Today’s question was inspired by a news story from Victoria –  Sophie Coghill, ‘Driver’s $481 ‘lesson’ after split-second red light mistake’ Yahoo News (undated).  The tag line is ‘Desperately trying get out of the way of an emergency vehicle, the driver ran a red light. A move that came with an eye-watering penalty.’

My correspondent says “I thought this one would be good for a discussion as many emergency responders in Victoria are of the impression a driver can contravene a road regulation so as to give way or keep clear of emergency vehicles.’

On reading this question I thought ‘I’ve answered that’ and indeed I have – see Making way for emergency vehicles (May 18, 2015).  Looking at that answer made me think:

1. Some questions never get old;
2. I’ve been doing this for a long time, that’s 9 years ago! And
3. It’s amazing how I can recall what I’ve written in that time. 

Putting all that to one side, given it was 9 years ago we can revisit the answer with updated references.

Executive summary

The law in all states and territories, other than Western Australia, says that drivers must make way for emergency vehicles and can do so, provided it is safe, even if that causes them to breach another provision of the Road Rules eg by driving through a red light.

Details

Conflicting advice

… the Bundaberg police say [at https://mypolice.qld.gov.au/bundaberg/2015/03/16/myth-buster-emergency-vehicles/]

Any emergency service vehicle with emergency lights and/or sirens operating have priority right of way under ALL circumstances.

If behind you, you MUST pull over and allow the emergency vehicle room to pass. You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

They are not alone; the Queensland Government also says ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ (https://www.qld.gov.au/transport/safety/rules/other/emergency-vehicles/driving-on-road (5 January 2017)).

The Western Australia Road Safety Commission, on the other hand, say ‘Don’t break the law. There’s no excuse for speeding or going through a red light’ (https://www.wa.gov.au/organisation/road-safety-commission/emergency-services-vehicles (11 June 2024)).

 The National Roads and Motorists Association (the NRMA) says (at https://www.mynrma.com.au/cars-and-driving/driver-training-and-licences/resources/what-should-i-do-when-i-hear-emergency-sirens (undated)).

‘Never run a red light

If you are waiting at a red light when you hear a siren behind you, you must not go through a red light, as it might put other road users in danger. Move to the left if you are able to. If not, it is the emergency vehicle’s responsibility to find another route through, or wait until safe to do so.’

The Australian Federal Police do not commit themselves one way or the other (https://www.police.act.gov.au/road-safety/share-road/emergency-vehicles ) neither do the police in Townsville (also in Queensland) (http://mypolice.qld.gov.au/townsville/2013/05/22/keeping-clear-of-police-and-emergency-vehicles/ ). The AFP, in a video produced to show what drivers should do say (at 22 secs) drivers should move out of the way ‘safely and legally’ but they do not give advice on what ‘legally’ means in that context.

The Australian Road Rules WA and Qld

What’s the correct answer? The Australian Road Rules are meant to be nationally consistent, but there are discrepancies so I’m going to refer to both the Queensland and West Australian versions.

The first relevant rule says that the driver of an emergency vehicle is exempt from the road rules provided they are taking reasonable care and sounding a sire or displaying a blue or red flashing light (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 306; Road Traffic Code 2000 (WA) r 281).   In neither jurisdiction does that exemption apply to everyone and for obvious reasons.  An emergency service vehicle gets the exemption in part because it is fitted with emergency warning devices and, hopefully, hi-vis markings (see https://ambulancevisibilityblog.wordpress.com/).   The siren is meant to draw people’s attention to the presence of a vehicle nearby and the lights and markings draw attention to where it is.  A person who hears a siren may be looking for an emergency vehicle and will not expect a private vehicle to move into their path.  The Queensland rule 306 and Western Australia rule 281 provide an exemption for the driver of an emergency vehicle only, and not someone trying to get out of the way of an emergency vehicle.

