This is an amalgam of two questions that I received from members of the same region of NSW SES suggesting something’s been happening there or at least a subject of discussion.    The question relates to the SES closing roads.

The Rural Fires Act 1997 (NSW) 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.

There is no equivalent provision in the State Emergency Service Act 1989 (NSW).  The closest is s 22 which says (emphasis added):

(1)       The Commissioner may, if satisfied that it is necessary or convenient to do so for the purpose of responding to an emergency to which this Part applies, direct, or authorise an emergency officer to direct, a person to do any or all of the following:

(a)       to leave any particular premises and to move out of an emergency area or any part of an emergency area,

(b)       to take any children or adults present in any particular premises who are in the person’s care and to move them outside the emergency area or any part of the emergency area,

(c)       not to enter the emergency area or any part of the emergency area.

My correspondents infer that the authority conveyed by s 22(1)(c) authorizes the SES to close a road so they ask:

If a road is closed under the s22(1)(c) SES Act 1989, due to a flooded road (emergency area) as it threatens to endanger the safety of persons (s4 SERM Act 1989).

  1. What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road?
  2. Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?
  3. Are signs and road barricades required?
  4. How should they be installed?
  5. Should a TTMP be developed for areas the a prone to flooding on a regular basis?
  6. Is there any other actions that need to be taken or other legislation?

To answer that we need to first return to s 22.  What is ‘an emergency to which this Part applies’?  Section 22 lies within Part 5 of the Act. Part 5 is headed “Emergencies and Emergency Powers”.  The emergencies to which the part applies are defined in s 19 which says:

This Part applies to:

(a)       an emergency referred to in section 8 (1) (a), (b) or (c) relating to a flood, storm or tsunami, or

(b)       an emergency referred to in section 8 (1) (d) which the State Emergency Operations Controller has directed the Commissioner to deal with.

Section 8(1)(a) says that the SES is the “combat agency for dealing with floods…”  so an emergency referred to in s 8(1)(a) is a flood emergency.    Section 8(1)(aa) also says that it is a function of the SES ‘to protect persons from dangers to their safety and health, and to protect property from destruction or damage, arising from floods, storms and tsunamis’.

An ‘emergency officer’ is the Commissioner and any other person appointed by the Commissioner as an ‘emergency officer’.  It follows that not every member of the SES is an emergency officer, and not every emergency officer needs to be a member of the SES (s 15).   There are also senior emergency officers (s 18A).  A ‘senior emergency officer’ is:

(a) a police officer of or above the rank of sergeant or a police officer for the time being in charge of a police station,

(b) an officer of Fire and Rescue NSW of or above the position of station commander,

(c) an officer of the State Emergency Service of or above the position of unit controller,

(d) a member of a rural fire brigade of or above the position of deputy captain,

(e) a Regional Emergency Management Officer.

The emergency area is, unhelpfully described as ‘the area affected by an emergency to which this Part applies’ (s 18A).

So the Commissioner can authorize an emergency officer (and one can infer that this includes a senior emergency officer) to direct a person ‘not to enter the emergency area or any part of the emergency area’.   There are questions about whether there can be a standing authorization or whether it has to be granted for each emergency, and who defines the emergency area, but we’ll skip over these and assume that the floodwater over the roadway means the road is in the emergency area, and the emergency officers are duly authorized.

Note that it is not a power to close a road, it is a power to direct a person not to enter the emergency area. It doesn’t matter if they are on the road or in the forest; it doesn’t matter if they are driving, walking, riding a horse or flying a helicopter.  This is a power to direct people to remain out of the area.  Compare s 22 with the Fire Brigades Act 1989 (NSW) s 14.  That section says “The officer in charge at a fire may cause any street or public place in the vicinity of a fire to be closed to traffic during the fire”.  If the road is closed to traffic it’s closed to all traffic and that can be communicated by a sign or anyone saying ‘the road’s closed’.   The SES Act on the other hand refers to an ‘emergency officer’ directing ‘a person’, not ‘all persons’ or ‘closing the emergency area’ or the like.  It implies a singular direction.

The Act gives no indication on how a ‘direction’ is to be given.  The obvious way is to have an ‘emergency officer’ standing at the road block telling drivers ‘I am directing you not to proceed further as you must not enter the emergency area’ or, in more simple terms, ‘you can’t go on, the roads closed due to the emergency’.

The section says that the commissioner can authorize an emergency officer, it doesn’t say that the emergency officer can then authorize someone else to communicate the direction.  On one view that should be OK – if I give a direction to someone does it matter whether I tell them in person, or get some other person to tell them?  Either way my ‘direction’ is communicated.  On another view, the fact is that an emergency officer has to be appointed by the Commissioner. It means that not all SES members are emergency officers and that may reflect a policy that the legislature does not want all SES members to exercise those powers.  Ideally they should be identified as suitable and trained.  If that’s true allowing an emergency officer to communicate his or her directions via another volunteer would defeat that policy objective.    Whilst I think it could be arguable my preferred interpretation would be that as an emergency officer can only exercise the power under s 22 if directed or authorized by the Commissioner, it has to be the emergency officer that gives the direction.

