Today’s question relates to the power of Fire and Rescue NSW to close ‘streets and public places’ (Fire and Rescue NSW Act 1989 (NSW) s 14). My correspondent says:
Recently the Fire Brigade Employees Union (FBEU) released a “Code Red” directing members to take the following action when working on roadways: Roads, or light rail lines where needed, must be closed using your appliance and or traffic cones until police or designated traffic management personnel arrive to take over. The whole message can be found here: https://fbeu.net/2024/06/21/code-red-traffic-management/ . Can you please provide comment on the legal elements relating to this direction as they apply in NSW?
I have concerns about putting a blanket direction to close roads using cones or a fire truck without firefighters first undertaking a risk assessment to ensure that the benefits of closing a road outweigh the risks of closing a road. On one hand, I support the closing of a slower-speed street for firefighter safety if firefighters are required to work within the potential path of an oncoming vehicle and the placement of a fire truck can prevent a firefighter being hit by an oncoming car, however on the other hand, if an incident is on the side of a busy highway, where the risk of firefighter impacts is lower, completely blocking the highway with a single fire truck would, in my opinion, create a far higher risk of that truck being hit, or other cars crashing into each other as they attempt to slow down from highway speed. Transport for NSW’s Traffic Control at Worksites Manual Version 6.1 gives an indication of what could be considered reasonable to block a highway to minimise traffic colliding with workers, or other stopped vehicles. This manual, if followed requires advanced signage hundreds of meters before the road closure and a gradual speed reduction before coming to a stop (ie 110km/h down to 60km/h with speed zone ahead signage, down to stopped). No NSW Fire and Rescue truck carries advanced warning signage or adequate traffic cones to conduct this type of traffic control to safely close a road. Suppose firefighters close a highway simply because of the FBEU’s direction without assessing the risk vs benefit and this action is found to cause an accident. Would the firefighters be legally protected in any way if they can’t demonstrate that it was done to protect life or property?
Section 14 of the Fire and Rescue NSW Act 1989 (NSW) allows for the officer in charge of a fire or hazardous materials incident to close any street or public place to traffic. My interpretation of this is it is limited to “streets” Whilst I can’t find any definition within the act or other acts of what a “street” is, I would see that a “Street” is a subset of roads, and wouldn’t include roads such as highways and freeways? Does this mean that Firefighters don’t have the power to close any road other than a street? Also, as section 14 only relates to fires and hazardous materials incidents, for which Fire and Rescue NSW is the combat agency, do they have the power to close a road for operations other than fires or hazmat incidents, i.e. Assist Public, non-incident-based refilling from a hydrant etc.?
The ‘Code Red’ says, in full (emphasis in original):
As members would know, we are often forced to perform tasks beyond our primary responsibilities, including handling situations that should be done by other agencies. This includes managing traffic at incident scenes, a task for which our members have not received specific training or qualification, and for a number of years been left to us due to under resourcing of the NSW Police.
Given the above, effective immediately, all FBEU members are directed to take the following action when working on roadways:
Roads, or light rail lines where needed, must be closed using your appliance and or traffic cones until police or designated traffic management personnel arrive to take over.
This instruction remains in place until lifted by the State Secretary.
I read that the point of the directive is exactly what my correspondent has said, Fire and Rescue NSW are not trained in traffic management so cannot complete an appropriate ‘risk management’ and certainly cannot comply with any requirements for ‘advanced signage hundreds of meters before the road closure and a gradual speed reduction before coming to a stop (ie 110km/h down to 60km/h with speed zone ahead signage, down to stopped)’. Presumably the Union has done a risk assessment and noting that fire brigade employees do not have the training or resources to set up and manage this sort of traffic management, the safest thing to do is close the road with the appliance, complete with flashing red/blue lights, and let ‘designated traffic management personnel’ come and introduce the sort of traffic measures that are being suggested.
I also note that the directive does not direct FBEU members to close roads all the time eg when attending an incident at the side of the road. The ‘Code Red’ is directed to situations where FRNSW want to or are asked to close a road. A fire crew may decide that on the side of the road, with the appliance visible and expecting drivers to comply with the Road Rules 2017 (NSW) r 78-1 and slow down when approaching their appliance then closing the road is not ‘required’.
As I read the ‘code red’ it’s saying to FBEU employees ‘if you need to, close the road don’t try and manage traffic using a stop/slow bat or other directions. You’re not trained in that so close the road until police or traffic controllers get there to do what they are trained to do’ (assuming police are still trained to perform ‘point duty’). Put that way the direction is hardly objectionable, unless you’re the one stuck in traffic and wishing they’d just let you pass down that lane.
As for s 14 of the Fire and Rescue NSW Act it says
(1) 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.
(2) The officer in charge at a hazardous material incident may cause any street or public place in the vicinity of the site of the incident to be closed to traffic until the site has been rendered safe.
Clearly these are limited to situations of fires or hazardous material incidents. Fire and Rescue NSW do not have the power to close a road for operations other than fires or hazmat incidents’ but, as I read the Code Red it might be applied where other agencies are the combat agency eg the SES ask Fire and Rescue to help with traffic management. In that case it’s the SES relying on their powers to close the road and FBEU are saying ‘we’re not going to do traffic control, if we’re asked to manage the traffic, we’ll manage it by closing the road’ for the very reason my correspondent noted, they’re not trained or equipped to do anything else.
