Today’s question is about licence checks with the NSW RFS. My correspondent has:
… a question regarding reporting any license suspensions/disqualifications or conditional restrictions to the service. The RFS Safe Driving SOP’s (October 2008) [a copy of which is available online] section 1.5 [of SOP No. 1 ‘Responsibilities, Driver Licencing and Accreditation’] says:
The RFS requires its members to have an appropriate current licence for the class of vehicle they are driving, to know and comply with the conditions of their driver’s licence and obey all ARR.
Further section 1.6 says:
Members who are required to drive RFS vehicles shall notify their captain and their district manager (for volunteers) or their manager and the Fleet Services Officer (for staff) if they have any condition that may temporarily or permanently affect their ability to drive or if their licence is varied, cancelled, disqualified or suspended.
But other than personal honesty of the behalf of the member/staff is there anything compelling them to advise of any changes in their license situation? …
At my RFS Zones driving courses … we visually sight the participants licence to see it is correct class/any conditions and also not expired, but short of an RMS/issuing authority driving record transcript/the participants word, it’s impossible to tell if the persons license is current/active and not subject to a suspension/disqualification etc.
Should the RFS be conducting license checks via the RMS to ensure its drivers hold valid/current licenses or would this be considered an invasion of privacy? Considering many private transportation companies require a license transcript to be provided at least on initial employment to show they have a valid licence, and some require regular current transcripts to be provided to retain employment.
The cost for a licence transcript is approximately $20 in NSW (I haven’t had to get a transcript for nearly 10yrs so the price may have changed) but considering that RFS volunteers can get the Working with Children Check (WWC) done for free (the WWC transcript says on it not valid for paid employment) it surely can’t be that hard for a similar arrangement to be made with the RMS (RFS volunteers are already granted exemptions from certain costs of license upgrades … but instead of the person receiving the transcript it gets sent to the RFS instead.
Surely it would be in the best interests of the RFS or any ES for that matter to know that its drivers are holders of current and active licences for the vehicles they are required to drive in the course of their duties, one can only imagine the uproar, paperwork and finger pointing that would occur if a suspended/disqualified driver behind the wheel of an ES vehicle was involved in an incident, I would hazard a guess that any protections provided by the particular Emergency Services Act in regards to the actions of its members/staff would not be afforded to the driver given they are most likely in contravention of a Service Standard/standing order etc.
The issue here is one of risk and therefore risk management, rather than law. Risk is traditionally described as a function of the probability of an event and the consequences of that event.
How likely is it?
What it is the probability that a person seeking to join the RFS or obtain a licence upgrade will lie about their licence status or present a licence that has been suspended or cancelled? I would suggest it is low. First where a licence has been suspended or cancelled after court proceedings, or by police following a serious criminal charge (Road Transport Act 2013 (NSW) s 224) the licence would be surrendered to police or the court, so the driver won’t actually have a licence.
Where a member has had a licence and is a regular driver for his or her brigade but her or his licence has been cancelled or suspended by Roads and Maritime Services (RMS) then the RFS may not know about it if the driver does not tell them. (And if the licence has been suspended, cancelled or varied by RMS (Road Transport (Driver Licensing) Regulation 2017 (NSW) Part 9) the driver may still hold their licence). If the member does not notify the RFS of their status they would be in breach of RFS services standards relating to safe driving and Service Standard 1.1.21 ‘Stand Down/Removal from Membership & Notification of Criminal Charges & Convictions’. They could therefore also be subject to RFS disciplinary action if and when their failure to give appropriate notice is detected.
Where the licence is suspended or cancelled then the person must not drive a vehicle. If the person does drive, then they commit a criminal offence (s 53). The fact that they are unlicensed does not mean they are necessarily dangerous, or they are not competent to drive; just that they are not authorised to drive. The risk that they will crash is no higher now than it was when they did have a licence.
The issue of liability and insurance is a non-issue. All vehicles are covered by Compulsory Third Party (CTP) insurance. Some RFS vehicles are not required to be registered (Road Transport (Vehicle Registration) Regulation 2017 (NSW) Schedule 1, cl 12). Where a vehicle is not required to be registered the ‘Nominal defendant’ (an insurance scheme to ensure people injured by uninsured or unregistered vehicles do not miss out on compensation) provides the CTP cover (Motor Accident Injuries Act 2017 (NSW) s 2.29 and 2.37(3)). If an RFS vehicle is not exempt from the need to be registered, then it will have a CTP policy in place. The State of New South Wales is a self-insurer (NSW Self Insurance Corporation Act 2004 (NSW)) and my understanding is that the CTP policies will be provided by the governments self-insurance arrangements rather than from the market. Whether that’s correct or not does not really matter.
