Or so reports the Brisbane Courier Mail.
The difficulty this article demonstrates is the effect of the exemption for the drivers of emergency vehicles under the Australian law. The Queensland provision, s 144 of the Transport Operations (Road Use Management) Act 1995 says:
Provisions of this Act about offences (other than section 79 and 80) do not apply to a police officer while exercising a power, or performing a function, under this or another Act.
(Sections 79 and 80 relate to driving under the influence of alcohol and drugs). Other provisions are found in the Australian Road Rules that are incorporated into Queensland law by the Transport Operations (Road Use Management – Road Rules) Regulation 2009. Section 306 says:
306 Exemptions for drivers of emergency vehicles
A provision of this regulation does not apply to the driver of an emergency vehicle if–(a) in the circumstances–
(i) the driver is taking reasonable care; and
(ii) it is reasonable that the provision should not apply; and(b) if the vehicle is a motor vehicle that is moving–the vehicle is displaying a red flashing light or sounding an alarm.
Neither of these sections make it clear when they are to apply. The article in the courier mail reports:
Under section 144 of the Transport Operations Act, police are exempt from some road rules when responding to a car crash, a disturbance or police in need of assistance and during pursuits and ambulance escorts.
But that is not what the section says. The section provides that the officer must be “exercising a power, or performing a function, under this or another Act” and whether or not the officer is doing that is debatable. Clearly internal affairs investigators are forming a view and if the officers are paying the fine they are accepting that view, but there is nothing to stop the police challenging the infringement in court if they believed they were acting to exercise a power or perform a function under an Act.
The Australian road rules provision says it only applies if it is reasonable that it should do so and if the driver was exercising reasonable care in the circumstances. Matters that could always be arguable depending on the circumstances.
Earlier provisions, such as the Traffic Regulations 1935 (NSW) s 65 (now repealed) provided that the driver was exempt the road rules if they were giving the best practicable warning possible, that is lights and sirens were activated. That did give a blanket exemption that could be relied on when it was inappropriate but at least drivers of emergency vehicles knew where they stood. If the lights and sirens were on, they would not get a ticket but could be subject to internal discipline if they were abusing their power. It must also have made it easier for enforcement agencies (the police or RTA in NSW) to see that if the photo showed a fire truck, ambulance, police car or the like with the beacons flashing, that a ticket should not be issued.
Under the current law, the driver of an emergency vehicle cannot know if he or she is exempt from the provisions until an internal investigator has looked into the matter, and invited the officer to respond (at what time and cost?) and then come to their view as to whether the officer was acting in the exercise of his or her duty or acting reasonably. A prudent, self interested police officer, fire fighter, ambulance officer might well decide that operating with lights and sirens isn’t worth it. A volunteer emergency worker may well decide that being a volunteer fire fighter or SES volunteer is OK provided they don’t have to do the driving.
This can’t be good for emergency response in Queensland or anywhere.
Michael Eburn
Australian Emergency Law 
Good evening Michael,
thank you for an excellent page. I’m involved in some driver training with the RFS and direct trainees to this site, particularly after your article dealing with Andrew Beckett. I’m also a police officer. Whilst you quote ARR306 of the ARR’s as offering general protection to all emergency service agencies, the savings provision applied to police comes from ARR305. The key difference is that police are given a broader range of exemption in that they do not have to display a flashing light or sound a siren if it is not reasonable in the circumstances to do so. Such qualification of circumstances does not apply to the other emergency services in that they are either responding to an emergency of some sort or they are not. The difference for police is that in some circumstances it may be neccessary to exceed the speed limit, or not comply with other provisions of the ARR’s in the execution of their duty so as not to alert an offender to their presence, eg checking the speed of a vehicle, surveillance operations etc. Other than that variation, the savings provisions are the same in that a test of neccessity and need must be applied to the individual circumstance.
Both sections however only offer a protection from enforcement for offences that may be committed whilst carrying out one’s duties. They offer absolutely no protection for an offence that may arise under another Act or section, or where it is demonstrated that the driver of the officer was not taking reasonable care at the time of the alleged breach. For example, if the driver of an ambulance, fire appliance or police vehicle exceeds the speed limit on the way to an incident, and the circumstances justify such a response, then the driver of such a vehicle is clearly exempt from complying with the legislation.
