It’s been a while since I posted on this blog, so there’s been few legal developments (as opposed to recommendations for legal developments) or at least none that have been brought to my attention. This post is in response to a question from a subscriber and returns to the issue of fitting red/blue lights to private cars, this time in NSW and the ACT.
An edited version of the email I’ve received is below:
I am a New South Wales Rural Fire Service volunteer …[I live in the] ACT and my response time to the station [is] … about 20 minutes … even at night in minimal traffic. Being a relatively small brigade, the truck has usually left within about 10 minutes with three or so members and there generally aren’t enough troops for a second turn out.
With this in mind, I have been researching what the requirements would be to fit red or red and blue flashing lights and a siren to my personal vehicle and the legality in regard to using it. I have the slight advantage of having properties that I reside in in both ACT and New South Wales … so I can register my vehicle in either jurisdiction.
This issue has been addressed on this blog before but in relation to other jurisdictions including Queensland, Victoria and Tasmania. The answer will require looking at how the Australian Road Rules have been incorporated in NSW and the ACT as well as how the design standards have been implemented in each jurisdiction. Before that however there are I think some general comments that are probably worth repeating. In my post Further discussion on the use of red warning lights I said:
I have been asked many questions about whether or not people can fix flashing warning lights to their vehicles; a safe starting point is to assume that the answer is ‘no’. No-one is going to be allowed to fit red/blue or other flashing lights to their own vehicle on their own initiative. The lights have meaning and implications for other road users so they will not be permitted without official sanction. The argument, above [that fitting the lights is lawful], appears logical but if one applies a ‘reality’ test, it can’t be correct, so the trick is to look elsewhere to see if there are restrictions.
The issue in NSW has been discussed in comments on my post Red/blue lights on CFA Slip on unit so I’ll start there.
Under the Road Rules 2008 (NSW) an emergency vehicle is a 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 includes “a member of a … rural fire brigade … providing transport in the course of an emergency” (both these definitions are found in the Dictionary that is set out at the end of the Rules and which define words for the purposes of those rules, see Road Rules 2008 (NSW) s 4).
What can be fitted to vehicles in the way of lights is set out in the Australian Vehicle Standards that are, for the purposes of NSW, set out in Schedule 2 of the Road Transport (Vehicle Registration) Regulation 2007 (NSW). Rule 33(2) says “A motor vehicle must not be fitted with a device that can make a sound like the sound of a siren… “ however that rule does not apply to ‘an emergency vehicle’ (rule 33(3)).
Rule 124(3) says “an emergency vehicle or police vehicle may be fitted with any light or reflector” but that does not extend to a flashing light – only vehicles listed in rule 124(4) may be fitted with flashing warning lights and that list does not include ‘an emergency vehicle’ – the list is more restrictive and for fire fighting, refers to ‘fire fighting vehicles’.
In theory, then, a vehicle driven by a member of the Rural Fire Service, who, in the course of his or her duties is providing transport in an emergency’ could be fitted with a siren and any light other than a flashing light; but even that can’t be correct and it’s not and the reason it’s not is the vague definition of what ‘duties’ and ‘emergency’ might mean.
My correspondent noted that and asked:
“… at what point am I undertaking duties? In my opinion, it is from the moment I am made aware of the emergency and make the decision to attend; I put the uniform on and get into my car to travel to the station. My understanding is that the moment I get that call and travel to the station I am covered by the service’s insurance policy, so I would expect that is when I am undertaking my duties.”
That may be correct in that the Workers Compensation (Bush Fire, Emergency And Rescue Services) Act 1987 (NSW) may apply as you turn out from home and make your way to your station so let us assume, for the sake of the argument, that you are performing ‘your duties’ at that time, but that doesn’t answer what your duty is. Here I’m going to go out on a limb as I don’t have ready access to all RFS policy documents though the document “Response Driving” is available on the web (see http://www.rfs.nsw.gov.au/file_system/attachments/State08/Attachment_20130204_6496F640.pdf). That document says:
“Driving under emergency conditions starts from receipt of the instruction to ‘respond’ in an RFS vehicle and stops when there is no longer a risk at an incident or a requirement to respond.” It goes on to say “Members in private vehicles driving to the brigade station or direct to the incident are to observe all Australian Road Rules at all times.”
