A correspondent writes:

I’d like to ask a question and whilst I don’t work for an emergency service my question relates to staff from a NSW government agency assisting at an emergency incident at the request of the police so hopefully it falls within the scope of your blog.

I work for the NSW National Parks and Wildlife Service and am based in a very busy National Park, which has a public road through it. Due to the volume of traffic on busy days traffic accidents are unfortunately quite common and NPWS staff often encounter these traffic accidents and often provide assistance. There has previously been a MOU between Local NPWS and Police formalising the assistance that the two agencies might provide to each other.

Recently NPWS staff assisted police to close the road through the park due to a vehicle accident where a person was trapped and the road was closed in both directions. The closure was directly requested by police as they were stretched for resources. NPWS staff parked service vehicles across a road away from the accident site (at a location requested by the Police) to ensure that the public were diverted away from the accident.

A question has since been raised that the staff who performed the road closure were not trained or qualified to undertake traffic control and should not have been tasked to perform the road closure. In NSW a person undertaking any form of traffic control in non-emergency situations need to be an authorised traffic controller, have approved traffic control plans and road occupancy licences and have appropriate training- the staff who undertook the closure do not have traffic control qualifications.

So my question is “If requested by NSW Police during an emergency situation, can staff undertake traffic control activities that they would not be qualified to undertake in non-emergency situations and if so under which Act?” I believe that, if NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity but am hoping that with your assistance I can provide a quick answer as to why staff without traffic control qualifications can undertake traffic control in an emergency situation, especially when it has been specifically requested by NSW Police.

Let me start at the end. My correspondent says ‘I believe that, if NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity’; that is absolutely correct – so let us work to that conclusion.

First, it is not correct that ‘In NSW a person undertaking any form of traffic control in non-emergency situations need to be an authorised traffic controller, have approved traffic control plans and road occupancy licences and have appropriate training…” The only reference to traffic controllers is in the Roads Regulation 2008 (NSW) which says, at section 6:

(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.

That Regulation says a roads authority may, not must, appoint a traffic controller. The point of appointing a traffic controller is that it is an offence to disobey their reasonable direction.

The Roads and Maritime Services (RMS) have determined that as part of their obligations under the Work Health and Safety Act 2011 (NSW) (the WHS Act) they want to ensure that people ‘controlling’ traffic are trained. The WHS Act requires that a Person Conducting a Business or Undertaking (a PCBU) must ensure, so far as is reasonably practicable ‘the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work …’ (s 19(3)). Further 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.

The RMS require their contractors to ensure traffic controllers have completed their approved training to ensure that the RMS complies with its WHS obligations. This is made clear on their web site where they say:

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).

Neither the National Parks and Wildlife Service nor the NSW Police are ‘roads authorities’ (Roads Act 1993 (NSW) s 7) or contractors to RMS, so the obligation to have staff complete these courses does not arise. The first conclusion is that there is no legal requirement to ensure that the people doing these tasks have to have RMS traffic controller training.

With respect to the road closure, police have considerable powers with respect to the control of traffic and making the roads safe for road users (see Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) ss 185 and 186). Further, ‘A person must obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer (Road Rules 2008 (NSW) s 304). The police officer cannot personally close the road – a police officer may close the road but he or she cannot be at both ends or may have to perform other duties. It stands to reason that he or she can ask for assistance from others such as the Council, State Emergency Service or presumably the NPWS.

Further, a police officer of or above the rank of Sergeant ‘may, if satisfied that there are reasonable grounds for doing so for the purpose of protecting persons or animals from injury or death or protecting property threatened by an actual or imminent emergency’ direct the closure of roads and other action to ensure public safety (State and Emergency Rescue Management Act 1989 (NSW) s 61). ‘A police officer exercising a function under section 61 may do so with the aid of, and be accompanied by, such assistants as the police officer considers necessary’ (s 61AA).

Does a person need to have RMS Training to provide that assistance? As noted above there is no legal obligation to do so but there is a legal obligation to undertake a risk assessment and take steps to manage the risks. Given RMS have identified the risks with traffic management and identified relevant training, an agency like NPWS that is going to ask its staff to manage traffic should also consider the risk and consider whether or not the RMS training would be an effective step in their risk management.

In my view, closing a road is not the same as directing traffic. If the road is closed, most of the Work Health and Safety issues disappear. It may be dangerous to stand on the side of a road, with moving traffic, holding a stop/slow bat and deciding when traffic may proceed down one lane without colliding with oncoming traffic. There would in fact be no need to have an officer there, the vehicle parked across the road would in effect close the road, so the person there is simply to give some authority to the closure and answer people’s questions. It’s true that there should be a risk assessment but if the task is to park across a vehicle across the road, it raises the question of what is the risk? There is little risk to either the person who parks the car, or other road users.

So let me return to the specific question: “If requested by NSW Police during an emergency situation, can staff undertake traffic control activities that they would not be qualified to undertake in non-emergency situations and if so under which Act?”

Answer: The NPWS can, by necessary implication, assist the police exercising their powers under the Law Enforcement (Powers And Responsibilities) Act 2002 (NSW) (s 185) and they may assist the police exercising their road closure powers under the State and Emergency Rescue Management Act 1989 (NSW) (61AA).

Further: “If NPWS staff are going to provide assistance in future, there would need to be a risk assessment and OHS process and safe work method policies developed for that activity”. That is correct but there is no legal obligation to have staff complete an RMS Traffic Controller’s course. As a result of the risk assessment, NPWS may determine that it will require staff to complete that training, but, equally, it may be considered that is not necessary if NPWS staff will only be asked to close the road, rather than direct the movement of traffic along the road.

Michael Eburn
7 January 2014