I have been away for a week, so I’m now catching up on questions and stories. The first relates to a story that appeared in the West Australian (Daniel Emerson, ‘State can’t afford to adopt bushfire rulesWest Australian (Online), 16 January 2015).

The gist of the story is that the West Australian government is intending to impose fire mitigation obligations upon private land owners, but they will not impose similar obligations upon state agencies. The article starts with:

Emergency Services Minister Joe Francis says the State cannot afford to “bind the Crown” to the same bushfire mitigation rules faced by private landowners.

Some legal history

Historically legislation was made by the monarch on the advice of the Parliament. Legislation used to begin:

‘BE it enacted by the Queen’s Most Excellent Majesty, by and with the advice and consent of the Legislative Council and the Legislative Assembly of Western Australia, in this present Parliament assembled, and by the authority of the same…’ (see for example, City of Perth Parking Facilities Act 1958 (WA)).

To make a law, the Bill has to pass through both houses of Parliament (except in Queensland where there is only one house) and then receive Royal Assent. In England, Royal Assent is given by the Queen, in Australia her assent is given by her representative; the Governor at state level and the Governor-General for the national parliament.   By convention, the Queen, the Governors and the Governor-General act on, and only on, the advice of their ministers. This means that they will never refuse to assent to an Act that has been passed by the relevant parliament.   To reflect that modern legislation no longer has the archaic introduction but the situation still remains that as a matter of legal history, the parliament recommends to the monarch that he or she should make a law and they then do so.

Again as a matter of history, it was said ‘the Crown can do no wrong’ so one could not sue or prosecute the monarch and the monarch was not bound by the laws that he or she made unless they specifically said that they were. Today the Crown is much more than the monarch, it is the whole of government made up of the ministers and the government departments. They all represent, and are captured by the phrase, ‘the Crown’.

It is now possible to sue the Crown as if it were a natural person (see Crown Suits Act 1947 (WA)) but it’s still the case that an Act of Parliament does not bind the Crown unless it specifically says that it does, so see, for example, the Animal Welfare Act 2002 (WA) s 4 which says ‘This Act binds the Crown in right of the State and, so far as the legislative power of Parliament permits, in all its other capacities’.

This story

This story is that with proposed amendments to emergency management legislation in particular with respect to a landholders’ obligations to mitigate risk, the parliament will not ‘bind’ the Crown.   In that case although a private landholder may have an obligation to mitigate a risk, an entity that is part of the Crown, that entity will not have the same obligation.

As the story says, the Crown is in a different position to a private landholder. The Crown owns ‘2.5 million’ square kilometres of land. Some will neighbour infrastructure and valuable private land, but other areas are remote. The Crown also has to manage land for a variety of reasons including maintaining bio-diversity and heritage values, which may conflict with hazard mitigation practices.

The fact that the Crown is different to private interests is reflected in other areas of law. When considering the application of tort law to the Crown in Stuart v Kirkland-Veenstra [2009] HCA 15, Crennan and Kiefell JJ said, at [129]:

In principle a public authority exercising statutory powers should not be regarded by the common law any differently from a citizen. It should not be considered to have an obligation to act. But the position of a public authority is not the same as that of a citizen and the rule of equality is not regarded as wholly applicable. It has public functions and it has statutory powers which the citizen does not.

Also in the field of tort law, when considering how the Crown should respond to a risk, the Civil Liability Act 2002 (WA) s 5W says:

The following principles apply in determining whether a public body or officer has a duty of care or has breached a duty of care in proceedings in relation to a claim to which this Part applies —

(a) the functions required to be exercised by the public body or officer are limited by the financial and other resources that are reasonably available to the public body or officer for the purpose of exercising those functions;

(b) the general allocation of those resources by the public body or officer is not open to challenge;

(c) the functions required to be exercised by the public body or officer are to be determined by reference to the broad range of its activities (and not merely by reference to the matter to which the proceedings relate);

(d) the public body or officer may rely on evidence of its compliance with the general procedures and applicable standards for the exercise of its functions as evidence of the proper exercise of its functions in the matter to which the proceedings relate.

As the Minister says, ‘”If you wanted to force every government agency to address their entire risk, it would cost billions, if not trillions, of dollars”’ and is inconsistent with the above provisions as it does not take into account all the competing obligations that governments have that others may not.

Conclusion

I haven’t seen the draft legislation and I’m not trying to argue that the Crown should not be bound but in this post I’ve tried to put the discussion into an historical context and to argue that it is certainly not unusual for the Crown not to be bound by legislation, and to have different obligations to private citizens. What is the appropriate policy response here, however, is another matter.