A correspondent writes:
I’d like to ask a question and whilst I don’t work for an emergency service my question relates to staff from a NSW government agency assisting at an emergency incident at the request of the police so hopefully it falls within the scope of your blog.
I work for the NSW National Parks and Wildlife Service and am based in a very busy National Park, which has a public road through it. Due to the volume of traffic on busy days traffic accidents are unfortunately quite common and NPWS staff often encounter these traffic accidents and often provide assistance. There has previously been a MOU between Local NPWS and Police formalising the assistance that the two agencies might provide to each other.
Recently NPWS staff assisted police to close the road through the park due to a vehicle accident where a person was trapped and the road was closed in both directions. The closure was directly requested by police as they were stretched for resources. NPWS staff parked service vehicles across a road away from the accident site (at a location requested by the Police) to ensure that the public were diverted away from the accident.
A question has since been raised that the staff who performed the road closure were not trained or qualified to undertake traffic control and should not have been tasked to perform the road closure. In NSW a person undertaking any form of traffic control in non-emergency situations need to be an authorised traffic controller, have approved traffic control plans and road occupancy licences and have appropriate training- the staff who undertook the closure do not have traffic control qualifications.
So my question is “If requested by NSW Police during an emergency situation, can staff undertake traffic control activities that they would not be qualified to undertake in non-emergency situations and if so under which Act?” I believe that, if NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity but am hoping that with your assistance I can provide a quick answer as to why staff without traffic control qualifications can undertake traffic control in an emergency situation, especially when it has been specifically requested by NSW Police.
Let me start at the end. My correspondent says ‘I believe that, if NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity’; that is absolutely correct – so let us work to that conclusion.
First, it is not correct that ‘In NSW a person undertaking any form of traffic control in non-emergency situations need to be an authorised traffic controller, have approved traffic control plans and road occupancy licences and have appropriate training…” The only reference to traffic controllers is in the Roads Regulation 2008 (NSW) which says, at section 6:
(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.
That Regulation says a roads authority may, not must, appoint a traffic controller. The point of appointing a traffic controller is that it is an offence to disobey their reasonable direction.
The Roads and Maritime Services (RMS) have determined that as part of their obligations under the Work Health and Safety Act 2011 (NSW) (the WHS Act) they want to ensure that people ‘controlling’ traffic are trained. The WHS Act requires that a Person Conducting a Business or Undertaking (a PCBU) must ensure, so far as is reasonably practicable ‘the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work …’ (s 19(3)). Further 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.
The RMS require their contractors to ensure traffic controllers have completed their approved training to ensure that the RMS complies with its WHS obligations. This is made clear on their web site where they say:
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).
Neither the National Parks and Wildlife Service nor the NSW Police are ‘roads authorities’ (Roads Act 1993 (NSW) s 7) or contractors to RMS, so the obligation to have staff complete these courses does not arise. The first conclusion is that there is no legal requirement to ensure that the people doing these tasks have to have RMS traffic controller training.
With respect to the road closure, police have considerable powers with respect to the control of traffic and making the roads safe for road users (see Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) ss 185 and 186). Further, ‘A person must obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer (Road Rules 2008 (NSW) s 304). The police officer cannot personally close the road – a police officer may close the road but he or she cannot be at both ends or may have to perform other duties. It stands to reason that he or she can ask for assistance from others such as the Council, State Emergency Service or presumably the NPWS.
Further, a police officer of or above the rank of Sergeant ‘may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property threatened by an actual or imminent emergency’ direct the closure of roads and other action to ensure public safety (State and Emergency Rescue Management Act 1989 (NSW) s 61). ‘A police officer exercising a function under section 61 may do so with the aid of, and be accompanied by, such assistants as the police officer considers necessary’ (s 61AA).
Does a person need to have RMS Training to provide that assistance? As noted above there is no legal obligation to do so but there is a legal obligation to undertake a risk assessment and take steps to manage the risks. Given RMS have identified the risks with traffic management and identified relevant training, an agency like NPWS that is going to ask its staff to manage traffic should also consider the risk and consider whether or not the RMS training would be an effective step in their risk management.
In my view, closing a road is not the same as directing traffic. If the road is closed, most of the Work Health and Safety 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. There would in fact be no need to have an officer there, the vehicle parked across the road would in effect close the road, so the person there is simply to give some authority to the closure and answer people’s questions. It’s true that there should be a risk assessment but if the task is to park across a vehicle across the road, it raises the question of what is the risk? There is little risk to either the person who parks the car, or other road users.
