Two questions from a correspondent:

As I was reading the Bush Fires Act 1954 (WA) I came across the following:

56. Duties of police officers, bush fire control officers etc.
(2) A person who refuses to state his name and place of abode when required by a person employed in the Department for the purposes of this Act, a bush fire control officer appointed or designated under this Act, or an authorised CALM Act officer so to do, may without any other warrant than this Act be apprehended by the person requiring his name and place of abode under the provisions of this section and detained until he can be dealt with according to law

My question is ‘as a’ bush Fire control officer appointed under the bush fires act by the local government how would I use this power without ending up in ‘handcuffs’ myself?

And my second question is as a volunteer bush fire service member, if I come across a fire on my way home from work or in my travels when would it be acceptable for me to utilise powers granted by the Bush Fires Act 1954 (WA).

Do I need to be in uniform and dispatched in the department’s fire truck?

QUESTION 1: Bush fire control officers are appointed by local governments (s 38) to exercise a number of powers related to fire prevention and suppression.

Section 56 says it is the duty of a bush fire control officer “who finds a person committing an offence against this Act to demand from the person his name and place of abode and to require him to produce a permit or authorisation under the authority of which it is claimed a fire is lit”. If the person gives their name and address then a bush fire control officer is to report the matter to the relevant local government for further action. As noted, s 56(2) provides that if the person does not give their name and address, then he or she may be “apprehended by the [bush fire control officer] …and detained until he can be dealt with according to law”.

Besides this power, anyone in Western Australia may arrest another person if they reasonably suspect the other person has committed an offence punishable by imprisonment (Criminal Investigation Act 2006 (WA) s 25).

Under the Western Australian Criminal Code a person with lawful authority to arrest may “use such force as may be reasonably necessary” to effect the arrest and/or to stop the alleged offender escaping (Criminal Code Act Compilation Act 1913 (WA), Appendix B, clauses 231 and 233). The use of force does not extend to lethal force except in particular, and not relevant, circumstances.

The statute law may say when a person may be arrested bu not an arrest is to be made. In Cox v The State of Western Australia [2011] WASCA 30, McLure P, Pullin JA and Mazza J, sitting at the Western Australian Court of Appeal had to consider whether the defendant had been lawfully arrested under the Criminal Investigation Act 2006 (WA). They said:

“At common law, an arrest occurs whenever it is made plain by what is said or done by the police officer that the suspect is no longer a free person:…. No seizing or touching is required:… No formal words of arrest are required:…
Although touching is not necessary and words alone can be used to effect an arrest, the fact is that physical force must often be applied when doing so. This happens whenever the suspect attempts to flee or resists arrest. However, the police must not apply excessive physical force because they will then be liable for assault:…”

Another important step in arrest is to tell the accused the reason for his or her arrest unless in all the circumstances it is not possible to tell the person of the reason (eg because they are running away or resisting arrest).

Finally the power of arrest is a very serious power that must be exercised with caution. Deane J in Donaldson v Broomby (1982) 60 FLR 124 said:

“Arrest is the deprivation of freedom. The ultimate instrument of arrest is force. The customary companions of arrest are ignominy and fear. A police power of arbitrary arrest is a negation of any true right to personal liberty. A police practice of arbitrary arrest is a hallmark of tyranny. It is plainly of critical importance to the existence and protection of personal liberty under the law that the circumstances in which a police officer may, without judicial warrant, arrest or detain an individual should be strictly confined, plainly stated and readily ascertainable.”

In other words a power to arrest is limited and can only be used in the very specific circumstances set out in the legislation. Short cuts are not permitted. (See generally, Michael Eburn, Rod Howie and Paul Sattler, Hayes and Eburn Criminal Law and Procedure in NSW (Lexis/Nexis, 4th ed, at press, Chapter 11).

So to answer the question “how would I use this power without ending up in ‘handcuffs’ myself?’ First it should be understood this advice is reasonably general, it must be read in context of any specific instructions given by the council (Bush Fires Act 1957 (WA) s 38). With that limitation you should:
1. Be satisfied that the person has committed an offence under the Bush Fires Act.
2. The power is not a power to arrest for committing those offences but for failing to provide name and address; it follows that you must first ask them to give their name and address.
3. If possible it would be prudent to warn the person, if they refuse to give their name and address, that you may arrest them.
4. If they refuse and if you, taking into account the seriousness of the offence that you believe they have committed, then you can arrest them.
5. To arrest them you need to convey to them the message that they are no longer free to go. There is no necessary set of words, but the prudent words are ‘You are under arrest’. If they do not submit you can use force to restrain them, which may be no more than placing your hand upon their shoulder.
6. You are then to detain them to be dealt with according to law. You do not want to actually take them into custody and hold them until you can get them before the court, what you need to do is call the police and let them come and take over the investigation.
7. If the person does give their name and address you have no power to arrest unless the offence, which you think they have committed, can be punished by imprisonment in which case you could exercise a citizen’s arrest.

QUESTION 2: Section 44 of the Bush Fires Act 1954 (WA) says:

Powers and authorities of officers of bush fire brigade
(1) Subject to this Act, and except as provided in section 45 for the purpose of controlling and extinguishing or preventing the occurrence or spread or extension of a bush fire, or for any other prescribed purpose, the captain, or, in his absence, the next senior officer of a bush fire brigade, or in the absence of the captain and all other officers, any other member of the bush fire brigade, after consulting with the occupier of the land if he be present, has and may exercise all or any of the following powers and authorities…

It can be inferred that what is intended is that the brigade is in attendance which would imply that they have responded in their truck and uniform and the section implies that there will be someone in charge of the brigade, that is the captain, other officers and if no officers turned out, a member. It’s hard to imagine what powers an individual member could or would exercise if they came “across a fire on my way home from work or in my travels”. It should be noted there is no specific power to actually extinguish a fire as statutory power is not required; any one can take steps to extinguish a fire if that is necessary.
Without further details on what is envisaged or anticipated then it’s not possible to answer question 2 in more detail.

Michael Eburn
25 October 2013.