An RFS officer has written about road traffic control. He says:

The NSW RFS has a safe working of roads SOP, one aspect of the SOP that is continually brought into question is, can a volunteer fire fighter control traffic at an incident.
Memo’s have been received locally confirming that yes volunteers can direct traffic at emergencies and also in other circumstances, yet there are people out there who are convinced that unless you hold a current traffic controllers certificate it’s illegal to perform such a function.
Can you clear this up for me please.

The Roads Act 1993 (NSW) provides that road authorities may regulate traffic on public roads but only as allowed by the Act and in particular, by Part 8 of the Act. A roads authority is, with respect to freeways, the NSW Roads and Maritime Services (RMS); with respect to all Crown roads, the Minister; any agency proclaimed by the Regulations as a roads authority (eg a tollway operator) and local government authorities. Section 115 sets out when a roads authority may regulate the flow of traffic which we need not explore in detail, but you can read the section here.

The Roads Regulation 2008 (NSW) s 6 says:

(1) For the purpose of enabling it to exercise its functions under Part 8 of the Act, a roads authority may appoint traffic controllers, or authorise its agents and contractors to appoint traffic controllers, to direct traffic on a road.
(2) A traffic controller must wear a badge or other distinguishing mark clearly indicating the traffic controller’s authority from the roads authority.
(3) A person must not disregard the reasonable directions of a traffic controller with respect to the regulation of traffic.

A fire brigade is not a roads authority so is not exercising, or entitled to exercise any of those powers. Equally there is no authority for the RFS or any other service to ‘appoint traffic controllers’, but that does not mean that they should not get their staff to undertake that training. That moves to work health and safety law. Directing traffic at an incident is inherently dangerous. The RMS says:

The Work Health & Safety (WH&S) Act 2011 determines that high-risk construction activities, which include working with traffic, require workplace specific training to be completed by all persons engaged in this work. By developing traffic control training Roads and Maritime Services is fulfilling these requirements, ensuring compliance with Australian Standard 1742.3 and addressing important issues such as public safety. (http://www.rta.nsw.gov.au/doingbusinesswithus/trafficcontroltraining/index.html?psid=trafficcontrol)

In fact the Act does not say that but the Work Health and Safety Regulation 2011 (NSW) regulation 39 says that a person conducting a business or undertaking.

… must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to:
(a) the nature of the work carried out by the worker, and
(b) the nature of the risks associated with the work at the time the information, training or instruction is provided, and
(c) the control measures implemented.

That is to the same effect. We know that under the Work Health and Safety Act 2011 (NSW) the definition of ‘worker’ includes a volunteer (see s 7) so an agency that uses volunteers has to take the same care of them that they would an employee and if they are going to be involved in traffic control they should get training and the obvious training would be the RMS approved Traffic Controller’s course. Doing the course does not give the traffic controller any particular authority, they are not working for a roads authority or an appointed traffic controller for the purposes of the Roads Act and a person would not commit an offence by failing to obey their directions (at least not the offence provided for by the Roads Regulation 2008 (NSW) s 6).

The situation however changes at an incident. At an accident anyone can direct traffic. If I pull up at a car accident I can certainly direct traffic around the accident. Other driver’s may not be obliged to obey me, but they probably would. There may be offences about obstructing traffic but is inconceivable that any-one is going to take any action against someone who is taking steps to protect other drivers or those involved in an accident.

Fire services have special powers. With respect to NSW Rural Fire Service the Rural Fires Act 1997 (NSW) says, at s 22:

(1) An officer of a rural fire brigade or group of rural fire brigades of a rank designated by the Commissioner may, for the purpose of controlling or suppressing a fire or protecting persons, property or the environment from an existing or imminent danger arising out of a fire, incident or other emergency:
(a) …
(b) take any other action that is reasonably necessary or incidental to the effective exercise of such a function.

Further s 24 says:

The officer in charge of a rural fire brigade or group of rural fire brigades may cause any street or public place in the vicinity of a fire, incident or other emergency to be closed to traffic.

Clearly the RFS can close a road (s 24) or limit the use of the road (s 22). That power is vested in the relevant officer who can direct fire fighters so that they can then take action to ensure that those decisions are communicated, ie direct traffic.

Discussion
Where does that leave us?

Any person can direct traffic at an emergency. It would be ridiculous to think that a fire fighter, at the scene of an accident or fire, dressed in their turn out gear, near a fire truck with red/blue flashing lights, could not also direct traffic in order to ensure that either the drivers, or people involved in the incident, are protected.

To direct traffic at a work site, community event or other event provided for in the Roads Act s 115 the roads authority must use an authorised traffic controller. For example if the SES or RFS were asked to control traffic at a community event where the closure of roads has been authorised, they would need to be authorised traffic controllers.

At an emergency or incident under the control of the emergency services, and in this context, the RFS the officer in charge may order the road closed and can direct a fire fighter or other person to ensure the road is closed.

What constitutes an incident varies. If an RFS crew is the first on the scene at an accident then anyone can direct traffic. If they’re part of a coordinated multi-agency response the police should be directing traffic or calling on a roads authority (eg the council) or people with the ticket (eg SES volunteers) to direct the traffic. But there may be delays in getting them there (it depends whether the response is in its first minutes or first hours) and there is no illegality in getting the RFS volunteers to direct the traffic if they’re the people there. If the volunteers get run over or cause an accident there may be a question why they were used but that doesn’t meant there isn’t a perfectly good answer to that question (they were the best resource available at the time). It’s better to have the volunteers direct the traffic than no-one and watch a two car accident become a multi-car accident. If the situation is too hazardous the RFS can simply close the road (assuming they are the agency in charge of the response), if they’re not the relevant incident controller from the combat agency will have that authority and they can call on the RFS to support their decision by closing the road.

Of course closing a road is bad for community resiliency and recovery, it’s better to let traffic past the accident, if possible, rather than hold everyone up for hours. It would be prudent therefore, for an agency like the RFS who understands that directing traffic may be part of their duties should ensure that they have the appropriate instruction and the easiest way to do that would be to get them to do the traffic controller’s course.

Conclusion
• You must be an authorised traffic controller if you are going to control traffic for an road authority acting under s 115 of the Roads Act.
• Any employer (including the RFS) that is going to ask their staff (including volunteers) to undertake hazardous tasks should ensure that they are trained to do so. In this context the obvious way to do that is to get them to do the traffic controller’s course, but it’s not prescribed.
• At an emergency any one can direct traffic, though a driver probably commits no offence by failing to obey the directions of the bystander or RFS volunteer who gives those directions.

In short “yes volunteers can direct traffic at emergencies” but if it’s going to be a regular part of their duties, they should get training on how to do it.

Michael Eburn
30 April 2013