If the same vehicles approach an intersection with a red traffic control signal showing against the emergency vehicle, notwithstanding the obligation of other drivers to give way to them (ARR 79), then proceding through the intersection without stopping is clearly not prudent in the circumstances. Should the emergency vehicle come into collision with another vehicle exercising a right of way through a green signal, regardless of ARR79, then I would suggest that the driver has no protection under 305/306 as it is not reasonable in the circumstances. Alternatively, should the driver of the emergency vehicle bring their vehicle to a stop, then wait until it is safe to enter the intersection, then clearly that is a prudent and reasonable action. If their vehicle is subsequently involved in a collision with a vehicle that then fails to give way, it is far easier to apply the exemption under 305/306 and also to take action against the driver of the other vehicle.
The other issue at hand relating to a defence of reasonableness and neccessity relates to the driver and vehicle operation training provided to the driver by their respective agencies. In the event of a serious collision or offence that may be further investigated, the training and internal driver policy of each agency will be relied upon to see if the driver operated within, or exceeded, any agency guidelines for emergency vehicle operation. Where an incident has occurred and the driver is found to have acted outside their training, it becomes somewhat more difficult and troublesome to offer an argument using the exemptions provided as it would be clear that the manner of driving or vehicle operation was outside that taught by the agency.
The case of Beckett clearly illustrates that these provisions only relate to what one would consider technical breaches of the Road Rules, that is, had the manner of driving been committed by a civilian or person without an exemption, then they would be liable to prosecution by way of traffic infrigement notice. Where a collision occurred and persons were killed or injured, then there is no prospect of relying on 305/306 if the driver of the emergency vehicle was at fault. The important words in the exemption are as follows; “A provision of these Rules “. On this interpretation alone the exemption only applies to offences under the Australian Road Rules. More significant offences under various state acts, such as drive manner dangerous, dangerous driving causing death/GBH, Drive with Prescribed Concentration of Alcohol etc are not offences in the ARR’s and protection from offences relying on 305/306 can only be claimed for offences covered by the ARR’s.
You make an interesting point as to whether the drivers of emergency vehicles can know if they are exempt when responding to an incident. Based on the above issues I believe they should based on the following proposition: If the driver of an emergency vehicle operates that vehicle in accordance with their training and organisation emergency driving policies then they will be covered. These policies are designed with one key point in mind, that is, in an emergency situation the most important thing is to arrive safely at the destination so as to get to work. If the vehicle fails to arrive safely, then the mission and purpose has already failed. Where a driver operates outside those procedures and guidelines, then they must be satisfied, at the time of doing so, they are able to justify the act.
My concern rests not so much with the full time services, who have large budgets and professional driver training facilities and operations, but for the volunteer services. Volunteer services obviously have a large number of drivers to train in emergency driving and lack the opportunity to drive regularly under emergency conditions, let alone with expert oversight. This is where the concept of volunteerism holds no truck with the law. The law is not concerned, as in the case of Mr Beckett, as to whether it was a big red volunteer truck or a big red full time service truck, or police car or ambulance. The law only needs to establish culpability for the offence and that the proofs are there. I know of one of my colleagues that did 6 months jail for not dissimilar circumstances to Mr Beckett with a guilty plea.
Lastly can I add, these protections are only there for acts carried out in the execution of one’s duty and in good faith. There are numerous cases where citizens wish to complain because a police car is ‘speeding’ without lights and sirens – there are often genuine and good reasons for this. This is not however an opportunity to excuse poor or inappropriate driving behaviour by professional drivers. Despite what the readers comments in the Daily Telegraph indicate, there are stringent review processes in place and all such occurrences are reviewed by safe driver panels. Reduction in driving response category or decertification are common occurrences. This is also a risk management tool. It is not in our interests to have identified potential liabilities and not retrained them to improve both compliance and driver skill.
Keep up the good work. This site is a valuable learning resource for the Emergency Services community.
Mick, thank you for your helpful comments and I agre with everything you say. When I’m teaching emergency service drivers my advice is that ‘if a person, on the sidewalk, would say ‘gee that fire truck’s going fast’ or ‘gee that was dangerous’ then the driver is driving too fast or ‘in a manner dangerous’ and could not rely on the exemptions. People may be interested in reading Hughes v Police [2009] SASC 57 a decision of the Supreme Court of South Australia dealing with an appeal from a police officer who was convicted of various offences after chasing a motorcyclist through a busy pedestrian area in circumstances that ultimately lead to the cyclists death.
Thanks again for your comments and nice to know people are referring to this site.
