A council in Western Australia is drawing up a code of conduct for the bushfire fighting volunteers. The draft document says:
6.1 Misconduct
(1) For the purposes of this clause, misconduct is defined in accordance with section 4 of the Corruption Crime and Misconduct Commission Act 2003 (C&CM Act) [sic].
(2) The Chief Executive Officer has a statutory obligation to report to the Corruption and Crime Commission any suspected misconduct by a VBFB member/s.
(3) As public officers, VBFB Members should immediately report to the Chief Executive Officer any instance of suspected misconduct as defined in the C&CM Act.
(Note that the Corruption and Crime Commission Act 2003 (WA) was amended and renamed the Corruption Crime and Misconduct Act 2003 (WA) with effect on 1 July 2015 (see Corruption, Crime and Misconduct Act 2003 (WA) Compilation table and Corruption and Crime Commission Amendment (Misconduct) Act 2014 (WA)). The reference to the Corruption Crime and Misconduct Commission Act 2003 is reference to a non-existent Act and is a confusion of the titles of the Act from before and after 2015. It would appear to confirm my correspondent’s suggestion that the document has been ‘cut and paste’ from somewhere else rather than being written by reference to the current law).
The question I’m asked is ‘can volunteer firefighters generally be considered to be public officers, i.e. does it follow that in becoming a volunteer firefighter you become a public officer by default?’ My correspondent continues:
I know in some instances it’s quite clear that a volunteer is a public officer when;
They are an FCO [Fire Control Officer] exercising an authority given to them as an FCO specifically [Bush Fires Act 1954 (WA) ss] 14, 28, 39 (4), 56, writing permits etc.
When a volunteer firefighter turns out to a fire and exercises an authority under Secs 39A, 44, and including all the other volunteers and persons working under his/her command.
A member of a duly elected committee of a bush fire brigade.
A member of BFAC [Bush Fire Advisory Committee] under Sec 67.
A volunteer firefighter however does other duties described as functions of a brigade under 35A, as well as conducting HR [Hazard Reduction] burns where he/she isn’t exercising any authority, can they still be considered public officers? Probably in some instances they could be but in others not. Where is the line drawn?
Discussion
The answer won’t be found in the Bush Fires Act 1954 (WA) but in the Corruption Crime and Misconduct Act 2003 (WA).
The definition of misconduct in s 4 of the Corruption Crime and Misconduct Act 2003 (WA) is:
Misconduct occurs if —(a) a public officer corruptly acts or corruptly fails to act in the performance of the functions of the public officer’s office or employment; or
(b) a public officer corruptly takes advantage of the public officer’s office or employment as a public officer to obtain a benefit for himself or herself or for another person or to cause a detriment to any person; or
(c) a public officer whilst acting or purporting to act in his or her official capacity, commits an offence punishable by 2 or more years’ imprisonment; or
(d) a public officer engages in conduct that —
(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or public officer whether or not the public officer was acting in their public officer capacity at the time of engaging in the conduct; or
(ii) constitutes or involves the performance of his or her functions in a manner that is not honest or impartial; or
(iii) constitutes or involves a breach of the trust placed in the public officer by reason of his or her office or employment as a public officer; or
(iv) involves the misuse of information or material that the public officer has acquired in connection with his or her functions as a public officer, whether the misuse is for the benefit of the public officer or the benefit or detriment of another person,and constitutes or could constitute —
[(v) deleted]
(vi) a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 (whether or not the public officer to whom the allegation relates is a public service officer or is a person whose office or employment could be terminated on the grounds of such conduct).
A fundamental part of this definition is that the person is a ‘public officer’ and as sub-para 6.1(3) of the draft Code Of Conduct anticipates that volunteer fire fighters are public officers. Judicial officers and parliamentarians are not employees and in some jurisdictions neither are police. Their office of ‘judge’ or ‘constable’ is a public office. Volunteers are by definition not employees but if they hold a relevant office they are a public officer even though they are not an employee.
