This is an amalgam of two questions that I received from members of the same region of NSW SES suggesting something’s been happening there or at least a subject of discussion. The question relates to the SES closing roads.
The Rural Fires Act 1997 (NSW) 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.
There is no equivalent provision in the State Emergency Service Act 1989 (NSW). The closest is s 22 which says (emphasis added):
(1) The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following:
(a) to leave any particular premises and to move out of an emergency area or any part of an emergency area,
(b) to take any children or adults present in any particular premises who are in the person’s care and to move them outside the emergency area or any part of the emergency area,
(c) not to enter the emergency area or any part of the emergency area.
My correspondents infer that the authority conveyed by s 22(1)(c) authorizes the SES to close a road so they ask:
If a road is closed under the s22(1)(c) SES Act 1989, due to a flooded road (emergency area) as it threatens to endanger the safety of persons (s4 SERM Act 1989).
- What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road?
- Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?
- Are signs and road barricades required?
- How should they be installed?
- Should a TTMP be developed for areas the a prone to flooding on a regular basis?
- Is there any other actions that need to be taken or other legislation?
To answer that we need to first return to s 22. What is ‘an emergency to which this Part applies’? Section 22 lies within Part 5 of the Act. Part 5 is headed “Emergencies and Emergency Powers”. The emergencies to which the part applies are defined in s 19 which says:
This Part applies to:
(a) an emergency referred to in section 8 (1) (a), (b) or (c) relating to a flood, storm or tsunami, or
(b) an emergency referred to in section 8 (1) (d) which the State Emergency Operations Controller has directed the Commissioner to deal with.
Section 8(1)(a) says that the SES is the “combat agency for dealing with floods…” so an emergency referred to in s 8(1)(a) is a flood emergency. Section 8(1)(aa) also says that it is a function of the SES ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’.
An ‘emergency officer’ is the Commissioner and any other person appointed by the Commissioner as an ‘emergency officer’. It follows that not every member of the SES is an emergency officer, and not every emergency officer needs to be a member of the SES (s 15). There are also senior emergency officers (s 18A). A ‘senior emergency officer’ is:
(a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station,
(b) an officer of Fire and Rescue NSW of or above the position of station commander,
(c) an officer of the State Emergency Service of or above the position of unit controller,
(d) a member of a rural fire brigade of or above the position of deputy captain,
(e) a Regional Emergency Management Officer.
The emergency area is, unhelpfully described as ‘the area affected by an emergency to which this Part applies’ (s 18A).
So the Commissioner can authorize an emergency officer (and one can infer that this includes a senior emergency officer) to direct a person ‘not to enter the emergency area or any part of the emergency area’. There are questions about whether there can be a standing authorization or whether it has to be granted for each emergency, and who defines the emergency area, but we’ll skip over these and assume that the floodwater over the roadway means the road is in the emergency area, and the emergency officers are duly authorized.
Note that it is not a power to close a road, it is a power to direct a person not to enter the emergency area. It doesn’t matter if they are on the road or in the forest; it doesn’t matter if they are driving, walking, riding a horse or flying a helicopter. This is a power to direct people to remain out of the area. Compare s 22 with the Fire Brigades Act 1989 (NSW) s 14. That section says “The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire”. If the road is closed to traffic it’s closed to all traffic and that can be communicated by a sign or anyone saying ‘the road’s closed’. The SES Act on the other hand refers to an ‘emergency officer’ directing ‘a person’, not ‘all persons’ or ‘closing the emergency area’ or the like. It implies a singular direction.
The Act gives no indication on how a ‘direction’ is to be given. The obvious way is to have an ‘emergency officer’ standing at the road block telling drivers ‘I am directing you not to proceed further as you must not enter the emergency area’ or, in more simple terms, ‘you can’t go on, the roads closed due to the emergency’.
