Today’s question relates to:

The use of Bus Lanes, Bus Only Lanes and T-Ways by NSW SES vehicles has come up in a recent discussion and we would be interested in your take. 

The NSW SES recently issued T-Way stickers/magnets to all NSW SES vehicles within the Metro Zone, along with information regarding stating along the lines that the T-Way stickers can only be used by NSW SES when attending an incident call out, and only on designated T-Ways (not in Bus Lanes or Bus Only Lanes).

Rule 154 of the Road Rules 2014 (NSW)  states:

154 Bus lanes

  • A driver (except the driver of a public bus) must not drive in a bus lane, unless the driver is permitted to drive in the bus lane under rule 158.

Maximum penalty—20 penalty units.

Looking at rule 158 as mentioned above it states:

158 Exceptions to driving in special purpose lanes etc

(2)        The driver of any vehicle may drive in a bicycle lane, bus lane, tram lane, transit lane or truck lane if—

(a)        …

(c)        …

(v)        driving a police vehicle, ambulance or fire brigade vehicle in a transit lane or bus lane (other than a bus only lane) while returning to base after proceeding to the scene of an accident or other emergency, or

Further to the above two rules, when looking at the dictionary for the Road Rules, a “Public Bus” is defined as:

public bus means a coach.

Note 1—

Coach is defined in the Act to mean a motor vehicle that is—

(a)        constructed principally to carry persons, and

(b)        equipped to seat more than 8 adult persons, and

(c)        used to convey passengers for hire or reward or in the course of trade or business

Also, if we take a look at rule 306 for exemptions for drivers of emergency vehicles:

306      Exemption for drivers of emergency vehicles

A provision of these Rules 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 rule should not apply, and

(b)        if the vehicle is a motor vehicle that is moving—the vehicle is displaying a blue or red flashing light or sounding an alarm.

In rule 157: 

157–1   NSW rule: T-Way lanes

(1)  A driver (except the driver of an authorised T-Way vehicle) must not drive in a T-Way lane.

Maximum penalty—20 penalty units.

TfNSW has issued NSW SES with an authorisation to use T-Ways and also issued a T-Way label/plate to NSW SES Metro Zone vehicles.

With all this information we have the following questions:

  1. There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service? 
  2. Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?
  3. The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN. 
  4. Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?
  5. If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?
  6.  A NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

Some further information

In an earlier post – Changes to NSW Road Rules regarding U-turns by emergency vehicles (November 18, 2022) I referred to changes made by the Road Transport Legislation Amendment Regulation 2022 (NSW).  That Regulation also changed the rules regarding Bus Only lanes.  From 18 November 2022 a new r 154A says:

A driver, except the driver of a public bus, must not drive in a bus only lane, unless the driver is permitted to drive in a bus only lane under subrule (2).

There is no exemption for the drivers of a ‘police vehicle, ambulance or fire brigade vehicle’

T-Ways are unique to NSW. Further, I would infer (given that I haven’t seen a T-Way anywhere else in NSW and my correspondent says ‘T-Way stickers/magnets [have been issued] to all NSW SES vehicles within the Metro Zone’) that they are unique to the Sydney metropolitan area. According to the TfNSW website ‘T-way lanes are special lanes for authorised buses and service vehicles’.  Rule 157-1(4) says ‘authorised T-Way vehicle means a vehicle … approved by Transport for NSW that displays in a prominent position on the vehicle adjacent to each number-plate an authorised T-Way vehicle label or plate’.

One the permit is attached there does not appear to be any limitation, but I note the advice from my correspondent that ‘the T-Way stickers can only be used by NSW SES when attending an incident call out’.  I will accept, without looking into it, that TfNSW can impose conditions on the use of T-Ways beyond the requirement to have the relevant permit.

Bus lanes (r 154) and bus only lanes (r 154A) are not T-Ways (r 157-1).  The T-Way permit is irrelevant when it comes to travelling a bus or bus only lane.

What follows from all of the above is that in the answers we have to consider driving in a T-way, a bus lane and a bus only lane separately.

