House of Representative Speech- Foreign States Immunities Amendment Bill 2009

Members of this House saw and heard the devastating consequences of the Black Saturday bushfires, which afflicted my home state of Victoria earlier this year. The fires ravaged communities, devastated entire towns and resulted in the deaths of many people. We heard in many moving condolence speeches that were given in this House in February of this year the full horror of the fires and their effects on communities. The courageous efforts of local firefighting volunteers, Country Fire Authority firefighters and professional firefighters from other countries were critical in bringing those fires under control and in preventing the even worse damage that would have been suffered had those firefighters not been there to stand between the people of Victoria and the fires.

Members of this House saw and heard the devastating consequences of the Black Saturday bushfires, which afflicted my home state of Victoria earlier this year. The fires ravaged communities, devastated entire towns and resulted in the deaths of many people. We heard in many moving condolence speeches that were given in this House in February of this year the full horror of the fires and their effects on communities. The courageous efforts of local firefighting volunteers, Country Fire Authority firefighters and professional firefighters from other countries were critical in bringing those fires under control and in preventing the even worse damage that would have been suffered had those firefighters not been there to stand between the people of Victoria and the fires.

The professional firefighters from the United States made a particularly notable contribution, but that contribution runs the risk of being restricted in future due to potential liability under Australian tort law. The Foreign States Immunities Amendment Bill 2009, which is before the House, addresses this problem and will facilitate cooperation with other countries in firefighting. Countries such as the United States, New Zealand and Canada have contributed to the containment of major bushfires in Australia in recent years. Their assistance has included the provision of personnel and equipment and the development of effective firefighting strategies. Most recently, the United States Department of the Interior dispatched 100 firefighters to reinforce Australian efforts to contain the Victorian fires. Other nations have also made substantial contributions, as seen in the deployment of 116 firefighters by New Zealand and 52 firefighters from Canada. Such assistance was reinforced by the provision by the United States of technical specialists such as experienced pilots for fixed wing firebombing aircraft.

The United States firefighters who helped earlier this year and in previous years have been able to provide specialist assistance and training in prevention strategies and preparation for managing bushfires and they have, of course, been on the ground directly working with Australian firefighters in fighting fires. That second aspect is a crucial aspect of the assistance that is being provided by United States firefighters because we have seen that state and territory fire services can be overstretched when fires burn for a long time, running the risk of exhausting state and territory resources. Just to give an indication of the immense assistance that the United States firefighters have provided in recent years, we have had over 170 United States firefighters deployed to Australia over just the last seven years—in 2003 for the very large alpine fires, in 2006 for the fires in the Great Divide and in 2009 for the Black Saturday fires. There is also a point to be made about the very direct and immediate assistance that is provided by the United States firefighters which relates to the training that they receive and the similarity between Australian and United States conditions. What those two things mean is that United States firefighters are able to fit directly into crucial roles at short notice. It is worth mentioning that this is very much a reciprocal relationship. Over 260 Australian firefighters have been deployed to the United States on five occasions in recent years—71 Australian firefighters went to the United States in 2000, 40 in 2002, 47 in 2003, 69 in 2006 and 35 in 2008.

These professionals have provided crucial assistance to our local volunteers and our professional Country Fire Authority firefighters. In key locations such as Bendigo, Beechworth and Glenhope, foreign firefighters came to reinforce local brigades and crews after days of exhausting firefighting. The effect on morale must have been significant in knowing that people in other countries were concerned and were ready to help those enduring Australia’s worst bushfires. The firefighters from other countries brought with them knowledge and personal experience from firefighting in their homelands. I have already noted the particular direct applicability of US firefighters’ experience of US conditions in enabling them to fit directly with firefighting efforts here.

The future contribution is potentially in doubt as a result of potential liability in tort proceedings under Australian law. Currently firefighters from other countries may be liable for a range of events—including death, personal injury and property damage—that result from acts or omissions by them in the course of providing assistance in firefighting efforts in Australia. That has given rise to concern by the United States government. In fact, because of the possibility of its firefighters becoming entangled in litigation here, United States law has prompted these amendments. In particular, there is concern that firefighters might be held liable or might be sued for acts arising from genuine attempts by them to assist those in need. Fear of litigation has some potential to undermine firefighting efforts, as it might distract foreign professional firefighters from the task at hand. One can readily imagine that concerns about being sued might be exacerbated if a US firefighter might be liable for actions undertaken not as a result of something that they have judged to be correct action but because they have adhered to the orders of local officials. That kind of fear places an unnecessary burden on these hardworking firefighters from overseas who generously lend us their assistance. Removing the cause of these concerns is likely to help foreign firefighters perform their duties even more efficiently.

The amendments to the Foreign States Immunities Act 1985 seek to provide legal immunity to foreign firefighters from proceedings in tort from actions arising from the provision of assistance. The proposed changes to the legislation will not provide immunity from civil liability arising from actions undertaken outside of firefighting duties, nor will the immunity apply to any liability under the criminal law. As a result, the protections conferred by these proposed amendments remain limited in scope so as to address the concerns of firefighters from other nations—but the particular focus is on the request from the United States—but will not create unreasonable exceptions nor affect the overall enforcement of Australian law. By addressing these concerns, enactment of these amendments will further strengthen firefighting cooperation with other countries.

In 2001, Australia signed an agreement with the United States to provide a basis for mutual assistance to fight major fires. The agreement has been overwhelmingly beneficial, allowing for American firefighters to assist in Australia and reciprocally allowing Australian firefighters to assist in the United States. I have detailed the recent, large-scale assistance that Australian firefighters have been able to provide in the United States, notably in California. As I think is well known, California has very similar bushfire conditions because of the large extent of its forests and the dryness of its summers. This means it is useful for US firefighters to come here, and it means our firefighters are particularly useful when they go to the United States.

Renewal of this agreement is currently being negotiated between Australia and the United States, as it is due to formally conclude in 2011. The terms of the new agreement will provide for more comprehensive assistance, allowing all states and territories in Australia to seek the assistance of the United States. It will provide Australian firefighters with the same kind of legal immunity when assisting in the United States, but the United States government has indicated that it is unable to finalise acceptance of the agreement while its firefighters remain subject to potential litigation here. The amendments contained in this bill will address the concerns of the United States and allow the agreement to be finalised. The bill demonstrates very clearly that Australia values the contribution of these firefighters and creates a basis for greater bilateral cooperation in future—not merely with the United States but, because it provides a model, with a range of other countries who have also indicated willingness to assist Australia in its firefighting efforts. I mention in that regard France and Japan, which have very generously extended offers of assistance.