Nothing attracts more interest on this blog than the issue of road rules.  Following my post on the use of mobile phones, I have been contacted by an RFS volunteer who asked:

… it does trouble me that there is a lack of clarity on these issues. As a volunteer member of the NSW RFS, we are often not well informed of such legal requirements, and usually subject to RFS policy directives – which prohibit the use of such exemptions in most circumstances. RFS members are generally not well informed of the legal requirements and exemptions, as there is the prevailing (but incorrect) attitude that exemptions & legal protection are provided by the NSW RFS directly…

This answer does refer to the NSW Road Rules but do remember they are, generally, the same across Australia, and so where I refer to the RFS you can substitute the acronym for your own service.

It is true that the RFS policy only gives depth or meaning to the law; in the event of any inconsistency the law will apply, but what that really means is that the RFS can’t give more rights than the law, but they can restrict or give meaning to the law.  That affects the next questions:

Firstly. When is an emergency worker considered to be ‘on duty’?

That is in part answered by the RFS.  The definition of an emergency vehicle is a vehicle driven by an emergency worker. An emergency worker includes ‘a member of a fire brigade, rural fire brigade or the State Emergency Service providing transport in the course of an emergency’.      What is an ‘emergency’ is not defined in the Road Rules.   It is up to the RFS to determine what constitutes, for their purposes, ‘an emergency’ that is when are they going to authorise travel under lights and sirens.   Presumably it is in response to a triple zero call but there will be other circumstances when the standard response is an ‘urgent’ response.    So whether the RFS consider you are ‘on duty’ is a matter for them to determine how that should work.

If as a volunteer firefighter, I were to encounter a motor vehicle accident as a private citizen, or respond to incident in private vehicle, or respond as a “community first responder”, do these exemptions have immediate effect on my private vehicle? Can I be charged for creating a road block, or illegally parking, or mobile phone use, in my private vehicle, while attempting to control the siduation? Would I need to phone Fire Control and inform them that I am ‘on duty’?

If you encounter an MVA and step out to provide assistance, then it’s not really an issue.  You are like everyone else.   Presumably you’ve got out of the car, or stopped it, so using the mobile phone, say to ring triple zero will not be an issue.  As for stopping the vehicle, rule 165(c) says:

It is a defence to the prosecution of a driver for an offence against a provision of this Part if:…

c) the driver stops at a particular place, or in a particular way, to deal with a medical or other emergency, or to assist a disabled vehicle, and the driver stops for no longer than is necessary in the circumstances

So if you come across an accident, take reasonable action to control the situation and ring triple zero and follow the directions of the police or other ‘on duty’ emergency service personnel, then you would not expect to be charged.

If you are responding in a private vehicle then presumably that is in accordance with service policy; so if we assume you are a group officer proceeding to an incident to supervise various brigades and you are responding in your own car, and in accordance with RFS policy then you are an emergency worker, and your car is an emergency vehicle but you get no driving exemptions unless you have a red or blue flashing light or a siren.  Assuming you don’t have those you have to obey the road rules (remember the rationale here is to protect other drivers who won’t expect you to do anything other than obey the road rules if they can’t identify your car as an emergency vehicle) but the phone (rule 300) and parking (rule 307) exemptions will apply, so you can expect to park at the incident and not get a ticket.

Whether you need to contact FireCom will depend on what the RFS requires.

Secondly. Is there are robust definition as to what is considered ‘reasonable’? Who’s judgement is applied when considering whether or not it is “reasonable that an exemption apply”? As per Rule 306 or 307.

No, there is no robust definition of what is ‘reasonable’ for the very reason that if it was too prescriptive, all the issues and circumstances that you can imagine could not be taken into account.  The word ‘reasonable’ means ‘reasonable in all the circumstances’ so all the circumstances have to be taken into account.  Rule 306 says that for the rule to apply it must be the case that:

(i) the driver is taking reasonable care, and

(ii) it is reasonable that the rule should not apply,

What is reasonable care will depend on the circumstances.  Travelling at 120km/h on a 100km/h roadway may be ok, doing that speed through a school zone would not be reasonable.

Whether it is reasonable that rule should apply would again go back to the service and it’s directions.  Is it reasonable to proceed with lights and sirens and seek to rely on the exemption? It is if the service you are working for has determined that the response required is an ‘urgent’ response, so the SES may direct it’s drivers that responding to a ‘rescue’ (where they are the accredited rescue unit) requires lights and sirens, but a tree down, does not; or the ambulance service saying all response to a triple zero call is ‘urgent’ or whatever the RFS says warrants an urgent response.  If you are proceeding to light a hazard reduction burn it would not be reasonable that the exemption should apply; if you are responding to a fire call, subject to RFS policy, it will be.

It was said ‘RFS policy directives – which prohibit the use of such exemptions in most circumstances’; if the RFS have prohibited any particular conduct, it would not be ‘reasonable’ to then engage in conduct that is contrary to that policy and then try to argue that you are allowed to engage in that conduct because you are an RFS volunteer.  That takes us back to the first point; it is correct that the RFS does not make the law, or override the law, but they can help give it meaning, for example if they prohibit driving above the speed limit, then, on the face of it, it would not be reasonable to travel above the speed limit and prima facie rule 306 could not apply.  But as you not it is the law that determines what is allowed so if, for example, the RFS had a policy that you were never to exceed the speed limit, but you had on board your fire truck a critically injured person and you were proceeding to meet an ambulance, then you could argue that travelling at 110km/h in a 100k zone was ‘reasonable’.  Equally, complying with RFS policy would be evidence that it is reasonable that the rule should apply, so proceeding under lights and sirens in response to a triple zero call would, prima facie, be reasonable if that accorded with service SOP’s even if it turns out that there is no actual emergency.  But compliance with policy is not automatically reasonable, so an SOP that says  ‘proceed with all urgency to a triple zero call’ but that won’t justify running through a crowd.

To put that another way, compliance with service SOPs is a factor, albeit an important factor, in determining whether or not the driver’s conduct was ‘reasonable in the circumstances’.

Finally you asked who decides? Firstly the driver has to make a decision about what is reasonable.  If a passenger tells the driver ‘clear left’ it is still, always, up to the driver to make sure that their actions are safe.  If the driver believes they were acting reasonably, the next person’s opinion, that counts, is a police officer.  If they think the actions were not reasonable, or that it was not reasonably to apply one of the exemptions, then they will issue a traffic notice or a court attendance notice.  Finally the issue is up to a Magistrate (assuming the driver wants to go that far).  In a Magistrate’s court the police will call their evidence and the driver can call his or her evidence to show why their conduct was reasonable in all the circumstances.

You asked therefore ‘Can I be charged…’ the answer is ‘yes, you can be charged even if you did everything right, if a police officer doesn’t agree with you’, but that is true for all of us all of the time; that is why we have independent courts, to judge these matters.

Will you be charged?  That’s a different question but in most cases it’s unlikely.

There is some lack of clarity by the use of words like ‘reasonable’ but that is to ensure that the rules aren’t too restrictive and can be used to take into account all the possible variables that could not be determined by public servants (who write the regulations) or the parliamentarians who write the legislation.

I hope that helps.

Michael Eburn