If you think about your own insurance policies, if an adverse event happens you can claim on your policy and the insurer meets the costs. If you fail to act honestly with the insurer or breach the terms of the policy then the insurer may be able to avoid liability and then the cost falls to you. The NSW is a self-insurer, that means it always wears the costs. The Self Insurance Corporation cannot be like a market insurer. It may insurer the RFS and the RFS may even pay a premium, but if the self-insurance corporation could argue that it could avoid liability then the RFS would have ot pay, but the RFS is the government so it would still be the self-insurer. And if the RFS bought CTP insurance in the market place and a private CTP insurer could avoid the policy, then liability would fall to the RFS (ie the NSW Government) and again it would be a matter for the self-insurance arrangements. Either way if the RFS is liable, it’s the NSW self insurance arrangements that ultimately pick up the bill.
Further, where a vehicle is unregistered, the CTP insurer, after meeting the claims for damages by any injured person, can look to the driver to repay the claim (Motor Accident Injuries Act 2017 (NSW) s 2.29), but they can’t do that if the vehicle was exempt from registration (s 2.37(3)). There is no provision to allow the CTP insurer to recover because a driver of a registered vehicle was unlicensed.
With respect to the various statutory protections for members, it’s true that an unlicensed driver won’t benefit from any exemption under the Road Rules 2014 (NSW) r 306 as it can’t be ‘reasonable’ that any exemption apply for an unlicensed driver. There is a general exemption from liability for fire fighters acting in good faith (Rural Fires Act 1997 (NSW) s 128). An unlicensed driver may be acting in good faith, perhaps he or she doesn’t realise their licence has been cancelled eg for fine default. Even so r 128 does not apply in motor vehicle cases – see Board of Fire Commissioners v Ardouin (1961) 109 CLR 105 and RFS fatal collision and s 128 of the Rural Fires Act (October 14, 2016).
Conclusion on risk
For the RFS the fact that the driver is unlicensed does not increase the risk of an accident and when an accident does occur liability will be dealt with under the normal rules of motor accident compensation law and ultimately be dealt with under the NSW Self Insurance arrangements as it would if the driver were licensed. The driver will enjoy no benefits from statutory immunities but that is also true if they are licensed and involved in a serious accident (see Court of Appeal dismisses appeal by RFS tanker driver involved in fatal collision (October 13, 2017)). Whatever offences they commit will of course be compounded by the fact they are committing the offence of driving whilst suspended, disqualified or unlicensed.
The above discussion is intended to confirm the point that my correspondent made, that the real risk is reputation – ‘one can only imagine the uproar, paperwork and finger pointing that would occur if a suspended/disqualified driver behind the wheel of an ES vehicle was involved in an incident’.
When would you ask members to produce a licence history?
It begs the question of when would should a check on a person’s licence be done? A document confirming a person’s licence status only shows what the person’s licence status was on the day that it was issued. It doesn’t mean they did not have their licence cancelled the next day.
The point of a licence is that it is a document that you can present to confirm your authority to drive. Consider hire cars companies, they rent their cars to drivers on production of a licence, but they have the same issue as the RFS: Is that licence still current? But the point of issuing the licence is to give the driver, and those that need to know, a document that can be relied upon.
You could do a check when a person wanted to upgrade their licence. Depending on how it’s managed in the RFS however people have to pass a knowledge test and if their licence is not current, they won’t be able to sit the knowledge test and they certainly won’t be issued with a licence even if they pass all the driver competencies.
Having said all that, NSW RMS does provide:
… an online Driver Licence Check (DLC) service to authorised organisations, such as heavy vehicle operators to assist them to fulfil their duty of care responsibilities concerning road safety as well as to encourage the promotion of good driving practices…
DLC is an internet application that can be used for organisations to confirm driver licence and demerit point status of drivers engaged, or intended to be engaged, to drive vehicles for their organisation…
DLC is an online service providing:
- Licence Validation Enquiry – to confirm if a driver licence is current and the class of licence
- Demerit Point Enquiry – to confirm if a licence holder has ‘zero’ or ‘one or more’ demerit points accumulated. The demerit points balance is not released.
Presumably the RFS could apply to access that service.
The question was ‘Should the RFS be conducting license checks via the RMS to ensure its drivers hold valid/current licenses …?’ There is no clear answer to this. It’s not a reasonable response to a risk if, indeed, it is considered a risk.
As noted, drivers can produce a licence and that is issued to indicate a person’s authority to drive. If they are not accepted at face value there’s not much point to them, but there can be administrative restrictions that are not shown on the licence.
As noted, where the licence is cancelled by police or court the driver won’t still have a licence. Where it is suspended or cancelled by the RMS the driver may still have their licence, but they won’t be allowed to sit a knowledge test or be issued with a licence if that is contrary to current restrictions. In those circumstances one might consider the issue is low risk.
But there is a risk but whether requiring members to produce a driving history/licence confirmation is a reasonable response to that risk is a matter for the RFS. It is not obvious that the RFS should, or should not, ‘be conducting license checks via the RMS to ensure its drivers hold valid/current licenses’.