Today’s question comes from a Queensland volunteer rural firefighter who read my post More on the Queensland Road Rules (November 26, 2012).
History
In that post I was considering whether a member of the Queensland Rural Fire Service when responding to an emergency call was an emergency worker, and therefor driving an emergency vehicle for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). My conclusion was that the Fire and Rescue Service Act 1990 (Qld) used the term ‘officer’ in a variety of contexts – Fire Service Officer, Authorised fire officers, fire officer, first officer and ‘such other officers’. The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) said that an emergency worker included an officer of the Queensland Fire and Rescue Authority’. Because the Transport Act did not define who is ‘an officer’ I argued that it was a generic term that covered all the various officers. I concluded:
So my view is that an officer of a rural fire brigade is not a fire service officer, or a fire officer, but they are ‘an’ officer of the QFRS and so they are an emergency worker for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) and so any vehicle that they are driving ‘in the course of his or her duties as an emergency worker’ is an emergency vehicle.
I did note that my conclusion did not necessarily mean that the rural fire officer had any exemptions under the relevant road rules. An officer could only rely on r 306, the exemption for emergency vehicles if that was ‘consistent with any direction from the Commissioner under s 82(2) or s 19… if they (QFES) give a direction or order that drivers are not to drive contrary to the rules that would be evidence to say it is not reasonable that the rule should apply…’
I finished by saying
If anyone wanted to contribute to the debate, I’d be very interested to read any official advice from QFRS particularly if it expresses a contrary interpretation.
Today’s question
Today’s correspondent has indeed forwarded advice from QFES.
The document, Queensland Fire and Emergency Service Safety Alert No. SA-07-18 dated 10 October 2018, as provided to me, is attached (SA-07-18-Driving-and-Vehicle-Safety). Relevantly it says (emphasis in original):
There has been an increase in incidents involving QFES vehicles in recent weeks, including speeding infringements, road traffic crashes, vehicles impacting pedestrians and vehicles impacting QFES personnel at incidents scenes [sic]
… all QFES workforce are reminded that driving, particularly en-route to, or at the incident scene requires the utmost care and attention.
Exemption for Emergency Vehicles within the Australian Road Rules 2009 and the Transport Operations (Road Use Management Road Rules) Regulation 2009 do not apply to volunteers driving QFES vehicles, therefore volunteers can drive QFES vehicles displaying a red and blue light or sounding an alarm whilst responding to an emergency but MUST comply with all relevant road rules. In addition, any traffic infringements for speeding or from red light cameras are required to be passed on to the person identified as the driver of the vehicle.
The Australian Road Rules are published by the National Transport Commission as the model for adoption across Australia. They are not legally binding unless and until they are incorporated into the law of a state or territory. The latest consolidation is dated 19 March 2018. It is not clear what the Safety Alert is referring to when it mentions the Australian Road Rules 2009, but that doesn’t matter. The relevant reference is to the Transport Operations (Road Use Management Road Rules) Regulation 2009 (Qld).
Corrections, updates and mea culpa
I did revisit this issue in my post Even more on the Queensland Road Rules (September 2, 2017). There I noted the reference to ‘fire officer’ in the definition of emergency worker and said:
Any argument that may have applied where the reference was to an ‘officer’ can’t apply now. A ‘fire officer under the Fire and Emergency Services Act 1990’ is an employee. Just because a first officer can exercise the powers of an authorised fire officer (s 83) that doesn’t mean he or she is a fire officer, that is it doesn’t convert a volunteer to an employee.
What follows is that in my view since that amendment (which appears to have been made in 2014) a volunteer fire fighter is not an emergency worker for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld). That means volunteers can’t claim any exemption from the road rules.
