M. Eburn

Don’t park in front of a Western Australia fire hydrant – but what’s a fire hydrant and how do I know where it is?

In Driving and Road Rules, Uncategorized on November 24, 2015 at 2:29 pm

This question comes from Western Australia but I suspect the issue is common across Australia.

I believe an unsatisfactory situation exists which needs rectification, perhaps not only in W.A. but throughout Australia, in regards to fire hydrant markings.

It would seem from anecdote that a fairly common offence in the Perth metropolitan area is obstruction of fire hydrant points. Many of these points are embedded in public road surfaces and are covered with a plug approximately 20cm square. They are all but invisible to motorists.

The practice on the part of the authorities is to mark the road adjacent to the hydrants with a white painted “H” symbol and further mark the adjacent kerb with a splodge of white paint.  The resultant effect, without familiar knowledge in my view, is akin to markings on a roadway preparatory to road repair.

The issue, in this area of W.A. at least, is that the authority, Department of Fire and Emergency Services, and subcontracted Municipal Councils do not appear to have a published code for identification of hydrants.  Perhaps because of this, the driving code handbooks fail to indicate what constitutes a fire hydrant marking.  It would be fair of course to say that local knowledge has been built such that many people do recognize the significance of the marking.  However, rightly, many more do not.

In my case, as a traveller who spends 6 months per year overseas and who primarily resides in Sydney, the “H” designation meant nothing – as I’m sure it would to most visitors.

My question of you Michael is, assuming my reading of the situation is right, can you comment on any Australia wide initiative to bring a uniformity to signage to either a national or international standard?  Can you also comment on the legal defensibility of municipal councils charging motorists for parking over a marking which is not defined in the road code or in fire services authority documentation?

Interestingly I was recently in WA and saw the ‘H’ marking on the road and identified the white paint on the hydrant cover.  As I was a pedestrian at the time I was able to deduce what the “H” meant but I did say that if I was driving not only would I have not known what it meant it was unlikely that a driver would see it, and certainly not at night.

The offence of parking in front of a hydrant is set out in the Road Traffic Code 2000 (WA).  Regulation 163(1) says:

‘A driver shall not stop a vehicle so that any portion of the vehicle is within 1 m of a fire  hydrant  or fire plug, or of any sign or mark indicating the existence of a fire  hydrant  or fire plug …’

The penalty, if the matter is dealt with by way of a parking ticket, is one penalty unit or $50 (Reg 163(2) see also Fines, Penalties and Infringement Notices Enforcement Act 1994 (WA) s 11 and Road Traffic (Administration) Act 2008 (WA) s 7).  If the matter was to go to court the penalty could be increased to a maximum of 24 penalty units or $1200 (Road Traffic Code 2000 (WA) reg 9(2)).

Fire Hydrant is defined in the Code (reg 3(1)) as ‘an upright pipe with a spout, nozzle or other outlet for drawing water from a main or service pipe in case of fire or other emergency’.  It follows that a sunken water source is not a ‘fire hydrant’ for the purposes of the Road Traffic Code.   What is a ‘fire plug’ is not defined but I’ll adopt the definition from CFA Senior Station Officer David Ferguson (see Jeremy Lee, ‘Have you got a fire plug on your property?’ ABC South West Victoria (online) 24 October 2013)) who says:

… the plugs are generally located on people’s nature strips, with little blue cat’s eyes on the road and marker poles to help point fire fighters to where the plugs are.

Let us accept therefore that the ‘fire hydrant points’ described by my correspondent, and seen by me, are ‘fire plugs’.

My correspondent says that there appears to be no ‘published code for identification of hydrants’; but in fact there is and it too is set out in the Road Traffic Code 2000 (WA) reg 3(1) and Schedule 4,  and repeated across Australia as part of the National Road Rules.  The approved indicators are shown below and also on the ABC South West Victoria story, above.

Fire Hydrant and Fire Plug Indicatorsfire indicators

(This image is taken from Australian Road Rules (SA) r 194 as the image is of a higher quality than the equivalent in the WA Code)


There does not appear to be any reference to the ‘H’ mark on the road in any other WA legislation (such as the Local Government Act 1995 (WA) or its Regulations).

Given that we are all supposed to know the law (hence no knowledge of the law is no defence) one might reasonably infer that if there is no ‘fire plug indicator’ then there is no fire plug!   The offence in reg 163 is made out if one parks within one metre of ‘any sign or mark indicating the existence of a … fire plug’.    I would certainly argue that the sign or mark has to be one prescribed by the Code not one invented by council.

The offence is also made out if one parks within one metre of the plug.   Whether the car is within a metre of the plug depends upon where the plug is in the ground.  If there’s a metre between the car and the plug, no offence is committed.

