An RFS officer has written about road traffic control. He says:
The NSW RFS has a safe working of roads SOP, one aspect of the SOP that is continually brought into question is, can a volunteer fire fighter control traffic at an incident.
Memo’s have been received locally confirming that yes volunteers can direct traffic at emergencies and also in other circumstances, yet there are people out there who are convinced that unless you hold a current traffic controllers certificate it’s illegal to perform such a function.
Can you clear this up for me please.
The Roads Act 1993 (NSW) provides that road authorities may regulate traffic on public roads but only as allowed by the Act and in particular, by Part 8 of the Act. A roads authority is, with respect to freeways, the NSW Roads and Maritime Services (RMS); with respect to all Crown roads, the Minister; any agency proclaimed by the Regulations as a roads authority (eg a tollway operator) and local government authorities. Section 115 sets out when a roads authority may regulate the flow of traffic which we need not explore in detail, but you can read the section here.
The Roads Regulation 2008 (NSW) s 6 says:
(1) For the purpose of enabling it to exercise its functions under Part 8 of the Act, a roads authority may appoint traffic controllers, or authorise its agents and contractors to appoint traffic controllers, to direct traffic on a road.
(2) A traffic controller must wear a badge or other distinguishing mark clearly indicating the traffic controller’s authority from the roads authority.
(3) A person must not disregard the reasonable directions of a traffic controller with respect to the regulation of traffic.
A fire brigade is not a roads authority so is not exercising, or entitled to exercise any of those powers. Equally there is no authority for the RFS or any other service to ‘appoint traffic controllers’, but that does not mean that they should not get their staff to undertake that training. That moves to work health and safety law. Directing traffic at an incident is inherently dangerous. The RMS says:
The Work Health & Safety (WH&S) Act 2011 determines that high-risk construction activities, which include working with traffic, require workplace specific training to be completed by all persons engaged in this work. By developing traffic control training Roads and Maritime Services is fulfilling these requirements, ensuring compliance with Australian Standard 1742.3 and addressing important issues such as public safety. (http://www.rta.nsw.gov.au/doingbusinesswithus/trafficcontroltraining/index.html?psid=trafficcontrol)
In fact the Act does not say that but the Work Health and Safety Regulation 2011 (NSW) regulation 39 says that a person conducting a business or undertaking.
… must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:
(a) the nature of the work carried out by the worker, and
(b) the nature of the risks associated with the work at the time the information, training or instruction is provided, and
(c) the control measures implemented.
That is to the same effect. We know that under the Work Health and Safety Act 2011 (NSW) the definition of ‘worker’ includes a volunteer (see s 7) so an agency that uses volunteers has to take the same care of them that they would an employee and if they are going to be involved in traffic control they should get training and the obvious training would be the RMS approved Traffic Controller’s course. Doing the course does not give the traffic controller any particular authority, they are not working for a roads authority or an appointed traffic controller for the purposes of the Roads Act and a person would not commit an offence by failing to obey their directions (at least not the offence provided for by the Roads Regulation 2008 (NSW) s 6).
The situation however changes at an incident. At an accident anyone can direct traffic. If I pull up at a car accident I can certainly direct traffic around the accident. Other driver’s may not be obliged to obey me, but they probably would. There may be offences about obstructing traffic but is inconceivable that any-one is going to take any action against someone who is taking steps to protect other drivers or those involved in an accident.
Fire services have special powers. With respect to NSW Rural Fire Service the Rural Fires Act 1997 (NSW) says, at s 22:
(1) An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:
(a) …
(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.
Further s 24 says:
The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.
Clearly the RFS can close a road (s 24) or limit the use of the road (s 22). That power is vested in the relevant officer who can direct fire fighters so that they can then take action to ensure that those decisions are communicated, ie direct traffic.
Discussion
Where does that leave us?