Looking at it again I have to say my post in 2012 was wrong even at the time that I wrote it (ie in 2012). In that post I relied on a definition of emergency worker that said:
emergency worker means–
(b) an officer of the Queensland Fire and Rescue Authority or a fire and rescue service of another State;
Anyone reading that today may recognise that the Fire and Emergency Services Act 1990 (Qld) creates the Fire and Emergency Service, not the Fire and Rescue Authority. The Queensland Fire and Rescue Authority was abolished by the Emergency Services Legislation Amendment Act 2001 (Qld). At that time the Authority was replaced by the Queensland Fire and Rescue Service. The Fire and Rescue Service became the Fire and Emergency Service with the commencement of the Public Safety Business Agency Act 2014 (Qld) on 21 May 2014.
The definition of emergency worker that I relied on, in 2012, came from the Transport Operations (Road Use Management—Road Rules) Regulation 1999 (Qld). The Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) (and therefore the rules in force when I was writing in 2012) defined emergency worker as, inter alia, ‘a fire officer under the Fire and Rescue Service Act 1990…’ What follows is that my conclusion of November 26, 2012 is not only wrong now, it was wrong when I wrote it.
The current law
Exemption under the road rules
Under the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) r 306 the driver of an emergency vehicle is exempt from the other road rules 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) the vehicle is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.
An emergency vehicle is a vehicle driven by an emergency worker who is ‘driving the vehicle in the course of performing duties as an emergency worker’. An emergency worker as, inter alia, ‘a fire officer under the Fire and Emergency Services Act 1990…’ (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) Sch 5) A ‘fire officer’ is a ‘person employed in the service who has the functions of fire prevention and fire control, and includes a person employed under this Act who is undergoing training as a fire officer’ (Fire and Emergency Services Act 1990 (Qld) Sch 6).
Conclusion 1
It follows that now (as it was in 2012) the:
Exemption for Emergency Vehicles within the … Transport Operations (Road Use Management Road Rules) Regulation 2009 do[es] not apply to volunteers driving QFES vehicles…
Using red/blue lights and siren
What then of the statement:
… volunteers can drive QFES vehicles displaying a red and blue light or sounding an alarm whilst responding to an emergency…
Here we have to start with the authority to have red/blue lights and a siren on a vehicle. The relevant rules are set out in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld).
Rule 23(2) says ‘A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren, exhaust whistle, compression whistle or repeater horn.’ That rule does not apply to an ‘emergency vehicle’ (r 23(3)(b)).
Rule 99 says ‘A vehicle, other than an exempt vehicle or a special use vehicle, must not be fitted with a light that flashes.’ Rule 99(6) says:
In this section—
exempt vehicle means any of the following vehicles—
(a) a police vehicle;
(b) an emergency vehicle;
(c) a transport enforcement vehicle;
(d) an Australian Border Force vehicle;
(e) an Airservices Australia vehicle.
The Dictionary set out in Schedule 4 of the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) defines emergency vehicle as:
… a motor vehicle—
(a) fitted with—
(i) a repeater horn or siren; or
(ii) a flashing warning light; and
(b) driven by—
(i) an officer of the Queensland Ambulance Service or an ambulance service of another State in the course of the officer’s duty; or
(ii) an officer of the Queensland Fire and Rescue Service or a fire and rescue service of another State in the course of the officer’s duty; or
(iii) an officer or employee of another entity with the written permission of the commissioner in the course of the officer’s or employee’s duty.
We know that is out of date – it should refer to the Queensland Fire and Emergency Service but I am taking this from the official Queensland legislation website so this is the current version – https://www.legislation.qld.gov.au/view/whole/html/inforce/current/sl-2010-0192. Savings provisions will mean that a reference to the Fire and Rescue Service is taken to mean a reference to the current Fire and Emergency Service.
Unlike the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) Sch 5, this definition does not refer to a ‘fire officer’ but to an ‘officer’. This takes us back to the argument I made in 2012 – the term ‘officer’ is different to, and means more than, ‘fire officer’.
