Today’s correspondent asks about enforcing the need for fire breaks in Western Australia. They say:

As a fire manager we find that local governments that are responsible for the enforcing & infringing of Firebreak notices are very reluctant – or believe they actually have no powers to enforce these annual fire break notices under the Bush Fires Act  – on Remote Indigenous Communities. These communities land Tenures are quite complex and confused at times. 

A lot come under Aboriginal Land Trust tenure – which in turn is a department that falls under DPLH here in WA – Department of Planning, Lands & Heritage.

From our request for information – we have been informed that only these communities’ external boundaries have to have a Firebreak around their exterior. Internal firebreak requirements are either  

a) not required 

b) up to the responsibility/ discretion of the leaseholder only

On top of that, a lot of tenants with the high risk blocks, may not actually be able to afford or have the means to take the required fire break requirements, or any annual bushfire preparedness activities unfortunately.

We have had numerous discussions on this with our legal team, and stakeholders, but haven’t really got any definitive answers, and are still continuing to work in these ‘grey’ areas…. 

Clearly a very complex area of law but I’ll try my best. 

Bush Fires Act 1954 (WA) 

This Act says, at s 33, 

(1)            Subject to subsection (2) a local government at any time, and from time to time, may, and if so required by the Minister shall, as a measure for preventing the outbreak of a bush fire, or for preventing the spread or extension of a bush fire which may occur, give notice in writing to an owner or occupier of land situate within the district of the local government or shall give notice to all owners or occupiers of land in its district by publishing a notice in the Government Gazette and in a newspaper circulating in the area requiring him or them as the case may be within a time specified in the notice to do or to commence to do at a time so specified all or any of the following things —

(a)            to plough, cultivate, scarify, burn or otherwise clear upon the land fire-breaks in such manner, at such places, of such dimensions, and to such number, and whether in parallel or otherwise, as the local government may and is hereby empowered to determine and as are specified in the notice, and thereafter to maintain the fire-breaks clear of inflammable matter;

 (b)          to act as and when specified in the notice with respect to anything which is upon the land, and which in the opinion of the local government or its duly authorised officer, is or is likely to be conducive to the outbreak of a bush fire or the spread or extension of a bush fire,

and the notice may require the owner or occupier to do so —

(c)            as a separate operation, or in co-ordination with any other person, carrying out a similar operation on adjoining or neighbouring land; and

(d)           in any event, to the satisfaction of either the local government or its duly authorised officer, according to which of them is specified in the notice.

(2)            A notice in writing under subsection (1) may be given to an owner or occupier of land by posting it to him at his last postal address known to the local government and may be given to an owner of land by posting it to him at the address shown in the rate record kept by the local government pursuant to the Local Government Act 1995, as his address for the service of rate notices.

(2a)        The provisions of subsection (2) are in addition to and not in derogation of those of sections 75 and 76 of the Interpretation Act 1984.

(3)            The owner or occupier of land to whom a notice has been given under subsection (1) and who fails or neglects in any respect duly to comply with the requisitions of the notice is guilty of an offence.

 Penalty: $5 000.

(4)            Where an owner or occupier of land who has received notice under subsection (1) fails or neglects to comply with the requisitions of the notice within the time specified in the notice —

(a)            the local government may direct its bush fire control officer, or any other officer of the local government, to enter upon the land of the owner or occupier and to carry out the requisitions of the notice which have not been complied with; and

 (b)          the bush fire control officer or other officer may, in pursuance of the direction, enter upon the land of the owner or occupier with such servants, workmen, or contractors, and with such vehicles, machinery, and appliances as he deems fit, and may do such acts, matters and things as may be necessary to carry out the requisitions of the notice.

(5)            The amount of any costs and expenses incurred by the bush fire control officer or other officer in doing the acts, matters, or things provided for in subsection (4) —

(a)            shall be ascertained and fixed by the local government and a certificate signed by the mayor or president of the local government shall be prima facie evidence of the amount; and

(b)           may be recovered by the local government in any court of competent jurisdiction as a debt due from the owner or occupier of land to the local government.

(5a)        A local government may make local laws in accordance with subdivision 2 of Division 2 of Part 3 of the Local Government Act 1995 —

 (a)          requiring owners and occupiers of land in its district to clear fire-breaks in such manner, at such places, at such times, of such dimensions and to such number, and whether in parallel or otherwise, as are specified in the local laws and to maintain the fire-breaks clear of inflammable matter;

(b)           providing that things required by the local laws to be done shall be done to the satisfaction of the local government or its duly authorised officer.

(5b)        Where an owner or occupier of land fails or neglects in any respect to comply with the requirements of local laws made under subsection (5a) the provisions of subsections (3), (4) and (5) apply mutatis mutandis as if those requirements were the requisitions of a notice given under subsection (1).

