murmurous gilgamesh: Bushfire roadblocks raise legal questions

That is the heading of a story published by the ABC relating to roadblocks established by Tasmania Police during the fires in January 2013.? The story says:

Police declared the Tasman and Forestier Peninsulas a crime scene after fire tore through the picturesque region on January the fourth, destroying one-hundred and 70 properties in the communities of Dunalley, Murdunna and Bunker Bay.

The move effectively blocked access to the peninsulas, stranding thousands of residents and tourists.

Now it has been revealed police were informed by their principal legal advisor they did not have the power to declare the region a crime scene, meaning the road blocks were invalid.

An internal document written by Mark Miller says the provisions of the Police Incidents Act were not intended to apply to an event affecting a large area of the state.

The relevant Act is actually the Police Offences Act 1935 (Tas) which gives the police the power to declare a crime scene if a police officer of or above the rank of inspector believes that

?(i) an offence or a crime has been committed at or near that place; or

(ii) there is evidence at that place that is relevant to an offence or crime. (Section 63).

One can see the argument that declaring most of the state a crime scene is to rather distort the word ?place?.? Once a crime scene is declared a police officer can ?direct a person to leave the crime scene? or ?direct a person not to enter the crime scene? (section 63A) but that is not a specific power to close roads, particularly if there are other ways of accessing the area.

Even so as the Acting Police Commissioner is quoted as saying ??There?s actually a range of legislation that can give police powers to take those sort of actions in those sort of situation.?

A Tasmanian police officer may, without referring to the fire service:

(a) close any street, road, lane, or other thoroughfare in the vicinity of a fire;

(b) regulate the use of any street, road, lane, or other thoroughfare in the vicinity of the fire; and

(c) order to withdraw or, in the event of a refusal to withdraw, remove ?

(i) any person who, by his presence or otherwise, interferes with any fire-fighting operations; or

(ii) any person, other than a member of the Fire Service, who is in or on any land or premises that is burning or is threatened by fire. ?(Fire Service Act 1979 (Tas) s 47).

There could be a question whether or not these roadblocks were ?in the vicinity of a fire? but it would seem that this section would give sufficient lawful authority for the road to be closed at least whilst the fire was burning.? Once the fire has been extinguished, or moved on, then the road block would no longer be in the vicinity of a fire and could not be maintained under this provision.

The Road Rules 2009 (Tas) r 304 say:

A person must obey any reasonable direction for the safe and efficient regulation of traffic given to the person by a police officer or authorised person, whether or not the person may contravene another provision of the Road Rules by obeying the direction.

But closing the road in the circumstances of a bushfire is not, or was not for the ?the safe and efficient regulation of traffic?.? That would be the case if the road were closed because of fire burning over or near the road, but that does not seem to have been the intention or purpose behind these road closures in this case, so that provision will, in my view, not be applicable.

The police have various powers to cordon off areas under the Police Powers (Public Safety) Act 2005 (Tas)? but they all relate to protecting the public from a terrorist act so have no application here as it was not, and as far as I know, ?has not been ?suggested these fires were the result of a terrorist act.

The most relevant provision does appear again in the?Police Offences Act 1935 (Tas) and that is a provision that allows the police to declare a ?serious incident site?.

An officer of or above the rank of inspector, if of the opinion that because of the size, nature or location of an incident it is necessary to exclude persons from the area of the incident, may declare the area to be a serious incident site so as to ensure??

(a) public safety; or

(b) the security of evacuated premises; or

(c) the safety of, prevention of obstruction of, hindrance of or interference with emergency services. (Section 63B).

Further

(1) A police officer is authorised to do any or all of the following at or in relation to a serious incident site:

(a) close any road, footpath or other open space; ? (Section 63C).

That is a specific power to close a road and refers to an ?area? rather than a ?place?.? It is a rule of statutory interpretation that different words mean different things (otherwise they?d use the same word) so an ?area? is I suggest a larger concept than a place.? Half the state may not be a ?place? (in the way a single house block is) but it is an ?area?.

Again the Acting Police Commissioner is quoted as saying ?I?d rather be responding to a few people criticising us for taking too long then trying to explain why we let people back into an area that was unsafe?.? If the issue was safety, both for persons and the evacuated premises, then it would seem the road blocks were justified by this provision.? If the issue was to preserve possible evidence of a crime that is harder to justify under this section but protecting the site of destroyed homes pending inspection to ensure no deceased persons were there might be considered as ensuring the ?security of evacuated premises? ? not to ensure they are secure from looting but to ensure that they are secured to protect the dignity and site of any deceased.

We are told that ?Police charged three people for disobeying their directions? with respect to the road closures.? It wisll be interesting to see (but unlikely to be reported) if any of them challenge the decision on the basis that the road closures were illegal.

Michael Eburn

15 February 2013