almost about 18.6 million hectares, devastated
over 5900 buildings and took the life of 29 people In September 2019 the bushfire made a severe
impact to the various areas of New South Wales1. The significant zone of northeastern and
eastern Victoria burnt for four weeks before the fire developed from the forest isolating
Corryong and Mallacoota, intimidating and taking lives of many people.
1. What is the commonwealth’s constitutional responsibility for bushfire prevention,
fighting and recovery ?
The commonwealth body is constructed who is in control of Emergency Management in
Australia. The commonwealth body is a part of the Department of Home Affairs which has no
mandate law or cabinet authorisation to take executive pronouncements or to yield command.
The function of the body covers the major part which is the outcome of kindness on behalf of
other bodies2.The severity of bushfires in Australia considered by the Senate Select Committee
on Agricultural and Related Industry involves the severe impact of wildfires on animal and
1 Hussey, Karen, and Stephen Dovers. "Managing critical infrastructure in a changing climate:
risk, roles, responsibilities and politics." AFAC14 After Disaster Strikes: Learning from
Adversity, Wellington 2-5 September 2014 (2015)
2 Duckworth, Mark. "The idea of resilience and shared responsibility in Australia." Bach,
R.(ed.) Strategies for Supporting Community Resilience: Multinational Experiences.
Stockholm: CRISMART & The Swedish Defence University (2015): 83-118.

2Constitutional law for regualting bushfire in Australia
human life. It also involves various methods of bushfire mitigation and the identification of the
strategies commenced by the Australian government. It also considered an alternative method for
prevention of bushfire and suitability of building codes relating to the utilisation of land in
bushfire prone zone3.The most prominent responsibility of Commonwealth is to supervise and
support the capability of states to control the risks of bushfire to manage the destruction caused
by the bushfire in Australia. The primary concern of the committee is not to reinvestigate the
failures by various bushfire management but to examine frustration caused by the absence of
action by the relevant agencies of the state in reply to the various proposal which is sought to
eradicate the alike occurrences of bushfire. The committee viewed that the most operative
influence the commonwealth can have is the mitigation of bushfires and various arrangement to
attain the same.The various chapter of the Legislative body of Australia frameworks the nature
of wildfire in Australia, various state-related organisation accountable for the management of
bushfires, commonwealth represent the role of bushfire management and prospective for the
commonwealth to undergo national directives of bushfires strategy.The committee discusses the
role of the commonwealth in addressing the avoidable source of fire before taking into account
the complex factors adhere to the risk of alleviating bushfires by the reduction of explosive fuels
in the countryside4. The Constitution of Australia focuses the number of factors which involve
resource prioritisation for dominance over mitigation and volunteers for the management of
3 Minnery, John, and Iraphne Childs. "Natural Hazards Governance in Australia." Oxford
Research Encyclopedia of Natural Hazard Science. 2017.
4 Kanowski, Peter J. "Australia's forests: Contested past, tenure-driven present, uncertain
future." Forest Policy and Economics 77 (2017): 56-68.

3Constitutional law for regualting bushfire in Australia
bushfire programme, information accountable for controlling bushfire and sufficiency of
equipment, technology, infrastructure, access which is required for fire emergency
administration. There are several natural causes accountable for wildfires in the landscape of
Australia, such as human actions or lightning strikes5. The bushfire management implies a range
of activities undertaken to restrict the disastrous impact of unmanaged bushfires on human and
wildlife, environment, agricultural land, assets and native communities. It is noted down by the
committee that state and territorial government of Australia are fundamentally responsible for
safeguarding the assets of Australia. The commonwealth participates in the various programme
for management of bushfires through diverse initiatives relating to affording assistance to
responsible state activities through co-ordination assistance, training, education, research and
public consciousness6. The Attorney General’s Department has the duty of participating in the
fire management programmes on behalf of Commonwealth.. The Attorney General Department
cast with the responsibilities for participation in the programme of emergency management and
disaster management on behalf of the commonwealth which includes disaster management,
vindictive and recovery actions all around the states for managing bushfires.It was also
contended that the Commonwealth has significant responsibility in various zones of bushfire
management. The proof received by the Committee suggests the necessity for the all-
encompassing policy of national bushfire to provide a structure for a well-coordinated approach
5 Melo Zurita, Maria de Lourdes, et al. "Towards new disaster governance: Subsidiarity as
a critical tool." Environmental Policy and Governance 25.6 (2015): 386-398.
6 Hollis, Jennifer J., et al. "Framework for an Australian fuel classification to support
bushfire management." Australian Forestry 78.1 (2015): 1-17.