(5c)        Nothing in subsection (5a) affects the power of a local government to give notice under subsection (1) nor its duty to do so if so required by the Minister.

(5d)        Where the provisions of local laws made under subsection (5a) are inconsistent with those of a notice given under subsection (1) or under section 34 or 35, the provisions of that notice shall, to the extent of the inconsistency, prevail.

(6)            A local government may, at the request of the owner or occupier of land within its district, carry out on the land, at the expense of the owner or occupier, any works for the removal or abatement of a fire danger, and the amount of the expense, if not paid on demand, may be recovered from the owner or occupier by the local government in a court of competent jurisdiction as a debt due from the owner or occupier to the local government.

(7)            Nothing in this section authorises a local government —

(a)            to set fire to the bush, or to require an owner or occupier of land to set fire to the bush, contrary to the provisions of section 17; or

(b)           to make local laws authorising or requiring bush to be set on fire contrary to the provisions of section 17.

(8)            Any amount recoverable by a local government under this section as a debt due from the owner or occupier of land is, until paid in full —

(a)            a debt due from each subsequent owner in succession; and

(b)           a charge against the land with the same consequences as if it were a charge under the Local Government Act 1995 for unpaid rates; and

(c)            recoverable by the local government in the same manner as rates imposed in respect of the land are recoverable under that Act.

(9)            In this section —

owner or occupier of land includes a prescribed department of the Public Service that occupies land or a prescribed State agency or instrumentality that owns or occupies land.

The owner or occupier does not include a department or agency unless they have been ‘prescribed’ in the regulations (s 7(2)). The Bush Fire Regulations 1954 (WA) don’t prescribe any department or agency for the purposes of s 33. What is a State agency is not defined in this Act. The Public Sector Management Act 1994 says an ‘agency’ is a department of the public service or an agency listed in column 2 of schedule 2 of that Act. This will be relevant, below.

We’re talking about ‘notices’ so I’m going to assume that there are no relevant local laws and so ss (5a) to (5d) are not relevant.  Sections 33(2a), (6) and (7) are also not relevant to this answer. 

Prima facie the Act does give the council the power to enforce duly delivered notices. I have been provided a notice from my correspondent’s local government area and it is in the form of a ‘notice to all owners or occupiers of land’ and I will assume that it was published ‘in a newspaper circulating in the area’ (s 33(1)) – of course a big assumption in remote areas given that even in cities, newspapers are very much old technology. If the notice has not been effectively delivered, that is the end of the matter as none of the enforcement provisions can apply, so to answer the question I am going to assume that the notice has been published as required by s 33(2).

The notice I have been provided with says directs ‘all owners and occupiers’ of land within the local government area to:

… have fire breaks or fire control measures installed and maintained for the period in accordance with the following:

Rural lands -being all land outside townsites (not including pastoral lease land):

a) Mineral earth trafficable fire breaks must be installed on the land and be kept clear of flammable material. The fire breaks must not be less than three (3) metres in width, four (4) metres in height and be located within six (6) metres of all external boundaries; and

b) A building protection zone of twenty-five (25) metres must be established around all buildings on the land and be clear of all flammable material capable of sustaining fire or enabling fire to spread. Any garden beds or vegetation situated within the building protection zone must be maintained so that fuel levels containing mulch, dried leaves or other garden refuse do not exceed fifty (50) mm in height

If the notice has been published and not acted on in the prescribed time, then the council can prosecute the owner or occupier (s 33(3)) and/or undertake the work and charge the owner or occupier for that work (s 33(4) and (5) and (8)). 

The barrier to action then is whether the nature of the title held by Remote Indigenous Communities takes those communities outside of this scheme. There is no mention of ‘Remote Indigenous Communities’ in the Bush Fires Act. 

Aboriginal Affairs Planning Authority

There are many types of land tenure – see Department of Primary Industries and Regional Development, Setting up for success; Land Tenure A practical guide for Aboriginal communities, corporations and Registered Native Title bodies Corporate in Western Australia (State of Western Australia, 2025). 

If we focus on Aboriginal Land Trust, the WA government says ‘The Aboriginal Lands Trust (ALT) is a statutory board convened under the Aboriginal Affairs Planning Authority Act 1972’.  It is not however listed in schedule 2 of the Public Sector Management Act so it would appear it is not a ‘state agency’. Reserved aboriginal lands are vested in, ie owned by the Aboriginal Affairs Planning Authority (s 4 (definition of ‘reserved lands’) and ss 8, 25, 26 and 27).  Such land may be placed under the control of the Aboriginal Lands Trust (ss 20 and 24).  

Reserved land may be leased. It is an expectation that lessees will comply with ‘with State laws and local government by-laws’ (see https://www.wa.gov.au/system/files/2026-06/lease-application-for-aboriginal-lands-trust-estate.pdf). The Bush Fires Act is of course a state law.  Leaseholders are also expected to ‘Undertake any fire management and feral animal control’. 

