This question comes from Western Australia.

Today It was brought to my attention that our local government has been breaching section 38 subsection 2E of the Bushfires Act 1954 by not issuing a “certificate of appointment” to their fire control officers.

  1. Local government may appoint bush fire control officer  …

(2E) A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government or, if he is appointed by the FES Commissioner, by the FES Commissioner.

My question to you is:

  1. Can local governments be held accountable for breaches like this, if so by who?
  2. If there has never been an appropriately appointed FCO what position does this place the local government in, considering every order and permit issued could be considered illegal?
  3. is this an error that can be just “swept under the carpet”?
  4. And the big one is this an offence against section 177 of the criminal code?

Disobeying statute law
Any person who, without lawful excuse, the proof of which lies on him, does any act which he is, by the provisions of any public statute in force in Western Australia, forbidden to do or omits to do any act which he is, by the provisions of any such statute, required to do, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The offender is liable to imprisonment for one year.

We need to look at more detail at s 38.  Sections 38(1) to (2E) say:

 (1)      A local government may from time to time appoint such persons as it thinks necessary to be its bush fire control officers under and for the purposes of this Act, …

(2A)   The local government shall cause notice of an appointment made under the provisions of subsection (1) to be published at least once in a newspaper circulating in its district.

(2C)    The local government shall fill any vacancy occurring in the office of Chief Bush Fire Control Officer or Deputy Chief Bush Fire Control Officer within one month after the vacancy occurs and if the local government fails or neglects to do so within that time, the FES Commissioner may by notice in writing require the local government to appoint a person to the vacant office within one month after service on it of such notice.

(2D)   Where a local government that has been served with a notice pursuant to subsection (2C) fails or neglects to comply with the requirements of that notice, the FES Commissioner may appoint a person who is not employed in the Department to the vacant office.

(2E)    A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government or, if he is appointed by the FES Commissioner, by the FES Commissioner.

The appointment of a fire control officer is made pursuant to s 38(1).  The validity of the person’s appointment does not depend on the issue of a ‘certificate of appointment’.   What is the value of a certificate issued under s 38(2E)?  It is a shortcut for proof. The only other time the certificate gets mentioned is in s 65 relating to proof of certain matters.  Section 65(2) says:

The production of — …

(c) a copy purporting to be a true copy of the certificate of appointment or designation of a bush fire control officer certified as such under the hand of the chief executive officer of a local government or the FES Commissioner…

is evidence until the contrary is proved of the …due appointment or designation of the bush fire control officer… as the case may be, and of all preliminary steps necessary to give full force and effect to the same.

There are various offences set out in the Bushfires Act, for example section 57 provides that

A person who obstructs, hinders, resists or in any way opposes … a bush fire control officer appointed or designated under this Act, …in the performance or doing of anything which he is empowered or required to do by this Act is guilty of an offence.

If someone were to be prosecuted for that offence it would be necessary to prove that the person who was obstructed, hindered, resisted or opposed was indeed a bush fire control officer.  The certificate, issued under s 38(2E), tendered into evidence would, by virtue of s 65(2) be proof of that person’s appointment.  Without that certificate it may be necessary to produce the council’s records of their appointment and perhaps call the council’s executive officer to give evidence as to their appointment.  There are no other provisions where the certificate is relevant and it won’t affect the validity of their appointment.

Let me know turn to the questions asked:

  1. Can local governments be held accountable for breaches like this, if so by who?

I’m not sure what ‘accountability’ would look like in this case.  The Local Government is ‘accountable’ so I suppose the Minister or the FES Commissioner could ask the local government to explain why they hadn’t issued a certificate and to get on and do it.  In that case they are ‘accountable’, but certainly not ‘liable’ in any way (subject to the discussion on s 177 of the Criminal Code, below).

  1. If there has never been an appropriately appointed FCO what position does this place the local government in, considering every order and permit issued could be considered illegal?

The failure to issue a certificate under s 38(2E) would not affect the validity of their appointment so this question is not relevant.

  1. is this an error that can be just “swept under the carpet”?

That’s a value laden question, but I would suspect that it’s an error that can be fixed by issuing the appropriate certificate.

