07 November 2011


My 'Burning with indignation: Arson, law and the 2009 Victorian bushfires' in 15(1) Local Government Law Journal (2009) 35 critiqued the outbreak of security theatre that followed close on the 2009 bushfires.

That outbreak saw politicians rushing to announce significantly stronger penalties for arsonists and media figures indulging in penal populism regarding 'bushfire arson', an offence that was apparently unique and egregious. I suggested that in the rush to judgment people appeared to ignore the reality that -
• some bushfires are 'acts of god' (eg started by lightning rather than by cunning pyromaniacs with beady red eyes and pointy evil ears),
• some may be attributable to poor maintenance of powerlines and other infrastructure (a comment that was later substantiated in official hearings),
• the deaths in 2009 although deeply regrettable might in part be attributable to the vicissitudes of evacuating people from difficult terrain at short notice, and
• some arsonists might lack the capacity we assume in an average Australian adult.
The deterrent value of a mandatory 25 year or life sentence is unclear when dealing with children who play with matches or adults who have fundamental psychological problems.

The last point is significant: it is undesirable as a matter of justice and public policy to impose extraordinary sanctions on people who have cognitive or other deficiencies, particularly if penal populism results in a higher punishment of someone whose action results in death through a bushfire than through a deliberately lit urban fire.

The ABC today reports that prosecutors have dropped all charges against two teenage boys (aged 15 and 16) accused of lighting a fatal bushfire at Bendigo in central Victoria on Black Saturday. That fire destroyed 58 homes, burned 341 hectares and resulted in the death of one man.

The boys were initially charged with arson causing death and intentionally causing a bushfire. In August this year, however, psychologists told the court that the boys are of abnormally low intelligence and incapable of understanding a trial or properly instructing their lawyers.

At that time they were deemed unfit to be tried but were still to face a special hearing to determine their guilt or innocence. The Victorian Supreme Court has today been told that the Director of Public Prosecutions will no longer pursue the case on the basis of insufficient evidence and a recognition that it was not in the public interest to proceed.