Following my last post on the NSW Road Rules and red/blue lights on private cars, there have been many comments which suggest to me that I have not made my argument with sufficient clarity. I’m going to restate the argument below simply in order to try and make my point clearer. Please understand when I use the term ‘you’ I’m speaking to the hypothetical member, not any specific correspondent. Also I’m going to refer to NSW law and, largely, the NSW RFS but the conclusions are the same for other NSW services and similar for interstate services, but different states do use different definitions of what is an emergency vehicle (and these have been discussed in earlier posts – see https://emergencylaw.wordpress.com/category/driving-and-road-rules/).
1. In NSW an emergency vehicle is a vehicle driven by an emergency worker in the course of their duties during an emergency (not defined). It can be any vehicle (Road Rules 2008 (NSW), Dictionary – definition of ’emergency vehicle’ and ’emergency worker’).
2. An emergency vehicle may be exempt the provision of the road rules if it is moving, displaying a red or blue flashing light and/or sounding an alarm and it is reasonable that the rule should not apply (Road Rules 2008 (NSW) rule 306). An emergency vehicle is also exempt the parking rules (Road Rules 2008 (NSW) rule 307). For the purpose of rule 307, red/blue lights are not required.
3. An emergency vehicle may be fitted with a siren (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 33), flashing high/low beam headlights (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 86). An emergency vehicle may be fitted ‘with any light or reflector’ (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 124(3)). Fitting flashing or rotating beacons may also be permitted but only on listed vehicles which includes ‘fire fighting vehicles’ but does not include the generic ‘emergency vehicle’. The list also includes ‘such other vehicles as are approved by the authority’ (Road Rules (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 124(4)).
4. A fire fighting vehicle may have red or blue lights, “an emergency vehicle within the meaning of the Road Rules 2008” may have a red light (Road Rules (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 124(7)).
5. So, a volunteer firefighter, driving a private vehicle in the course of his or her duties, is driving an emergency vehicle (Road Rules 2008 (NSW) Dictionary). Arguably, by virtue of Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clauses 124(3) and 124(7) it can be fitted with a red light. If it is a ‘fire fighting vehicle’ (not defined) it can have red or blue lights (and we can infer that ‘or’ should be read as ‘and’). Equally arguably, by virtue of the Road Rules (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 1, clause 124(4)(q) the red light can only be fitted with the approval of the Roads and Maritime Services (RMS). It is in fact unclear whether the approval of the RMS is required to fit a red light to an emergency vehicle, but in my view their approval is not required. Clause 124(4) allows fire fighting vehicles and the other vehicles listed in paragraphs (a) to (q) to be permanently fitted with red/blue lights whether or not they are then being used as an emergency vehicle. A vehicle is an emergency vehicle only when it is being driven in the course of the response to an emergency (see Road Rules 2008 (NSW) Dictionary – definition of ’emergency worker’) so clause (3) (which allows an emergency vehicle to be fitted with ‘any’ light or reflector) only applies during an emergency. It would, arguably, allow a removable red light to be fitted to a private car, when it is being driven by an emergency worker in the course of his or her duties during an emergency, as it is then an ‘emergency vehicle’. If it is an emergency vehicle and it is displaying a red flashing light, and it is reasonable that the exemption apply, then the exemption in rule 306 could indeed apply.
6. The critical issue is ‘what is the course of one’s duties’? If the RFS says it is not a fire fighters duties to ‘respond’ in a private car, then a driver seeking to respond in their private car is not acting in the course of their duties, as a result they are not driving an emergency vehicle, they cannot have the red light and the exemptions in rule 306 will not apply. The RFS makes it clear that ‘responding’ to the station is not part of a firefighter’s duties, though ‘proceeding’ is (see NSW RFS Response Driving).
7. If a police officer issued a Traffic Infringement Notice for breach of the road rules, rule 306 would not apply as it only applies when it is reasonable that it applies, and no court is going to accept that the exemption should apply if the RFS has specifically instructed fire fighters not to respond to the station and specifically sets out when driving under ‘response’ conditions is appropriate.
8. But the rule is flexible. If the RFS says responding is part of your duties, then all of the above, applies. The RFS may, by practice, accept that firefighters respond in private vehicles; eg it may happen at a local brigade and senior officers know of it and allow it. It may be an express standing order; Group Captains are issued with magnetic red lights and instructed or authorised by ComCen to proceed in their car. Or it may be an ad hoc permission; during a major campaign fire, the IMT hire a bus from a rental company to take relief crews to the staging area and they put a red light on the bus, get an RFS member to drive it and it is, at that point, an emergency vehicle and rule 306 could apply.
9. So, is a private vehicle an emergency vehicle in NSW? Yes, but only if you are driving it in the course of your duties and it is up to the RFS or your emergency service to determine what your duties are. You cannot fit red lights or rely on rule 306 unless response driving in your car is part of your duties. It is, I think, clear that the RFS does not consider that it is the duty of a firefighter to ‘respond’ to the station in response to a pager call, in which case that would not justify fitting red lights or driving contrary to the Road Rules. If the RFS does accept that is part of your duties (by practice, standing orders or ad hoc order) then the result is different. It would lend weight to any argument that response driving in a private vehicle was part of one’s duties if it was the RFS that issued the magnetic red light, rather than a firefighter bought their own.
10. Ultimately these clauses are vague to give flexibility to the RFS (and other emergency services) the police and the courts. If it is reasonable that you have a red light on your vehicle and don’t strictly comply with the road rules (eg driving the hire bus during a campaign fire) then the police and courts can ‘let you off’ not on the basis of hidden discretion but because the law says they can; if it is not reasonable then you can still get a ticket. Neither the police nor the courts are likely to accept that driving or responding contrary to service instructions is reasonable so whilst the emergency services say you are not to have red lights on your vehicle or respond in a private car (whether to the fire ground or to the station) then you should not do it. You may have an argument, so if you did have a magnetic red light, and were responding, and got a ticket, and wanted to spend the money then as a lawyer I’d ‘give it a run’ and a sympathetic magistrate may let you off, but I wouldn’t actually expect to win and if we did, I’d expect the legislature to change the rules and the fire service to take disciplinary action for failing to follow their directives.
11. In short don’t fit red or red and blue flashing lights to a private car without clear authority from the emergency service for which you work and after they have negotiated with the police and the traffic authority for any relevant permission. Absent that authority the prudent advice is ‘don’t do it’.