A correspondent from Western Australia writes:

As a Bushfire Brigade is established and registered by a Local Government in Western Australia:

  1. Is the Local Government that establishes the brigade under the Bush Fires Act responsible for ALL legal obligations for that brigade, including but not limited to – OHS legislation, training, insuring, managing, all policies and procedures and authorisations of senior members?
  2. Can a local government claim that Local Government policies cannot be applied to that brigade because its policies apply only to staff and not volunteers?
  3. Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe/coroner hold responsible?

Not sure if you can answer these but I would be very interested and I’m sure so would most West Australian volunteer Bushfire Fighters.

It’s true that in Western Australia, unlike say New South Wales and Victoria, bush fire brigades are established and run by local government authorities (Bush Fires Act 1954 (WA) s 41).   The Local Government is to ‘provide for the appointment or election of a captain, a first lieutenant, a second lieutenant, and such additional lieutenants as may be necessary as officers of the bush fire brigade, and prescribe their respective duties’ (s 43). The power of brigade officers to take steps to respond to a fire are set out in s 44 so they are not dependent on local government by-laws.

A local government can spend money on equipping a bush fire brigade (s 36). It must ensure that a compensation policy is maintained for the benefit of volunteer fire fighters who might be injured in the course of their duties (s 37).

A local government may appoint a bush fire control officer (s 38). A chief bush fire control officer fro a local government area can be appointed by the FES Commissioner (s 38A). A bush fire control officer has extensive powers to facilitate the response to a fire (s 39). Further, s 39A says:

On the outbreak of a bush fire at a place within or adjacent to the district of a local government, the bush fire control officers, bush fire brigade officers, or bush fire brigade members, of the local government, or as many of them as may be available may, subject to this Act, take charge of the operations for controlling and extinguishing the bush fire or for preventing the spread or extension of the fire.

Bush fire liaison officers are departmental officers designated as a bush fire liaison officer by the Fire and Emergency Services Commissioner (s 12). They, in turn, must act subject to any directions of the Commissioner (s 13(1)).   Where a bush fire liaison officer has taken control of the response to a bush fire, all ‘officers and members of a bush fire brigade who are present at the fire are … subject to, and are to act under, the authorised person’s orders and directions’ (s 13(6)).

Let me now turn to the questions:

  1. Is the Local Government that establishes the brigade under the Bush Fires Act responsible for ALL legal obligations for that brigade, including but not limited to – OHS legislation, training, insuring, managing, all policies and procedures and authorisations of senior members?

No, they are not. Certainly they are responsible for maintaining the workers compensation type insurance and setting the rules but some of the conduct of the Brigade is subject to direction from the FES commissioner.

OHS responsibilities in particular don’t ever fall to one agency, work health and safety is everyone’s responsibility.   A local government is responsible for taking steps to ensure that there is a safe work environment for employees (s 19) and non-employees affected by the employer’s work (s 21).   Western Australia has not adopted the Model Work Health and Safety Act 2011. In the jurisdictions that have the word ‘worker’ includes a ‘volunteer’. WA still has the distinction between employees and non-employees and volunteers are not employees.   Even so local governments are employers and their work involves managing the bush fire brigades so they have an obligation to ensure that ‘the safety or health of a person, not being … an employee … is not adversely affected…’ by the work of the local government authority.   So in short they have OHS responsibilities for the brigade, but so do bush fire control officers, bush fire liaison officers and ultimately the FES Commissioner.

What they are responsible for depends on the work they are doing and what is their work. So where a bush fire liaison officer has taken control of fire fighting and is direction the actions of a bush fire brigade then he or she has an obligation to ensure that he or she does not adversely (and unreasonably) affect the health and safety of those being commanded.

Where a brigade is maintained entirely as part of a local government with no independent legal existence, then for all practicable purposes one can answer the first question as ‘yes’ even subject to what I have said, above. That is for all practicable purposes the brigade is ‘owned’ by the local authority so yes they are ultimately responsible for ensuring the brigade and its members meets its legal obligations.

The position could be confused by s 42A which says ‘Any group of persons, however constituted and whether incorporated or not, may be established as a bush fire brigade under section 41(1) or 42(1).’ If an incorporated entity was ‘established as a bush fire brigade’ then it would have a separate legal entity to the local government authority. As a separate legal entity it could sue and be sued and it’s governing board would have obligations to the entity to ensure legal compliance.   I’m not sure if any bush fire brigades are constituted as separate legal entities but if they are then the principal obligation to meet legal obligations will lie with that entity and the role of local government would depend on the arrangements between the two entities.