What is the obligation upon other road users when an emergency vehicle approaches them? In Western Australia (Road Traffic Code 2000 (WA) r 60):

(1) A driver must give way to, and make every reasonable effort to give a clear and uninterrupted passage to, every police 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.

(2) This regulation applies to a driver despite any other regulation that would otherwise require the driver of a police or emergency vehicle to give way to the driver.

If the lawmakers intended that ‘This regulation overrules any other road rule’ they would say so.  For example, in Western Australia ‘Every pedestrian and driver must obey the signal by hand or the reasonable oral direction given by a police officer’ or other authorised officer (Road Traffic Code 2000 (WA) r 272(1)).  What if the police officer directs the driver to do something that is contrary to some other provision of the regulations? That is provided for in regulation 272(2) which says:

It is a defence to any prosecution notice of a breach of these regulations that the accused was, at the time of the alleged offence, acting in conformity with a signal or direction given under subregulation (1).  

This is an example where the lawmakers have determined that the obligation to obey police does ‘overrule’ the other road rules, and that is clearly stated. If the obligation to make way for emergency vehicles was to ‘overrule’ the other road rules, then some similar statement would also appear in the Road Traffic Code 2000 (WA) r 60, but it doesn’t. Regulation 60(2) does not say the obligation to make way applies regardless of any other rule eg a rule to stop at a red light. It says that it applies despite any other rule that would otherwise give the driver right of way over the emergency vehicle.

In Queensland it is different.  In Queensland the Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 78 says:

(1)…

(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.

Penalty—

Maximum penalty—20 penalty units.

(3) This section applies to the driver despite any other section of this regulation.

The differences are substantial. The Western Australia law says the driver must make a ‘reasonable effort’.  What is reasonable depends upon all the circumstances, and must consider other relevant laws.   In WA a driver facing a red traffic light ‘shall stop as near as practicable to but before reaching the nearest appropriate traffic‑control signal and shall not proceed beyond the signal’ (Road Traffic Code 2000 (WA) r 40(1)(a))). Asking what is reasonable must take into account that the driver must not proceed beyond the signal.  It would not be reasonable to pass the red signal nor would it be reasonable to expect the driver to do so.

In Queensland the obligation upon a driver to make way for an emergency vehicle is more assertive.  In that state the driver ‘must move out of the path of the vehicle’ (emphasis added).   As in Western Australia, a Queensland driver facing a red light ‘must stop’ at various places identified in the regulation depending on the type of intersection, and must not proceed until the signal changes to ‘green or flashing yellow’ (Transport Operations (Road Use Management–Road Rules) Regulation 2009 (Qld) s 56).    So now there are two conflicting provisions, the driver ‘must’ move out of the path of the emergency vehicle but must stop at the red light.   How is that conflict resolved?  As noted above r 78(3) says the obligation in Queensland applies ‘despite any other section of this regulation’,  that is in Queensland, the obligation to make way for an emergency vehicle does appear to ‘overrule’ the other road rules, and that is clearly the view of the Queensland regulators.

So what’s the correct answer?  The advice that ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ applies in Queensland, but not in Western Australia.

Other jurisdictions

Western Australia seems to be the exception because the law is in the same terms of the Queensland law in:

• The ACT (Road Transport (Road Rules) Regulation 2017 (ACT) r 78(2) and (3));
• New South Wales (Road Rules 2014 (NSW), r 78(2) and (3));
• The Northern Territory (Traffic Regulations 1999 (NT), Schedule 3, cl 78(2) and (3));
• South Australia (Australian Road Rules (SA) r 78(2) and (3)));
• Tasmania (Road Rules 2019 (Tas) r 78(2) and (3)); and
• Victoria (Road Safety Road Rules 2017 (Vic) r 78(2) and (3)).