Let us assume that the argument in 2012 was correct (even though I was using the wrong definition of emergency worker) and that a first officer of a rural fire brigade is an ‘officer’ (but not a fire officer’) of QFES (but see Rural Fire Brigades as part of Queensland Fire and Emergency Services (not Queensland Fire and Emergency Service (August 6, 2018)). If that is correct, then the definition of emergency vehicle in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) makes sense.
Conclusion 2
If I assume Queensland Rural Fire Service vehicles are fitted with red/blue lights and sirens, then they can be driven by a volunteer fire fighter even though they are fitted with the lights and siren even though that driver gets no exemption from the road rules if they are activated.
The obligations of others
The obligation of other drivers when they are in the vicinity of an emergency vehicle are set out in the c rr 78 and 79.
78 Keeping clear of police and emergency vehicles
(1) A driver must not move into the path of an approaching police vehicle or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
Maximum penalty—20 penalty units.
(2) If a driver is in the path of an approaching police vehicle or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely.
Maximum penalty—20 penalty units.\
(3) This section applies to the driver despite any other section of this regulation.
79 Giving way to police and emergency vehicles
(1) A driver must give way to a police vehicle or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm.
Maximum penalty—20 penalty units.
(2) This section applies to the driver despite any other section that would otherwise require the driver of a police vehicle or emergency vehicle to give way to the driver.
Conclusion 3
We know that a vehicle being driven by a rural firefighter is not an emergency vehicle for the purposes of the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) so other drivers do not need to comply with these provisions.
Implications
The implications are crazy. As the safety alert says ‘driving, particularly en-route to, or at the incident scene requires the utmost care and attention’ so why add to the complexity by allowing rural fire fighters to drive as if they are driving an emergency vehicle when they are not?
Rural fire fighters may understand that they have no exemption under the road rules but others will not. Other drivers are not going to appreciate that they don’t have to get out of the way of the appliance and whether they have to or not, will no doubt try to do so. That puts every other road user at risk and, given r 78(3) may encourage other road users to break the law in order to get out of the way. Imagine the confusion of a rural fire appliance stopped at a red light. Every other driver, even those facing a green light, stop to allow the appliance to proceed, but it doesn’t. It sits there, lights flashing, siren wailing waiting for a green light. Who knows what other drivers will do in this very confusing situation.
The driver of the fire appliance may intellectually understand that he or she has no exemption but when they are proceeding to a fire or other emergency call, lights flashing and siren sounding, other drivers will be getting out of their way. The adrenaline of the fire call is heightened by the noise and conduct on the road so expecting that driver not to edge over the speed limit, or go through the red light when everyone is waiting, or to take some other measure is foolish. They may get a ticket, worse they’ll have an accident.
The Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld) says it’s ok to have these lights and sirens fitted to the vehicles but says nothing about their use.
The use of the lights and sirens is only mentioned in the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld). That regulation doesn’t say when they can be used but what they mean for the driver of an emergency vehicle or other drivers when an emergency vehicle is nearby. A vehicle driven by a fire fighter who is not a ‘fire officer’ is not an emergency vehicle.
It is my view that if you are going to activate lights and sirens people will get out of your way and expect you to drive like an emergency vehicle. That does not mean you can drive at a dangerous speed or proceed through a stop sign or red traffic light without first stopping to ensure others have given way, but having done that people will expect you to move on. If you are going to drive in full compliance with the road rules what do the lights and sirens do other than heighten emotion and confuse everyone.
My view is that if there is no exemption, then the driver should not activate the lights and sirens as that is meant to trigger rr 78, 79 and 306 and if those rules don’t apply to the driver they are meaningless and dangerous.
Rural fire service volunteers should also note the exemption from the parking rules (Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) r 307) only applies to an emergency vehicle too. Not only might you get a traffic infringement for driving to an emergency, you might also get a parking ticket when you get there.
