Today’s questions relate to the use of emergency beacons by park rangers and others with emergency response duties but who are not members of the traditional emergency services in South Australia. My correspondent says:
Question 1: Park Rangers (Appointed as Wardens) — Power to Stop Vehicles under s 22(1)(b) of the National Parks and Wildlife Act 1972 (SA), No Authority to Use Red and Blue Lights for Law Enforcement Functions
Under the National Parks and Wildlife Act 1972 (SA), authorised officers, or ‘wardens’ (as they are known within South Australia), possess powers under s 22(1)(b) of the Act to ‘give directions to a person in, or in charge of, a vehicle to stop the vehicle or to move it to a particular place’. This makes sense given their law enforcement and compliance functions within parks. However, internal policy and associated documentation state —
‘We are not authorised to use emergency beacons and/or siren to give such a direction [to stop a vehicle]… the devices may only be used for fire management or safety purposes.’
It also mentions that the issue stems from the definition of an ’emergency worker’ (with no reference to an emergency vehicle), but it provides no additional clarity or explanation. I am not familiar with SA emergency legislation or arrangements in the same way as WA, but I believe the definition of an emergency worker can be found under r 54 of the Road Traffic (Road Rules — Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) and the emergency vehicle definition can be found under r 1 the Road Traffic (Light Vehicle Standards) Rules 2018 (SA).
Questions
- What is preventing a warden, with enforcement powers to stop vehicles, from using their red and blue flashing warning lights to do so?
- How and why does the definition of an emergency worker, under subsidiary legislation of the Road Traffic Act 1961 (SA), prevent the use of flashing warning lights for law enforcement purposes?
- Would the use of flashing warning lights be permitted if their enforcement function was related to a qualifying emergency or purpose?
- What action could potentially be taken to address the contradiction between a warden’s powers and the practical limitations that prevent them exercising those powers?
Question 2: Firefighter (Parks) — Lawful Use of Flashing Warning Lights During Traffic Accident (Red & Blue) — General Authority to Use Lights Outside of a Standard Fire Incident
Context
I was previously employed as ‘Seasonal Fire Crew’ with the National Parks and Wildlife Service, Department for Environment and Water (SA). As part of my general day-to-day duties outside of prescribed burns and fires, I routinely found myself shuffling fire vehicles between facilities for maintenance and other duties.
On one occasion, a colleague and I were returning vehicles separately at around the same time. As I was returning, I noticed my colleague’s vehicle had been involved in what appeared to be a significant accident. I saw him on the side of the road and immediately pulled over to check on him. Traffic was heavy and there was an entire lane blocked that was caused by one of the crashed vehicles.
As I mounted the curb, I was about to activate my lights (red and blue) and exit the vehicle, but I hesitated briefly. I questioned the legality and the capacity I was acting in that would allow me to use the lights. It was not a great time for theoretical considerations, so I simply decided against using the lights entirely and put on my hazard lights instead.
Just for your reference, the National Parks and Wildlife Service (SA) has different brigades that respond under the SA Country Fire Service’s command structure during fires and other emergencies. This is despite the Service being a separate entity for all pragmatic purposes, including when attending prescribed burns and normal works. It is a strange arrangement I have only come across in SA.
Questions
My questions arise from this incident —
- Considering the context, what is the legality in a situation such as this surrounding the use of red and blue lights?
- If I had used the vehicle’s red and blue lights, would their use have been unlawful? My suspicion would be yes.
Discussion
The various road rules and registration standards say what vehicles may be fitted with emergency warning lights and the legal effect of their operation, but they do not say in what circumstances they can be used.
As noted, the relevant vehicle standards are set out in the Road Traffic (Light Vehicle Standards) Rules 2018 (SA). They say (at r 114(5)):
A vehicle, other than an exempt vehicle, a special use vehicle, or a State Government enforcement vehicle must not be fitted with a light that flashes other than as required or permitted by another law of this jurisdiction.