So what is a public officer? In Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 Beech J had to consider whether the defendant corporation was a public officer. He said:
The concept of the holder of a ‘public office’ … is a broad one: Cannon v Tahche [2002] VSCA 84; (2002) 5 VR 317. Most commonly it has been applied to persons who exercise executive administrative powers, including a sheriff and police officers: Farrington v Thomson [1959] VicRp 49; [1959] VR 286; stock inspectors: Northern Territory v Mengel; and a Minister: Sanders v Snell. It may also include those who exercise a judicial function: Cannon v Tahche [41] – [47]…
In many cases, it has been said that a public office ‘must be one the holder of which owes duties to members of the public as to how the office shall be exercised’: Tampion v Anderson [1973] VicRp 70; [1973] VR 715, 720; Henderson v McCafferty [2000] QSC 410; [2002] 1 Qd R 170. In Cannon v Tahche the Victorian Court of Appeal suggested that that criterion may be over-inclusive. In other words, their Honours doubted the sufficiency of satisfaction of that criteria. They concluded that it was essential that the office have, as an incident of it, a power in the discharge of which the public has an interest.
The cases emphasise that ‘ public officer’ may bear different meanings in different contexts. See, for example, Henderson v McCafferty [32] – [33].
In Powell v The State of Western Australia [2010] WASC 54 it was not disputed that a bus driver was a public officer. I would suggest that many of the things a bus driver does is not explicitly set out in the relevant legislation.
According to the Corruption, Crime and Misconduct Act 2003 (WA) s 3 ‘public officer has the meaning given by section 1 of The Criminal Code’. The Criminal Code appears as Appendix B to the Criminal Code Act Compilation Act 1913 (WA). The Criminal Code s 1 defines public officer as:
(a) a police officer;
(aa) a Minister of the Crown;
(ab) a Parliamentary Secretary appointed under section 44A of the Constitution Acts Amendment Act 1899;
(ac) a member of either House of Parliament;
(ad) a person exercising authority under a written law;
(b) a person authorised under a written law to execute or serve any process of a court or tribunal;
(c) a public service officer or employee within the meaning of the Public Sector Management Act 1994;
(ca) a person who holds a permit to do high-level security work as defined in the Court Security and Custodial Services Act 1999;
(cb) a person who holds a permit to do high-level security work as defined in the Prisons Act 1981;
(d) a member, officer or employee of any authority, board, corporation, commission, local government, council of a local government, council or committee or similar body established under a written law;
(e) any other person holding office under, or employed by, the State of Western Australia, whether for remuneration or not;
Without checking the definition of ‘public service officer’ I suggest the paragraphs that may capture a volunteer firefighter are (ad) and (d), highlighted in bold, above.
Bushfire brigades are established by local governments (Bush Fires Act 1954 (WA) s 41). A ‘member’ of a local government is the mayor, president or councillor (Local Government Act 1995 (WA) s 1.4). The term ‘officer … of any … local government’ is not used in the Local Government Act. A volunteer is, by definition, not an employee.
It follows that a registered member of a bush fire brigade is a public officer if he or she is ‘exercising authority under a written law’ or if the fire brigade of which they are a member is a ‘similar body’ to an ‘authority, board, corporation, commission, local government, council of a local government, council or committee’.
As my correspondent has noted firefighters exercise at different times, authority under the Bush Fires Act 1954 (WA) so when they are doing that they are a public officer.
The Fire Brigade is established by the local government authority for the purpose of assisting the Council to meet its obligations under the Bush Fires Act. The council is required to ‘keep a register of bush fire brigades and their members’ (Bush Fires Act 1954 (WA) s 41(2), emphasis added). It follows that firefighters are ‘a member’. The council ‘may, in accordance with those local laws, equip each bush fire brigade so established with appliances, equipment and apparatus’ (s 41(1)). Council provides the means for the appointment or election of officers (s 43).
