Following up on my post Obstructing access to a NSW RFS fire station (April 11, 2017) I was asked ‘Would it be possible for you to answer this in the context of an SES unit?’
The penalties for parking in front of a driveway or obstructing traffic are of course the same. The State Emergency Service Act 1989 (NSW) s 22A says:
(1) The Commissioner may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons from injury or death or protecting property threatened by an actual or imminent emergency, direct, or authorise a senior emergency officer to direct, the doing of any one or more of the following: …
(c) the taking possession of, and removal or destruction of any material or thing in an emergency area or any part of an emergency area that may be dangerous to life or property or that may interfere with the response of emergency services to the emergency.
That begs the question of whether or not the SES shed is in the emergency area. It may be if the emergency is a flood or storm, but less clear if it’s say a call out to a road crash rescue.
Fundamentally the justification will come down to ‘necessity’ (see The doctrine of necessity – Explained (January 31, 2017)).
If you were to ‘bulldoze’ an obstructing vehicle out of the way a magistrate may be persuaded that it was justified taking into account the nature of the emergency call (a life threatening flood or road crash rescue may justify more than a tree on a driveway); whether there were any alternatives (eg did you really have to do that to get out, or was it motivated by a bit of street justice?); if you had notice of the obstruction did you try to do something about it (eg if it happened during training, did you speak to the driver and attempt to call police? If they parked over the driveway and the first you know about it is when you arrive to respond to the call out and there’s no driver there, then calling the police would be a waste of time etc).
As I said in my original post:
I think the outcome would depend on motivation. If there was an attempt to manoeuvre around the obstruction, and if damage was minimised and if the driver’s had been warned, that would all seem reasonable. If there was evidence that more damage was done than was necessary, just out of spite, then it’s a different matter. If the decision to gently push the vehicles out of the way is the only way to get out of the station then there is no reason to think that the protection from liability in s 128 would not apply. Again it may be different if there is an alternative (perhaps it’s a drive through station and you could back out). If you do damage to the cars because you think it’s fun or in accord with your sense of justice, that is probably not ‘done in good faith for the purpose of executing any provision’ of the RFS Act; but if it is the only way to respond to a fire call then short of taking the station ‘off line’ it may be an appropriate response.
I think that’s true too, if the service is the SES (substituting s 25 of the SES Act for s 128 of the RFS Act).
Australian Emergency Law 
This is a great blog. Thanks for taking the time with it. My worry about this answer, as for the RFS answer, is the emergency area point. I think there’s a better argument it should be read broadly for SES as the section contemplates response, and that surely must includes getting to the site. However, if I understand this correctly, the commissioner must direct or authorise the action on an individual basis. Is that going to be practical in most cases?
One does have to wonder how often this could happen. Drivers presumably know that they are not to obstruct a driveway and it would appear particularly obvious where it’s a fire, SES or ambulance station, but my correspondent said it happened so one has to accept that it does in fact occur.
Section 22A of the SES Act applies to emergencies caused by floods, storms or tsunami (s 19) so it’s not relevant to road crash type call outs. For others, the emergency area is ‘the area affected by an emergency to which this Part applies’ (s 18A) which is limited. In many cases the SES shed will be well within the area impacted by the flood or storm, but in other incidents it may not. It’s really up to the IC and ultimately the Commissioner to determine what is the ‘emergency area’.
Action under s 22A does not require the Commissioner’s personal decision. The Commissioner can delegate his or her authority (ss 13 and 22A(1)) and no doubt emergency officers already hold the Commissioner’s delegation to exercise powers under s 22A. So an emergency officer or senior emergency officer with an appropriate delegation (s 13) or authority (s 22A(1)) can be the one to make the decision to remove the vehicle to the extent that it is interfering with the SES response.
In NSW police can’t just tow away an illegally parked vehicle even if it is causing an obstruction. Under the Road Transport Act 2013 (NSW) s 143:
That power can only be exercises ‘on a prescribed place’ which is defined in the Road Transport (General) Regulation 2013 (NSW) r 143 as a bus lane, a freeway, a T-Way lane, a clearway, a transit lane or a defined tow-away zone.
An appropriate officer may also remove a danger or obstruction to traffic (s 142) but only if the danger or obstruction is caused by ‘(a) a vehicle that has been involved in an accident or has broken down, (b) any thing that has fallen, escaped or been removed from a vehicle, or (c) any container used for transporting materials or refuse (including a building skip)’. A car that is not broken down or involved in an accident but is illegally parked does not fall within the relevant definition in s 142(1) so that power isn’t relevant in this context either.
In other jurisdictions, there is a general power to remove vehicles, for example a correspondent on Facebook noted that Brisbane City Council (https://www.brisbane.qld.gov.au/laws-permits/complaints-fines/abandoned-vehicles-shopping-trolleys/removal-storage-sale-or-disposal-vehicles-articles-council-assets) can remove ‘a vehicle is left in circumstances where its presence is hazardous’. There may be other local laws or by-laws as well as laws in other states and territories that allow removal of a vehicle that is illegally parked and is causing an obstruction. It would be prudent for anyone, if time permits, to ring police and/or local council parking inspectors before bulldozing a car out of the way.