MULLANEY and CITY OF WANNEROO
[2025] WASAT 80
•30 JULY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: LOCAL GOVERNMENT ACT 1995 (WA)
CITATION: MULLANEY and CITY OF WANNEROO [2025] WASAT 80
MEMBER: MS C BARTON, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 30 JULY 2025
FILE NO/S: DR 12 of 2025
BETWEEN: ADAM MULLANEY
Applicant
AND
CITY OF WANNEROO
Respondent
Catchwords:
Local government - Volunteer bush fire brigade - Termination of membership - Decision made under a local law - Objection to decision - Whether jurisdiction to review decision - Whether decision made under the Local Government Act - Statutory construction - Meaning of made a decision under an Act
Legislation:
Bush Fires Act 1954 (WA), s 35A, s 38, s 41, s 41(1), s 62, s 62(1)
Local Government Act 1995 (WA), s 3.11, s 3.25, s 9.1, s 9.1(1), s 9.1(2), s 9.1(3), s 9.2, s 9.5, s 9.6, s 9.7(2), Pt 9, Div 1, Pt 3, Div 2
State Administrative Tribunal Act 2004 (WA), s 60(2)
Result:
Preliminary issue answered in the negative
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | McLeods |
Case(s) referred to in decision(s):
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Australian National University v Burns (1982) 43 ALR 25
Griffith University v Tang (2005) 221 CLR 99
Minister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
The applicant, Mr Mullaney (applicant), is a former member of the Wanneroo Central Volunteer Bush Fire Brigade (Brigade) who held the position of Deputy Bush Fire Control Officer under s 38 of the Bush Fires Act 1954 (WA) (BF Act).
On 11 February 2022, the Executive Management Committee of the Brigade decided to terminate the applicant's membership. The applicant subsequently lodged an objection to that decision with the respondent, the City of Wanneroo (City or respondent), which, on 4 December 2024, dismissed the applicant's objection (City's decision).
On 20 January 2025, the applicant commenced a proceeding in the Tribunal for a review of the City's decision pursuant to s 9.7(2) of the Local Government Act 1995 (WA) (LG Act). The applicant is seeking an order that the termination of his membership be overturned.
A preliminary issue has arisen for determination in this proceeding which concerns the jurisdiction of the Tribunal.
On 21 March 2024, the Tribunal made orders that the preliminary issue is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SATAct).
Issue for determination
The following preliminary issue arises for determination:
(1)Is the City's decision, the subject of the application, a decision to which Pt 9, Div 1 of the LG Act applies and, therefore, one that the Tribunal has jurisdiction to review?
For the reasons that follow, I have concluded that the City's decision is not one to which Pt 9, Div 1 of the LG Act applies and, consequently, the application does not fall within the Tribunal's review jurisdiction.
I will first consider the statutory framework that applies to the making of local laws for the establishment of bush fire brigades and for brigade membership, including dismissal of a member.
The statutory framework
Section 41(1) of the BF Act provides that a local government may, in accordance with its local laws made for the purpose, establish and maintain one or more bush fire brigades and may, in accordance with those local laws, equip each bush fire brigade with appliances, equipment and apparatus. Further, a local government must keep a register of bush fire brigades established under s 41(1) of the BF Act and each member of such brigade in accordance with the regulations.
Further, s 62(1) of the BF Act provides that a local government may make local laws in accordance with subdivision 2 of Pt 3, Div 2 of the LG Act in relation to:
(a)the appointment, employment, payment, dismissal and duties of bush fire control officers; and
(b)the organisation, establishment, maintenance and equipment with appliances and apparatus of bush fire brigades to be established and maintained by the local government; and
(c)any other matters affecting the exercise of any powers or authorities conferred and the performance of any duties imposed upon the local government by the BF Act.
Section 3.11 of the LG Act (which falls within subdivision 2 of Pt 3, Div 2 of the LG Act) provides that subdivision 2 applies to local laws made under the LG Act and any other Act. Section 3.11 of the LG Act provides:
This Subdivision applies to local laws made under this Act and the procedure for making them and, unless a contrary intention appears in that other Act, to local laws made under any other Act, and the procedure for making them.
It follows that a local government may make local laws under s 62(1) of the BF Act in accordance with the procedure for making them in subdivision 2 of Pt 3, Div 2 of the LG Act.
Relevantly, the Executive Management Committee made its decision to terminate the applicant's membership under the City of Wanneroo Bush Fire Brigades Local Law published in the Western Australian Government Gazette (20 February 2001) (as amended on 9 April 2009) (Local Law).
Clause 5.1 of the Local Law provides that the appointment, dismissal and management of brigade members by the Brigade are governed by the Constitution, as determined by the City. The Constitution (also titled 'Rules Governing the Operation of Bush Fire Brigades') forms Sch 1 to the Local Law (Constitution).[1]
[1] Clause 2.4 of the Local Law provides that the rules set out in the Constitution govern the operation of the Brigade.
