A NSW RFS volunteer likes to wear a hi-vis jacket when turning out, but what’s legal?
I am a volunteer with the NSW RFS and at times ride my motorcycle to incident calls. I sometimes where a high-vis vest for night calls. This vest has black and white chequer striping on it. I was told by a highway sergeant to remove the vest and not where it again as I am impersonating a police officer as blue/black chequered markings are reserved for emergency service vehicles and uniforms only. I can’t find any legislation regarding this and would appreciate a point in the right direction if possible.
It is indeed an offence to impersonate a police officer. The maximum penalty is 2 years gaol and a fine of 100 penalty units (ie $11 000) or both (Crimes Act 1900 (NSW) s 546D). To ‘impersonate’ is to ‘Pretend to be (another person) for entertainment or fraud’ (Oxford dictionary, online). My correspondent was not ‘impersonating a police officer’; there was no attempt to pretend to be a police officer even if there was a risk of confusion. Impersonation is not the relevant offence.
The relevant offence is set out in the Police Act 1990 (NSW) s 203. Relevant parts of that section say (emphasis in underline added):
203 Wearing or possession of police uniforms by others
(1) A person (not being a police officer or a special constable appointed under section 82L) who wears or possesses a police uniform is guilty of an offence…
(3) A person (including a police officer) who uses police insignia otherwise than in the course of, and for the purpose of, exercising the functions of a police officer is guilty of an offence…
(5) A person is not guilty of an offence under this section if:…
(c) the person establishes that the person had a reasonable excuse for the act or omission.
(8) In this section: …
“police insignia” means:
(a) any items (being insignia, emblems, logos, devices, accoutrements and other things) that are generally recognised as pertaining to the NSW Police Force or as being used by police officers, or
(b) any parts of any such items, or
(c) any reasonable imitation of any such items or parts, or …
“police uniform” means the uniform of a police officer, and includes:
(a) any parts of such a uniform (or any accoutrements of a police officer) that are generally recognised as parts of the uniform or accoutrements of a police officer, or
(b) any reasonable imitation of such a uniform, parts of a uniform or accoutrements.
Maximum penalty: 100 penalty units or imprisonment for 2 years, or both
(For a similar offence dealing with the insignia of the other emergency services, see State Emergency and Rescue Management Act 1989 (NSW) s 63B).
Let us assume that it is correct that the blue/white cheque pattern is ‘generally recognised as pertaining to the NSW Police Force’. This is not, I suspect, an unreasonable assumption as these images captured off the web show:
There is no law that says specifically that ‘blue/black chequered markings are reserved for emergency service vehicles and uniforms only’ but it is still the case that ‘blue/black chequered markings’ may be perceived to be a ‘reasonable imitation’ of a police uniform or insignia. Whether it would, or not, may be debatable but it is of course easier to avoid the fight than have to persuade a magistrate that there was no ‘reasonable imitation’.
Does my correspondent have a reasonable excuse? The mere fact that the equipment is being worn for safety purposes whilst riding a motorcycle at night will not be a ‘reasonable excuse’ because there are alternatives. If it was a ‘reasonable excuse’ a person could wear a police vest but that can’t be right. The real answer why it’s not a reasonable excuse is because there are indeed standards for hi-vis gear (see http://www.elevenworkwear.com.au/high-visibility-standards; see also https://www.worksafe.vic.gov.au/__data/assets/pdf_file/0014/10157/FINAL_web_ready_file_High_Vis_clothing_design.pdf). Wearing gear that looks like police chequer-board is not ‘reasonable’ when appropriate day/night vests are cheap and easily available.
Conclusion
It is not expressly provided that wearing a vest with ‘black and white chequer striping on it’ is illegal but it could be if, in the circumstances, it appears as a ‘reasonable imitation’ of insignia used by the police force. My correspondent has already been put on notice that one police officer thinks that is the case. The ultimate judge, should the police prosecute, would indeed be the judge (well really a Magistrate). Whether it’s worth having that argument depends on whether my correspondent does think the vest could or might be confused with a police uniform; and how much it might cost to go and buy a new vest.
Australian Emergency Law 
Just as a point of interest. Many years ago, I was tasked to provide a service to the office of crime prevention.
To cut the story short, several security companies were allowing thier staff to wear black and white check reflective uniforms.
The state legal service had me deliver cease and desist orders as the black and white check is actially a registered trade mark. Rather that become letigious, this angle was used. Some transit security were wearing dark green and white (again to feed the wanabe police ego) These also were advised these are ambulance colours and had to destroy the uniforms on the same copyright/trade mark laws. I have not been involved in the fire brigade red and white, so i cant comment on those colours. Two and three bands in a row, forming a check patern is a trade mark.
I noticed the black and white taxi company was issued the same think, as they had black and white checks.
Like i said, this was a long time ago. 15 years.
I find it hard to accept that the checkerboard pattern could be trademarked, in part because the emergency services are not engaged in trade. Some of the items, such as the logos and shoulder flashes, will be subject to copyright law because copyright is owned by the creator of the design with no need to register it or apply for it. That will cover the various logos but it would be hard to extend that to the chequer board pattern. You do not identify what state you are referring to. As for ambulance colours ‘The internationally accepted symbol for first aid is the white cross on a green background …'(https://en.wikipedia.org/wiki/First_aid#Symbols) but that, of itself, wouldn’t give an ambulance service the right to restrict the use of green and white. and we know that NSW ambulance uses a red and white check. As you say your experience is 15 years ago. I think the provisions I’ve cited are still the relevant provisions.
Is the likelihood to be seen as imitating higher due to the correspondent being on an emergency scene where police attendance would be expected?
