This post is in response to a question from a reader who works with Forestry Corporation of NSW (previously Forests NSW and before that State Forests and before that The Forestry Commission).  My correspondent tells me that they have:

… a number of Fire Tankers (55) similar to an RFS Cat 1 and an even larger number of slip on Cat 9 units (250) that are used throughout the state for fire mitigation and suppression works both on Forests Tenure and within 8Km outside Forestry tenure. The Tankers currently have Red/Blue lights and sirens the utes with slip ons have a variety of different warning light configurations but in most cases none at all.

When I started looking into the legal part of this as you would suspect there was no clear answer whether or not we as a Land Management Agency and Fire Authority with responsibility for fire mitigation and suppression can in fact have the benefits (very few I admit) of having red and blue lights and sirens on our dedicated fire fighting vehicles.

This is my view on the matter.

We need, again, to go to the Road Rules 2008 (NSW) and look at the definitions set out in the Schedule at the end of the Rules.  We again remember that an emergency vehicle is:

any vehicle driven by a person who is:

(a) an emergency worker, and

(b) driving the vehicle in the course of his or her duties as an emergency worker.

An emergency worker is

(a) a member of the Ambulance Service rendering or providing transport for sick or injured persons, or

(b) a member of a fire brigade, rural fire brigade or the State Emergency Service providing transport in the course of an emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority.

What is a ‘fire brigade’ is not defined but not anyone can call themselves a fire brigade and then claim to be an emergency worker.   It is an offence to maintain a fire brigade, within a fire district, unless it has been established under the Fire Brigades Act 1989 (NSW) Act or its operations are limited to fighting fires “on premises or land owned or used by the persons or at which they are employed” that is an industry or workplace brigade (Fire Brigades Act 1989 (NSW) s 31).

There does not appear to be an equivalent provision in the Rural Fires Act 1997 (NSW) so presumably a group of people could form the Kickatinalong Bushfire Brigade and operate quite independently of the Rural Fire Service save for the Commissioner’s power to direct all bushfire fighting under a s 44 declaration.

Regardless of that the Forestry Corporation is a firefighting authority (Rural Fires Act 1997 (NSW) Dictionary).  As a fire fighting authority the Forestry Corporation has a number of duties and functions under the Rural Fires Act including functions related to fire fighting (see sections 33D, 44, 64, 65, 83, 86, 87, 88, and 133).  Further it is a function of the Forestry Corporation “subject to the  Rural Fires Act  1997, to carry out measures on Crown-timber land for the protection from  fire  of timber and forest products on that land” (Forestry Act 2012 (NSW) s 11).

I think it can be inferred that an employee of the Forests Corporation who is employed in part to fight fires and is in an organised and equipped group is a member of a fire brigade and therefore an emergency worker.

But as we know that doesn’t authorise the fitting of lights and sirens.  That issue is governed by the Road Transport (Vehicle Registration) Regulation 2007 (NSW) and in particular Schedule 2 that sets out the vehicle standards.  The relevant clause is 124 Other lights and reflectors.  Under that clause “an emergency vehicle or police vehicle may be fitted with any light or reflector” and, further

“… the following vehicles may be fitted with a light or lights, at least one of which must be mounted on top of the vehicle, capable of displaying a flashing or rotating light:… fire fighting vehicles”.  Those flashing or rotating lights “must be capable of displaying: (a) in the case of a … a fire fighting vehicle… a  blue  or red light …”.

Regulation 33 says “A motor vehicle must not be fitted with a device that can make a sound like the sound of a  siren , exhaust whistle, compression whistle or repeater horn” unless it is “an emergency vehicle”.

For the purposes of this regulation there is a different definition of emergency vehicle.  Here an emergency vehicle is

… a vehicle driven by a person who is:

(a) a police officer acting in the course of his or her duties as a police officer, or

(b) a member of the Ambulance Service rendering or providing transport for sick or injured persons, or

(c) a member of a fire brigade or rural fire brigade providing transport in the course of an emergency, or

(d) a person (or person belonging to a class of persons) approved by the Authority.

It’s confusing indeed to talk about in some places, a ‘fire fighting’ vehicle and in others an emergency vehicle so a station wagon being used to convey a group captain to a fire may be an emergency vehicle but it is not presumably a fire fighting vehicle.

I think it is reasonable to infer that a vehicle fitted out for the purpose of fighting fires and operated by the Forestry Corporation is a fire fighting vehicle and is entitled to be fitted with red/blue lights and a siren.

I note that the Vehicle standards information published by the then RTA on 24 November 2010 say blue or blue and red lights may be fitted to “Operational fire brigade vehicles and accredited NSW Rural Fire Service vehicles”.  That does not say vehicles operated or approved by the RFS but operational fire brigade vehicles AND RFS vehicles; they are two different things.  Again the Forestry Corporation being a fire fighting authority the only inference is that their fire fighting vehicles are ‘operational fire brigade vehicles’.

It follows in my view that the Forestry Corporation can fit red/blue lights and sirens to their operational fire brigade vehicles and have whatever benefits that comes with that.

To summarise I’ll answer some specific questions I was asked:

1.            Are we contravening any legislation by having red and blue lights on our dedicated fire fighting vehicles?

Not in my view.

2.            Are we contravening any legislation by having red only or amber only on our dedicated fire fighting vehicles?

The regulations talk about red or red and blue, I can’t see any breach having red only.  I think red and amber is unnecessarily confusing.

3.            Where do the slip ons fit in? (noting your comments on the CFA issue)

The issue in the context of the CFA was that they were private vehicles.  Forestry Corporation vehicles that have a slip on unit are an operational fire brigade vehicle and I can’t see any objection.  It would be a different issue if you were putting them on your private ute and driving to work.

4.            Is a Forest worker and Emergency Service worker? (also noting the workers compensation issue re ‘fire fighters’)

No, but what you mean is are they an ‘emergency worker’ for the purposes of the road rules, and in my view they are.

Now the disclaimer

This is of course, like everything on my blog, my thoughts and opinions but should not be relied upon.  In particular I accept not responsibility or liability should a police officer take a different view and issue a traffic infringement notice or court attendance notice over some issue relating to driving Forestry Corporations vehicles.  What I have put here are the sort of arguments one would put to the police, or a magistrate, should a prosecution occur, but it doesn’t mean that a police officer, or ultimately a court may not take a different view.  The best advice would be from the Forestry Corporations own legal advisers.

Michael Eburn

17 March 2013