Other questions
My correspondent concluded by asking;
So cars that move out of the way are doing so on a voluntary basis. But if they (the yielding car) were to then have a minor accident, would that car be at fault since there was no ‘requirement’ to give way to the approaching vehicle (not in a criminal context, but for example voiding their comprehensive insurance).
The answer is that they may be liable. Remember r 78 says that a driver must get out of the path of an emergency vehicle and further ‘This section applies to the driver despite any other section of this regulation.’ The driver may proceed through a red light, trigger a red light camera, then respond to the infringement notice by saying ‘I was getting out of the way of an emergency vehicle as required by r 78(3)’. The police may say ‘but that’s not an emergency vehicle (but you couldn’t know that) so the ticket stands’. That’s unlikely but possible (see also Making way for emergency vehicles (May 18, 2015)).
Would it void one’s insurance? No. That question implies a misunderstanding of insurance. Comprehensive car insurance means that if your car is damaged, or you damage someone else’s car, the insurer will pay out to meet your losses (agreed or market value) and meet your legal liability to any other car owner. You don’t void the insurance because the accident is your fault, that is what the insurance is for. An insurer may not pay out if you deliberately damage your car but they do if you accidentally, including negligently, damage your car – that’s why you have insurance.
Conclusion
The Queensland legislation is a mess. The safety alert is at least in part correct:
Exemption for Emergency Vehicles within the Australian Road Rules 2009 and the Transport Operations (Road Use Management Road Rules) Regulation 2009 do not apply to volunteers driving QFES vehicles, therefore volunteers … MUST comply with all relevant road rules. In addition, any [parking or] traffic infringements for speeding or from red light cameras are required to be passed on to the person identified as the driver of the vehicle.
Volunteers ‘can drive QFES vehicles [fitted with] a red and blue light or … alarm’ but whether they can or should activate or ‘display’ those lights or ‘sound’ that alarm is another matter.
If QFES is worried about safety, inviting volunteers to use the light/sirens when they have no exemption from the road rules is simply inviting harm. Either volunteers will be getting traffic tickets or someone’s going to have an accident because emergency driving is dangerous. If you don’t want (or don’t have) an exemption from the road rules, don’t behave as if you do. A fire appliance with flashing red/blue lights and siren looks like an emergency vehicle and people can be expected to behave accordingly.
The point of the lights and siren is to alert people to the emergency vehicle and make them aware that the driver may take action that would be illegal for other drivers and that other drivers must make every effort to clear a path. If those obligations don’t exist, if it’s not an emergency vehicle, the use of the lights and sirens is dangerous and unnecessary.
If I was a Queensland RFS volunteer I would refuse to drive the vehicle with lights/sirens activated. The reason I want those on is I want the benefit of rr 78, 79, 306 and 307. If I don’t get those then there’s no ‘benefit’ to put into the risk assessment or cost/benefit equation. The risk to myself (of accident and legal consequence) and the risk to other road users is too high for no effective benefit.
QFES should either seek to amend the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) so that a volunteer fire fighter is an emergency worker or the direction from QFES should be that, as there is no exemption, drivers should not use the lights and sirens fitted to their appliances. Ideally the sirens should be removed as they shouldn’t be used when driving and serve no purpose when stationary. That would leave only the flashing blue/red lights to warn other road users of a stationary fire appliance where it is posing a road hazard.
Australian Emergency Law 
In response to this post I received this by email:
That is the essence of my argument from the post on November 26, 2012 when I was referring to an out of date definition of emergency worker that referred to an ‘officer’ not a ‘fire officer’.
The argument above is attractive and I would use it if defending a driver facing a traffic infringement (remembering that the Road Rules only deal with minor matters so we’re talking about traffic tickets, not serious offences). A magistrate or judge may even by sympathetic to it if they wanted to find a way to let the driver off and/or send a message to QFES that fitting lights and sirens to an appliance where drivers don’t get the benefit of rr 78, 79, 306 and 307 is just inviting trouble and encouraging drivers to break the law.