The section says that the commissioner can authorize an emergency officer, it doesn’t say that the emergency officer can then authorize someone else to communicate the direction. On one view that should be OK – if I give a direction to someone does it matter whether I tell them in person, or get some other person to tell them? Either way my ‘direction’ is communicated. On another view, the fact is that an emergency officer has to be appointed by the Commissioner. It means that not all SES members are emergency officers and that may reflect a policy that the legislature does not want all SES members to exercise those powers. Ideally they should be identified as suitable and trained. If that’s true allowing an emergency officer to communicate his or her directions via another volunteer would defeat that policy objective. Whilst I think it could be arguable my preferred interpretation would be that as an emergency officer can only exercise the power under s 22 if directed or authorized by the Commissioner, it has to be the emergency officer that gives the direction.
I don’t see that putting up a barricade could constitute an emergency officer directing ‘a person’ not to enter the emergency area; even if it had a sign on it signed by the emergency officer saying ‘all persons are directed …’
It should also be noted that there is no obligation upon any person to comply with a direction – that is there is no specific offence of failing to obey a direction given by an emergency officer, so a road closed sign would be pretty meaningless. If a person fails to comply with a direction, the emergency officer can use reasonable force to gain compliance (s 22(2)), so you can use force to get the person out of the emergency area, but they still have committed no offence. In some circumstances it may be possible to argue that the actions constitute the offence of ‘obstruct or hinder’ an emergency officer (s 24) but that is not axiomatic and would depend on the particular circumstances and facts.
My answer to the first two questions is therefore, there would need to be an authorized ‘emergency officer’ at the road block who could issue the appropriate direction to each person that wanted to enter the emergency area.
The better response, in line with an all hazards/all agencies response would be to seek assistance from others.
The Rural Fire Service
As noted, the Rural Fires Act 1997 (NSW) s 24 says (emphasis added):
The officer in charge of a rural fire brigade … may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.
Emergency is not defined in the Rural Fires Act but the definition from the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) does apply. That Act says that an emergency is (emphasis added):
… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:
(a) endangers, or threatens to endanger, the safety or health of persons or animals in the State, or
(b) destroys or damages, or threatens to destroy or damage, property in the State,
being an emergency which requires a significant and co-ordinated response.
Even though the ‘emergency’ is a flood, the fire fighters could exercise their authority under s 24 so the SES incident controller could ask the RFS to close the road.
The police
A police officer may temporarily close a road due to obstruction or danger on the road. A police officer may also prevent vehicles, people or animals using a road that has been closed to traffic (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 186(1)). The SES incident controller could ask the police to close the road.
The Roads Authority
The council of a local government area is the roads authority for all public roads within the local council area the area, other than freeways, a ‘Crown road’ or a road where someone else is the declared roads authority (such as a private tollway).
A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road…
(b) for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or …
(d) for the purpose of protecting members of the public from any hazards on the public road…
Further
A person:
(a) must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and
(b) must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section.
It follows that once council (or the roads authority if it is not a council road) has put out the relevant signs, failure to comply with them is an offence.
The SES incident controller could ask the relevant roads authority to close the road.
Conclusion
My conclusion is that the SES do not have the power to close the road per se. An authorized emergency officer has the power to direct ‘a person’ not to enter an emergency area. That may, for many practical purposes, be the same but it is not a general power. It follows that in my view, the answer to the questions:
- What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road? And
- Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?
Is that you actually have to have an authorized emergency officer at the scene to give the direction; but given there’s no offence for failing to comply with the direction it doesn’t matter much. The SES could certainly put up signs and barriers not so much to ‘close the road’ as to warn of danger that happens to be on the road. One doesn’t need any particular authority to say ‘mate don’t drive down there, it’s flooded’, or, consistently with s 8(1)(aa) of the SES Act, put an SES truck across the road in order to protect persons who might otherwise drive down the road, from dangers to their safety and health.
