Perhaps not strictly an ‘emergency’ law question, but interesting enough and it flows from an earlier post – NSW emergency services and the use of a special purpose lane (November 23, 2022). The questions come from the driver of a
… a 12-seat van [used] to transport patients [for a NSW Public Hospital who] … was doing some research into whether I could use bus stops / zones, bus lanes and t-ways when I stumbled on your blog in my search and wanted to highlight some other discrepancies between legal instruments and the outcome of my search. I’m not a lawyer, just a driver, and it wasn’t straightforward.
At work we call the van a “bus”, but there are a few legal definitions of “bus” in NSW:
- Passenger Transport Act 1990 No 39: “Bus means a motor vehicle which seats more than 8 adult persons, and includes a vehicle of any class prescribed by the regulations for the purposes of this definition”
- Passenger Transport Act 2014 No 46: “bus means — (a) a motor vehicle that seats more than 12 adults, or (b) a vehicle of any class prescribed by the regulations for the purposes of this definition”
- Road Transport (Vehicle Registration) Regulation 2017: “bus means a motor vehicle built mainly to carry people that seats over 9 adults (including the driver)”
- Road Rules 2014: “bus means a motor vehicle built mainly to carry people that seats over 12 adults (including the driver)”
Question: Why are there two acts with the same name and why are there three different minimum seating capacities of a bus?
Similarly to the situation with the SES minibus (minibus is not a term used in NSW legislation), I can’t drive my “bus” on bus lanes and t-ways, and additionally, I can’t stop my “bus” at a bus stop / zone and it’s not for “trade or business” and is therefore not a “Public Bus”.
Question: Why can bicycles, motorcycle and taxis use a bus lane but an actual bus can’t?
It is indeed bizarre that there are two Acts with the same title (always an opportunity for confusion, but not unique, see Emergency Management Act 1986 (Vic) and the Emergency Management Act 2013 (Vic)). One would infer that the presence of the two Acts is that the latter is meant to supplement and add to the former but the parliament didn’t want to completely scrap the first one and have to then have various transition provisions to carry forward work done under the earlier Act.
But let us turn to the NSW legislation. The Passenger Transport Act 1990 (NSW) and the Passenger Transport Act 2014 (NSW) both seem to deal with the same subject areas. The 2014 Act refers to the 1990 Act as the ‘former Act’ (Sch 3, Pt 2, s 2). Section 3 of the same schedule provides that things done under the ‘former Act’ continue to apply under the provisions of the new Act. In her second reading speech, the then Minister for Transport, Gladys Berejiklian said ‘This bill brings together provisions relevant to the regulation of public passenger services—including fares and concessions and the air licensing regime—into a single instrument.’ She did not explain why the ‘former Act’ was not repealed. One would have to go through the legislation in detail to see if there is work being done by the 1990 Act or whether it is simply there to ensure that authorities and investigations under that Act still have lawful authority, but why that is necessary 34 years later is not at all clear. In terms of where a bus can drive, these Acts have no application so identifying why the 1990 Act is still ‘on the books’ is not necessary.
The relevant rules will the Road Rules 2014 as they set out the rules about bus lanes etc. As my correspondent has noted, under those rule a bus is ‘a motor vehicle built mainly to carry people that seats over 12 adults (including the driver)’. A public bus, on the other hand is
… 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.
And to make matters even more confusing there is a further different definition of ‘public bus’ when it comes to driving on a tramway(r 155).
Putting aside the rules that allow drivers to enter a bus lane or bus only lane to avoid obstructions or to leave the road, the driver of a public bus (r 154) and the rider of a bicycle, the driver of a taxi, the driver of a Transport for NSW emergency response vehicle, a motor breakdown service (eg NRMA) vehicle, the driver of ‘a police vehicle, ambulance or fire brigade vehicle … while returning to base after proceeding to the scene of an accident or other emergency’ and a Transport for NSW survey vehicle (r 158(2)(c)) may drive in a bus lane, but not a ‘bus only lane’. Only the driver of a public bus may drive in a bus only lane.
When can see therefore that there are both buses and public buses. It is not immediately obvious why there is a definition of ‘bus’ given all the rules about driving and stopping apply to public buses, not buses per se. There are however some rules that apply to all buses, not just public buses. For example rule 106 that relates to a ‘no buses sign’ and where there is a no buses sign, no bus, public or otherwise is permitted to proceed. Equally r 108 relating to ‘Trucks and Buses low gear signs’ applies to all buses, not just public buses. In short it appears that the permissive provisions – the provisions that allow the driver to do something – apply only to public buses, but the restrictive rules apply to all bus drivers.
I’m told my correspondent’s vehicle seats 12. If that is 12 plus the driver it is a bus. If it is 12 including the driver it is not as a bus must carry ‘over’ 12 adults, including the driver. But it may be a ‘public bus’. It seats more than 8 adult persons. Although it is not ‘used to convey passengers for hire or reward’, it is arguable that it is used ‘in the course of … business’. Albrighton v Royal Prince Alfred Hospital [1980] 2 NSWLR 542 was a case that amongst other things considered whether the records of the hospital were admissible in evidence as ‘business records’. The court held that there was no issue that the hospital ‘carried on a business’ ([2] Hope JA) and the records were admissible accordingly.
