Page 4801 - Week 16 - Thursday, 29 November 1990
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Mr Berry: How did you form that belief?
MR DUBY: I believe that is the case.
Mr Berry: Answer the question.
MR DUBY: Would you like to deny it? This has been discussed, as I said, for quite a long period. The issue to which Mrs Grassby and the rest of the Labor Opposition are taking objection seems to me to be basically this one of immunity versus indemnity. That was the thrust of the arguments put forward by Mrs Grassby and the shadow Attorney-General, Mr Connolly.
I have a number of things to say on that issue. There is no question about the fact that the Bush Fire Council originally requested improved indemnity provisions for bushfire fighters, both volunteer and paid. That was agreed to, and the provision has been made within this Bill. Since then some members of the volunteer association, a member of the council, and some other members of the council have argued for immunity rather than indemnity. They are seeking to change this Bill, and obviously they have the ears of Mrs Grassby and Mr Connolly.
I think it should be pointed out that an indemnity provision will enable any firefighter acting within the course of his or her duties to be indemnified against liability. No-one is disputing that. An immunity provision attempts to provide freedom from liability in respect of any action whatsoever. I object to such a change from indemnity to immunity, on the basis that a citizen should have a right to take action against a firefighter in cases where there is a negligent act or omission. Where people act as bona fide firefighters and, through whatever act of omission, they take some negligent action, it is commonsense that someone should have a claim, not against them but against the people who are responsible, namely, the Government. The firefighter is indemnified.
I think the whole issue of indemnity versus immunity also was raised by Mrs Grassby in terms of being of enormous cost to this Territory. I am at liberty to say that in relation to the Cabinet submission that went before this Government the Treasury officials who monitor these things very, very carefully, I can assure you, had no problems whatsoever, and they raised no objections to the indemnity approach when it was circulated for comment.
The immunity provision which the Opposition is trying to introduce, which would give an immunity to the Territory and to any firefighters for any damage caused, either directly or indirectly, by the exercise of a power or the performance of a function by a person under the legislation is substantially similar to State provisions. But the interesting point is that various court decisions on such immunity provisions have consistently read these provisions down. I quote Lobsey v. Care, 1983 New South Wales Supreme Court, as a specific case in point. It considered and substantially read down the immunity provision in the Bushfires Act 1949 of New South Wales.
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