Any person can direct traffic at an emergency. It would be ridiculous to think that a fire fighter, at the scene of an accident or fire, dressed in their turn out gear, near a fire truck with red/blue flashing lights, could not also direct traffic in order to ensure that either the drivers, or people involved in the incident, are protected.
To direct traffic at a work site, community event or other event provided for in the Roads Act s 115 the roads authority must use an authorised traffic controller. For example if the SES or RFS were asked to control traffic at a community event where the closure of roads has been authorised, they would need to be authorised traffic controllers.
At an emergency or incident under the control of the emergency services, and in this context, the RFS the officer in charge may order the road closed and can direct a fire fighter or other person to ensure the road is closed.
What constitutes an incident varies. If an RFS crew is the first on the scene at an accident then anyone can direct traffic. If they’re part of a coordinated multi-agency response the police should be directing traffic or calling on a roads authority (eg the council) or people with the ticket (eg SES volunteers) to direct the traffic. But there may be delays in getting them there (it depends whether the response is in its first minutes or first hours) and there is no illegality in getting the RFS volunteers to direct the traffic if they’re the people there. If the volunteers get run over or cause an accident there may be a question why they were used but that doesn’t meant there isn’t a perfectly good answer to that question (they were the best resource available at the time). It’s better to have the volunteers direct the traffic than no-one and watch a two car accident become a multi-car accident. If the situation is too hazardous the RFS can simply close the road (assuming they are the agency in charge of the response), if they’re not the relevant incident controller from the combat agency will have that authority and they can call on the RFS to support their decision by closing the road.
Of course closing a road is bad for community resiliency and recovery, it’s better to let traffic past the accident, if possible, rather than hold everyone up for hours. It would be prudent therefore, for an agency like the RFS who understands that directing traffic may be part of their duties should ensure that they have the appropriate instruction and the easiest way to do that would be to get them to do the traffic controller’s course.
Conclusion
• You must be an authorised traffic controller if you are going to control traffic for an road authority acting under s 115 of the Roads Act.
• Any employer (including the RFS) that is going to ask their staff (including volunteers) to undertake hazardous tasks should ensure that they are trained to do so. In this context the obvious way to do that is to get them to do the traffic controller’s course, but it’s not prescribed.
• At an emergency any one can direct traffic, though a driver probably commits no offence by failing to obey the directions of the bystander or RFS volunteer who gives those directions.
In short “yes volunteers can direct traffic at emergencies” but if it’s going to be a regular part of their duties, they should get training on how to do it.
Michael Eburn
30 April 2013
Australian Emergency Law 
This year a local RFS Brigade near me was approached by the Police to close off streets for the Anzac Day March. Does this mean that the RFS should not of been asked to do this, or are those who have completed the RFS Traffic Control qualification come under the definition of authorised traffic controllers?
Good question! Let’s go back to s 115 of the Roads Act. A roads authority may regulate traffic on a road for, amongst other reasons, to ‘for the purpose of enabling a public road to be used for an activity in respect of which a permit is in force under Division 4 of Part 9’. Without exploring that in detail, let us assume that the Anzac Day March was a road event for which a permit had been issued. That would allow council to regulate the use of the road.
The council could appoint a traffic controller or authorise its agent to appoint a traffic controller to direct the traffic. The RFS could be the council’s agent if the request came from the council. (The police too, may have been acting as Council’s agent. One can assume that there was probably some meeting with council, police and others, it was agreed to close the road and the police officer said ‘I’ll ask the RFS to do that’. I don’t know if that is what happened, but it may have, in which case I would think the RFS are still the council’s agent even if the police conveyed the request, so let’s not get distracted by that).