So let me return to the specific question: “If requested by NSW Police during an emergency situation, can staff undertake traffic control activities that they would not be qualified to undertake in non-emergency situations and if so under which Act?”
Answer: The NPWS can, by necessary implication, assist the police exercising their powers under the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) (s 185) and they may assist the police exercising their road closure powers under the State and Emergency Rescue Management Act 1989 (NSW) (61AA).
Further: “If NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity”. That is correct but there is no legal obligation to have staff complete an RMS Traffic Controller’s course. As a result of the risk assessment, NPWS may determine that it will require staff to complete that training, but, equally, it may be considered that is not necessary if NPWS staff will only be asked to close the road, rather than direct the movement of traffic along the road.
Michael Eburn
7 January 2014
Australian Emergency Law 
A little while ago I assisted at a car accident I was 1 of 3 people on arrival the car accident it’s self was taken care of so I announced myself to a police officer there as I am a Volunteer with the Bush fire service of WA and upon his decision I assisted with manning a road block which involved directing traffic to perform a u-turn on a double white line and head in the opposite direction. I was dressed in my BFS turn out coat holding a torch, I’m curious since this has been raised, what governs me doing something like this and am I suppose to be trained? Regards Adrian
In WA “The Commissioner of Police is responsible for the control and regulation of traffic in the State and for the enforcement of the traffic regulation provisions of this Act” (Road Traffic Act 1974 (WA) s 6(1)). The Commissioner may delegate his authority to other police (s 6AA). WA Police are also the hazard management agency for dealing with road crash (Emergency Management Act 2005 (WA) s 4 and Emergency Management Regulations 2006 (WA) reg 16). I assume, however this was not a declared ’emergency situation’ (Emergency Management Act 2005 (WA) Part 4) nor was this such a complex event as to trigger the activation of the STATE EMERGENCY MANAGEMENT PLAN FOR ROAD CRASH EMERGENCY (https://www.semc.wa.gov.au/WA%20State%20Emergency%20Management%20Arrangements/Westplan%20Road%20Crash_June%202013.pdf).
Pursuant to the Road Traffic Code 2000 (WA) regulation 272 everyone is required to obey the directions of a police offer or an authorised officer even if that direction would require them to breach another rule (eg by doing a u-turn on a double white line). An authorised officer is appointed by the Commissioner of Police but notice of that appointment must be published in the government gazette, so unless the Commissioner has appointed all Bush Fire Service volunteers as authorised officers, you were not an authorised officer for the purposes of that regulation.
I can’t find any other relevant legislation- so where does that leave you? First the police are unlikely to charge you with anything so the questions academic, but let’s think about what may have been done – there is an offence of obstructing traffic (“A driver shall not unreasonably obstruct the path of another driver or a pedestrian”; Road Traffic Code 2000 (WA) reg 108) but you are not ‘unreasonably’ obstructing the traffic if you are doing so at the request of the police or, even if you are doing it on your own initiative as you know there is a car accident further on.
The common law of necessity would also justify any other action- that principle provides a defence to a breach of the law where it is reasonable and intended to avoid greater harm- so the driver who crosses a unbroken line because there is no option to proceed (either because there is an accident or the road has been closed) commits no offence provided they do so with care because their alternative is to sit there for an unknown period of time.
So what governs you is common sense and ultimately ‘necessity’. Are you supposed to be trained? If it was part of your regular duties then your service should have some training involved based on the risks that your duties expose you too; but if this was just a one off event then there is no requirement for training. There is, I think a very big difference between partially closing a road, having stop points at two ends, traffic controllers who cannot see each other, and putting in place arrangements to allow traffic to flow alternatively down one lane; and simply closing the road and putting someone there to tell drivers’ ‘the roads’ closed’ and I think that is the essence of what happened here. The police closed the road; you were simply asked to tell people the road was closed and they would have to turn around as there was no other option. I can’t see that you’re doing anything that needs authorisation- anyone can tell people – ‘the road’s closed’ but it was the police that actually closed the road.
If you were injured in the course of assisting the police you may be entitled to compensation under the Police Assistance Compensation Act 1964 (WA).
I will, however, draw this comment and response to the attention of my regular correspondent, Geoff Birkbeck. Whilst he and I don’t always agree on various provisions he is a font of knowledge on road traffic law and in particular WA law so I’ll see if he can add any further light on this issue.
