This question comes from a local government in Western Australia. They ask:

In the context of insurance liability and risk,
1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?
2. Is the risk to local government greater or less if they employ their own chief fire control officer?
3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?
4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

Tort liability arises if an agency, in this case the local government, has a duty to do something, fails to act reasonably and that causes damage. It has to be determined on a case by case basis so there is no simple rule that can be summed up as “if you do x you cannot be liable”.

Let us now turn to the questions. The bush fires act is the Bushfires Act 1954 (WA). Section 38 says “A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers …” From those officers one must be appointed as the Chief Bush Fire Control Officer and another as the Deputy Chief Bush Fire Control Officer.

Where there is a vacancy in the office of Chief or Deputy Chief Bush Fire Control Officer the local government must fill that vacancy within one month. If they do not do so, the Fire and Emergency Services Commissioner may serve a notice on the council requiring them to fill the vacancy and if they do not comply then ‘the FES Commissioner may appoint a person who is not employed in the Department to the vacant office’ (s 38(2)(d)). Further, ‘At the request of a local government the FES Commissioner may designate a person employed in the Department as the Chief Bush Fire Control Officer for the district of that local government’ (s 38A).

Where a local government has appointed a bush fire control officer it may give directions on how those officers, including the Chief Bush Fire Control Officer, are to carry out ‘normal brigade activities’ and exercise their authority under Part III of the Act (dealing with actions to prevent bush fires). The local government may also issues directions to a fire control officer with respect to hazard reduction burns ‘on, or at the margins of, streets, roads, and ways, under the care, control and management of the local government’ (ss 38(4) and (5A)). Where the Chief Bushfire Control Officer is appointed by the FES Commissioner (s 38A(1)) then it is the FES Commissioner who may give those directions to the Chief Bush Fire Control Officer.

In all other respects, the Act applies to a Chief Fire Control Officer appointed by the FES Commissioner as if he or she were appointed by the local government (s 38A(3)).

To return to the questions:

1. is there anything in the bush fires act that implies or otherwise that local governments must appoint dfes (Department of Fire and Emergency Services) persons to the position of chief fire control officer because of liability issues and this would reduce local governments risk?

No there is nothing that would suggest that a Chief Fire Control Officer should come from DFES. The only liability issue it would seem is that it would be the FES Commissioner that would give ‘directions’ to the Chief Fire Control Officer under ss 38(3) to (5C) and if, somehow those directions were negligent and caused damage that could shift liability to FES.

2. Is the risk to local government greater or less if they employ their own chief fire control officer?

It would make no difference. Regardless of how the Officer is appointed, the Act applies to them as if they were appointed by the Local Government (s 38A(3)).

3. Is there anything in insurance legislation or case law that requires the chief fire control officer to be dfes employed to protect from liability?

No.

4. If dfes appoint a chief under current legislation does the local government still wear the liability and accountability?

It is not clear what ‘Liability and accountability’ we are talking about. The Chief Bush Fire Control Officer is meant to be one of a team. The FES can appoint the Chief but not all the other Bush Fire Control officers. Section 38A(3) says ‘The provisions of this Act, other than section 38(3) to (5C) apply to and in relation to the Chief Bush Fire Control Officer designated under this section as if he or she were a Chief Bush Fire Control Officer appointed under section 38 by the local government.’ With the exception of the exercise of powers under ss 38(3) to (5C) it makes no difference whether it is the FES Commissioner or the Local Government that appoints the Chief Fire Officer.