Only an exempt vehicle may have a light that shows ‘red’ toward the front of the vehicle (r 114(6)(a)) so only an exempt vehicle could have a red flashing light that can be seen from the front of the vehicle. An exempt vehicle is, relevantly, either an ‘emergency vehicle’ or a ‘police vehicle’. An ‘emergency vehicle’ is relevantly ‘a vehicle driven by any of the following in the course of the person’s duty: (a) a member of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’. An emergency services organisation includes the Country Fire Service (CFS) (Fire and Emergency Services Act 2005 (SA) s 3, definition of ‘emergency services organisation’). The Department of Environment and Water (responsible for National Parks in South Australia) is a ‘participating organisation’ with the CFS under the State Emergency Management Plan (August 2022, p. 40). A ‘participating organisation’ is:
An organisation with roles and responsibilities in emergency management, other than hazard risk reduction leaders, the coordinating agency, a control agency, a support agency or functional support group.
I infer but cannot confirm that the National Parks and Wildlife Service brigades are established as CFS brigades (s 68) as that would bring their vehicles within the definition of an emergency vehicle and allow them to be fitted with flashing warning lights and in particular with a red flashing light that can be seen from the front of the vehicle.
The Australian Road Rules as adopted in South Australia say, as we are familiar with, an emergency worker is exempt from the provisions of the road rules if they are taking reasonable care and if the vehicle is moving they have their red/blue lights flashing (Australian Road Rules (SA) r 306 and Dictionary definition of ‘emergency vehicle’ and ‘emergency worker’). An ‘emergency worker’ includes ‘members of an emergency services organisation within the meaning of the Fire and Emergency Services Act 2005’ (Road Traffic (Road Rules–Ancillary and Miscellaneous Provisions) Regulations 2014 (SA) r 54) and which by the same logic as above, would extend to firefighters with national parks if their brigades are registered as brigades with the CFS.
None of that says when they can use those blue lights. I infer that whoever wrote the policy document has identified that the reason the national parks vehicles have red/blue lights, and their drivers enjoy an exemption from the rules is because they are ‘emergency’ workers, not police. And one infers, the argument goes they can therefore only use those lights for purposes associated with their emergency work and perhaps only in the circumstances where other CFS brigades would use theirs, which would not include directing a vehicle to pull over for a law enforcement function.
The National Parks and Wildlife Act 1972 (SA) s 22(1) says
If a warden suspects on reasonable grounds that an offence against this Act is being, or has been committed, the warden may—…
(b) in order to exercise his or her powers under this section or under any other provision of this Act, give directions to a person in, or in charge of, a vehicle to stop the vehicle or to move it to a particular place;…
The section doesn’t say how that direction is to be given but it is noted that the power is in relation to offences under the National Parks and Wildlife Act, not for breaches of the relevant road laws. In Victoria police are given specific authority to use the red/blue lights as a direction to stop – see Use of red/blue lights by police to give a ‘direction to stop’ (Victoria) (July 31, 2017). I can see nothing in the National Parks and Wildlife Act nor the various regulations under that Act regarding the manner of giving directions. In particular there is nothing like the Road Safety Act 1986 (Vic) s 64A(5) that says the use of the red/blue lights is a direction to stop. There is a provision about the use of red/blue flashing lights as part of a direction to stop given by South Australian police for the purpose of random alcohol and drug testing (Road Traffic Act 1961 (SA) s 47EA(1)(b)). The Australian Road Rules (SA) r 304 says that a driver must ‘obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer …’ but again does not say how that direction must or may be given.
There is no road rule that says a red/blue flashing light is an indication that another driver must stop. The obligation on another driver is to get out of the way of, and give way to an emergency or police vehicle displaying red/blue flashing lights (Australian Road Rules (SA) rr 78 and 79). By convention however, it has come to be understood that if police come behind you with their red/blues on, and they’re not trying to get past you, then they are directing you to stop. And that may be reinforced by hand signals once they have your attention.
In my opinion, what follows from all of that, is that vehicles that are used by National Parks in SA as part of their role as a ‘participating organisation’ can (if declared CFS brigades) be fitted with red/blue flashing lights and be used as any emergency fire-fighting appliance.