  1. And the big one is this an offence against section 177 of the criminal code?

Disobeying statute law
Any person who, without lawful excuse, the proof of which lies on him, does any act which he is, by the provisions of any public statute in force in Western Australia, forbidden to do or omits to do any act which he is, by the provisions of any such statute, required to do, is guilty of a crime, unless some mode of proceeding against him for such disobedience is expressly provided by statute, and is intended to be exclusive of all other punishment.
The offender is liable to imprisonment for one year.

Clearly this is not an example of a local government doing ‘any act which [it] is, by the provisions of any public statute in force in Western Australia, forbidden to do’ so that part of s 177 cannot be relevant.  Section 38(2E) does say ‘A bush fire control officer appointed by a local government under the provisions of this section shall be issued with a certificate of appointment by the local government…’ so arguably failing to issue the certificate is an example of a local government omitting to do something which it ‘is, by the provisions of any such statute, required to do…’

There are no cases in Western Australia that interpret s 177 so one can infer it is not a section that is frequently, if ever, relied upon.  The reason for that is clear, most if not all statutory provisions that are intended to carry a punishment will say what the punishment is.  Take for example the Bushfires Act 1954 (WA) s 57 discussed above.  The penalty for obstructing an officer is a fine of $5000.  That being set out in the Act it is ‘exclusive of all other punishment’ and so there is no role for s 177.  To find a statute that is intended to create an offence and carry punishment, and which does not say what the punishment is, is quite unlikely but possible.

Is a local government a ‘person’ for the purposes of s 177?  The Criminal Code 1913 says (s 1)

The term person … when used with reference to property, include corporations of all kinds, and any other associations of persons capable of owning property: They also, when so used, include Her Majesty;

The term ‘person’ in s 177 is not being ‘used with reference to property’ so on that reading a local government is not a ‘person’.

The Interpretation Act 1984 (WA) s 5 says that the term ‘person’ when used in WA legislation ‘includes a public body, company, or association or body of persons, corporate or unincorporate’.  The Local Government Act 1995 (WA) says that a local government is a body corporate and has ‘the legal capacity of a natural person’(s 2.5(3)).  Further ‘Proceedings may be taken by or against the local government in its corporate name’ (s 2.5(6)).   If the local government were not a ‘person’ it could not be convicted of any offence and that would be anomalous.  I would infer that by virtue of both the Interpretation Act and the Local Government Act, a local government is a ‘person’ for the purposes of s 177.

There are a number of things the local government ‘shall’ do to comply with the Bushfires Act 1954 (WA) s 38. They shall:

  • ‘cause notice of an appointment made … to be published at least once in a newspaper circulating in its district’ (s 2A);
  • ‘fill any vacancy occurring in the office of Chief Bush Fire Control Officer or Deputy Chief Bush Fire Control Officer within one month after the vacancy occurs’(s 2C); and
  • issue a certificate of appointment (s 2E)

With respect to s 2C and filling vacancies, ‘some mode of proceeding … for such disobedience is expressly provided by statute’.  If the council does not fill a vacancy the FES Commissioner may serve a notice requiring them to do so and if they don’t comply with the notice, the FES Commissioner may fill the vacancy (ss 2C and 2D).  There is no alternative procedure for ss 2A or 2E.

In the circumstances one has to conclude that failing to issue a certificate of appointment could be a breach of s 177 of the Criminal Code and that could be relevant if for example a council simply refused to do so and it was thought necessary to bring them into line.

Just because something is an offence does not, however, mean it needs to be prosecuted.   The Director of Public Prosecutions has published Prosecution Policy and Guidelines 2005.  Apart from considering the strength of the evidence the prosecutor needs to consider the public interest including

(a) the trivial or technical nature of the alleged offence in the circumstances;…

(e) the degree of culpability of the alleged offender in connection with the offence; …

(g) whether a prosecution would be perceived as counter-productive to the interests of justice;

(h) the availability or efficacy of any alternatives to prosecution; … [and]

(j) whether the alleged offence is of minimal public concern;

I would suggest that a council that has failed to issue a certificate of appointment has committed an offence (if an offence has been committed) that is trivial and technical and of minimal public concern.  The culpability is minimal if they merely failed to realise they had to do it, there are alternatives available, in particular drawing it to their attention and directing them to issue the certificate.  I’m sure the entire community would think any prosecution is not in the interests of justice.

It follows that even if, strictly speaking, the failure to issue a certificate is an offence contrary to s 177 I can’t imagine any DPP would ever entertain the idea of commencing a prosecution for such an offence.