Discussion

Of course, it’s never that simple. The NRMA’s advice is that ‘…  you must not go through a red light, as it might put other road users in danger’ (https://www.mynrma.com.au/cars-and-driving/driver-training-and-licences/resources/what-should-i-do-when-i-hear-emergency-sirens)?  Well that’s true, but that doesn’t deal with the law which appears to say that a driver can breach another road rule if they are required to get out of the way of an emergency vehicle provided it is safe to do so.  If the NRMA thinks it is never safe then there advice is correct but as I like to say, context is everything so the circumstances in each case would need to be considered.

 If a driver does enter an intersection with a red light camera they could expect to receive a traffic infringement notice if the officer reviewing the photo doesn’t see the emergency vehicle and he or she may also take a different view on whether the driver’s actions were ‘safe’.   The driver would need to write to police asking them to withdraw the notice and if that fails, elect to take the matter to court and argue the issue before a Magistrate.  That, in turn, may require that the driver makes inquiries with the relevant emergency service to confirm that they had a vehicle proceeding at that intersection at that time and in an extreme case, the driver may want to subpoena the driver of the emergency vehicle to confirm that the actions taken were safe.    At that point one might decide it’s just easier and quicker to pay the ticket.

If a driver does enter an intersection or cross to the wrong side of the road and have an accident, then it is axiomatic that they did not do so when they could ‘do so safely’.  They could expect, at least, a traffic infringement notice.    Should someone be killed or injured they could expect to get charged with a more serious offence eg ‘Dangerous operation of a vehicle’ (Criminal Code (Qld) s 328A).  Equally if they are involved in a collision the other driver, or their insurer, would no doubt look to the driver-at-fault’s insurer with all the implications that has for the no-claim bonus and next year’s premium.  The fact that the driver was making way for an emergency vehicle will not mean the accident was not their fault, ie that they were not negligent, if they travelled through a red light or onto the wrong side of the road in a way that was not safe.

Further the exemption under r 78 only applies to offences contrary to the road rules. Other offences are set out in other legislation for example the offence of careless driving is set out in Road Safety Act 1986 (Vic) s 65.  If a police officer thinks the driver went through a traffic light to comply with r 78, but did so carelessly, they could be charged with that offence as r 78 does not give any exemption from the offences in the Act.

To return to the story that prompted this question, the story says

… the white sedan was approaching a highway intersection inMelbourne’s southeast suburb of Cheltenham when the fire engine with “lights and sirens active” sped towards it. In a split-second decision, the driver decided to turn right to move out of the emergency vehicle’s way and was caught by a red light camera overhead.

“I panicked and went through 2.2 seconds late… the second right turning lane was blocked by a stationary vehicle and I was still coming to a stop, they [the fire engine] chose my lane hence the panic and desire to follow the cars through the red,” the driver wrote on social media, explaining they had been driving at 80 km/h before slowing as they approached the traffic lights.

It may be that the police think that completing the right turn was not safe and there may have been other options eg travelling through the red light but not crossing into the path of oncoming traffic.  We cannot say whether the driver complied with r 78(2) and (3) without access to the photos, details of the road and traffic conditions at the time, and an understanding of the police officer’s reasoning as to why r (3) did not apply (assuming the officer did in fact consider r 78(3)).

Conclusion

Fundamentally the Road Rules in every jurisdiction, other than WA, allows the police to choose not to issue a ticket and be able to justify their action according to law but it does put a very large burden on the driver who, without training and without emergency warning devices, must make a quick and potentially very dangerous call.   The clause may allow, even require, a driver to enter an intersection against a red light or cross to the wrong side of the road, but they do so at their own risk.

If they do receive an infringement notice they can seek a review and if that is not successful, they could apply to have the matter determined by a magistrate.  Many would think that is not worth the cost or effort.  Further, for a definitive precedent we’d really need either the informant or the driver to take their case to the Supreme Court as an appeal against the Magistrate’s decision (depending on whether the Magistrate set aside the infringement in which case it would need to be the informant who appeals or upholds the infringement in which case it would be up to the driver to appeal).   Whether there is a case that warrants that sort of effort would depend on the facts.  One cannot know whether this most recent example has the necessary facts to warrant such a cost and effort.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), 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.