The SES could put up barriers and signs again as a warning, even though they have no legal effect, just like they can put SES tape around obstacles on the footpath and fallen trees. The warning is just that, a warning. The warning may be more effective if there’s someone there to actually talk to drivers, but it’s not essential. As for removing the warning when the danger is gone, that would be essential to maintain the value of the warning and because the aim is to allow communities to return to normal operations. Leaving the warning there when the flood is gone will diminish its future value and no doubt annoy lots of people.
As for question 3 and 4:
- Are signs and road barricades required?
- How should they be installed?
To actually close the road the best option is to contact the relevant roads authority which, for local roads is the council. The authority can close the road with signs and barricades and a driver commits an offence if he or she ignores them.
- Should a TTMP be developed for areas the a prone to flooding on a regular basis?
I understand a TTMP is a traffic management plan (I assume the first T is probably ‘Temporary’). The answer is that this would sound like a sensible option and something that should be considered by the Local Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) s 29). A TTMP may certainly make it easier for the SES as the council may already plan, as the roads authority, to close the road at certain pre-determined flood levels.
Finally
- Is there any other actions that need to be taken or other legislation?
That has been addressed, above.
Australian Emergency Law 
After writing my original post (NSW SES directing a person not to enter an emergency area, or closing the road? (September 9, 2016)) my correspondent has replied with some more details. In particular, I’m referred to the local emergency plan which says ‘The authority to close roads is vested in many Agencies’ and it lists the State Emergency Service and the power contained in s 22. The plan goes onto say:
That doesn’t change my view. The SES can’t close the road, but the RTA or other relevant road agency can. The SES is the combat agency for floods that is they are ‘the agency identified in the State Emergency Management Plan as the agency primarily responsible for controlling the response to a particular emergency’. Control means ‘means the overall direction of the activities, agencies or individuals concerned’ (State Emergency And Rescue Management Act 1989 (NSW) s 3). So the SES Incident Controller may determine that a road needs to be closed and he or she can direct the RTA or Roads Authority as part of their role in the EM Plan to close the road.
The plan to which I have been referred says, on the authority to close roads that a Roads Authority has the power to ‘Close roads to protect the public from hazards on the public road’ but ‘This power is rarely used in emergencies as the powers of Emergency Services Officers generally suffice. It relates only to those roads for which Council is deemed to be the “Roads Authority”’. I don’t think that’s correct. If it came, somehow to court, I think the answer would be that the Roads Authority was exercising their power albeit at the request or direction of the IC. The exercise of powers doesn’t have to be formally declared or even known. If the Roads Authority goes out and ‘by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road’ says the road is closed and does so because the IC has said that it is necessary to do so ‘for the purpose of protecting members of the public from any hazards on the public road’ then the roads authority is exercising the power under the Roads Act 1993 (NSW) s 115 even if they don’t know that.
So I think the plan is wrong on its legal basis, but it hardly matters. With the RTA (now RMS) or local council are there putting up road closed signs, the road is closed. The fact that the exact authority is not well known doesn’t mean it isn’t there.
The state flood plan on p 6 says that the SES may “Assist the NSW Police Force, Roads and Maritime Services (RMS) and councils with road closure and traffic control operations” it doesn’t say the SES can close the roads. That is consistent with my view. The power to close the road lies with the Police and the roads authority (RMS for main roads, councils for local roads). Those agencies can be asked, even ‘directed’ to close the road by the control agency (the SES) and that’s fine. An all agency/all hazards response doesn’t mean the powers all have to be vested in the control agency as it can call on others to exercise their power and duties.
So in short, I stand by my conclusion that s 22 is not a power to close a road it’s a power to give a direction. An emergency officer could stand at a road block and give that direction to everyone who wants to drive in. The SES could put up signs saying ‘Danger, flood waters ahead, do not enter’, even ‘Road closed’. They are not of legal effect but they are a warning and one might hope that others would follow the advice. But to close a road the power is with others but as the control agency, the SES can ask them to close the road.