Answers to the questions

  1. There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service? 

An emergency vehicle is a vehicle driven by an emergency worker (Road Rules 2014 (NSW) Dictionary).  An emergency worker includes:

a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency

There is a new definition in r 317(1-1) that only applies where there is a sign that refers to an emergency vehicle.  That definition includes

(b)        a fire fighting vehicle being driven by a member of any of the following services in the course of the member’s duties—

(i)         a fire brigade, within the meaning of the Fire and Rescue NSW Act 1989

(ii)        the NSW Rural Fire Service or a rural fire brigade, within the meaning of the Rural Fires Act 1997

(iii)       a rescue service,

(c)        a State Emergency Service vehicle being driven by a member of the State Emergency Service in the course of the member’s duties,

If a vehicle of the State Emergency Service fell within the definition of a ‘fire brigade vehicle’ there would be no need for r 317(1-1)(c) above or to distinguish the SES from the fire brigades in the dictionary definition of an ‘emergency worker’.  

The Fire and Rescue NSW Act (NSW) s 3 defines the term ‘fire brigade’ as either ‘a permanent fire brigade or a retained fire brigade, but does not include a rural fire brigade’.  A rural fire brigade is ‘a rural fire brigade formed under Part 2’ of the Rural Fires Act 1997 (NSW).   Arguably the exemption that allows a ‘fire brigade vehicle’ to travel in a bus lane only applies to a Fire and Rescue NSW brigade.  One could argue that the term ‘fire brigade’ should extend to a rural fire brigade but that is not what it says.  I don’t think it is arguable that it extends to the State Emergency Service.

2. Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?

If the SES did fall within the exemptions in rule 158 then yes they could drive ‘in a bicycle lane, bus lane, tram lane, transit lane or truck lane if— returning to base after proceeding to the scene of an accident or other emergency’, but my answer to question 1 is that they do not fall within the exemptions listed in r 158.

3. The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN. 

That’s an arguable point but I suspect the SES is not operating  ‘the course of trade or business’.  Having an Australian Business Number (ABN) is not the same as being a ‘corporation’.  An ABN is used to keep track of payments for tax purposes.  It is separate from issues of incorporation. 

The Country Fire Authority has been found to be a trading corporation – see United Firefighters Union of Australia (‘UFU’) v Country Fire Authority (‘CFA’) [2014] FCA 17 (31 January 2014) (February 12, 2014).  But that is because the CFA did have trading activities (in simple terms where it provided a fee for service) and it is indeed a corporate entity (ie an entity that can sue and be sued and hold property – Country Fire Authority Act 1958 (Vic) s 6(2)). The New South Wales SES is not a corporate entity, it cannot sue and be sued.  The relevant legal entity is the Crown in Right of NSW – the SES is a part of government.  That does not mean it cannot be involved in ‘trade’ but it is not a corporation.

Whether the SES is involved in ‘trade’ would require the sort of analysis that Murphy J applied to the CFA.  I don’t think however that the use of an SES bus to transport SES volunteers would be the use of the vehicle in ‘trade or business’.

My conclusion is that there may be an argument depending on what the bus is being used for but I think it is most likely that it is not being used in ‘trade’ or ‘business’ so cannot be used in a bus lane.

4. Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?

Yes, if the driver of an SES vehicle is ‘providing transport in the course of an emergency’, has the vehicles red/blue lights and/or siren operating, is taking reasonable care and it is reasonably in the circumstances to travel in a bus lane then the driver is exempt from r 154 and may travel in a bus lane, or a bus only lane, or a T-Way, or any other special purpose land.

5. If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?

Yes, see my answer to question 4, above.

6. Is a NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

No, the T-Way label/plate has no relevance to the use of a bus lane. 

Discussion

There is no doubt the law here is a mess. One infers that part of the problem is that the law is written by people who don’t understand the sector.  Parliamentary counsel write law to meet the instructions of their client.  When it comes to the road rules their client will be Transport for NSW, not the relevant emergency services.  It may be that the person in TfNSW doesn’t really understand what the emergency services do.

