This question comes, I assume, from a WA volunteer who asks:
If a Local Government (Council) delegates its authority to the CEO, can the CEO then sub delegate its authority and responsibility/actions to another staff member, this is separate to the appointed operational positions like the Chief Bushfire Control Officer or Fire Control Officer. This question is more in relation to administration and specifically … Local Laws which allows a terminated member to appeal the termination to Council/ Local Government
The power of a local government to delegate the performance of its functions is found in the Bushfires Act 1954 (WA) s 48. Section 48(1) says ‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act’. Section 48(3) says, however, that ‘A delegation under this section does not include the power to subdelegate’. Section 48(4) says ‘Nothing in this section is to be read as limiting the ability of a local government to act through its council, members of staff or agents in the normal course of business’.
What follows is that the Local Government may delegate to the CEO the powers and responsibilities that are vested in the Local Government to the CEO so that his or her decision on any matter is a decision of the Local Government. The CEO cannot appoint someone else to take on those roles but he or she can assign work to the council staff or the like to assist him or her in the performance of those functions.
Local government functions that could be delegated to the CEO might include:
13 Request the FES Commissioner to authorise a bush fire liaison officer or another person to take control of all operations in relation to a fire
17(7) & 18(5) Vary restricted burning times
22 Arrange with land holders and a bush fire brigade to co-operate in burning fire-breaks
23 Prohibit burning during prohibited burning times
24B Authorise an officer of the local government to require a person to produce the permit to burn issued to them under the provisions of the Act
24F Give permission to use an incinerator that is within 2m of a building or fence to burn garden refuse during prohibited burning times
24G Further restrict burning of garden refuse
25 Give certain approvals for the lighting of fires
25A(5) Prohibit an exempt person from lighting a fire to which the exemption relates for such period as specified
27 Prohibit, or in some cases permit, the use of tractors or engines except under certain conditions
27D Impose Requirements for carriage and deposit of incendiary material
28 Seek to recover the expenses incurred in responding to a fire that has not been controlled by the occupier of the land as required by s 28(1)
33 Require the occupier of land to plough or clear fire-break (this section also refers to a ‘duly authorised officer’ so other may be authorised for that purpose)
36 Expend moneys in connection with control and extinguishment of bush fires
37 Obtain and keep current a relevant policy of compensation insurance for volunteer firefighters
38 Appoint a bush fire control officer
40 Join in appointing and employing bush fire control officers
41 Establish and maintain one or more bush fire brigades
42 Join in establishing bush fire brigade
46 Prohibit, or from time to time postpone the lighting of a fire
50 Maintained required records
52 Apply to the Minister to have the district or part of it declared an approved area for a bush fire brigade
59 Prosecute of offences (the power to investigate and prosecute offences can also be delegated to ‘to its bush fire control officer, or other officer’ (s 59(3)
67 Appoint an advisory committees
68 Appoint regional advisory committees
Local governments may make local laws with respect to ‘the organisation, establishment, maintenance and equipment with appliances and apparatus of bush fire brigades to be established and maintained by the local government’ (s 62(1)(b)). Local laws must be made in accordance with the provision of the Local Government Act 1995 (WA). The power to make local laws cannot be delegated to the CEO.
What follows is that the Local Government can make local laws for the operation of a brigade that can provide for the membership, and removal of membership of members of the Brigade. The local laws cannot be inconsistent with the Bushfires Act or a regulation made under the Act (s Bushfires Act 1954 (WA) 62(2)). Assuming there is no inconsistency the local laws could provide for an appeal
- To the council which could delegate the decision making power to the CEO (Local Government Act 1995 (WA) s 5.42). Subject to the terms of the delegation, the CEO could further delegate that decision make power (s 5.44)
- An appeal to the CEO who could, subject to the terms of the local law, delegate the decision making power (Local Government Act 1995 (WA) s 5.44)
- An appeal to another person or office holder identified in the Local Law.
Australian Emergency Law 
Hi Michael.
I have a question regarding the delegation of the powers to vary restricted burning times under Sections 17(7) & 18(5) of the Act. Under s.17(10) “A local government may by resolution delegate to its mayor, or president, and its Chief Bush Fire Control Officer, jointly its powers and duties under subsections (7) and (8)”.
Can a LG delegate this power to its CEO solely, or must the delegation be to the CEO and Chief Bush Fire Control Officer JOINTLY.
Kind regards, Suzan.
That’s an interesting question. Section 48(1) says (emphasis added) ‘A local government may, in writing, delegate to its chief executive officer the performance of any of its functions under this Act.
Section 17(7) say ‘Subject to subsection (7B), in any year in which a local government considers that seasonal conditions warrant a variation of the prohibited burning times in its district the local government may …’ after complying with various requirements, vary the prohibited burning times.
Section 17(10) says ‘A local government may by resolution delegate to its mayor, or president, and its Chief Bush Fire Control Officer, jointly its powers and duties under subsections (7) and (8).’
The trick is to read what the sections says. The Power under s 17(7) is a power of the local government. That power can be delegated to the CEO (s 48(1)). The CEO is, I infer an employee of council.
Section 17(10) is not inconsistent with s 48(1). Section 17(10) says that those limited powers (s 17(7) and (8)) can be delegated to the ‘mayor, or president’ and its Chief Bushfire Control Officer…’. The Mayor (of a city or town) or president (of a shire; Local Government Act 1995 (WA) s 2.6) are elected. They may be elected by the electors in the town or by the council form amongst the elected councillors (s 2.110) but in any event they are elected.
It appears to me therefore that the power under s 17(7) can be delegated to the CEO by virtue of s 48(1) or to the mayor or president and the Chief Bushfire Control Officer. Where it is delegated to the CEO he or she can act in accordance with the terms of the delegation and his or her decision is the decision of council. Where it is delegated to the mayor, or president and chief bushfire control officer then they must both make the decisions permitted by ss 17(7) and (8).