If the plug is within a metre then at least an interstate visitor should defend a ticket.   It is a defence to point to ‘an honest and reasonable belief in facts which if true would make the act complained of innocent’.  That is legalese for if you honestly and reasonably believe that certain facts are true, and if they were true what you did would not be illegal, that that is a defence.   As argued above I don’t think it’s unreasonable to believe that if there is no fire plug indicator there is no fire plug and if that were true, parking there would not be an offence. That defence will only work for visitors, locals who actually do know that there is a fire plug there would not have the necessary belief.

That’s not to say a Magistrate wouldn’t be sympathetic to the argument given there is, in fact, a standard that is meant to be applied so even for locals it may be worth a try.  On the other hand, a magistrate may well find that the “H” is a ‘mark indicating the existence of a fire hydrant’ and that is sufficient.   There do not appear to be any reported WA cases where the issue has been tested.

The problem is that the cost of defending a $50 parking ticket will well exceed the cost of paying it so most sensible people might write to the police to seek to have the ticket withdrawn but are reluctant to take the matter to court if that doesn’t work.


A new publication

In Uncategorized on November 16, 2015 at 10:06 pm

The Emerald Group has now published a special issue in the series Studies in Law, Politics, and Society.  The issue, called ‘Cassandra’s Curse The Law and Foreseeable Future Disasters’:

… examines the relationship between law and disasters… The volume addresses the ‘myths’ of contemporary disaster law and policy, such as that of society’s “invincibility”. The papers examine specific cases such as the Fukushima Nuclear Disaster, bushfire management in Australia and wildfire prevention in the Mediterranean, as well as providing broader analysis and comment on global disaster law and policy.

I’m pleased to report that I wrote the contribution ‘Bushfires And Australian Emergency Management Law And Policy: Adapting To Climate Change And The New Fire And Emergency Management Environment’.  This contribution draws on research conducted for the former Bushfire CRC.  The abstract reads:

Modern emergency management policy is built around the concepts of shared responsibility and the development of resilient communities. Drawing on the Australian context, this chapter argues that giving effect to these policy directions will require negotiation between stakeholders and an inevitable trade in values, interests and resources. The chapter identifies an apparent contradiction at the heart of modern disaster management: that improvements in establishing professional emergency and risk management services may have reduced the capacity of individuals and local communities to take responsibility for disaster preparation and response.

If anyone’s interested in obtaining a copy of this volume, they can do so from the Emerald online bookstore.

The use of scheduled drugs by volunteer Ambulance Officers in Tasmania.

In Ambulance, Criminal law on November 16, 2015 at 9:36 pm

A volunteer officer with Ambulance Tasmania writes:

I have been researching the legislation that applies to the use of drugs by Ambulance Officers in Tasmania. Specifically those for pain relief. This led me to three pieces of legislation:

  1. The Ambulance Service Act 1982
  2. The Poisons Act 1971
  3. Poisons (Declared Restricted Substances) Order 1990

My first question is simply “Am I an Ambulance Officer?”  I suspect the answer is “no”. This surprised me as we are often referred to as such. I don’t fully understand the difference, the Ambulance Service Act doesn’t make it clear.  Could you interpret it for me please?

The answer to my first question will help answer my next questions.

We have a number of drugs in our protocols, some are S4 and so come under the definition of Restricted Substances. I can see clearly that Clause 38 (1)(h) of the Poisons Act 1971 allows us to use these drugs within our Clinical Field Protocols. However, I’d like to ask you about the legislative position of two specific drugs, one that we used to have in our protocols Panadeine Forte, now removed, and one that many VAOs would like to see added, Fentanyl IN.

Panadeine Forte contains Codeine (S4) which is listed in the Poisons (Declared Restricted Substances) Order 1990 and so is covered by clause 36 (1C) of the Poisons Act 1971.  Could you explain this for me please? When it says written permission from any Secretary, what does that actually mean? With such permission, would/could it allow a VAO to use this drug, without any legislative changes? Assuming Ambulance Tasmania wanted us to do so and updated our Clinical Field Protocols, of course.

Fentanyl IN is used by some Ambulance Volunteers in other jurisdictions, notably Victoria. If Ambulance Tasmania ever wanted to allow its use by VAOs could that be achieved without legislative change? I note that it’s covered by clause 47 (1)(dd) of the Poisons Act 1971, but it rather depends on the definition of Ambulance Officer in the Ambulance Service Act 1982.

I hope my questions fall within the scope that you can answer through your blog.

The Ambulance Service Act 1982 (Tas) does not define ‘ambulance officer’ but it does define the term ‘officer of the Ambulance service’. An ‘officer of the Ambulance service’ is a person ‘appointed or employed to enable the Commissioner to provide ambulance services in accordance with this Act’ (ss 3 and 14(2); emphasis added).   I have emphasised the phrase ‘or employed’ because the use of the term ‘or’ indicates that a person who is appointed need not be employed – they could be a volunteer!