That makes sense too. If a person owns a bus for whatever reason, the authorities may not want them to operate in bus lanes etc (and I am remined of a former colleague who had a former ACT bus just because he liked collecting old vehicles) but the owner of a large vehicle should follow the safety rules regardless of who they are and why they choose to own a bus. But a bus that is being used to carry patients – strangers to the bus driver as part of the business – should get the same transport benefits even if they are not paying a direct fare.
Let me then turn to the questions:
Question: Why are there two acts with the same name and why are there three different minimum seating capacities of a bus?
The 2014 Act is the modern regulatory Act. Without going through the 1990 Act to see if there is still some specific work for it to do it is not clear why both Acts are there and it seems inconsistent with the Minister’s second reading speech that they are in fact both there. But they are but for all practical purposes it is the 2014 Act that sets out the relevant regulatory regime for public passenger services. Why there are three or four different definitions of what is a bus is because they apply for different reasons, but there is no question that it is confusing and one wonders whether it’s really necessary.
Question: Why can bicycles, motorcycle and taxis use a bus lane but an actual bus can’t?
The black letter lawyer’s answer is ‘because that is what the regulations say’. I think the rule about an ‘actual bus’ is a bus that seats over 12 but is not used for business or hire or reward cannot use a bus lane etc but is required to comply with restrictive rules about buses.
But I think my correspondent’s bus is a public bus as it is used as part of the hospital’s business. But this is not the place for legal advice so my correspondent should not start driving down bus lanes and saying ‘but Eburn said it was ok’. That won’t get you very far. But it would be worth looking at the registration papers to see what they say, do they describe the vehicle as a ‘bus’? It would also be worth escalating the question to the hospitals lawyers (or perhaps NSW Health) and seeking confirmation from Transport for NSW. A hospital operates a business even if it is not operating for profit. It is in the ‘business’ of providing hospital care and if transporting patients is part of its business then the bus is being used for business. If it’s being used as part of the business then it’s a public bus and can use the bus lanes and stop in the bus zones.
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 Associationand 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.
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Australian Emergency Law 
I used to drive both charter tour buses and route service buses in Victoria and I recall being told at the time that hire and reward for a public bus means the passengers are paying the public bus service to ride on the bus; likewise, only such public buses may use bus stops to pick up and drop off passengers; in Victoria, the definition is a motor vehicle used to convey passengers for hire or reward or in the course of trade or business which is greater than 9.5 metres in length; I doubt very much that a patient transport vehicle is legally a bus that can use bus lanes or bus stops, but they would be unlucky to get a cop that would pull them up for doing so..
The key issue is that the definition uses ‘or’. A public bus is a vehicle that is used to convey passengers for hire OR reward OR in the course of trade OR business. I think we can understand the concept of ‘for hire’ – you charter a bus to take your group somewhere. And for reward would cover the fare paying passengers that also brings the service into the definition (in NSW) of a public passenger service. But the course of trade OR Business means something else because if it didn’t those words would not need to be there. I’m not sure what it means to use a bus in the course of ‘trade’ but in the course of ‘business’ I think could extend to say a residential aged care facility providing a bus for residents and a hospital providing patient transport. I therefore think that a patient transport vehicle can legally use a bus lane, but as I say I’m not giving legal advice so no-one should act on my opinion.
All good points; I think the 9.5 metre minimum length in Victoria would rule out the minibus pretenders, however, Victoria specifically bans NEPT buses from bus lanes..
Click to access DTP-Use-of-Bus-Lanes-by-Other-Modes-Policy-July-2024.pdf
Thanks for that link and that is of course Victorian and discussing policy rather than the actual law. As noted in response to another comment I haven’t looked at the law in Victoria but in NSW the right of those like bicycle riders, taxi drivers etc to use a bus lane (but not a bus only lane) is set out in the legislation not in any policy statement. The issue is what is a public bus and it is a bus that carries more than 8 people used in the course of a business.
Re your comment, ‘if it’s being used as part of the business then it’s a public bus and can use the bus lanes and stop in the bus zones’. I am not a lawyer, but do drive a 18 seater bus for two different NFP’s organisations. With one I pick up outpatients, at their homes, or care facility, and transport them to several public hospitals, then bring them home. I cannot use any bus stops, bus lanes as I am not providing transport to fare paying public transport users. The whole idea of the bus express lanes, well in Melbourne anyway, is to get fee paying public transport users from A to B quickly and efficiently, so that they choose to not use their cars thus reducing congestion. The hospitals I drop off at have designated drop off, pick up spots for our use and users are delivered to their place of residence NOT dumped at a bus stop.
I haven’t looked at the law in Victoria but the law is what it says and it says that a public bus is a bus carrying a bus in the course of business. That is what the law in NSW says. It begs the question of what is a ‘business’ but as I say there is at least one case where it was agreed that a hospital is running a business it doesn’t have to be ‘for profit’. It is an arguable point.