This question comes from a NSW volunteer surf lifesaver on the south coast of NSW:

We were on patrol yesterday and the beach was very busy (by our standards) with lots of visitors.  Whilst some minor preventative actions and rescues occurred during the day, the major difficulty that was encountered was when the tide dropped and a number of boardriders placed themselves closer and closer to the general swimmers between the flags. As the boardriders were catching waves in the dropping tide, in some cases they were riding through the swimmers to a point where there was some safety concerns amongst our patrol and the general public.  On three occasions, we had a patrol member swim out to the boardriders to ask them to move outside the flags and be more cautious around the swimmers, which they said they would do but ignored.  We also had the standard signs, saying that boards and other water craft were prohibited between the flags (I can’t remember the specific wording).  We also had a few people coming up to us on the beach and ask why we hadn’t forced the boardriders to move. (There was also one person who suggested they might take matters into their own hands).

The general response from our senior members to those who enquired was that we have no authority to force anyone to move.  Rather, we can ask and encourage them only. It was also stated that we can only ask and encourage swimmers to swim between the flags but we cannot force them either.

I have two questions that arose from yesterday’s discussions.

  • Can you please confirm that the level of authority for volunteer surf lifesavers is limited to “encouraging” boardriders to remain outside the flags as per signs.
  • If a collision did occur between a board and swimmer and injuries were sustained, where would any legal action be directed? (There was talk about Council, Surf Life Saving Australia etc).

Surf Lifesaving Australia is not a statutory authority; there is no relevant Act that governs their operations. According to their website (https://sls.com.au/who-we-are/corporate-governance)

SLSA [Surf Life Saving Australia] is a company limited by guarantee, subject to the Corporations Act.  It is a Federation of the seven (7) State and Territory Centres for Surf Life Saving in NSW, Queensland, Victoria, Tasmania, South Australia, Western Australia and the Northern Territory.

Surf Life Saving New South Wales is ‘… a company limited by guarantee as defined in the Corporation Act 2001 administered by the Australian Securities and Investment Commission (ASIC)’.

So what do the flags mean? The SLSA ‘Beachsafe’ web page has pictures of beach flags and signs. It gives examples of regulatory and warning signs and says:

Regulatory signs are more important than Warning Signs because they inform you about prohibited activities at the beach. These are red circles, with diagonal lines across a black symbol. There may be penalties imposed if you disregard these signs. Some examples you may see at the beach include:

surfcraft 1

There is no explanation of what that sign means or where, or if, it is prescribed by law (compare that for example to Schedule 2 of the Road Rules 2014 (NSW) where all the ‘Standard traffic signs used in NSW’ are set out).

If there are regulatory signs, where does the regulation come from? The answer is the Local Government Act 1993 (NSW) and in particular the Local Government Regulation 2005 (NSW) r 411. This regulation says:

411 Bathing control notices

(1) Notices that are used by a council to control bathing must comply with the requirements of AS 2416 .

(2) A council that uses flags to designate an area for bathing must ensure that the flags are removed from the area whenever the area is closed for bathing.

(3) In this clause:

“AS 2416” means the Australian Standard entitled Design and Application of Water Safety Signs and numbered AS 2416-2002 , as published by Standards Australia on 7 February 2002.

“bathing” includes surfing and any other similar form of recreation.

Australian Standards are generally not freely available but a circular from Surf Life Saving New South Wales, and published by Wyong Shire Council at https://www.wyong.nsw.gov.au/getmedia/d892780d-a7f2-4d1e-8463-9289cf7bc6c3/6.9—Attachment-3.aspx, details changes to Australian Standards for beach flags and how those changes are to be implemented. This document identifies the current standard for both the red/yellow swim flags and the black and white surfcraft exclusion zone.

So the first thing is that a council can use signs to designate an area for bathing and those signs can include flags in accordance with the standard. The standard is adopted by Surf Life Saving. Further, councils may erect a notice relating to ‘the use of water-based recreational equipment’ (Local Government Act 1993 (NSW) s 633).     ‘A person who, in a public place within the area of a council, fails to comply with the terms of a notice erected by the council is guilty of an offence’ (Maximum penalty: 10 penalty units) (Local Government Act 1993 (NSW) ss 632 and 633(1)). There is a problem however, s 670 says

(1) A person who fails to comply with the terms of a notice or sign referred to in this Chapter is not guilty of an offence unless the notice or sign:

(a) is clearly legible…

It’s hard to say that a flag is ‘legible’ (which according to the Oxford dictionary means ‘(Of handwriting or print) clear enough to read’) and the surfcraft exclusion infogram above, does not appear to be prescribed as a sign that has particular meaning. Images on the web show other signs that have different infograms the words ‘Surfcraft prohibited’ – see below

surfcraft 2

None of this really answers the question. The answer is that whether or not the zones are enforceable, volunteer life savers have no law enforcement authority (see also Lifesavers as law enforcers? (July 6, 2014)).  As the 2014-15 Surf Life Saving NSW Lifesaving Operations Procedures Guide says at p 23 ‘Apply penalty within authority – in most cases this involves informing the appropriate authorities.’

As for question 2, collisions do occur between surfers and swimmers and there has been legal action. Where the local council employs the lifeguards, any alleged negligence by the lifeguard in his or her management of the beach will be transferred to the council (see Council of the Municipality of Waverley v Bloom [1999] NSWCA 229; Swain v Waverley Municipal Council (2005) 220 CLR 517). An employer is always liable for the negligence of an employee. A volunteer lifesaver is not an employee of the council but to the extent that the council authorizes and allows lifesavers to manage beach safety they are acting as agents of the council and one would expect the council to be liable. In Sutherland Shire Council v Kukovec & 1 Or; Elouera Surf Lifesaving Club Inc v Kukovec [2001] NSWCA 165 the trial judge found that there had been negligence by a volunteer lifesaver but that the surf club was vicariously liable for the negligence and the council was in turn vicariously liable because the club was its’ agent. On appeal the findings of vicarious liability were challenged but were not resolved, the court of appeal finding that there had been no negligence.

Today the Civil Liability Act 2002 (NSW) Part 9 would ensure that a volunteer surf lifesaver is not personally liable for any negligence. Their club may be and the issue as to whether that liability could be transferred to the council would be arguable but either way, the volunteer will be protected.

For a more detailed and learned analysis of surf cases and surf law, see Fitzgerald, Brian and Harrison, Joanne ‘Law of the Surf’ (2003) 77 Australian Law Journal pp. 109-116.