A correspondent says:

I’ve been racking my brain over the last couple of days trying figure out where Department of Parks and Wildlife (DEPW WA) gets the power to light prescribed burns during restricted periods, are they meant to have a permit like private land holders as the Bush Fires act 1954 binds the crown or are they exempt under the conservation and land management act?

It is impossible to answer this question with any certainty.   First I have to accept that the Department does set fires during the restricted period.  If that is true what can be their authority?

The issue of ‘restricted periods’ is found in the Bush Fires Act 1954 (WA).  Prohibited burning times may be declared by the Minister; Restricted burning times may be declared by the FSES Commissioner (ss 17 and 18).   During a restricted burning period it is ‘unlawful to set fire to the bush … except in accordance with a permit obtained under this section and with the conditions prescribed for the purposes of this section’ (s 18(2)).  There is no particular exemption for DEPW in that section.

Interestingly my correspondent says ‘the Bush Fires act 1954 binds the crown’ but does it?

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’.

The Bush Fires Act 1954 (WA) does not say that it binds the Crown.  It follows that the offences set out in that Act dod not aply to the Crown. Without confirming it by reference to chapter and verse, we can assume that the Department of Parks and Wildlife is part of the Crown in right of the Government of Western Australia (Crown Suits Act 1947 (WA) s 3) and so is not bound by the Bush Fires Act.

If I’m wrong about that there are plenty of ways they would get permission to conduct  burns. First they may get the relevant permit (s 23). The area of Crown Land might be exempted from the restrictions (s 17(4)); they may get an exemption from the Minster (s 25A).

I don’t see any exemption under the Conservation and Land Management Act 1984 (WA).

What follows is that it is not possible to answer the question without more detail about what DEPW are doing, when and why and what authority they claim to rely on.  The most obvious authority is that, as part of the Crown, they are not bound by the Bush Fires Act 1954 (WA).