So you may be proceeding to the station as part of your duties in order to respond to an emergency, but it is not part of your duties to ‘respond’ to the station. Response driving is only part of your duties when you are instructed to do so by the “Incident Controller (IC), District/Team/Zone Manager (D/T/Z) or other person with delegated authority.”
As I said before, “The argument, [that fitting the lights and sirens is lawful], appears logical but if one applies a ‘reality’ test, it can’t be correct, so the trick is to look elsewhere to see if there are restrictions.” You can bet that if you put lights/sirens on your private car the police will pull you up and issue a traffic infringement notice or defect notice. You could go to court and argue the case, above, and there would be some merit in it, but I suspect a Magistrate would hold that given the RFS does not issue the lights/sirens and specifically directs that driving is not to be other than in accordance with the rules, that use of the lights/sirens is not part of your duties so if you use them you are not acting in the course of your duties and therefore you cease to be an emergency worker and the vehicle ceases to be an emergency vehicle; and in any event it cannot be reasonable for any exemption from the rules to apply (Road Rules 2008 (NSW) rule 306) if the RFS says they are not to apply, so even if fitting the lights/sirens is not unlawful, their use would not give you any exemption.
You could apply to the roads authority for approval to fit lights/sirens but without the support of the RFS you would think that approval would never be given.
In short, there is some legal argument to say that fitting a siren and lights is authorised under the Act, but it’s not an argument that I think any court would accept. You cannot fit red/blue lights and sirens to a private vehicle. If the RFS wanted you to respond to the station, they would provide the vehicle to allow you to do that.
I’m not going to now go through the equivalent for the ACT (see Road Transport (Safety and Traffic Management) Regulation 2000 (ACT) and Road Transport (Vehicle Registration) Regulation 2000) but the conclusion will be the same.
The problem no doubt is in the definition of emergency vehicle which in these jurisdictions is any vehicle driven by an emergency worker, other states are more restrictive and talk about vehicles owned by the relevant agencies. This broader definition does give flexibility so in an emergency any vehicle can be an emergency vehicle if being used in the emergency response. When the regulations then go on to say, as they do in the ACT, that an emergency vehicle is an ‘exempt vehicle’ and an exempt vehicle “may be fitted with any light or reflector” (Road Transport (Vehicle Registration) Regulation 2000 (ACT) Schedule 1, clause 1.124) then the argument that these can be fitted to private vehicles, used in the course of one’s duties, is clearly open. But no one, not the RFS nor the traffic authorities want lights, or sirens, fitted to private vehicles. If it went to court I don’t think a magistrate would hesitate to say that they are not permitted as their use is not required by, or part of an RFS member’s duties unless the RFS has said so and itself issued the necessary equipment.
To reiterate, it is arguable that you can fit lights to a vehicle used by a volunteer (particularly in the ACT given the Road Transport (Vehicle Registration) Regulation 2000 (ACT) Schedule 1, clause 1.124) but without support from the RFS neither the police, nor I warrant, a magistrate is going to accept the argument and you should expect to be prosecuted. In that sense it’s the sort of argument that, as a lawyer, if my client were charged I would ‘give it a run’ but I wouldn’t actually expect to win. Of course one might win, particularly if you were prepared to take it on appeal to the Supreme Court where the letter of the law is considered in a much more objective way, but if you did, I’m sure the legislature would move very quickly to change the law.
The Act and Rules/Regulations could certainly be drafted better to say for example, that an emergency vehicle is a vehicle “approved by the Commissioner” in which case the Commissioner could nominate what vehicles are ‘emergency vehicles’ and could (either personally or by a delegate) extend that if necessary to vehicles drafted into the emergency response.
In the meantime, the road authorities will never give authority without the support of the RFS and I would expect that a member who went ahead and installed such warning lights could also face disciplinary action and possible removal from the RFS (see Rural Fires Regulation 2013 (NSW) regulations 7 and 9).