Rule 158(2)(c)(v) suggests that whoever gave instructions thought that fire brigades and ambulance crews sit on station, respond to an emergency then return to the station to wait for the next emergency. But of course, much of their work is non-emergency work.  For example, rule 158 does not allow an ambulance to be driven in a bus lane if the crew are tasked with a non-emergency inter-hospital transfer even though allowing an ambulance to use the bus lane would be better for both the patient and the efficient use of ambulance resources.

Second the fact that the Rules now have at least two definitions of what is an ‘emergency vehicle’ doesn’t help.  If the sign said ‘Bus lane; emergency vehicles excepted’ then ambulance crews, the SES etc could all use a bus lane.  If rule 158 said ‘the driver of an emergency vehicle may drive in a bus lane’ then that would be an SES vehicle or an ambulance but only when responding to an emergency – and they can, in any event, use a bus lane when responding to an emergency because of r 306.

If the definition of emergency vehicle that is now in rule 317(1-1) had been put, instead, in the dictionary as a definition of ‘emergency vehicle’ for all purposes, rule 158 could have simply been applied to ‘emergency vehicles’ and covered everyone.

Finally, given that we are meant to have national road rules, it’s good to know the rules are not national.  For example, in the ACT there is no exemption for the emergency services (Road Transport (Road Rules) Regulation 2017 (ACT) r 158).  As a former ACT bus driver, I have seen ambulances and police cars in bus lanes – but that’s not permitted by the Rules (emergencies excepted). Equally there is no exception in WA – see WA ambulance in a bus lane (June 21, 2019).

One would hope most of these issues are resolved by the application of discretion.  The law is not self-executing so it is up to a police officer to take the first step and I imagine most police officers will not want to prosecute a NSW SES driver in a bus lane, or stop an ambulance and ask the driver whether they are returning from an emergency or not. But I believe that in life and law, one should ‘say what you mean, and mean what you say’ so if the government wants to exempt all emergency service vehicles (using the definition in r 317(1-1)) they should say so, and if they don’t say so, then one should assume that they do not mean to give that exemption to everyone and they have not given it to NSW SES.

The issue will arise when an SES vehicle collides with a bus in a bus lane.  At that time police will attend, and they cannot simply ignore the rule.  They will have to ask, ‘and why was this vehicle in a bus lane when it’s not entitled to be there?’  It may not determine who was at fault in the accident but the driver could then expect a ticket even though, if there had been no collision, no-one would have cared.

Conclusion

That’s a long answer.  My short answers are:

  1. There is no definition of “fire brigade vehicle” in the dictionary of the Road Rules, is it reasonable to believe this also includes vehicles of the NSW State Emergency Service? 

No

  1. Depending on the above question, for arguments sake if an NSW SES vehicle is within the exemptions outlined in rule 158, is it then reasonable to believe that the NSW SES has an exemption from driving in a bicycle lane, bus lane, tram lane, transit lane or truck lane, when returning to base after proceeding to the scene of an accident or other emergency?

No

  1. The NSW SES has a mini bus (Toyota Coaster) with more than 8 seats, under the definition of “Public Bus” does the NSW SES mini bus meet this definition? Whilst the mini bus is not being used to convey passengers for hire or reward, it is in a way being used in the course of business, noting the State Emergency Service NSW is a registered corporation with an ABN. 

No

  1. Looking at rule 306, when the NSW SES is responding and invoking the exemptions of rule 306, does the driver of an NSW SES vehicle displaying either a red/blue flashing light or sounding an alarm also exempt from rule 154 and is then allowed to use bus lanes?

Yes

  1. If a driver of an NSW SES vehicle is invoking rule 306 and displaying either a red/blue flashing light or sounding an alarm, can they use a T-Way without having to display a T-Way sticker or symbol?

Yes

  1.  A NSW SES vehicle displaying a T-Way label/plate also be exempt from rule 154 and be authorised to use a bus lane (not a T-Way just a normal bus lane)?

No.

This blog is made possible with generous financial support from the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.