I can’t imagine any other power of police to direct traffic. They can give directions “for the safe and efficient regulation of traffic” (Road Rules 2008 (NSW) r 304) but the Anzac Day marchers were not entitled to simply take over the road without a permit. To put that in context, if there was a sudden, spontaneous street gathering, the police may decide they need to give directions to send traffic via another route in order to stop people getting run over but, at the same time, they would probably try to get the people off the street. That would be a legitimate use of their various powers but it does not seem relevant to an Anzac Day march. An Anzac Day march would be organised well in advance (we all know what day, each year, Anzac day falls) and I can only imagine it is a matter for which a permit has been issued, so it seems to me that the only appropriate authority to close the street is going to be in the Roads Act 1993 (NSW) s 115.
The only relevant issue, that appears to me, might be a difference between regulating and directing traffic, and closing the road. If one closes the road you can put a barrier across the road. If you put a fire truck behind the barrier and a fire fighter there to tell drivers “I’m sorry the road is closed you can’t go down here” you could argue that the volunteer is not directing traffic, they’re not deciding when drivers can and can’t go, they’re simply standing by a sign. The same effect could be achieved without the fire fighter.
To go back to regulation 6 it says:
The Roads Authority may do that, it doesn’t have to.
Presumably the RFS officers did not wear an ‘authorised controller’ tabard, they were not ‘traffic controllers’ just people telling drivers the road was closed.
If they were not authorised controllers a driver would not commit this offence by ignoring them but would commit an offence if they ignored “barriers or … notices conspicuously displayed on or adjacent to the public road” saying that the road was closed (Roads Act 1993 (NSW) s 115).
Equally if the road is closed, most of the WHS issues disappear. It may be dangerous to stand on the side of a road, with moving traffic, holding a stop/slow bat and deciding when traffic may proceed down one lane without colliding with oncoming traffic. Far less dangerous to simply stand behind a ‘road closed’ barrier to say ‘sorry the road’s closed’. If they are real distinctions, then a risk assessment under WHS law may lead to the conclusion you can use volunteers to stand behind a road closed barrier who have not done the traffic controller’s course, but you wouldn’t let them do the job if it involved directing traffic and controlling the movement of traffic.
So having worked through all that my conclusion is:
1. I will assume it was actually the council, not the police that authorised the closing of the road, even if it was the police that passed on the request; or the police were asked by council and they subcontracted to the RFS, either way the authority, I assume, came from the council.
2. It would have been prudent to use authorised traffic controllers but they are not necessary. Where the road is being completely closed there is no need for a traffic controller as traffic is not being directed. The barrier across the road is sufficient. In those circumstances, if the RFS volunteers are merely there to provide a human face to the direction they are not acting as ‘traffic controllers’. Any one could stand beside a road closed sign and say ‘the road’s closed’.
4. If the road was only partially closed, then only authorised controllers should be directing the traffic but they could be RFS volunteers if they have the appropriate training.
None of this affects my view of the power of the RFS or other emergency service at an incident where they are the lead or combat agency. There the power to close a road or regulate traffic comes from their Act not the Roads Act and so regulation 6 is not applicable.
Michael Eburn.
Good afternoon Michael,
I’ve read with interest your many posts – thank you for the information you provide.
In relation to NSW SES providing traffic control/manning barricades etc at community events – (closing roads), based on the information provided, do the NSW SES members have to be ‘authorised traffic controllers’ ie authorised by a road authority, their agent or contractors?
What form does the authorisation have to take? Is it the completion of recognised training and the issue of a level of qualification?
It is common practice for NSW SES members to man barricades at Anzac Day marches, and other community events, performing a traffic control role, well outside of the definition of an emergency incident. To perform this role within the provisions of the legislation, what is required?
Philip
SES members performing the duties you suggest are not performing duties under the SES Act or the State Rescue and Emergency Management Act so any power to close roads or direct traffic under those Acts won’t be relevant.
Road authorities can appoint traffic controllers to exercise traffic control functions set out in Part 8 of the Road Rules. The Act doesn’t say that traffic controller’s must have completed the relevant course (and there are a number of them see “What is TCT” at http://www.rta.nsw.gov.au/doingbusinesswithus/trafficcontroltraining/index.html) but the RMS sees this as a WHS issue so they can insist that people working for them have these qualifications.