I don’t see that putting up a barricade could constitute an emergency officer directing ‘a person’ not to enter the emergency area; even if it had a sign on it signed by the emergency officer saying ‘all persons are directed …’

It should also be noted that there is no obligation upon any person to comply with a direction – that is there is no specific offence of failing to obey a direction given by an emergency officer, so a road closed sign would be pretty meaningless. If a person fails to comply with a direction, the emergency officer can use reasonable force to gain compliance (s 22(2)), so you can use force to get the person out of the emergency area, but they still have committed no offence.  In some circumstances it may be possible to argue that the actions constitute the offence of ‘obstruct or hinder’ an emergency officer (s 24) but that is not axiomatic and would depend on the particular circumstances and facts.

My answer to the first two questions is therefore, there would need to be an authorized ‘emergency officer’ at the road block who could issue the appropriate direction to each person that wanted to enter the emergency area.

The better response, in line with an all hazards/all agencies response would be to seek assistance from others.

The Rural Fire Service

As noted, the Rural Fires Act 1997 (NSW) s 24 says (emphasis added):

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

Emergency is not defined in the Rural Fires Act but the definition from the State Emergency and Rescue Management Act 1989 (NSW) (the SERM Act) does apply.  That Act says that an emergency is (emphasis added):

… an emergency due to an actual or imminent occurrence (such as fire, flood, storm, earthquake, explosion, terrorist act, accident, epidemic or warlike action) which:

(a)       endangers, or threatens to endanger, the safety or health of persons or animals in the State, or

(b)       destroys or damages, or threatens to destroy or damage, property in the State,

being an emergency which requires a significant and co-ordinated response.

Even though the ‘emergency’ is a flood, the fire fighters could exercise their authority under s 24 so the SES incident controller could ask the RFS to close the road.

The police

A police officer may temporarily close a road due to obstruction or danger on the road. A police officer may also prevent vehicles, people or animals using a road that has been closed to traffic (Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 186(1)).  The SES incident controller could ask the police to close the road.

The Roads Authority

The council of a local government area is the roads authority for all public roads within the local council area the area, other than freeways, a ‘Crown road’ or a road where someone else is the declared roads authority (such as a private tollway).

A roads authority may regulate traffic on a public road by means of barriers or by means of notices conspicuously displayed on or adjacent to the public road…

(b)       for the purpose of protecting a public road from serious damage by vehicles or animals as a result of wet weather, or …

(d)       for the purpose of protecting members of the public from any hazards on the public road…

Further

A person:

(a)       must not, in wilful contravention of any such notice or in wilful disregard of any such barrier, pass along, or cause any vehicle or animal to pass along, a length of public road, and

(b)       must not damage, remove or otherwise interfere with a notice or barrier erected for the purposes of this section.

It follows that once council (or the roads authority if it is not a council road) has put out the relevant signs, failure to comply with them is an offence.

The SES incident controller could ask the relevant roads authority to close the road.

Conclusion

My conclusion is that the SES do not have the power to close the road per se.  An authorized emergency officer has the power to direct ‘a person’ not to enter an emergency area.  That may, for many practical purposes, be the same but it is not a general power.  It follows that in my view, the answer to the questions:

  1. What are our responsibilities and authority to ‘staff’ that road closure and then re-open the road? And
  2. Is there are requirement for personnel to remain at the road closed location, until the emergency is no longer happening? NSW SES or road owner?

Is that you actually have to have an authorized emergency officer at the scene to give the direction; but given there’s no offence for failing to comply with the direction it doesn’t matter much.   The SES could certainly put up signs and barriers not so much to ‘close the road’ as to warn of danger that happens to be on the road.  One doesn’t need any particular authority to say ‘mate don’t drive down there, it’s flooded’, or, consistently with s 8(1)(aa) of the SES Act, put an SES truck across the road in order to protect persons who might otherwise drive down the road, from dangers to their safety and health.

The SES could put up barriers and signs again as a warning, even though they have no legal effect, just like they can put SES tape around obstacles on the footpath and fallen trees.  The warning is just that, a warning.  The warning may be more effective if there’s someone there to actually talk to drivers, but it’s not essential.  As for removing the warning when the danger is gone, that would be essential to maintain the value of the warning and because the aim is to allow communities to return to normal operations.  Leaving the warning there when the flood is gone will diminish its future value and no doubt annoy lots of people.

As for question 3 and 4:

  1. Are signs and road barricades required?
  2. How should they be installed?

To actually close the road the best option is to contact the relevant roads authority which, for local roads is the council.  The authority can close the road with signs and barricades and a driver commits an offence if he or she ignores them.

  1. Should a TTMP be developed for areas the a prone to flooding on a regular basis?

I understand a TTMP is a traffic management plan (I assume the first T is probably ‘Temporary’).  The answer is that this would sound like a sensible option and something that should be considered by the Local Emergency Management Committee (State Emergency and Rescue Management Act 1989 (NSW) s 29).  A  TTMP may certainly make it easier for the SES as the council may already plan, as the roads authority, to close the road at certain pre-determined flood levels.

Finally

  1. Is there any other actions that need to be taken or other legislation?

That has been addressed, above.