As for ‘standing appointments’ s 22 says the Commissioner can authorise or direct an emergency officer. I think that has to be in a particular case. But the Commissioner can delegate his or her authority (s 13). So the Commissioner could delegate to others, emergency officers, senior emergency officers etc the power to make the decision under s 22 so that they can decide whether ‘it is necessary or convenient … for the purpose of responding to an emergency’ to exercise the powers under s 22. A delegation of that decision making capacity is different from a standing authorisation. The difference is technical and probably insignificant, but it is different.
As I said this post was a response to a combined question. An original correspondent has also come back with more details and questions. I am referred to another local plan that says, in summary:
I think that interpretation is not only a correct interpretation of the plan as quoted or summarised, it is also consistent with my interpretation of the legislation in particular the SES Act and the Roads Act.
That’s really up to the IC to determine. Compare the SES Act to the Fire Brigades Act 1989 (NSW) s 13 which refers to the ‘site’ of a hazardous materials incident. The ‘site’ is ‘such area in the vicinity of the incident as is for the time being determined by the officer in charge’. The SES Act defines the ‘emergency area’ as ‘he area affected by an emergency to which this Part applies’ but doesn’t say who is to determine that area. It must, by implication, be a matter for, ultimately the Commissioner (s 20) or the Commissioner’s delegate (s 13) which no doubt will be the relevant incident controller.
So whether a flooded causeway falls within an ‘emergency area’ will be a matter for the IC to determine.
No, a sign saying ‘road subject to flooding’ is a warning to motorists and other road users but doesn’t remove any obligation on anyone to do anything that needs to be done should the road actually be flooded. The issue is always a risk assessment, and a roads authority may think that a remote country roadway, with a causeway, and those warning signs and little traffic doesn’t warrant further action in part because those warning signs are there and they are, in the circumstances, sufficient. But it’s not the signs that somehow ‘remove’ a responsibility, their presence is simply one factor in the risk assessment matrix.
Unlikely but anything’s possible. If there are just orange signs across a road a driver might infer that the road is closed, or they might say ‘what’s this about?’ and drive on. And if it’s night and the water can’t be seen, the failure to write ‘Road flooded ahead’ may be seen as being less than best practice or less than helpful.
This is where you realise the question is quite academic (that’s alright, I’m an academic). Assume there is floodwater on the road and it is dangerous to cross. On one view the road is closed – it’s closed by the floodwater. So putting out ‘road closed’ signs is simply reporting the truth rather than exercising a power. So you can put the signs out.
Certainly if the roads authority decides to close the road and they can do so by erecting barriers, they could ask the SES to put the barriers out – that is the situation described of assisting council to do their task.
But let’s assume the SES put out the barriers and the roads authority doesn’t know about it so the roads authority (the council) isn’t exercising their power under s 115 and the SES can’t close the road – so what? Assume further a person drives past the road closed sign and a ranger or police officer issues an infringement notice or court attendance notice for disobeying the road sign (Roads Act 1993 (NSW) s 115(4); and for the benefit of the readers who are police officers, I haven’t actually checked whether that is an offence for which a Traffic Infringement Notice can be issued). The offence under s 115(4)(a) says that a person ‘must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road…’ So the person works out that the SES, not the roads authority put the sign out and takes the matter to court arguing that the sign is not ‘any such notice’ as intended by 115(1) because it wasn’t put there by the roads authority. That would make sense, it can’t be an offence to ignore a road closed sign that’s just put out by someone because they think it’s a good idea, or a joke, even if it is a council owned sign. So let’s assume it goes to court and the magistrate accepts the argument, then the person is Not Guilty of the offence. OK fair enough, the government misses out on a penalty but there’s not other significant issue.
