This question comes from a protective service officer who says:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so?

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

The AFP work nationwide but given my correspondent has referred to the NSW Vehicle Standards, I’ll answer using NSW law.

The Australian Federal Police force is established by the Australian Federal Police Act 1979 (Cth).  The Australian Federal Police consists of the Commissioner, the Deputy Commissioner, AFP employees, special members and special protective service officers (s 6).  A special protective service officer is ‘a person appointed under section 40EC’ (s 4).   Section 40EC says:

The Commissioner may … appoint a person as a special protective service officer of the Australian Federal Police to assist in performing the protective service functions of the Australian Federal Police.

The ‘protective service functions of the Australian Federal Police’ are defined by the Minister (s 8A).  A special protective service officer is an AFP appointee which is a generic term intended to mean all the staff of the AFP so sworn police officers, protective service officers and special members.   A member of the Australian Federal Police is an AFP employee who has been declared to be a member of the AFP (s 4).  The implications of all that is that the AFP consists of special protective service officers, special members and other AFP employees.  Only those AFP employees who have been declared to be ‘members of the AFP’ are police officers.   What I infer is that a ‘special protective service officer’, although an AFP appointee is not a member of the AFP ie he or she is not a police officer.

Now to the road rules; remember that rules provide that the driver of an emergency vehicle is exempt from the road rules (rule 306) as are drivers of police vehicles (rule 305).   As my correspondent has noted, rule 306 applies to vehicles driven by an emergency worker in the course of his or her duties as an emergency worker – an emergency worker is

(a) a member of the Ambulance Service or the ambulance service of another State or Territory, in the course of providing transport in an emergency associated with the provision of aid to sick or injured persons, or

(b) a member of a fire or rescue service operated by a NSW Government agency, a member of the State Emergency Service or a member of a fire brigade (however referred to) or rescue service of the Commonwealth or another State or territory, providing transport in the course of an emergency, or

(b1) a member of Airservices Australia providing transport in the course of a fire or rescue emergency, or

(c) a person (or a person belong to a class of persons) approved by the Authority.  (Rule 4 and Dictionary).

Clearly the AFP does not fall within those definitions.

Rule 305 says:

(1) A provision of these Rules does not apply to the driver of a police vehicle if:

(a) in the circumstances:

(i) the driver is taking reasonable care, and

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

(b) if the vehicle is a motor vehicle that is moving-the vehicle is displaying a blue or red flashing light or sounding an alarm.

Police may benefit from this rule even if they are not displaying a red/blue light or sounding a siren and that is reasonable in the circumstances (Rule 305(2)).

A police vehicle is ‘any vehicle driven by a person who is: (a) a police officer, and (b) driving the vehicle in the course of his or her duties as a police officer’.  A police officer is ‘a member of the NSW Police Force who is a police officer within the meaning of the Police Act 1990’ (Rule 4 and Dictionary).    One would assume that a member of the AFP is not a member of the NSW police however, the Police Act 1990 (NSW) provides that members of the AFP may be appointed as recognised law enforcement officers.  This may be done either individually or as a class.  An audit report on police at Australia’s airports says ‘AFP officers in NSW have been sworn in as Recognised Law Enforcement Officers (RLEOs) under NSW legislation’ (ANAO Audit Report No.23 2013–14, Policing at Australian International Airports, p 44, [2.12]).

A recognised law enforcement officer ‘may exercise all the functions (including powers, immunities, liabilities and responsibilities) that a police officer of the rank of constable duly appointed under this Act has and may exercise under any law of the State (including the common law and this Act)’ (Police Act 1990 (NSW) s 207E(1)).  Further ‘a provision of any Act or statutory instrument applies to a recognised law enforcement officer in the same way as it applies to a police officer in his or her capacity as a police officer’ (s 207E(3)).  It follows that even though AFP officers are not members of the NSW Police, the road rules will apply to them as if he or she was a police officer; so yes police officers with the AFP can rely on rule 305.

But Protective Service Officers are not police officers – so that provision won’t help.   It appears therefore that ‘protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently’ but there is one more argument.  A special protective service officer has:

(a)  any powers and duties that are expressly conferred or imposed on special protective service officers under a provision of this Act or any other Act; and (b)  such of the powers and duties conferred or imposed on protective service officers as are specified in his or her instrument of appointment ( Australian Federal Police Act 1979 (Cth) s 40ED).

Whilst I very much doubt that the Commissioner has given special protective service officers the power to drive without regard to NSW road rules in the instrument of appointment, he or she may have been given police powers that are sufficiently generic such as ‘all the powers and duties of a police officer’ or the like.

