The Victorian Herald Sun is reporting on a piece of citizen journalism where a person filmed a police officer eating lunch whilst his police car was parked in a ‘no-stopping’ zone (see ‘Police officer taunted after parking in ‘No Standing’ zone while eating lunchHerald Sun (online) (27 November 2014)).

(The article reports that the police vehicle is stopped in a no-standing zone and in the video you can hear the person say to the officer that it is a no-standing zone. Interestingly the Road Safety Road Rules 2009 (Vic) provides for ‘no-stopping’ areas (r 167) and ‘no-parking’ areas (r 168) but not ‘no-standing’ areas (see also RACV Parking and Stopping).  Watching the video one can see that the police car is parked in a zone identified as ‘no-stopping’ by a sign with a black ‘S’ in a red circle with a red line across the ‘S’ so that is a no-stopping area.  ‘A driver must not stop on a length of road or in an area to which a no stopping sign applies’ (Road Safety Road Rules 2009 (Vic) r 167)).

The article reports that:

3AW’s Neil Mitchell said on radio that the incident is part of a larger issue.

“Of course he shouldn’t have been parked there but, seriously, is this the respect we show our police force?” he said.

“We wouldn’t have thought about filming that years ago.

“Is this sort of thing undermining our law and order?”

The obvious response to that is that no-one would have thought about filming this years ago because people didn’t carry camera phones years ago.  And yes this is ‘undermining our law and order’ not because it’s failing to show due respect to police but because law enforcement officers breaching the law undermines the principle of the rule of law, namely that we are all bound by the law.  Police do not operate ‘outside’ the law to protect us from unknown threats – they’re not vigilantes, they’re law enforcement officers.  That they have special authority, authority to arrest, issue traffic tickets, enter homes, carry guns etc is all provided for in law, it’s not a case of turning a blind eye or saying the law does not apply to them because they are there for good; police powers and authority comes from law and has to be executed in accordance with the law (albeit law that gives them very wide discretion on when and how to exercise those powers).

The article goes on to say:

After a similar incident in Queensland earlier this year, a police spokesman said that parking was not “condoned” but on occasions, and depending on the situation, police may at times park in various places in the execution of their duty.

“Police are subject to fines when they are found to be actually breaching the traffic regulations and not performing a function of the Service and in the execution of duty,” he said.

Readers of this blog will be aware of Rule 306 in the National Road Rules which is the rule that gives the drivers of emergency vehicles exemptions from the application of certain road rules.  That rule does not apply to police, they have their own rule, in Victoria that is rule 305 of the Road Safety Road Rules 2009 and it and varies from rule 306 (applying to fire appliances, ambulances etc) in that it allows the police, at times, to enjoy an exemption from the road rules even when they are not displaying red/blue lights or sounding a siren.

Rules 305 (emergency vehicles) and 306 (police) relate to driving, not parking.  When it comes to parking the relevant rule is rule 307(1) which says:

A provision of Part 12 [Restrictions on Stopping and Parking] does not apply to the driver of a police vehicle, emergency vehicle, enforcement vehicle or escort vehicle if, in the circumstances—

(a)     the driver is taking reasonable care; and

(b)     it is reasonable that the provision should not apply.

A police vehicle is

… any vehicle driven by a person who is—

(a) a police officer; and

(b) driving the vehicle in the course of his or her duties as a police officer; (Road Safety Road Rules 2009 (Vic), Dictionary, definition of ‘police vehicle’).

A police officer is a person appointed as a police officer under the Victoria Police Act 2013 (Vic) (Road Safety Road Rules 2009 (Vic), Dictionary, definition of ‘police officer’.)  Given the video shows a marked police car and a person apparently in the uniform of Victoria police I think we can infer this is a police officer.

If we accept that this is a police officer, who has parked a car in a ‘no stopping’ area then he has committed an offence unless in parking the car he was acting ‘in the course of his or her duties as a police officer’ and if, when parking, he exercised reasonable car and it’s reasonable that he should be exempt from the rule.

This officer is on duty and presumably has been driving the car as part of his work.  He’s not driving it as a mechanic or in any other capacity.  He was however stopping for lunch.  There can be no question that all workers need to be given a break during their shift for a meal but it’s a long bow to say that having lunch is acting in ‘the course of his or her duties as a police officer’.  But even so, the reason he has the car, and is out and about with the car, one can infer is because that was as part of his duties.  One has to come to that conclusion because the alternative is that when he stopped for lunch, the police car stopped being a ‘police vehicle’ and I don’t think that anyone would accept that a vehicle, marked up as a police car and under the control of a uniformed police officer, is not a police vehicle.  He’s a police officer driving a police vehicle in the course of his duties so he’s driving, and has parked, a police vehicle.  If that’s correct then the exemption applies if, and only if, he exercised reasonable car and it’s reasonable that he should be exempt from the rule.

It’s not clear whether he’s taken reasonable care.  I don’t know the area but presumably it’s a ‘no-stopping’ area for a reason and it may well be that it’s at an intersection or crossing or for some reason it’s dangerous to stop there.  One might expect the driver of a police or emergency vehicle who has stopped at a place where people do not normally stop, and which may thereby expose others or himself to danger would take some steps such as activating hazard lights or the roof top beacons.  They don’t appear to be on here, but let us, for the sake of the argument, assume that ‘reasonable care’ was taken.

Is it reasonable that the exemption should apply?  I don’t think anyone would question that it would be reasonable to stop and park where this car was parked if the officer was attending to a police matter eg a report of shoplifting or failure to pay in the coffee shop.  Equally no-one would question an ambulance officer’s decision to stop there to attend to a call to a medical emergency in the shops or a fire crew stopping to investigate a report of fire.  But this officer stopped for lunch.

A police officer may argue that it is reasonable that the ‘no-stopping’ rule does not apply to him as he may be called off lunch and have to respond as a matter of urgency, and that response would be delayed if he had to make his way to where the car was parked.   Parking a police car to allow an urgent response would not, in my view, be ‘reasonable’.  It is reasonable that the rules do not apply to facilitate the actual response to an actual emergency or policing task, but not a potential response to a potential event.  If that was what was intended rule 307 would simply say that the parking rules do not apply to a police or emergency vehicle, but it does not.

My view is that it is reasonable for the no-stopping rule to apply; or to put that another way, it is not reasonable for the exemption to apply in order to allow a police officer to park in a ‘no-stopping’ area to eat lunch; but it’s not my view that counts and of course I don’t know why he was in that area or what he was required to do.  So the first person who would need to consider whether or not rule 307 should apply is another police officer, presumably one from the Police Conduct Unit.   If they are not satisfied that the decision to stop was reasonable and/or that reasonable care was not taken, one would expect them to issue a traffic infringement notice.  If the officer disagreed with that assessment he could elect to have the matter dealt with in the Magistrate’s court and it would be up to the Magistrate to determine whether or not the officer took reasonable care and whether or not it is reasonable that rule 307 should apply in those circumstances.