Whilst it would be open to debate I would think that a fire brigade established by a council is relevantly similar to an authority, board … or committee established under a written law’ as it will be established by a written law both of the State and the local government local law. The fact that is not a separate legal entity I don’t think makes a difference as neither is a committee (usually) a separate legal entity and an authority or board don’t need to be separate legal entities.
Bush fire brigades are established by virtue of the Bush Fires Act, they are established to perform functions in the public interest and are equipped from the public purse. Exercising the powers and functions of the brigade, members are exercising power and authority ‘of which the public has an interest’.
If that’s correct then membership of a volunteer fire brigade is a public office and a volunteer firefighter is a public officer. We can conduct a ‘reality test’ to see if that offends our sense of justice. If a firefighter is a public officer then a member who ‘corruptly takes advantage of’ his or her membership of the fire brigade ‘to obtain a benefit for himself or herself or for another person or to cause a detriment to any person’ would be guilty of misconduct. That sounds rights.
Further, a firefighter would be guilty of misconduct if they engage in conduct that —
(i) adversely affects, or could adversely affect, directly or indirectly, the honest or impartial performance of the functions of a public authority or [another] public officer …; or
(ii) constitutes or involves the performance of his or her functions [as a firefighter] in a manner that is not honest or impartial; or
(iii) constitutes or involves a breach of the trust placed [in firefighters…]; or
(iv) involves the misuse of information or material that the [firefighter]… has acquired in connection with his or her functions as a [firefighter]… whether the misuse is for [his or her] …benefit … or the benefit or detriment of another person,
and which could constitute ‘a disciplinary offence providing reasonable grounds for the termination of a person’s office or employment as a public service officer under the Public Sector Management Act 1994 [even though the firefighter is not a] … a public service officer or … a person whose …. employment could be terminated’ because they are not an employee. That sounds like a reasonable outcome.
Further, if firefighters are public officers then it’s an offence under the Criminal Code to:
- Bribe them (s 82);
- Impersonate them (s 87); or
- Obstruct them in performance of their functions (s 172).
Again that sounds like a reasonable outcome.
Conclusion
It is debatable, but I would accept that membership of a bushfire brigade in WA is a public office for the purposes of the Corruption Crime and Misconduct Act 2003 (WA). It follows that on balance I would accept that a member is a public officer by virtue of their membership.
Australian Emergency Law 
The correspondent who asked this question replied by email with a different conclusion. His arguments, and my replies, are set out below:
Firstly I note that reference is made to Powell v The State of Western Australia [2010] WASC 54 where it was not disputed that a bus driver was a public officer. I would suggest that many of the things a bus driver does is not explicitly set out in the relevant legislation. I would suggest that they wouldn’t need to be as the bus driver was an employee of an authority, in this case the Public Transport Authority and as such defined as a public officer via the definition in the Crim code at (d)….employee of any authority….. A volunteer firefighter however doesn’t enjoy such a clear lineage to the definition and perhaps this is telling.
Fair point, a bus driver is an employee, a volunteer firefighter is not. But a bus driver is in effect only a public officer when performing his duties as a bus driver, not when he’s at home or counting seagulls. A firefighter can be a member of a relevant body Criminal Code s 1(d) and when he or she is ‘on duty’ or at a brigade event be a public officer if he or she is not a public officer at other times.
Further along that parts (ad) & (d) relate to some volunteer bfb members is clear, whether it relates to all members of a brigade therein lies the question. When a volunteer firefighter becomes a person exercising an authority under written law (Sec 44.), and when they’re a member of the bfb committee they are public officers. Whether or not it’s correct to then by extension say that a bush fire brigade fit’s into the description of an “authority” for the purposes of (d) because some of its members occasionally exercise an authority..I’d say it’s not. In the Emergency Management Act 2005 it defines in part a Public authority as (paraphrasing here) ; “…a body established for a public purpose by the State.” In the context this would mean FESA (now Dfes), however the term “authority” more generally means for example the Public Transport Authority, the Botanical Parks and Gardens Authority, Zoological Parks Authority, Economical Regulation Authority, West Australian Land Information Authority (Landgate) etc, and for the purposes of (d) the employees of these “Authorities” are public officers. Are bush fire brigades in the same realm or relevantly similar to these entities?, I would argue they’re not. If we are to push the envelope of what an “authority” is too far and given the Crim code (d) does say “any authority” can we assume all the members of the Kickalong Car Club Inc. can be considered public officers by default because they’re seen as an authority on Holdens? I doubt we could no more than we can assume being born in a stable makes one a horse.