In terms of other ‘emergencies’ the Road Rules provide an exemption from parking restrictions for emergency vehicles (r 307) and there is also a general exemption to deal with emergencies. Rule 165 says:
It is a defence to the prosecution of a driver for an offence against a provision of this Part if–
…
(c) the driver stops at a particular place, or in a particular way, to deal with a medical or other emergency, or to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances…
If a firefighter stops at say an accident to assist an injured person, even though FRNSW is not the combat agency, they commit no offence by parking their appliance even if they park it across the road to stop traffic coming.
There are many words used to describe trafficable paths – streets, roads, highways, motorways etc. The Road Rules 2017 don’t just apply on ‘roads’ they apply on ‘roads and road related areas’ (see Road Rules 2017 (NSW) r 13). A ‘road’ is ‘an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles’. It doesn’t matter whether it’s called a street, road, circuit, drive, highway, motorway or any of the other terms used to label roads in NSW.
The term ‘street’ does not appear to be defined anywhere. NSW ‘Movement and Place’ (https://www.movementandplace.nsw.gov.au/) talks about streets and roads. They say there are ‘four road and street environments – main roads, main streets, local streets and civic spaces’. They also say ‘Roads and streets are different’
Streets make up the greater part of the transport network, and range from quiet and calm local streets to vibrant main streets and lively civic spaces. Streets have important place qualities and significant meaning for local communities.
Roads are central to the efficient movement of people and goods across larger distances and regions. They are important for connecting cities and towns, providing social connection, access to essential services and enabling economic activity.
But these terms are adopted for the purposes of the various policies being managed by this part of the government, they are not reflected in law. As they also say (emphasis added):
The terms ‘streets’ and ‘roads’ are often used simultaneously and interchangeably. In this guide, ‘streets’ includes civic spaces, main streets, and local streets, while ‘roads’ refers to main road environments.
That is the distinction is ‘in this guide’ not everywhere.
I would suggest for the purposes of the Fire and Rescue NSW Act no-one is going to distinguish between a ‘street’ and any of the other identifiers used on public roads. In any event the power in s 14 extends to any public place which must include a ‘public road’ (Roads Act 1993 (NSW)).
Conclusion
- The Fire and Rescue NSW Act 1989 (NSW) s 14 allows the officer in charge at a fire or hazardous material incident to close ‘any street or public place in the vicinity of [the fire or incident] to be closed to traffic …’ That is not limited to thoroughfares named ‘street’. It would include roads and that is made clear by ‘any public place’.
- The officer in charge cannot order a road closed for other work purposes such as ‘refilling from a hydrant’ or pulling over to ask the driver of a broken-down car ‘are you ok?’
- If there is an emergency on a road or road related area, the driver of an appliance can park anywhere provide they are taking reasonable care and it is reasonable in all the circumstances (Road Rules 2017 (NSW) rr 307 and 165). It may well be ‘reasonable’ to park in such a way as to close the road given the employees do not have the resources or training for more effective traffic management. That would really depend on all the circumstance but may not extend to ‘refilling from a hydrant’ or pulling over to ask the driver of a broken-down car ‘are you ok?’
- I don’t read the Union’s ‘code red’ of being a directive to close a road everytime a firefighter gets out of the appliance on a street or road. The directive refers to ‘managing traffic at incident scenes’ and applies when traffic management is required, which is not the case every time a firefighter is on the road.
It is true that Fire and Rescue NSW cannot close a road whenever a firefighter is ‘working on roadways’. The issue is not are they working on a road (as that may cover many things) but is ‘traffic management’ required. Some traffic management is achieved by Road Rule 78-1. As I read the Code Red it’s saying ‘if it’s a choice between ‘directing traffic’ or closing the road, close the road’. In context I cannot see that is objectionable. If it is really intended to say ‘everytime you get out of the appliance on a public street, or road, close the road’ then that would be objectionable. But given firefighters don’t have to arrange for ‘traffic management’ everytime the get out of the appliance I don’t read it that way. It would be up to the FBEU to say whether I am misreading their direction.
This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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 
From a purely legalistic viewpoint, if there is a need for traffic control, then the FBEU directive makes absolute sense.
While both RFS and FRNSW have the power to close roads in their respective Acts, there is also no reference or specified power to perform traffic control.
So by extension you are legally safer to close a road, than to perform a task such as traffic control for which your workforce is untrained.
From a WHS perspective, an issue then arises if a firefighter gets hit by a car while performing a task for which they have no training.
The RMS Traffic Management manual only applies to pre planned works and closures rather than emergency scenes. It’s also pertinent to consider this issue may arise from other than accidents or urban fires. Making the decision to completely close a road, especially in cases such as wildfire, or flooding, may be the most effective way of protecting the public from a dynamic threat. Sometimes it’s easier to close the road and let other agencies manage around the outside.
From a public liability perspective, if the untrained/unqualified/unauthorised person causes an accident or injury through a direction to drivers, then a further issue arises.
Some people may argue that this is a petty move, but it is a common sense position once the risk and liability issues are considered.
so in the simplest terms, the safest option is either partially closing the road/lane to protect the scene with appliances, or if needed, a full closure. In either case, drivers bear the responsibility for navigating the scene safety, rather then transferring liability to introduced workers trying to perform traffic control.
A significant issue comes into play in rural and remote locations where local brigades are expected to help the local police at accident scenes because they are a scarce resource.
As with every other question raised on this page, nothing is ever a problem until it’s a problem …….