There are many remote indigenous communities in WA. ‘About 12,000 people live in more than 200 remote Aboriginal communities throughout Western Australia. Another 3,000 Aboriginal people live in 37 town-based communities’ (for maps showing these communities see https://www.wa.gov.au/government/document-collections/aboriginal-lands-trust-estate-and-aboriginal-communities#aboriginal-communities). Further ‘The Aboriginal Lands Trust (ALT) estate covers 23 million hectares of land in Western Australia, which is 8.7 per cent of the State. About 12,000 people live on the ALT estate in 145 communities’ (https://www.wa.gov.au/organisation/department-of-housing-and-works/remote-aboriginal-communities). 138 remote communities ‘generally do not receive services from the Shire in which they are located. Instead the Western Australian Government, through the Department of Housing and Works, funds a limited form of municipal services … Generally these services involve basic maintenance of a community’s internal roads, airstrip, fire breaks and landfills, and a solid waste rubbish collection’ (https://www.wa.gov.au/organisation/department-of-housing-and-works/remote-municipal-services).

If there is a funded municipal service provider then they have to provide those services in accordance with the guidelines issued by the Department of Housing and Works.  The General Municipal Maintenance Guideline says (at [4.2.4] that the service provider is required to:

… ensure they minimise the risk of fire to the settlement, infrastructure, and environment by:

(a) Maintaining a firebreak around the outside perimeter of the settlement. The firebreak shall be a minimum of 5 metres wide and have a minimum vertical clearance of 5 metres from overhead vegetation / tree branches;

(b) Maintaining a firebreak around the perimeter of all infrastructure assets and security compounds. The firebreak shall be a minimum of 5 metres wide and have a minimum vertical clearance of 5 metres from overhead vegetation /tree branches;

(c) Controlling vegetation growth going into public area and infrastructure compound fence-lines with regular mowing / slashing / herbicide application;

(d) Disposing of vegetation material removed from firebreak installation at the settlement landfill; 

(e) Controlling potential stormwater flow and erosion along firebreaks with earth drainage structures to suit (such as berms or v drains);

(f) Ensuring the finished firebreak surface is trafficable at a consistent speed;

(g) Where a fence-line or structure is inadvertently damaged during his firebreak installation operations the Contractor must notify the Principal’s Representative immediately and ensure the damage is made good as soon as possible to the satisfaction of the Principal’s Representative.

Discussion

It is clearly not possible to answer this question in the abstract.  One would need to know which remote community was the concern.  It would then be necessary to identify the type of tenure involved.  If it is an Aboriginal Land Trust lease who is the lessee?  The obligation to build the fire breaks is to build them ‘within six (6) metres of all external boundaries’ of the leased land so one would need to know what land is the subject of the lease but that would explain the advice that only external boundaries have to have a fire break. That is what the notice I have been provided says.

Further if council is not providing municipal services to a remote community it may feel that it is appropriate to leave the management to the contracted municipal service provider.  Having said that however I don’t see that the council couldn’t issue a relevant notice and then expect the service provider to ensure that it is complied with. 

If the reality is that the people cannot afford or have the means to build their fire breaks, a cynical council may be unwilling to take action under s 33 as they know they could not recover their costs and would rather leave it to the state government funded municipal service providers who are contractually bound to maintain the fire breaks.

Also there is no point prosecuting someone to extract a fine you know they cannot pay.  Fines work (in theory) by making it too expensive to disobey – so a person can avoid a speeding fine by not exceeding the speed limit.  But if the only way to avoid a fine is to pay money you don’t have, then the fine is meaningless as that is also a demand for money you don’t have.  

Conclusion

The conclusion is we cannot know why councils are reluctant to enforce these notices. There may be many reasons including reasons relating to cost, not wishing to annoy rate payers and voters, practical difficulties given the remote distances etc.  One cannot begin to consider whether their reasons are sound unless you know what their actual reasons are.

As for a belief that they don’t have the power to enforce the notice (which is different to choosing not to) again one would need to know the thinking behind such a claim to analyse it.  They may think they don’t have the power if they are not providing municipal services but prima facie there is nothing in the Bush Fires Act nor the Aboriginal Affairs Planning Authority Act that would suggest that councils don’t have the power unless the land is owned or occupied by a ’state agency’.  But again more detail would be needed as to the nature of the land tenure and the reasoning behind anyone’s claim that they don’t have the power.

And it may be that there is no ‘newspaper circulating in the area’ so that delivery of the notice has been ineffective.

Finally with respect to the statement ‘we have been informed that only these communities’ external boundaries have to have a Firebreak around their exterior’ well that is what the notice says. 

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.