  1. Can a local government claim that Local Government policies cannot be applied to that brigade because its policies apply only to staff and not volunteers?

Yes. I’m sure many volunteers would not want to be bound by local government policies that are directed to employees. Volunteers are not employees so it must be the case that a local government authority can and would have policies that apply only to employees.   Whether a particular policy would, or should, also extend to volunteers would be a matter of interpretation and context, but on the face of it, it must be the case that some policies cannot be applied to a brigade of volunteers because for whatever reason, it is intended to only apply to staff.

  1. Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe/coroner hold responsible?

The ‘Black Kat creek incident’ involved the death of a firefighter in a ‘burnover’ (see ‘Review into death of Albany firefighter Wendy Bearfoot finds fire agencies errors repeatedPerthNow, October 12, 2013). The ‘Craig Sandy incident’ involved the death of firefighter Craig Sandy in a motor vehicle accident between fire appliances (‘Firefighter’s death an accident, coroner rules,’ ABC Online, 8 July 2004).

No-one is ‘ultimately responsible’ when events like this occur. People and agencies are responsible for the parts they are responsible for.   Without commenting on the details of a particular case, where a fire fighter is killed in a motor vehicle accident the driver is responsible for the decisions he or she made as a driver; the passengers are responsible for their behaviour if that contributed to the accident; the agency is responsible for the policies it may have had in place to ensure driver’s are qualified and trained and fatigue is managed; a despatcher may be responsible for the decisions made about which appliances to respond from where to where.

Neither WorkSafe nor the coroner hold anyone responsible – at least not in theory. Worksafe is an enforcement agency, they may allege that someone or an agency has failed to ensure a safe workplace or otherwise failed to comply with the Occupational Health and Safety Act but mere allegation does not make it so.   Whilst these matters are often ‘uncontested’ a person who is alleged to have committed an OHS offence has all the protections of any other defendant. They are entitled to deny the allegation and the prosecution must prove the case, beyond reasonable doubt, in a court of competent jurisdiction (see Kirk v WorkCover (NSW) [2010] HCA 1). It is the court, not WorkSafe, that determines whether or not the person or agency has committed the offence alleged.

Coroners do not ‘hold’ people responsible (see ‘What is the difference between an inquiry and a court?’ (June 24, 2015)). Coroners have jurisdiction to investigate deaths and fires. According to the Coroners Act 1996 (WA) s 25, the principle task of a coroner investigating a death is to find:

(a) the identity of the deceased; and

(b) how death occurred; and

(c) the cause of death; and

(d) the particulars needed to register the death under the Births, Deaths and Marriages Registration Act 1998.

It is not their job to find out who is ‘responsible’ for the death. In reporting his or her findings, a coroner must not to suggest that any person is or should be liable to another nor can the coroner ‘suggest that any person is guilty of any offence’ Coroners Act 1996 (WA) s 25(5)).

‘A coroner may comment on any matter connected with the death including public health or safety or the administration of justice’ (Coroners Act 1996 (WA) s 25(2)).   That does give the coroner a wide-ranging discretion to investigate matters in order to make recommendations to avoid further deaths or fires.   In making that inquiry the Coroner is not limited by the law; if he or she were the value of the inquest would be lost. It may be that under law person ‘a’ was responsible for some conduct but the coroner may want to say that this allocation of responsibility was unhelpful and that it should have been person ‘b’. Is that ‘holding’ ‘b’ responsible?  Alternatively the coroner may say person ‘a’ was responsible for something but failed to do whatever he or she should or could have done to avoid the tragedy.   The coroner may then make recommendations on what might be done to better equip a person in the position of person ‘a’ so that the identified failings are not repeated. Is that ‘holding’ ‘a’ responsible?

It follows that the question ‘Who is ultimately responsible when things go wrong (like the Black Kat creek incident, or Craig Sandy incident) and who will Worksafe … hold responsible?’ cannot be answered in the abstract. Each case will depend upon its own facts.   Equally no–one is ultimately responsible, everyone is responsible and multiple people could be identified as having contributed to the tragedy, again each case will depend on its own facts.

As for the question ‘Who … will [the] coroner hold responsible?’ the answer is ‘no-one’. Coroners investigate deaths and fires to make recommendations to avoid future tragedies; they cannot determine legal rights and cannot hold anyone responsible. What findings the coroner might make would again depend on the particular facts of each case.