Michael Eburn
I am an RFS volunteer and have some problems with the culture in the service. The legislation as you have clearly pointed out (for emergency vehicles) requires that “in the circumstances, it is reasonable that the provision should not apply”. We generally get told to respond (L&S) or process (road-speed) – so someone else is making this assessment for us. I don’t believe that is appropriate, given that when the time comes, it will be up to me as a driver to justify my decisions. Just because someone told me to, doesnt neccessarily make it ‘reasonable’. Do you believe the decision should reside with the driver, and the driver alone? or, by retaining organisational involvement, would I still be covered by someone else’s unreasonable assumption?
On another note, I have been reading this blog for a while. I find your site and books a fantastic source of information; you are filling the gaps where our respective organisations dare not tread for fear of judgement, and I think that particularly as a volunteer it gives me a greater understanding of the risks I take (legally, as well as physically). I recommend your work to everyone.
Mike
Thanks for your comments (and for all the other readers, you don’t need to be named Michael (Mick or Mike) to contribute here!) You said that as an RFS volunteer you
I think there are two different issues. The first is the nature of the response, that is whether or not the case requires you to proceed on urgent duty (lights and sirens) or not, and the second is what is reasonable in the particular case or circumstances.
I think that it is reasonable for the incident controller or dispatcher (whatever you want to call them) to make that decision or for the agency to have a policy on that. Many years ago when I was with NSW Ambulance all ‘casualty calls’ (ie 000) were responded to as urgent on the basis that the caller may have said ‘patient fallen’ but perhaps that meant ‘fallen off the roof’ (I don’t know if that is still their policy or wherever they have another system to triage calls and the nature of the response). For members of the NSW Fire Brigades, Regulation 32 of the Fire Brigades Regulation 2008 (NSW) says:
These are examples where the organisation has determined when a call is to be responded to as urgent or otherwise.
This can be contrasted with the NSW Police. The NSW Police Force Handbook (as at 11 December 2008) identifies that calls for police are ‘triaged’ into priority 1 through to 5. Police responding to a priority 1 or 2 call are required to notify police radio of their ‘coded response’ that is:
Here the organisation is leaving it to the officer’s discretion to determine whether the matter requires an urgent response or not (though, presumably a Priority 1 call (where there “… is life threatening and the actual danger still present. There is a genuine belief that any person will suffer grievous bodily harm or death”) should be responded to ‘Code Red’, but that is not what the handbook says).
In any event the fact that the organisation determines that the response should be under lights and sirens will go some way to determine whether proceeding was ‘reasonable’ in the circumstances. The driver wont have to justify ‘why’ they were proceeding with the lights and sirens on in the way that a police officer (given the NSW Handbook) may have to.
But that says nothing about the actual driving. It is always up to the driver to decide what is the appropriate way to drive the vehicle on a given street, on a given day at a given time. So the fact that you have the lights and sirens on because it is an urgent fire call and because you were instructed to do so, does not mean that it was OK to drive at a particular speed if the circumstances on the day mean that the speed was dangerous.
To put that in context with your statement: “Just because someone told me to, doesn’t necessarily make it ‘reasonable.’” Imagine you are driving the fire truck and assume that the Brigade Captain is in the passenger’s seat. If the Captain (who presumably is in charge of the entire crew) says ‘clear left’ that does not remove your responsibility to ensure that the road is in fact ‘clear left’. If you proceed and hit a vehicle just because the Captain told you to go, doesn’t make it reasonable.
In terms of your initial context, the organisation telling you to respond with ‘lights and sirens’ is not giving you permission to drive dangerously or to ignore the conditions of the road and you couldn’t argue ‘it was reasonable for me to proceed against the red light as they told me too’ but it would show that it was reasonable to be proceeding on urgent duty, but you still have to take care.
“On another note…” thank you for your kind words and I’m pleased that people are reading this and are finding it useful. Sometimes it’s hard to know if I am writing only for my own benefit so I appreciate your comments and your recommendations.
I hope what I’ve written helps.
Michael Eburn
Mike says, “We generally get told to respond (L&S) or process (road-speed) – so someone else is making this assessment for us. I don’t believe that is appropriate, given that when the time comes, it will be up to me as a driver to justify my decisions.”
And this is the catch Mike and where I think a few don’t understand their responsibilities. It is ultimately the driver who makes the final call on whether to use L&S. As a driver, they can direct you as much as they want, but you make the call to turn them on and how you’ll respond accordingly.