This question comes from someone involved with a council operated life saving service who says that the
… Council provides a Lifeguard Service 7 days a week, 365 days a year, and provides an after-hours response to NSW Police and NSW Ambulance if required;
The Lifeguard Unit has two ‘emergency response’ vehicles, fitted with Red lights and sirens as per RMS Vehicle Standards VSI 8, and the vehicles are marked in Red and White chequers with fluro orange and yellow with the Council insignia and LIFEGUARD markings.
Lifeguards are regularly requested due to our proximity to respond to missing swimmers, surfers, kayakers, overturned boats etc. Our Lifeguard Headquarters is based at XXX and our Jet ski is based at XXXX some 2klm away. During summer the response with traffic in this busy coastal area can take up to 15 minutes to travel to the jet ski base.
At present we utilise lights and sirens when we encounter these traffic conditions and apply Rule 307 ARR [I actually think that means r 306 of the Road Rules 2014 (NSW) as r 307 relates to parking], when an emergency arises and when reasonable to do so.
Under the provisions of s53 STATE EMERGENCY AND RESCUE MANAGEMENT ACT 1989, there is an exemption provided under 3(a) A rescue unit is not required to be accredited:
(a) if it is a unit only engaged in surf life-saving
However, section 2(a) A rescue unit is required to be accredited even though: it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency,
My question relates to what takes precedence, the fact that Council is defined as any other ‘government agency’ or does the exemption apply as the Lifeguards are responding to Surf Life Saving based rescues?
My interpretation has been that if directed by NSW Police or Marine Command to attend to overturned boats is under the direction of NSW Police or NSW Ambulance, and if responding to the jet ski base to assist in surf rescue that ARR307 would apply.
This question is really in two parts, it’s about accreditation under the SERM Act, and the Road Rules 2014 (NSW).
The State Emergency and Rescue Management Act 1989 (NSW) – accredited Rescue Units
This Act says, at s 53(1) ‘A person who establishes, manages or controls a rescue unit which is not accredited under this Division is guilty of an offence’. As my correspondent has noted, s 53 goes onto say:
(2) A rescue unit is required to be accredited even though:
(a) it is a unit of the NSW Police Force, Fire and Rescue NSW, the Ambulance Service of NSW, the State Emergency Service or any other government agency…
(3) A rescue unit is not required to be accredited:
(a) if it is a unit only engaged in surf lifesaving…
One needs to consider the sort of accreditation given by the State Rescue Board. Units are accredited in General Land Rescue, Specialist Land Rescue and Maritime Rescue (see State Rescue Board, Rescue Arrangements in NSW (2017)). Section 53(2) is saying that if one is going to engage in that sort of work then accreditation is required. Section 53(3) is saying that organisations like a volunteer surf patrol does not require accreditation.
The general rule of statutory interpretation is that a specific provision such as s 53(3)(a) will take priority over a general provision, such as s 53(2)(a) so that if this council ‘unit’ is ‘only engaged in surf lifesaving’ then accreditation is not required. The fact that they are called out to assist police and ambulance does not change that position. NSW police are responsible for coordinating rescue (s 50) and they can call on resources other than accredited rescue units (state rescue policy) so if the police want to call on this team because they have specific skills that can be used, they can do so. Equally NSW Ambulance can call from assistance from anyone they want to.
If however the lifeguard’s patrol, on their own initiative, river beaches and waterways and provide an emergency response to boats in distress, one might question whether they are ‘only engaged in surf lifesaving’. If it came to be tested, if by some bizarre circumstances someone launched a prosecution for maintaining an unaccredited maritime rescue unit, then it would be up to a court to determine what the intention and purpose of the service was. If it was intended to be a surf lifesaving unit, but occasionally did these extra duties at the request of the other services, s 53 (3) would apply. It the reality was that it was more than that and the unit was regularly engaged in rescues at places other than surf beaches (and perhaps was equipped and trained for these other tasks) then it might appear it is not ‘only engaged in surf lifesaving’ in which case accreditation would be required.
The question for a court would be “is the work of responding to missing swimmers, surfers, kayakers, overturned boats etc’ really incidental to the surf lifesaving function or is it an equal or ‘core’ function?”
Road Rules 2014 (NSW)
The other question relates to the road rules. We’re told that the vehicles are equipped with red lights and sirens and I’ll assume that all the relevant permissions from RMS have been obtained to allow that to happen, and the drivers have been proclaimed to be ‘emergency workers’ for the purposes of the Road Rules 2014 (NSW). If that’s the case and the crew are responding to an ‘emergency’ and it’s reasonable to be given an exemption and they are taking reasonable care, then yes, r 306 will apply.
If there has been no permission from RMS to install the red lights or sirens or if the team aren’t proclaimed to be emergency workers, then a direction from NSW Police or NSW Ambulance isn’t sufficient to trigger r 306. It’s RMS that gets to say who has red lights and sirens and who is an emergency worker for the purposes of the Road Rules, not the police.