Without going into the details of what might be, the Australian Constitution provides that if there is an inconsistency between a State law and a Commonwealth law, the Commonwealth law prevails (Australian Constitution s 109).   If the Commissioner has given some relevant power in the instrument of appointment, that could override any inconsistent state law.  I am unable to verify if that is the case but I do have to say I suspect that it is unlikely.  So AFP Special protective service officers can benefit from s 305 if the Commissioner of NSW Police has appointed them as recognised law enforcement officers or there is a valid Commonwealth law, or power in his or her instrument of appointment that allows them to do so.

The next question is ‘can protective services officers use lights and sirens to attend a job whilst abiding by all road rules?’  The answer has to be ‘no’.  The point of lights and siren’s is to warn other drivers and there are obligations upon other driver’s to give way to emergency service and police vehicles (Rule 79).   Further it is a defence to stop, where it would otherwise be unlawful to stop, to comply with another rule (rule 165) so a driver who pulls over and stops to let a police vehicle with lights and sirens on pass, commits no offence.   In short if you have lights/siren on other vehicles are required to make way for you.  It would lead to confusion if, for example, you stopped at a red light with lights/siren on, other vehicles stopped to give way, but you stayed stopped at the intersection.  Driving with lights and sirens on does nto give you permission to drive recklessly or dangerously but it would increase the danger if people made way for you but you then did not act on that courtesy as you can’t break the road rules.

If the vehicle is not a police or emergency services vehicle, (which it’s not if it’s not being driven by an emergency worker or police officer, even if it’s a marked police care) then it is an offence to ‘use a device to make a sound like the sound of a siren’ (Rule 224-1), and a siren makes a sound like a siren!

As for fitting lights and sirens to AFP vehicles; the Road Transport (Vehicle Registration) Regulation 2007 (NSW) says that a vehicle must not ‘be fitted with a device that can make a sound like the sound of a siren’ unless, amongst others, it is a police vehicle or an Australian Protective Service vehicle’ (Schedule 2, clause 33).   That is the only mention of Australian Protective Services in the Regulation.

There remains the general catch all- an emergency worker includes ‘a person (or a person belong to a class of persons) approved by the Authority’ as an emergency worker (Road Rules 2008 (NSW) r 4 and Dictionary, definition of Emergency worker); a vehicle may be fitted with flashing blue/red lights if they are ‘approved by the Authority’ (Road Transport (Vehicle Registration) Regulation 2007 (NSW) Schedule 2, clause 124).

Conclusions

Let me return to the questions:

As far as I am aware, protective service officers of the AFP cannot claim exemption from the road rules using 305 or 306, even though they may attend emergency situations or needed to attend urgently.

They could rely on clause 305 if they have been appointed as a ‘recognised law enforcement officer’ by the Commissioner of the NSW Police.  This appears unlikely and is more relevant for members of the AFP (as opposed to AFP appointees).    They could rely on clause 306 if they have been approved as ‘emergency workers’ by the NSW Road and Maritime Services.

They may be exempt the NSW Road Rules if there is a valid Commonwealth law or there is a power in their instrument of appointment that is inconsistent with the NSW rule. That too would seem unlikely.

My question is can protective services officers use lights and sirens to attend a job whilst abiding by all road rules? That is; keeping to speed limit, not running reds, just utilising the lights and sirens as a means to warn other road users out of the way? Would this be legislated or an organisation directive to do or not to do so? 

No; either your authorised to use the equipment or you are not.  This would be dangerous and illegal to operate red and blue lights or a siren on a vehicle that is not an emergency vehicle or a police vehicle and they only have that character when they are driven by an emergency worker or a police officer in the course of his or her duties in an emergency.  Subject to the discussion above special protective service officers are neither unless the appropriate appointments have been made, or authorities issues.

Also what is the legality for protective service officer vehicles and red and blue lights? Looking at the NSW vehicle standards it says police, NSW Fire and Rescue, ambulance, SES, RMS emergency vehicles can have fitted red and blue lights. Nothing about Australian federal police vehicles or specifically vehicles operated by protective service officers. It does in the section regarding sirens state that Australian federal police vehicles may be fitted with a siren, as well as mentioning police, ambos etc.

A police vehicle includes an AFP vehicle if AFP members have been appointed as recognised law enforcement officers.  It does appear that Protective Service vehicles can be fitted with a siren which is odd if there is no power to use it; but inconsistency in law is not unknown.  I would expect that relevant authorities have been granted by the RMS but to check that, this question should be directed to the AFP’s legal office.