Other road authorities may appoint traffic controllers but the Act does not say they have to; but using untrained people may expose them to unnecessary risks to health and safety. The SES has to ask “what are the SES’s WHS responsibilities (remembering that volunteers are workers)?”
In short I can’t see any specific legal obligation to ensure SESE volunteers are trained traffic controllers. RMS will insist on them being used if you are contracting with RMS but that’s not relevant if you’re acting at the request of another road authority (ie a council). A risk assessment however may say that if people are going to direct traffic (as opposed to staff a road block) that they should have that ticket. Ultimately it’s up to the SES to determine what they think is the appropriate response to the assessed risk. Does the council who is asking you to direct traffic require that a person hold the traffic controller training? Does the SES?
It would seem to me prudent to require people who are going to actually control traffic, as opposed to staff a road block, should have completed traffic control training in order to meet the obligations under the Work Health and Safety Regulation 2011 (NSW) r 39.
Michael,
Can a journalist gathering news then reasonably ignore a directive by the RFS or other emergency agency personnel not to travel down a road? Sounds like they can?
Ian Mannix (ABC Radio)
Ian
It depends why their directing the traffic and what jurisdiction you’re in. In NSW, if they’re an authorised traffic controller, appointed by a roads authority, and wearing the appropriate tabbard then it’s an offence to fail to comply with their directions (Roads Regulation 2008 (NSW) s 6).
It’s an offence to drive past a road closed barrier or sign that’s been put up by a roads authority (Roads Act s 115).
If the road has been closed by an emergency service in response to an emergency or incident, then it is an offence in most states, but perhaps not NSW not to comply with the directions. In Emergency Law (4th ed, forthcoming) I’ve written:
But it appears that my references do not include NSW legislation and trying to answer your question I still can’t find an offence. My references are:
(256) Emergencies Act 2004 (ACT) s 189; Fire Service Act 1979 (Tas) s 128; Emergency Management Act 1986 (Vic) s 36C(1)
(257) State Emergency Service Act 1989 (NSW) s 24; Fire Brigades Act 1989 (NSW) s 35; Rural Fires Act 1997 (NSW) s 42; Fire and Emergency Act 1996 (NT) s 35(c); Fire And Rescue Service Act 1990 (Qld) s 147; Ambulance Service Act 1991 (Qld) s 46; Disaster Management Act 2003 (Qld) s 115; Emergency Management Act 2004 (SA) s 29; Emergency Management Act 2006 (Tas) s 60(a); Fire Service Act 1979 (Tas) s 128; Emergency Management Act 2006 (Tas) s 60; Emergency Management Act 1986 (Vic) s 36; Country Fire Authority Act 1958 (Vic) s 107; Victoria State Emergency Service Act 2005 (Vic) s 45; Emergency Management Act 2005 (WA) s 85; Fire And Emergency Services Act 1998 (WA) s 38A; Fire Brigades Act 1942 (WA) s 34A (with respect to a hazardous materials incident) and s 59; Bush Fires Act 1954 (WA) s 57.
(258) Fire and Emergency Act 1996 (NT) ss 21 and 52; Disaster Management Act 2003 (Qld) s 116; 4; Fire And Rescue Service Act 1990 (Qld) s 147; Emergency Management Act 2004 (SA) s 28; Fire and Emergency Services Act 2005 (SA) s 118(4); Emergency Management Act 2006 (Tas) s 60(c); Emergency Management Act 1986 (Vic) s 26(2); Country Fire Authority Act 1958 (Vic) s 109; Metropolitan Fire Brigades Act 1958 (Vic) s 76; Victoria State Emergency Service Act 2005 (Vic) s 40(2) (with respect to directions as to the movement of traffic); Emergency Management Act 2005 (WA) s 86; Fire Brigades Act 1942 (WA) s 34A (with respect to a hazardous materials incident).