The fact that quite unrelated to their firefighting duties, members of the staff of the National Park may also be wardens does give them the power to direct the driver of a vehicle to stop. The use of red/blue flashing lights on the appliance does not constitute a ‘direction to stop’. It may cause the driver to stop because they are used to being directed by police to do so, or out of courtesy to the wardens, but the use of the lights is not, in law a direction to stop. Drivers might understand that you want them to stop if you are clearly not trying to get past them, but drivers are not used to being stopped by the driver of a fire appliance so the driver can then perform law enforcement duties.
One has to put the issue in context. A warden can give the driver a direction to stop (National Parks and Wildlife Act 1972 (SA) s 22(1)(b)). It is an offence, punishable by a fine of $1000 to fail to comply with that direction (s 22(7)). If you put the red/blues on and the driver doesn’t stop there would be an argument about whether you had in fact given such a direction. A driver might well argue that they would understand that the driver of a police vehicle that put red/blue lights on was directing them to stop but may not understand the same from a fire appliance so there would be a legal issue about whether you did in fact give a direction to stop. If they do stop it doesn’t really matter. They’re not going to be charged with failing to comply with the direction so the issue of whether it was in fact a direction will not arise. If there is a search of the vehicle and they are found to have contraband in the car in breach of the Act they may want to argue that the stop was unlawful but the mere use of the red/blue lights will not make it unlawful.
The driver might try to make the argument that given National Parks are permitted the lights because of the standing of the brigade as a CFS brigade or an ‘emergency services organisation’ by implication they may only be used for that purpose and therefore they cannot be used for the purpose of exercising law enforcement powers under the National Parks and Wildlife Act. My prediction is that any court would say the warden had the power to direct them to stop and they did so. And I think no-one would question the use of flashing high-beam (notwithstanding the Australian Road Rules (SA) r 218), or sounding the horn (notwithstanding the Australian Road Rules (SA) r 224) to get the driver’s attention, nor as a matter of law would they question the use of the red/blue lights.
Let me then return to the questions:
Question 1:
a. What is preventing a warden, with enforcement powers to stop vehicles, from using their red and blue flashing warning lights to do so?
There is no law that says the warden could not activate the lights to get the driver’s attention in order to direct the driver to stop, but it is a matter where the Department could, and it appear has, given a policy direction against the use of the lights for that purpose.
b. How and why does the definition of an emergency worker, under subsidiary legislation of the Road Traffic Act 1961 (SA), prevent the use of flashing warning lights for law enforcement purposes?
It doesn’t but nor does it permit their use for that purpose.
c. Would the use of flashing warning lights be permitted if their enforcement function was related to a qualifying emergency or purpose?
How don’t see how that question can be relevant. The lights are presumably fitted because of their functions under the State Emergency Management Plan. I suppose they may observe someone committing an offence under the National Parks and Wildlife Act whilst responding to a bushfire, but they do not have enforcement duties under the emergency management legislation or the general criminal law relating to arson.
d. What action could potentially be taken to address the contradiction between a warden’s powers and the practical limitations that prevent them exercising those powers?
The National Parks and Wildlife Act could be amended to say that a warden can give a direction to a driver by the use of red/blue flashing lights ie a provision similar to the Road Safety Act 1986 (Vic) s 64A(5) but I cannot imagine that anyone in the South Australian legislature would want to do that. The use of red/blue lights in traffic management is very much a matter reserved for police.
Question 2:
a. Considering the context, what is the legality in a situation such as this surrounding the use of red and blue lights?
I cannot see there is any legal issue here. You are simply notifying drivers of your presence and the fact that there is an emergency on the road. As a member of an emergency service organisation, you are entitled to drive a vehicle with red/blue flashing lights and as noted the Road Rules don’t say when you can use them. I think everyone would accept and expect that the driver of a fire appliance would stop at an accident and use their warning devices to alert other drivers of the danger. You can use them in this context just as the driver of a CFS, MFS or SA Ambulance could use them if they too stopped at an emergency.
The only obligation the use of the lights would impose on other drivers would be an obligation to slow down to 25km/h (Road Traffic Act 1961 (SA) s 83).
b. If I had used the vehicle’s red and blue lights, would their use have been unlawful? My suspicion would be yes.
No.
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.
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