4Constitutional law for regualting bushfire in Australia
to wildfire management. The Emergency Management NSW coordinates the state contribution to
the commonwealth risk management programmes and a series of studies and consciousness
programmes. The commonwealth contributes funding for fire struggling aircraft through the
body of National Aerial Firefighting Centre which co-ordinates aircraft on behalf of territories
and states. The Commonwealth plays a crucial role in giving funding for research on bushfire
and collecting and distributing information related to bushfire. CISRO, The Bureau of
Meteorology and Geoscience Australia employ numerous research and collect information that
serves land administration and fire organisations throughout Australia. The planning Institute in
Australia proposes that external undertakings power of Commonwealth may be applied to take
purposive actions. While discussing the restrictions of the authority of commonwealth over
wildfire management, the committee opined that commonwealth should give supplementary
focused national directives for bushfire programme. The duty for bushfire programme at
commonwealth margin is distributed among portfolios and agencies without overall liability cast
upon a single agency answerable to a sole government minister or parliamentary secretary. There
is the recommendation made by the committee which suggests that government of
commonwealth investigate the potential novel arrangements for the commonwealth participation
in the progress and execution of national strategy for wildfire management. The Commonwealth
examines the establishment of novel bushfire agency at national level accountable to the
parliamentary secretary within the government. The committee should co-ordinate the existing
wildfire-related liability of commonwealth organized by Emergency Management of Australia
along with that improve best practice national strategies for bushfire management to co-ordinate
responsible bodies for better management of the risk of bushfire through various mitigation
policies.

5Constitutional law for regualting bushfire in Australia
2. Is there a case for constitutional change in this area ? and cited sections with the
commonwealth of the Australian Constitution Act and Victoria Constitution and if there was a
case for constitutional case cited.
In bushfires of Australian in early three months have burned millions of acres cause air
poison in Melbourne and Sydney and mandate 4000 residents and tourists in Mallacoota to
assemble on the beach and get expatriate by the navy. Over the early six months, the bushfires in
Australia have burned more than twice the zone than was used up amalgamate by California’s
fires in the year 2018 and the amazon fires in the year 2019. Though polls report that citizens of
Australia are troubled about the climatic change and the government of Australia unable to pass
any effective climate-related strategies, it is unprecedented that the bushfires in Australia have
destroyed more than 1500 families and killed 23 people as held by Prime Minister Morrison7.
There was minimum twice incidents of bushfires in New South Wales in the year 2019 according
to the analysis made by The New York Times. The hotter weather due to the climate change
made the bushfire more regular and the difference in the climatic condition of Australia
contribute towards the probability of bushfire. Section 44 relates to the Rural Fires Act, 1997 in
New South Wales deals with the commissioner’s responsibility 8. The Code of Practice for
bushfire management on public land, 2012 provides a legal framework for bush fire management
7 Gibbs, Lisa, et al. "Post-bushfire relocation decision-making and personal wellbeing: A
case study from Victoria, Australia." Planning for Community-based Disaster Resilience
Worldwide. Routledge, 2016. 355-378.
8 The Rural Fires Act, 1997

6Constitutional law for regualting bushfire in Australia
on Victoria’s public land which includes various policies undertaken for eradication and
recovery activities while framing new legislative obligations during the wildfire response such as
the requirement of Fire services Commissioner’s and the liability to caution the community 9.
The amended building regulations, 2006 denotes to the novel Australian standard construction of
structures in wildfire-prone zones 10. The Bushfires Royal Commission Implementation Monitor
Act enacted in the year 2011 in Victoria to deals with issues of bushfire of Victoria 11 The
Commonwealth government investigate potential new measures for commonwealth participation
in the progress and execution of national strategies for wildfire management.
Conclusion
Thus it can be summarised that the national environment legislation of Australia that is
the Environment Protection and Biodiversity Conservation Act of 199912 regulates the activities
that put a significant impact on environment protected matters. The apprehension has been raised
up about the preparation of states to pact with the risk of bushfires and whether commonwealth
was gentle to act in the manner such as the present the support of Australian Defence Force.
9 The Code of Practice for bushfire management on public land, 2012
10 The Amended Building Regulations, 2006
11 The Bushfires Royal Commission Implementation Monitor Act , 2011
12 The Environment Protection and Biodiversity Conservation Act of 1999

7Constitutional law for regualting bushfire in Australia
Bibliography
Scholars and Articles
Hussey, Karen, and Stephen Dovers. "Managing critical infrastructure in a changing climate:
risk, roles, responsibilities and politics." AFAC14 After Disaster Strikes: Learning from
Adversity, Wellington 2-5 September 2014 (2015).
Duckworth, Mark. "The idea of resilience and shared responsibility in Australia." Bach, R.(ed.)
Strategies for Supporting Community Resilience: Multinational Experiences. Stockholm:
CRISMART & The Swedish Defence University (2015): 83-118.
Minnery, John, and Iraphne Childs. "Natural Hazards Governance in Australia." Oxford
Research Encyclopedia of Natural Hazard Science. 2017.
Kanowski, Peter J. "Australia's forests: Contested past, tenure-driven present, uncertain
future." Forest Policy and Economics 77 (2017): 56-68.
Hollis, Jennifer J., et al. "Framework for an Australian fuel classification to support bushfire
management." Australian Forestry 78.1 (2015): 1-17.

8Constitutional law for regualting bushfire in Australia
Gibbs, Lisa, et al. "Post-bushfire relocation decision-making and personal wellbeing: A case
study from Victoria, Australia." Planning for Community-based Disaster Resilience
Worldwide. Routledge, 2016. 355-378.
Melo Zurita, Maria de Lourdes, et al. "Towards new disaster governance: Subsidiarity as a
critical tool." Environmental Policy and Governance 25.6 (2015): 386-398.
Legislation
The Rural Fires Act, 1997
The Code of Practice for bushfire management on public land, 2012
The Amended Building Regulations, 2006
The Bushfires Royal Commission Implementation Monitor Act, 2011
The Environment Protection and Biodiversity Conservation Act of 1999