So it seems that “a journalist gathering news [can lawfully] ignore a directive by the RFS or other emergency agency personnel not to travel down a road”. Whether that would be reasonable would be debatable.
Oh great, so i have to leave protecting property to protecting the 5th estate ( or risk an offence under the WHS act )..until such time they decide they have a big enough “package” to enthral the masses.
Hi Michael,
The NSW SES Act Section 22 “Power to evacuate or to take other steps concerning persons” states that appointed SES Emergency Officers have the power to direct a person not to enter an emergency area or any part of an emergency area. Does that mean that they have the power to “close roads” in or leading to those areas?
Thanks.
Thanks Steve, the problem with s 22 is that it says that an emergency officer can do certain things including directing a person to leave, or not enter, an emergency area. Now without quoting chapter and verse or looking into the long history of public access to roads, I think I’m on safe ground to say that absent a clear authority, there is no authority to stop people using a public road or right of way. The Roads Act 1993 (NSW) s 114, for example, says ‘A roads authority may not regulate traffic on a public road otherwise than in accordance with this Part’ now the SES isn’t a Roads Authority but given the authority that establishes roads has very limited power to close a road, I think the SES has less.
So the SES can direct a person not to remain or enter an emergency area, but there is nothing that says what happens if the person ignores that direction. The Act does not say it’s an offence to disobey the direction of an emergency officer. Section 24 says “A person must not obstruct or hinder the Commissioner or other emergency officer, or any other person acting with the authority of the Commissioner, in the exercise of a function under this Act”, and provides a penalty of a fine not exceeding $5500 (50 penalty units and a penalty unit is $110) or 2 years gaol or both.
One may want to argue simply ignoring a direction is ‘hindering’ an emergency officer as it makes their job harder than it need be (I don’t think you can argue it’s obstructing an emergency officer), but, again without going through all the case law about what ‘hinder’ means (usually in regard to ‘hinder police’) I don’t think it’s a strong argument. If I was a lawyer acting for someone charged with that offence because they ignored such a direction I would argue that if the Parliament intended to make it an offence to simply disobey a direction, they would have done so. I would point out that it is an offence to fail to comply with a direction given under s 22A(2) so the omission of a similar provision from s 22 seems pretty deliberate. That, along with lots of other provisions in other Acts that make it an offence to fail to comply with a direction suggest that the failure to provide for an offence for failing to comply with a direction under s 22 means that there is no such offence.
The remedy to that is that in an ‘all hazards, all agencies’ approach to an emergency, the emergency officer would declare the emergency area and direct that no-one is to enter it, and then call on the police, or the relevant roads authority, to give effect to those orders (and here we can look at the State Rescue and Emergency Management Act, the State Emergency Response Plan and the Police Act 1990 to find all the various provisions about the obligation of agencies to support the combat agency etc). The police or the roads authority can then block the road (see for example Roads Act 1993 (NSW) s 115(1)(g) which gives the Roads Authority the power to close the road where “the roads authority is authorised or required, by or under this or any other Act or law, to regulate traffic”). A driver then commits an offence if they disobey the road closed sign, or the directions of a police officer or authorised traffic controller appointed by the Roads Authority.
The SES could ask the council to authorise closing of the road, the council could make that direction then appoint the SES as their agent and authorise the SES to appoint road controllers for that purpose (Roads Regulation 2008 (NSW) r 6). The SES could then appoint its members that have done the traffic controller’s course and it becomes an offence (r 6(3)) to disobey their reasonable directions. All of that sounds pretty complex but in a large emergency where there is an operating EOC one assumes that it could be done pretty quickly. Or you get the council to send their own staff out to staff the road block.
