Today’s question comes from WA and is about the SES. In an earlier post – BA for a West Australian bush fire brigade? (August 6, 2020) I described the WA law relating to fire brigades as a ‘mismatch’ with the Fire and Emergency Services Act 1998 (WA) superimposed over the old and still in force Bush Fires Act 1954 (WA)) and the Fire Brigades Act 1942 (WA). Like retrofitting solar panels or central heating to an old house, it may work but it’s better to install these things from the start.
The situation is different for WA SES. There is not an SES Act that has to be read with the Fire and Emergency Services Act 1998 (WA) (‘the FES Act’) but that still doesn’t make the position of the SES clear. With that in mind, I’m asked to
… provide an opinion on the FES Commissioners power under the FES Act over volunteer SES Units. Note that u nits are incorporated in WA.
This is really affecting the volunteers here as DFES is taking a strong ownership stand over the State Emergency Service. Note that there are no SES staff at all in WA now. The SES is funded through the ESL Local Government Grants Scheme and administrated by local government.
The provisions relating to the SES are set out in Part 3A. The first section of that part, s 18A described the functions of the Commissioner, not the SES. The Commissioner’s functions are:
(a) to manage the provision of emergency services in relation to natural disasters; and
(b) to provide for the carrying out of search and rescue operations; and
(c) to promote the safety of life and property from natural disasters, accidents and other events that may require search and rescue operations to be carried out; and
(d) to provide for the carrying out of assistance operations; and
(e) to have general responsibility for all SES Units.
In order to fulfil those functions, the Commissioner may ‘provide equipment and training to SES Units’ (s 18B(2)). SES units are ‘approved’ rather than established by the Commissioner. Section 18C(1) says:
The FES Commissioner may, by notice in the Gazette, approve as an SES Unit any group of persons, however constituted and whether incorporated or not, that the FES Commissioner considers to be appropriate for approval as an SES Unit.
An SES unit may (s 18E):
(a) acquire and maintain equipment; and
(b) carry out training activities and exercises; and
(c) carry out demonstrations and other public education activities; and
(d) carry out fundraising and promotional activities; and
(e) organise and participate in competitions; and
(f) carry out any activities that are reasonably incidental to the performance of its functions (such as travelling, providing communications systems and providing meals); and
(g) carry out any other activities that are, or are in a class of activities that is, prescribed.
What follows is that there is no legal entity that is the WA SES. The Commissioner has functions to perform (s 18A) and may do that by approving groups as SES units. Those units are to assist the Commissioner and in return the Commissioner can provide them with training and equipment. The Commissioner could choose other ways to perform the functions set out in s 18A.
A situation that could arise, and one might infer is intended by the Act is that a group of people get together and create the Kickatinalong SES unit. They could incorporate their group under the Associations Incorporation Act 2015 (WA). As an incorporated association it would be a separate legal entity capable of suing and being sued. The management committee of the association would be responsible for and required to manage the organisation in accordance with its rules and the Act (Associations Incorporation Act 2015 (WA) s 38). The Incorporated unit as a separate legal entity could purchase equipment which it would own. The management committee could approach the FES Commissioner who might consider that the objects and purposes of the association mean that they can assist the Commissioner to meet his or her obligations under s 18A of the FES Act. The Commissioner could then approve the Association as an SES unit (s 18C) and give equipment to the unit to help them to function. Nowhere in any of that is there any power in the Commissioner to direct the SES unit how it is to function. The SES unit could do all those things listed in s 18E but it could do those things as an incorporated association in any event.
There is nothing in the FES Act that says that the Commissioner has any responsibility for managing an SES unit. The closest is s 18A(e) which says that one of the Commissioner’s functions is ‘to have general responsibility for all SES Units’ – whatever ‘general responsibility’ (as opposed to the specific responsibility of the management committee if it’s an incorporated association) might mean.
The Commissioner can however give directions and set standards for SES units as a condition of registration. That is if a unit failed to follow the Commissioner’s directions he or she may determine ‘that it is no longer appropriate for the Unit to be approved’ and the Commissioner could cancel the approval to operate as an SES unit (s 18C(2)). Loss of approval would mean a loss of FES provided equipment and training (s 18B) and any money that comes via the ESL and DFES. Further if the unit were no longer approved as an SES unit, the members would lose the protection provided by Part 6B ‘Compensation for injury, loss or damage’ and s 37 ‘Protection from personal and vicarious liability’. The unit and the members could no longer use the name State Emergency Service or SES or any logo that suggested they were an SES unit (s 38B). They are ‘big sticks’ that the Commissioner can wield to try and create ‘an SES’ where units are compelled to cooperate with the Commissioner’s ‘strong ownership stand’.
The FES Act does not create a Western Australian State Emergency Service. Rather it requires the Commissioner to perform certain functions and to do that he or she can ‘approve’ SES units – there is in effect (if I’ve counted them properly) 66 separate SES units each of which could have their own relationship with the Commissioner rather than a single service. The legislation gives the commissioner no explicit power to manage or give direction to the unit.
The ‘Commissioners power under the FES Act over volunteer SES Units’ is an undefined power to have ‘general responsibility for all SES Units’ coupled with the de facto power to require compliance with the Commissioner’s standards and directions on the basis that if a unit does not comply then the Commissioner may determine ‘that it is no longer appropriate for the Unit to be approved’. The loss of approval would in effect mean that, even an incorporated association, could no longer function as an SES unit and would lose its reason to exist.