The SES may be guilty of some offence of ‘obstructing traffic’ but given ss 8(1)(aa) and 8(1)(a) and as I say, the fact that the road is in fact obstructed by the water, I can’t see anyone taking any action on that matter, or, if they did, succeeding. One can only imagine a constable who issued a court attendance notice to an SES member for putting out the sign, rather than exercising his or her powers to close the road, is going to get into more strife from the police commissioner than the SES member is. As I say, I can’t see you need any more power to put a warning sign in front of floodwaters (even if that sign says ‘road closed’) than you do to put orange tape around a tree that has fallen on the sidewalk.
This further comment/question came via email:
The first point is NO, you will not be held liable. You are not there as ‘Private Citizen’ but as ‘SES EO’. The Commissioner is responsible for controlling the response to the emergency (State Emergency Service Act 1989 (NSW) s 20). The Commissioner can’t personally manage the response to every emergency so he or she delegates that responsibility ultimately to the relevant Controllers. Section 21 says “Every member of the NSW Police Force and all other members of emergency services organisations are to recognise, in connection with operations in response to an emergency to which this Part applies, the authority of the Commissioner and emergency officers acting under the Commissioner’s orders or the orders of the region controller or local controller.” So the Region or Local Controllers or the relevant Incident Controller are acting as the Commissioner’s delegate. What follows from that is that if there is any liability it belongs to the State of NSW not the individual. This is reinforced by s 25 that says
So no you won’t be held liable.
Will the State of NSW? That all depends on what is reasonable. You can only do what you can do and you have to take into account the risk. Is it a busy road with lots of drivers unfamiliar with the road? Or a local access road only? How high is the flood water? What other tasks do the SES members have to do? How many volunteers are available etc. Perhaps all you can do is ring the council. Then the questions also have to be asked of council. What resources do they have? What other competing demands are there? Etc
And driver’s are also responsible for their own actions. So driving into flood waters is problematic. Now the floodwater may be such that given the time, and the road, and visibility, and light, that you couldn’t see the floodwaters until you are in them – that would suggest the imperative to put warning signs out is greater than where it’s daylight, the flood water is obvious from some distance etc.
And to go back to an earlier comment the SES may not have authority to ‘close’ the road, but that doesn’t mean you can put up signs saying ‘road closed’ if the road is in fact closed by the flood water (or, if you prefer, signs that say ‘Traffic Hazard Ahead’ and ‘Detour’ or ‘Warning Road closed by flood water’). If the SES put up a ‘road closed’ sign and/or leave a volunteer to tell people ‘You can’t get through down there, the road’s flooded’ you’re not closing the road, you’re just telling people the way it is. As noted earlier the difference is that if a Roads Authority puts up a road closed sign, the driver who ignores it commits a traffic offence (see http://www.forbesadvocate.com.au/story/4150244/on-the-local-police-beat/). If they drive past a sign put up by the SES that is not an offence. That’s the difference.
As for Emergency Officers directing council, they have no authority to do that. The power is vested in the Commissioner, Region and Unit Controllers (s 21) and I would say by implication if not express terms, Incident Controllers. Emergency Officers can direct a person not to enter an emergency area, and they could ask council to close a road, but they can’t direct them to. Of course if you’re relying on ‘direction’ it’s probably not going to work. The process should be part of the Local Emergency Plan and council and the SES need to have clear communication lines so the Council can tell the difference between getting a call where the SES say ‘we’ve just driven past something that you might like to know about’ and the call where the SES says words to the effect of ‘this is the incident controller for this flood event and I require that xyz road be closed and in accordance with the Local Emergency Plan I am calling upon council to exercise its powers under the Roads Act to close the road’. I’m not suggesting that’s the language that is used, but that you need a method to convey that message, whether it’s a particular number to call, key words to use or just having a council liaison officer in the EMC. What you don’t want is confusion where the council say ‘we thought they were just telling us there was water on the road, for our information’ and the SES say ‘we thought we were telling them to get out there and put up road closed signs’. It’s not for me to say what’s the best way to ensure the message is understood but it is important that there is, before the event, due thought given to that issue.