But having said that I don’t think it’s good law. The definition of emergency worker refers to a fire officer, not someone exercising the powers of a fire officer. The term fire officer is defined; so either the definition means what it says or you have to go through this sort of argument to try and extend it. The rule of statutory interpretation is to start with the words in the ordinary meaning and it says ‘fire officer’ and ‘fire officer’ means something, so that’s what it means.
I should say however that I think the sort of argument above, and my argument from November 2012 is still relevant when looking at the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 (Qld). In that regulation the definition of emergency vehicle refers to a vehicle driven by ‘an officer of the Queensland Fire and Rescue Service’, not a ‘fire officer’. Who is an ‘officer of the Queensland Fire and Rescue Service’ is not defined and for the reasons set out in my 2016 post (and above) I think that would include the first officer of a rural brigade. That explains why rural appliances can be fitted with red/blue lights and siren (hence the advice ‘volunteers can drive QFES vehicles displaying a red and blue light or sounding an alarm’ but they don’t get the exemption because they are not a fire officer.
Also let me say that I agree the position is arguable. It is arguable that if the red/blue lights and siren can be fitted (particularly when the siren has no value except when moving) it must be implied that they can be used and their only legal value is to engage rr 78, 79, 306 and 307 so it must be intended that those rules apply to a rural fire appliance. Again, I think that’s an argument but from a strict analysis I still don’t think it’s a good argument. And why do firefighters want to have the argument, hence my opinion that if I was in the Queensland RFS I would refuse to drive with the lights and/or siren activated, it just going to add confusion to everyone, encourage law breaking and expose all road users to risk for no clear benefit.
The only mention of the use of red/blue lights and siren for emergency vehicles other than police vehicles is in the Transport Operations (Road Use Management—Road Rules) Regulation 2009 is in rr 78, 79, 306 and 307. If the driver of the appliance isn’t an emergency worker for the purposes of those rules, there’s no legal reason to use those devices.
Commenting on your use of responding under lights and sirens to an incident in RFS appliances and behaving like an emergency vehicle in traffic – part of our driver training is to disable lights and sirens when approaching areas with traffic lights or dense traffic where the use of lights and sirens would cause a hazard.
I have another comment regarding the fitment and usage of red/blue lights and sirens on rural fire service appliances.
Aside from the on-road usage, the red/blue lights come into effect on the fire ground. Specifically, the brigade manual says:
“…when operating the fireground where visibility may be reduced due to smoke, foliage or other factors beacons must be displayed by any vehicle which has them fitted.”
Which is taken to mean all rural and urban appliances, any other agency vehicles and any civilian vehicles fitted with beacons – whether they be red, red/blue or amber.
The brigade manual also defines the fireground as:
“…any area affected or likely to be affected by fire.”
Which would also include on-road areas within or connecting townships in the affected area. Using an example from late last year – the police set up a road block for an area defined as the fireground and all vehicles had to be displaying red, red/blue or amber beacons whilst operating in that area.
To add to the confusion with the responding under lights and sirens to an incident, some rural appliances are specifically marked as “not to respond under lights and sirens to any incident” and the beacons are only fitted for on-fireground use. This is particularly concerning because most of the appliances fitted with this marking are also on-road only (not permitted off-road) appliances such as tankers.
Thanks Michael, you make the point between volunteer and Employee, so where does the auxiliary sit? Paid for 2 hours training per week and paid an hourly rate. To attend a call out. I know common sense would say they are employed, albeit on a casual basis, therefore they are employed by the QFRA, but that is common sense, hence the question.
An auxiliary is a paid employee where conditions of their employment are set by the Auxiliary Firefighters’ Award – State 2016 (https://www.qfes.qld.gov.au/careers-and-volunteering/fire-rescue-and-operations/aux-firefighter). The are employees not volunteers so without going back through the original post, where it refers to employees it would include auxiliaries.