I’ve had some further thoughts that I think will make my point clearer:
Imagine if you will that there is a car accident, people are assisting the injured but as a result of the accident it is not possible to drive past the scene, ie the road is blocked. A good samaritan gets out of their car and tells the person in the car behind ‘You can’t get past, there’s been an accident’. Does the good samaritan require any lawful authority to say that? Clearly ‘no’, they’re not ‘doing’ anything, just telling it as it is. They have not closed the road, nor are they obstructing traffic, they are merely reporting the facts.
Now the good samaritan moves back up the road to an intersection and again tells people ‘You can’t get past, there’s been an accident’ but at this point the other drivers can’t see the accident but they can turn off the road and take a detour. Has the situation changed? I don’t think so, the good samaritan is still just acting as a good citizen and is doing no more than reporting the facts. Another driver can ignore the warning and proceed, and in doing so commits no offence, but they still won’t get through.
Now imagine the good samaritan, concerned for his or her safety, parks their car across the road so that they are more visible – I still don’t think the situation has changed. They’re not actually closing the road, the road is in fact closed by the accident.
The situation is different if the road is closed but there is no safety issue for road users, for example assume that a crime has been committed in a house and police want to close the road outside in order to preserve evidence. The crime itself has not closed the road, that is a driver could proceed quite safely down that road, to close the road in that case the police would need special powers which they have under various crime scene type legislation.
As I’ve said before, I also think it’s quite different if the intention is not to close the road but to restrict access to say, one lane. It’s still the case that if the accident has closed half the road, but half is still passable, traffic that stays on the correct side of the road have a right to proceed. Asking them to stop, to allow others to proceed does not require legal authority, but directing them to stop would. More importantly, and this is where the training comes in, if people are going to start controlling traffic, ie stopping one lane to let oncoming traffic through, then it’s not that legal authority is required but that training is required because that’s inherently dangerous, much safer just to block the entire road.
My conclusion is that if there is a danger on the road that makes it impassible, merely telling people that that is the case requires no lawful authority. Equally if police have directed that the road is closed, telling people ‘the police have closed the road’ or ‘the roads closed’ and if asked why telling them there’s been an accident and police have closed the road, requires no particular lawful authority and it can be done by anyone – another driver, a bushfire volunteer or a NPWS staff member – the person giving the warning hasn’t closed the road, they are simply advising their fellow citizens that the road is, in fact, impassable. People may commit no offence if they ignore your warning but so what, they’ll just get stuck at the accident site. At that point they may be directed by a police officer to turn around in which case there may be an offence committed if they ignore that direction.
Thank you for your reply.
Just to throw a spanner in the works would the “Good Samaritan” rule apply if the situation was if I was driving up a road say freeway in my private vehicle and noticed a fire on the side of the road that was approaching but not yet impacting the road, how ever giving my expirence I would in any other situation have the road closed or request others to close the road would It be lawfull for me to don my fire uniform and block the road for the “interest of public safety”?
Regards Adrian
Volunteer Bush Fire Service WA
Don’t promote my example to the status of a ‘rule’. I was thinking of the factual argument a lawyer would make but it’s not a ‘rule of law’. Here’s an example from 1880, Ned Kelly’s holding the populace of Glenrowan when one man escapes and flags down the train carrying police. Did he have any authority to stop the train? No, but it can’t be suggested it was illegal to flag down the train to tell the driver and the police that the tracks had been ripped up and Kelly was hold up in Glenrowan.
So you’re driving along the freeway and you see a fire and you chose to stop and warn others; no authority is required. Of course the other driver’s commit no offence if they ignore you and travel past. Then let’s add the fact you are a volunteer fire fighter and can put on your uniform. The Bush Fires Act 1954 (WA) says:
Subject to this Act, a… for the purpose of controlling and extinguishing or preventing the occurrence or spread or extension of a bush fire, or for any other prescribed purpose, the captain, or, in his absence, the next senior officer of a bush fire brigade, or in the absence of the captain and all other officers, any other member of the bush fire brigade, after consulting with the occupier of the land if he be present, has and may exercise all or any of the following powers and authorities, he may … (c) take any measures which in the circumstances are reasonable and appear to him to be necessary or expedient for the protection of life and property…’
If what you have observed is a bush fire and assuming there is no other fire brigade present then you could exercise that authority. There may be claims that you cannot as you have not been despatched to the fire, but the Act refers to any member etc and you are a member of a brigade, and if you’re acting bona fide, ie because you believe what you are doing is necessary, and reasonably, so you at the same time make arrangements to call triple zero to report the fire and report to the OIC of the relevant brigade that arrives, then in the unlikely event of any legal proceedings I would expect a court would accept that you had the right to exercise that power as that is why it is given.