I don’t think we have an issue that a firefighter exercising authority under written law is at that time a public officer. The point where we may disagree is whether a brigade is ‘similar to an authority, board … or committee established under a written law’. Note that I deleted the references to ‘corporation, commission, local government, council of a local government, council’ because I didn’t see a similarity.
An authority or board established under a written law doesn’t need to be an incorporated body so the fact that the fire brigade is not a separate legal entity doesn’t mean it’s not similar to a board or authority. The brigade is created by a written law, ie the Bush Fires Act and the relevant council’s local laws. That is in effect creating an authority of council. Alternatively I note that the Public Sector Commission says ‘It is common for boards to delegate aspects of their work to committees of the board.’ The local council that has created a fire brigade has in turn ‘delegated’ its authority to a brigade. I’m not saying a brigade is equivalent to a board, authority or committee but that it is relevantly similar. I don’t think it is necessary to point to the authorities created by the State Government (given brigades are created by local governments) and say there is not a direct parallel. You say ‘Are bush fire brigades in the same realm or relevantly similar to these entities?, I would argue they’re not’. Fair enough, I would argue that they are. Having said that I don’t disagree that the point is debatable.
Deconstructing (d) further can a bush fire brigade be considered a “Board”? In using the historic Bushfires Board of WA as an example it was created under the Bush Fires Act to foster and encourage the formation and organisation of volunteer bush fire brigades, and acted in an advisory capacity on standards of training, fire fighting equipment and methods of prevention, control and suppression. The Bushfires Board however was never a brigade in itself and eventually along with the Fire Brigades Board ended up being replaced by FESA. The bushfire brigade members who now act in an advisory capacity on standards of training, fire fighting equipment and methods of prevention, control and suppression, are members of Bfac and as previously stated can be considered public officers. Once again are bush fire brigades in the same realm or relevantly similar to these entities?, I would argue they’re not. In addition to the above in both examples the Authorities and the Boards have that moniker in their titles.
Moving on, a bush fire brigade can be incorporated or unincorporated but it is not a corporation, nor is it a commission, a local government, a Council of a local government or a council.
I agree.
A bushfire brigade in not in itself a committee however as previously stated members of that committee can be considered public officers. In view of the above I would argue that a brigade is not a “similar body” for the purposes of (d) in either description or function. I’ve yet to go to a fire where the choice between a direct or indirect attack was first proposed then seconded followed by 10 minutes of general discussion and finally a show of hands….though on occasion they are made using the consensus and input of other officers.
I don’t think one has to look at how some committees make decisions to draw a parallel. A local government could create a committee to look into or do things but that doesn’t compel them to follow the sort of procedures suggested.
It resolves then to whether members of a body (brigade) established under written law can be considered public officers. If we are to connect the “members” of a brigade to what’s described in Crim Code (d) via to “keep a register of bush fire brigades and their members” then it would follow in using this avenue to include members of body’s established using the Assoc. Incorp Act via 53 (1) “An incorporated association must (a) maintain a register of its members”. Incorporated associations are also usually formed to function in the public interest and are also reliant on the public purse via donations, grants and fundraising. While there is no doubt a member of the committee of say the Kickalong Cricket Club Inc is a public officer, would it be correct to call Bill Smith a public officer while he’s waiting a midoff for the ball to come to him exercising a function of being a member of the cricket club? Are Gladys and Ethel public officers while they play bowls exercising a function of being a member of the Billabong Lawn Bowls Club Inc?