Context is always everything so indeed that may be circumstances that are likely to increase confusion – depending on how similar they are. It may be that given there are also police there the distinction is actually clearer. It would all depend on the actual context.
Up until the early 1970s police caps did not have a chequered band. When they were introduced, to limit confusion with others wearing unbanded caps at the time, eg railway police, fire brigade personnel, NSW Government Railways uniformed staff, bus conductors, prison officers) it was my understanding that the chequered band (modelled on the Campbell ??Tartan) was protected in law so that it was only able to be legally worn by police officers. The colours are blue and white as most people would know. Ambulance officers had/have a red chequered hat band.
This comment appeared on the facebook version of this blog:
If you follow that link it says that Sillitoe
John Killeen from the blog – Ambulance Visibility https://ambulancevisibilityblog.wordpress.com/ may be able to add some more detail?
Thanks Michael – The confusion arises from the still unregulated use of the Sillitoe pattern. In applying for a trademark the application must include a design that does not conflict with any other registered design. You cannot register and hold the rights to a single colour unless it forms part of a more complex and individual design. This is same reason that HiVis ambulance fluorescent yellow-green and red/orange colours cannot be registered or the chevron V-pattern can be used on any vehicle. Whether you would succeed in registering a chequered design on its own in any two colours is up for debate and adjudication by IP Australia along with a low chance of approval. As far as I know there is no registered trademark for any stand alone two colour checked pattern in Australia.
In all police, fire. ambulance and SES designs and logos the pattern forms one part along with other elements of the design. A court would have to decide whether or not the wearing of a pattern adopted by the organisational preference of an emergency service is; first an offence and second if the behaviour and method of wearing the check pattern by the individual could produce confusion in the eyes of the general public. The emergency service could not argue that they had exclusive rights to the pattern in any colour other than by a process of preferential or popular adoption. Someone would have to be charged by the police to find an outcome.
Finally just to confuse the issue and why most people believe the check pattern is protected….the UK Police Battenburg chequered vehicle pattern is only protected by legislation when it is used on a police vehicle. The British road laws describe retro-reflective blue material (which reflects light) as a coloured lamp and consequently only the police can illuminate a blue lamp on a vehicle. When any other colours are used for the pattern it is no longer protected and can be used by anyone, although government endorsement and popular acceptance usually discourages alternate usage.
Thanks John, and it’s those sort of issues that, I suggest, lead to the offences in the Police Act and the SERM Act. It’s an offence to wear logos and badges that are ‘are generally recognised as pertaining to the NSW Police Force’ or the emergency services. That avoids the need to prove exact identity or any legal protection. It is clear that the Sillitoe pattern is readily identified with the police even if that is not in legislation so wearing it, or ‘any reasonable imitation’ is an offence. It leaves lots of room to take into account the context in a way that a ‘registered’ pattern would not – if there was a ‘registered’ pattern a minor differentiation would be enough to avoid the prohibition but could still lead to confusion. It confirms my conclusion, that for my correspondent there is no specific offence of wearing the vest in question, but he’s likely to be charged with the offence in the Police Act and then he’ll have to argue with the Magistrate that the vest is not so close to the police pattern that there could be no confusion. He can elect to have that argument, at no inconsiderable cost and I would suggest a less than even chance of winning, or buy a new vest.
As a seperate question and I don’t do this…
Is it illegal to wear any insignia from an emergency service – Fire brigade , SES etc if you aren’t a current member of that service?
Yes, but the exact elements of the offence does depend on the state. For example, in NSW it’s only illegal if the person’s intention is to ‘deceive’. Section 63B(2) of the State Emergency and Rescue Management Act 1989 (NSW) says:
Does that mean its an offence to eat a Battenburg Cake off duty ,while wearing a Sillitoe full checkered singlet at the drags ?
I suspect eating the cake’s ok, wearing the singlet may be problematic
I wish to know regarding green and white sillitoe tartan markings on vehicles or vests, in victoria i beleive it is assumed to be associated with st john ambullance, there are a number of companies offering first aid courses and having there vehicles with these sillitoe markings. Can anyone trained in first aid be permitted to either wear a vest or have their vehicle in green and white sillitoe tartan? Id appreciate your feedback. Thanks.
The answers are really in the post and in the comments. Green and white are the international colours to represent first aid. There is not specific law about the use of the green/white Sillitoe. A person or company in trade or commerce must not engage in conduct that is misleading or deceptive so if someone used the pattern because they wanted or intended people to confuse them with St John Victoria then that would be a problem. But if they were using it to show that they were a first aid provider given the international standard uses green and white (https://en.wikipedia.org/wiki/ISO_7010) then that seems fair enough. The ISO standard may not prescribe the green/white Sillitoe but if its use has come to mean ‘first aid’ then so be it.
Unless St John Ambulance (Victoria) have managed to register the green/white Sillitoe as a trade mark, then I would think anyone is ‘permitted to either wear a vest or have their vehicle in green and white Sillitoe’ unless they are acting in trade or commerce and are intending to or likely to deceive someone.
Thank you for your explanation re green and white sillitoe tartan markings on vehicles, shall i ask anothrr question, green and lime green sillitoe markings? Im not certain if this is used in aust, perhaps overseas, perhaps it also has similar first aid, medical reprensentation?? Thks
The law doesn’t change with teh colour. If a symbol is a proprietary symbol – a registered design or trademark or sufficiently unique to attract copyright – then the owner is the only person who can use it or allow others to use it. Otherwise anyone can do what they like provided they are not intending to mislead or deceive or impersonate an official where there is a relevant offence. Green and white, green and lime green; blue and white; black and white; red and white; orange and white the answer will be the same.