That is not quite the subject of the article that my colleague Luke Dam has brought to my attention ( Julie Hedjes, ‘Emerald and Cockatoo CFA volunteers abused by motorists at crash scene roadblocks’, Leader, 21 March 2016) but I think it is the interesting point for me to comment on.
The gist of the story is the bad behaviour of motorists
‘CFA volunteers are being abused and in some cases, have their lives endangered by impatient drivers angry about roads being blocked during emergencies… one driver went through the roadblock, only to find that the road was indeed blocked and he was then stopped by police who were also at the rescue’.
But what to do about them? The obvious answer is to charge people who ignore the CFA advice that the road is closed. But can that be done? An interesting anomaly in lots of emergency service legislation is that the emergency services are given the power to close a road, but there is no offence created if a driver ignores them.
That is not the case for Victoria SES. In Victoria, the State Emergency Service may close a road at a ‘traffic emergency’ – that is an emergency arising from a transport accident or flood or storm. But they may only close the road if there are no police present and the senior ‘authorised emergency worker’ believes it is necessary to direct traffic; or the most senior police in attendance asks to SES to direct traffic. It is an offence to fail to comply with the directions given by an ‘authorised emergency worker’ (Victoria State Emergency Service Act 2005 (Vic) s 40). The maximum penalty is a fine of 2 penalty units. A penalty unit is $151.67 so the maximum fine is $303.34.
But this story is about the CFA? The CFA can also close a road ‘for the purpose of protecting life, property or the environment, or if … smoke from a fire impairs visibility on any road to such an extent that the safety of any persons using the road is endangered…’ (Country Fire Authority Act 1958 (Vic) ss 30(f), 44A). There is however no offence provided for failing to comply with directions given under these sections. There is an offence of obstructing, hindering or interfering with a CFA officer performing a duty under the Act (s 107) and the CFA can provide road rescue services (s 97B) so that could be a relevant offence but it is certainly not as clear as the provisions in the SES Act.
So why have the power if it’s not enforceable? An agency like the CFA needs a road closing power because it is generally an offence to obstruct traffic or close a road. A person has a right to travel along a road (Road Management Act 2004 (Vic) s 8) so if an agency like the CFA wants to deny someone that right, they need lawful authority to do so (s 8(5)). Sections such as s 30(f) and 44A of the CFA Act are required to ensure the CFA is not, itself, breaking the law but it does not follow it is an offence to ignore their direction.
It is an offence to fail to comply with a reasonable traffic direction issued by a police officer (Road Safety Act 1986 (Vic) ss 59 and 64A).
So drivers are driving past CFA road blocks. They may be committing general driving offences such as negligent or dangerous driving depending on the circumstances. If they actually hit someone you can be sure that some offence has been committed. What appears to be a continuing anomaly, except where the road block is being operated by Victoria SES, is that there is no actual offence of failing to recognise that a road is closed just because the CFA says so.