My linking of the word ‘members’ was to say that members of a brigade are members of something; is the something similar to the list of things mentioned? Fire brigades are formed by local government to act in the public interest. They are not akin to an incorporated association that may or may not have an altruistic purpose. Incorporated Associations are not public institutions and I don’t see the parallel. A member of the “committee of say the Kickalong Cricket Club Inc” is NOT a public officer. There is nothing ‘public’ in the Kickalong Cricket Club Inc.
It is fundamental I would argue that to become a public officer a bushfire brigade member has to be exercising an authority, not simply part of a group where some members can exercise an authority. A bushfire brigade member becomes a public officer when they use Sec 44. and stops being a public officer when they stop using Sec 44. and I arrive at this conclusion because it what the Code says ” (ad) a person exercising authority under a written law”. On the other hand a Police officer is Public officer simply because he’s a Police officer. Although he can exercise authority the code (a) only requires he be a Police officer so in the context he could just a well be looking out the window counting seagulls, he’d still be a public officer.
I think ultimately the answer lies in the legislation or more correctly the lack of. The term “Public Officer” in the code is defined quite precisely down to individuals who are Police officers, Members of Parliament, Ministers of the Crown etc., various persons in official capacities onto member, officers, employees of various entities as previously discussed. If we are to believe that a volunteer firefighter is a public officer by default would this then represent a colossal legislative oversight of biblical proportions? That circa 26,000 volunteer firefighters who it seems are public officers by default were left off the list by accident,…??
I would suggest that if it was the view of the wordsmiths of the legislation, the members of Parliament and onto the Governor-General that volunteer bushfire fighters were public officers by default the Code would say this. The fact that it doesn’t…well therein lies the answer to the question.
Fair enough but I don’t agree. I think it is ‘fundamental’ that the person is acting in activity that has a public interest as an agent of government or under a written law. Fire brigades are created by local governments under the Bush Fires Act. The local government can ‘establish and maintain bush fire brigades as a part of its organisation for the prevention, control, and extinguishment of bush fires’ (s 36). The brigades exist and operate by virtue of the local government local laws (s 41). The brigade does not exist at the discretion of the members and its roles are defined by local and state government. They are established for a public purpose not for the private benefit of its members. They are an administrative unit of the local government akin, in my view, to a board, authority or committee that may be established by local government. It follows, in my view, that a member is a public officer but like you when he or she is operating as a member. I would suggest that when engaged in fire fighting or normal brigade activities a member is not acting in his or her own capacity but as a public officer.
I don’t think that volunteer firefighters aren’t mentioned is an issue. The presence of catch-all clauses such as ss 1(ad) and (d) are intended to bring people within the ambit when they are not specifically listed.
When a firefighter is engaged in duties as a firefighter those duties are authorised by written laws. The brigade is a public institution, owned and funded by local and state governments. It is created to allow local governments to meet their obligations with respect to bush fire fighting. It is not created for the benefit of the members and the members don’t get to decide what the brigade’s role is. The brigade is a public entity that I would say is ‘similar’ to a board, authority or committee that an entity may establish to meet its obligations. It is funded by the public and for the public good. It is nothing like the Kickalong Cricket Club. When a firefighter puts on a uniform and turns out whether for training or responding to a fire he or she is there as part of the government, in my view he or she is a public officer with the obligations and consequences that follow (ie not to act corruptly, it’s an offence to impersonate them etc).
When they go home it remains the case that they are a public officer with respect to their ongoing membership so if they act corruptly or try to gain a corrupt advantage by virtue of their membership that may be an issue. The whole disciplinary provisions relate to one’s performance of one’s duties as a public officer so we probably agree that when the firefighter goes out to dinner he or she is not then acting as a public officer, but I’m not sure if that’s contentious or important.
No doubt the point is debatable should it arise in a court, but my view is that a member of a brigade is a public officer and when performing brigade duties they have to act honestly, not seek to obtain a private advantage etc.