It’s interesting that s 22(2) says “If the person does not comply with the direction, an emergency officer may do all such things as are reasonably necessary to ensure compliance with it, using such force as is reasonably necessary in the circumstances” so you can physically restrain a person from entering the area even though they have not actually committed an offence. If they do resist the emergency officers use of force then that may become an obstruction or hindrance, but it’s odd approach as we don’t really want a law that encourages the use of force.
In short yes s 22 would allow the SES to close the road, they could even put up road blocks and have SES members stand there and tell people ‘the road’s closed’ but I can’t see that a driver commits any offence if they simply ignore that direction.
Michael Eburn.
Probably off topic, but in Victorian CFA we’re able to stop traffic but not direct it. At crew leader training, it’s made clear to us that we are well within our rights to block a road (for instance), but we can’t then give advice to drivers on alternate routes.
Thanks Geoff, I agree that there is a difference between directing traffic and closing a road, and as I mentioned in an earlier comment the NSW RFS could close a road without worrying about traffic controllers as they’re just telling people the road’s closed as you’ve said. What I don’t understand is why the CFA would say you “can’t then give advice to drivers on alternate routes” which is also not directing traffic. We should (or whoever imposed that policy) should remember the value of just being a citizen. Whether your a CFA volunteer, or just a fellow citizen, if a driver says – ‘if I can’t go down this road but I need to get to x’ why can’t you give them advice?
Directing traffic in my view, involves saying when vehicles can travel down the road in question, so where you have a controller at each end letting traffic in one direction and then the other. Not giving directions.
We know from plenty of inquiries, including the 2009 Victorian Bushfires Royal Commission, that traffic control points (road blocks) cause a huge amount of concern. To have CFA people saying ‘the roads closed, I can say no more’ would unnecessarily raise the stress, lower the communities opinion of the CFA and hardly allows local knowledge to help facilitate local resilience. I don’t for a moment deny that is what you were told at crew leader training but it’s a ridiculous policy. It sounds like the worst sort of policy based on someone’s perception of what is needed to ‘CYA’ (Cover your a…) rather than acting to benefit the community.
Hi Michael,
Thanks for a really well written and researched post. As an officer (volunteer) in the RFS, I often worry about directing traffic – esp. because we are often first on scene to accidents on roads in our local area. You mentioned:
“At an accident anyone can direct traffic. If I pull up at a car accident I can certainly direct traffic around the accident.”
I didn’t know that ! And I definitely agree that that would give us the right to direct traffic if that seemed a safe thing to do. My only concern is what law(s) give us that right. It would be nice to know what part of what Act covers us in this case – in case our right to do so is questioned (which it has been in the past!).
Many thanks.
David, there is no law on that it is just common sense. If I stop at an accident, turn the hazard lights on, get out of my car and start waving down other vehicles and say ‘there’s an accident there you can’t get past’ I can’t have committed any offence. I’m not blocking the road, the accident is. And even if there was some offence the doctrine of necessity can justify taking action to prevent harms even if that action is unlawful provided is not disproportionate to the harm being avoided – ie I can’t shoot someone to stop them driving past a road block. The critical point is that without any lawful authority, a driver who ignores my advice commits no offence. So no law gives me the right but it must be true that I can direct traffic.
As for the RFS who have turned out to an accident or even come across one, as I say in the post both ss 22 and 24 of the RFS Act would be relevant. “An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of … protecting persons, property or the environment from an existing or imminent danger arising out of a … other emergency [may] take any other action that is reasonably necessary or incidental to the effective exercise of such a function’ and ‘The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a … other emergency to be closed to traffic’.
To repeat my conclusion, any person can direct traffic at an emergency, not because they have lawful authority but because the alternative is that a bystander has to literally ‘stand by’ and watch other vehicles plow into a collision when he or she could avoid that by giving an appropriate warning. “It would be ridiculous to think that a fire fighter, at the scene of an accident or fire, dressed in their turn out gear, near a fire truck with red/blue flashing lights, could not also direct traffic in order to ensure that either the drivers, or people involved in the incident, are protected.”