Section 16 says:

(1)      The Commissioner may appoint such persons as he thinks necessary to be volunteer ambulance officers.

(2)      A volunteer ambulance officer–

(a)       shall perform, without remuneration, such functions relating to the provision of ambulance services as the Commissioner may from time to time direct; and

(b)      shall be subject to the control and supervision of the Commissioner.

A volunteer ambulance officer is appointed to perform functions relating to the provision of ambulance services by the Commissioner so a volunteer ambulance officer is, necessarily, an ‘officer of the ambulance service’.

The Poisons Act 1971 (Tas) s 26 makes it an offence to supply a medicinal poison (that is a Schedule 2 drug; see s 3) unless the person is a licenced medical practitioner, nurse or other relevant health or veterinary professional.   A similar provision applies to restricted substance (that is a Schedule 4 drug; see ss 3 and 26). These provisions do not, however, apply to the administration of a medicinal poison or by:

… a volunteer ambulance officer, an ambulance officer, a paramedic or an interstate ambulance officer–

(i) at the direction of a medical practitioner; or

(ii) in accordance with the Field Protocols applying with respect to the administration of scheduled substances as approved by the Commissioner of Ambulance Services from time to time;

Ambulance officers and paramedics may also use narcotic substances in accordance with the appropriate field protocols (s 47(1)(dd)).   For the purposes of the Poisons Act 1971 the term ‘ambulance officer’ means ‘an officer of the Ambulance Service as defined in the Ambulance Service Act 1982’ (s 3). As argued, above, that must include a volunteer ambulance officer.   So, for the purposes of the Poisons Act 1971, a volunteer ambulance officer is an ambulance officer.

What follows is that volunteer ambulance officers may use and administer schedule 2 and 4 drugs as well as narcotic substances to the extent that they are authorised by the Commissioner.

According to ‘Pharmacy direct’, Panadeine Forte is Paracetamol 500mg & Codeine Phosphate 30mg. Codeine when compounded with other therapeutic substances and with 30mg or less of codeine is a schedule 4 drug.   Fenatnyl is a schedule 8 (narcotic) drug (see the Poisons Schedule at https://www.comlaw.gov.au/Details/F2015L01534).

Could the ambulance service allow the use of these drugs without legislative change? Yes they could. The Commissioner would have to approach the Secretary of the Department of Health and Human Services who would have to give, in writing, an authority to allow ambulance officers to possess Panadeine Forte (s 36(1)(c)).   The regulations already provide that an ambulance officer may possess a narcotic substance (which must include Fenatnyl) ‘for the purposes of his or her profession or employment’ (Poisons Regulation 2008 (Tas) r 9)).   A volunteer ambulance service is not engaged in employment but in context, I would have no difficulty suggesting that they are covered by the reference to the purposes of ‘his or her profession’ that is for the purposes of their duties as a volunteer ambulance officer.

What follows is that the use of these drugs is a matter for the Commissioner no doubt in consultation with the Department of Health and Human Services. If they took the view that it was appropriate they would have to develop the ‘field protocols’ to determine which officers could use the drugs in what circumstances, provide the training and then they are authorised to use the relevant drugs. No legislative change would be required.

Section 36(1)(c) refers to a person authorised:

… in respect of ambulance services, to have in his or her possession, or to attempt to obtain possession of, a substance to which this section applies [that is a restricted substance or schedule 4 drug] to the extent the person is authorised under any Secretary’s written authority for the use of the substance to which this section applies for ambulance services.

That means just what it says. The Secretary of the Department of Health and Human Services must authorise ambulance officers to carry schedule 4 drugs. The authorisation could be to named officers or could be a class of officers such as ‘those authorised by the Commissioner’ or holding a particular qualification.

Let me then return to the questions:

  1. “Am I an Ambulance Officer?”  Yes, a volunteer ambulance officer is an ‘officer of the ambulance service’ (Ambulance Service Act 1982 (Tas) ss 3 and 14(2)) and is therefore an ambulance officer for the purposes of the Poisons Act 1971 (NSW) (see s 3).
  2. When s 36(1)(c) refers to authorization by the Secretary of the Department of Health and Human Services it means just what it says. Lawful permission to carry schedule 4 drugs requires the Secretary to authorise ambulance officers in writing. That authority could be given to names officers or to a class of officers.
  3. With such permission, would/could it allow a VAO to use this drug, without any legislative changes? Assuming Ambulance Tasmania wanted ambulance officers, including volunteer ambulance officers to use those drugs and updated the Clinical Field Protocols, then yes.
  4. Fentanyl IN is used by some Ambulance Volunteers in other jurisdictions, notably Victoria. If Ambulance Tasmania ever wanted to allow its use by VAOs could that be achieved without legislative change?

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