Pursuant to cl 11 of the Constitution, an Executive Management Committee is established, which is responsible for the general management, administrative and policy affairs of the City of Wanneroo Fire Service.[2] The 'City of Wanneroo Fire Service' is defined in cl 2 of the Constitution to mean 'the total combined assets and resources of the City of Wanneroo, allocated to fire control and suppression' under the BF Act. The membership of the Executive Management Committee consists of specified officers from all brigades of the City of Wanneroo Fire Service.
[2] Constitution, cl 11.1.1.
The decision by the Executive Management Committee to terminate the applicant's membership of the Brigade was made under cl 8.16 of the Constitution. The Executive Management Committee, Brigade Officers or the City may terminate a person's membership if that member has been found to have committed a serious breach of Brigade discipline or policy, theft of Brigade materials or equipment, any action with intent to harm the Brigade, or any action that has harmed the public standing and good name of the Brigade or the City.[3] As the preliminary issue concerns the jurisdiction of the Tribunal to review the City's decision, it is unnecessary for me to consider whether the applicant's alleged conduct justified termination of his membership.
[3] Constitution, cl 8.16.
Pursuant to cl 8.18 of the Constitution, a person whose membership is terminated has the right of objection to the Council of the City (Council) which may dispose of the objection by dismissing the objection, varying the decision objected to, revoking the decision objected to (with or without substituting for it another decision), or referring the matter, with or without directions, for another decision by the Brigade.[4]
[4] Constitution, cl 8.18. Clause 8.19 of the Constitution provides that 'Brigades should refer to the local government's grievance procedure to ensure fairness and equity in any grievance, dispute, or discrimination resolution process. Any Brigade member who has a grievance will have recourse to this process'.
On 11 October 2024, the applicant made an objection to Council. Whilst the applicant used a prescribed form for an objection under s 9.5 of the LG Act, the respondent accepts that the objection was made under cl 8.18 of the Constitution in respect of the decision by the Executive Management Committee to terminate the applicant's membership.[5]
[5] Respondent's submissions filed on 11 April 2025, para 14.
On 4 December 2024, Council resolved to dismiss the objection in accordance with cl 8.18 of the Constitution, which meant that the applicant's membership would not be reinstated. Council's decision was communicated to the applicant by letter dated 10 December 2024.
I will next consider the provisions of the LG Act that are relevant to the review application and summarise the parties' contentions in relation to the interpretation of those provisions.
Part 9, Div 1 of the LG Act and the review application
The application for review was commenced pursuant to s 9.7(2) of the LG Act. Section 9.7(2) falls within Pt 9, Div 1 of the LG Act which applies in respect of certain objections and reviews.
Section 9.1 of the LG Act sets out the decisions to which Pt 9, Div 1 of the LG Act applies. Section 9.1 provides as follows:
(1)This Division applies when a local government makes a decision under this Act as to whether it will —
(a)grant a person an authorisation under Part 3 or under any local law or regulation that is to operate as if it were a local law; or
(b)renew, vary, or cancel an authorisation that a person has under any of those provisions.
(2)This Division also applies whenever a local government gives a person a notice under section 3.25, and for the purposes of this Division the giving of a notice under that section is to be regarded as the making of a decision.
(3)This Division also applies whenever a local law, or regulation that is to operate as if it were a local law, states that a decision under it is one to which this Division applies and that a person specified in it is an affected person for the purposes of this Division.
Section 9.2 of the LG Act lists the defined terms used in Pt 9, Div 1 of the LG Act. Unless the contrary intention appears, the terms 'affected person', 'authorisation' and 'decision' are defined for the purposes of Pt 9, Div 1 of the LG Act as follows:
affected person, in relation to —
(a)a decision to which this Division applies because of subsection (1) or (3) of section 9.1, means a person referred to in that subsection; and
(b)a decision to which this Division applies because of subsection (2) of section 9.1, means —
(i)a person referred to in that subsection; or
(ii)a person made an affected person by section 9.3;
authorisation means a licence, permit, approval, or other means of authorising a person to do anything, other than one that has been excluded by regulations from being an authorisation for the purposes of this definition;
decision means a decision or notice that, in accordance with section 9.1, causes this Division to apply.
It is the applicant's position that he has a right of review to the Tribunal in respect of the City's decision.[6]
[6] Applicant's bundle of documents filed on 2 May 2025, submission to SAT, dot point 1.
In contrast, the respondent contends that the Executive Management Committee is not a local government and, consequently, any decision made by the Executive Management Committee is not a decision of a local government for the purposes of s 9.1(1) of the LG Act.[7] The respondent further contends that s 9.1(1) does not apply to all decisions made by local government but only to those made under the LG Act. Because the Council's decision to dismiss the applicant's objection was made under cl 8.18 of the Constitution (being a schedule to the Local Law which was made under s 41 and s 62 of the BF Act), the respondent says that it was not a decision of a local government made under the LG Act for the purposes of s 9.1(1) of the LG Act.[8]
[7] Respondent's submissions filed on 11 April 2025, para 20.
[8] Respondent's submissions filed on 11 April 2025, para 21.
In relation to the second limb of s 9.1 of the LG Act, the respondent says that neither the decision of the Executive Management Committee nor Council was a decision that involved the giving of notice under s 3.25 of the LG Act. Consequently, it is the respondent's position that the City's decision is not caught by s 9.1(2) of the LG Act.[9]
[9] Respondent's submissions filed on 11 April 2025, para 22.
