Today’s correspondent has a question about the Country Fire Authority’s
… powers to order [a] person to withdraw… if they are interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire… (CFA Act 1958 S30(g)).
Thinking of a relevant example, a tow truck and driver has entered a vehicle accident scene, and the CFA Incident Controller (IC) (who has been delegated the Chief Officer’s powers at this emergency) has determined that the tow truck is “interfering” with a car accident by their presence.
It’s clear if there is a risk of fire that the IC has power to remove the tow truck driver, but can the tow truck driver be ordered to remove his vehicle by the CFA IC?
Further to this, if there is no risk of fire resulting from this vehicle accident, does the CFA still have the power to order a person to withdraw from a scene?
One would hope it would never come to ‘directing’ the tow truck driver rather a simple word – to the effect of ‘would you mind moving your truck?’ – would suffice, but let us look at the law.
Victoria’s Road Crash Rescue arrangements
The State Road Crash Rescue Arrangements Victoria 2017, published by Emergency Management Victoria, say:
The State Emergency Response Plan, (EMMV Part 7) designates Victoria Police as the Control Agency for road accident in Victoria.
Victoria Police are supported by a range of agencies at a RCR incident to perform a range of functions including, patient treatment, safety and security of the scene, and the extrication.
The State Emergency Response Plan has been replaced by the State Emergency Management Plan. The current plan continues to nominate Victoria Police as the control agency for ‘accidents or incidents involving road, rail, tram, aircraft and marine (not pollution, cetaceans or wildlife) and other threats to life and property or environment (unless otherwise designated)’ (see https://www.emv.vic.gov.au/responsibilities/semp/roles-and-responsibilities/role-statements/vicpol).
Control is ‘the direction of response activities across agencies, horizontally, including the coordination and tasking of other agencies’ (Victorian State Emergency Management Plan, October 2021), p. 19). For a ‘level 1’ incident ‘The region and/or state tiers are not activated for control: • the response is day-to-day business and the incident is managed by a control agency’s incident management team…’ (p. 18).
The CFA may be on the scene of an accident as the Principal RCR provider or to support the RCR provider eg by providing fire protection but the CFA would not normally provide an incident controller as the police are the control agency. One would expect the IC to be a police officer whilst the CFA captain will be in command of the CFA crew and for completing the CFA task (whether that’s rescue or fire protection).
The Country Fire Authority
The Country Fire Authority Act 1958 (Vic) says that the ‘general duty’ of the CFA is ‘taking superintending and enforcing all necessary steps for the prevention and suppression of fires and for the protection of life and property in case of fire …’ (s 20). Further the CFA may ‘…provide a road accident rescue service for persons involved in road accidents by the use of brigades which have been specifically approved for that purpose …’ (s 97B).
Section 30(1) (which my correspondent has quoted) is headed ‘Powers of officers at fires’. It says:
Where the Chief Officer believes on reasonable grounds that there is danger of fire occurring or where a fire is burning or has recently been extinguished anywhere within the country area of Victoria the Chief Officer for the purpose of preventing the occurrence of a fire, of extinguishing or restricting the spread of the fire or of protecting life or property shall have and may exercise the following powers and authorities:
(g) If a person is interfering, by his or her presence or otherwise, with the operations of any brigade or group of brigades or is in or on any land, building or premises that is burning or threatened by fire, the Chief Officer may—…
(i) order the person to withdraw and may include in the order a direction to immediately leave any area affected by the fire by the safest and shortest route…
Section 30 is limited to fire events. It follows that if ‘there is danger of fire occurring or … a fire is burning or has recently been extinguished’ then the CFA IC has the power to remove the tow truck and its driver; but the CFA Captain cannot rely on s 30 to direct a tow truck driver to move his or her truck in the absence of fire. It also follows section 30 means that ‘if there is no risk of fire resulting from this vehicle accident, … the CFA’ does not have ‘the power to order a person to withdraw from a scene’.
Interfering with the CFA
There are however other sections. Section 107(1) in particular says:
A person must not, without reasonable excuse, obstruct, hinder or interfere with—
(a) the Chief Officer; or
(b) any other officer or employee of the Authority; or
(c) any officer or member of—
(i) a brigade; or
(ii) a group of brigades; or
(iii) an interstate fire brigade; or
(iv) an international fire brigade; or
(d) any other person—
who is exercising a power or performing a duty conferred or imposed by or under this Act.
Penalty: 60 penalty units…
The Emergency Management Act 1986 (Vic) s 36 says:
A person, other than a person engaging in an emergency activity, must not, without reasonable excuse, obstruct, hinder or in any way interfere with a person engaging in an emergency activity.
Penalty: 60 penalty units.
Without exploring precisely what ‘power’ or ‘duty’ the CFA is performing, if the tow truck, ‘is “interfering” with [the CFA response to] a car accident by [its] presence’ then the driver could be asked to move it and be reminded that it is an offence not to.
Conclusion
The power to ‘order [a] person to withdraw’ given by s 30(1)(g)(i) of the Country Fire Authority Act may only be exercised where ‘there is danger of fire occurring or where a fire is burning or has recently been extinguished’. It follows that the power is not enlivened at say a road accident with no perceived risk of fire.
At a road accident the officer in charge of the CFA will be the CFA commander, but the IC will, or would be expected to, come from, Victoria Police. If a tow truck driver has parked his or her vehicle in such a way to interfere with the CFA operations they should be asked to move and if that does not work, the CFA captain should ask the police to direct the driver to move their vehicle. If they continue to refuse, they may be guilty of an offence under either or both the CFA Act (s 107) and the Emergency Management Act 1986 s 36. They may also be putting their licence under the Accident Towing Services Act 2007 (Vic) at risk.
This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.
Australian Emergency Law 
As a CFA Officer, and in general, I must say your blogs are ever thorough and informative.
Attending MVA’s regularly as one of the busiest CFA brigades in the state, my experience, and what is taught, is the first arriving agency assumes control and cohesive interagency actions take place.
If we’re on scene first, we park our trucks to create a protective barrier.
Depending on reported / confirmed fire/entrapment,
We get an extinguisher and hose line off. We make the vehicles safe by ensuring they’re not running, park brake on and disconnecting the batteries(reducing chance of delayed airbag activation.
If persons are trapped, we provide fire watch and first aid. In cases of fire, obviously that is the primary objective.
Whilst this is happening, the fire service, CFA / FRV, are the control agency. As soon as those tasks are completed, control reverts to Police. However, the way most jobs run is the Police will ask for our advice and instructions. As soon as we’ve completed our role, we’re marking ourselves available through our dispatch, but will remain on scene for assistance in clean up, and due to our vehicles protecting the scene. Tow truck drivers are integral to the overall restoration of the roadway, through the recovery on the vehicle/s. I can only imagine your correspondent is either a disgruntled CFA member, or tow truck operator, post an acrimonious encounter. As you rightly stated. Politely asking is definitely the way to go.
Regards
Andrew Poulter
Lieutenant
Narre Warren CFA.