The third limb of s 9.1 of the LG Act provides, relevantly, that Div 1 Pt 9 of the LG Act also applies whenever a local law states that a decision under it is one to which the Division applies and that a person specified in it is an 'affected person' for the purposes of the Division. The respondent observes that the Local Law does not contain a statement that a decision under it is one to which Pt 9, Div 1 of the LG Act applies or that a person specified in it is an 'affected person' for the purposes of Pt 9, Div 1 of the LG Act. Consequently, it is the respondent's position that cl 8.18 of the Constitution cannot be construed in a way that would meet the requirements of s 9.1(3) of the LG Act.[10]
[10] Respondent's submissions filed on 11 April 2025, para 23.
Tribunal's consideration
When exercising the functions and performing the duties of a volunteer fire fighter,[11] a member of the Brigade may be authorised by the City under the Local Law to undertake certain activities. For example, a member of the Brigade who is appointed a Bush Fire Control Officer may issue permits to burn within their area of the district of Wanneroo, inspect and report on fire hazards within the district, and carry out the duties prescribed under the BF Act and 'so authorised by the City'.[12]
[11] A 'volunteer fire fighter' is defined in s 35A of the BF Act as 'a bush fire control officer, a person who is a registered member of a bush fire brigade established under [the BF Act] or a person working under the direction of that officer or member'.
[12] Constitution, cl 7.1.1.
The Tribunal's review jurisdiction will be enlivened under s 9.1(1) of the LG Act if the City has made a decision under the LG Act to, relevantly, grant a person an authorisation under a local law or cancel an authorisation that a person has under a local law. The term 'authorisation' is defined in s 9.2 of the LG Act to mean, amongst other things, 'a licence, permit, approval or other means of authorising a person to do anything'. It was not in issue that the City's decision to dismiss the applicant's objection to the termination of his membership had the effect of affirming the decision of the Executive Management Committee under the Local Law to cancel the applicant's authorisation to exercise the functions and perform the duties of a member of the Brigade (and vacate the role of Deputy Bush Fire Control Officer).
For the purposes of s 9.1(1) of the LG Act, a decision to cancel an authorisation will be made under the LG Act if the LG Act is the source of power to make the decision.[13] Where a decision is made under an enactment, the word 'under' connotes 'in pursuance of' or 'under the authority of' the relevant enactment.[14]
[13] See TheMinister for Immigration and Ethnic Affairs v Mayer (1985) 157 CLR 290 at 295; Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 377.
[14] Griffith University v Tang (2005) 221 CLR 99 at [146] citing Australian National University v Burns (1982) 43 ALR 25 at 31 - 32.
I find that the City's decision was made under cl 8.18 of the Constitution, a schedule to the Local Law, which was made under s 41 and s 62 the BF Act. Because the Local Law was made under the BF Act and not the LG Act, it follows that the City's decision under cl 8.18 of the Constitution was not a decision made under the LG Act. Consequently, for the purposes of s 9.1(1) of the LG Act, the provisions of Pt 9, Div 1 of the LG Act which relate to objections and give a person affected by a local government decision a right of review of the decision on an objection to the Tribunal do not apply to the City's decision. For these reasons, I find that the LG Act is not the source of power under which the City's decision was made and, therefore, s 9.1(1) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision.
Where a person is given a notice pursuant to s 3.25 of the LG Act, the giving of the notice is to be regarded as the making of a decision to which Pt 9, Div 1 of the LG Act applies.[15] It was common ground that neither the decision of the Executive Management Committee nor the City's decision involved the giving of a notice under s 3.25 of the LG Act. Consequently, I find that s 9.1(2) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision.
[15] LG Act, s 9.1(2) and definition of 'decision' in s 9.2.
Finally, the Local Law does not provide that a decision made under it is one to which Pt 9, Div 1 of the LG Act applies; nor does it state that a person specified in the Local Law is an 'affected person' for the purposes of Pt 9, Div 1 of the LG Act. I observe that cl 8.18 of the Constitution reflects the form of s 9.6 of the LG Act in respect of the manner in which an objection may be disposed of by Council. However, cl 8.18 of the Constitution does not provide that the manner in which the objection is disposed of by Council is a decision to which Pt 9, Div 1 of the LG Act applies or that a person whose application for membership is terminated is an 'affected person'. In the absence of any such statement in the Local Law, I find that s 9.1(3) of the LG Act does not enliven the Tribunal's review jurisdiction in respect of the City's decision.
Because the Tribunal has no jurisdiction to review the decision, I will make an order dismissing the application for review.
Conclusion
I accept the respondent's contentions in relation to the construction of s 9.1 of the LG Act and the Local Law.
In accordance with these reasons, I have concluded that the preliminary issue should be answered in the negative, that is, the City's decision the subject of the application is not a decision to which Pt 9, Div 1 of the LG Act applies and, consequently, is not one that the Tribunal has jurisdiction to review.
Orders
The Tribunal orders:
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C BARTON, MEMBER
30 JULY 2025
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