I suspect the answer to this question will come as a surprise to many.  A correspondent writes:

… yet another question about road rules and emergency vehicles. Time to whip out the trusted rule 306 again. I was reading through a series of posts on the QLD Police website, wherein police answer common questions about the law. A link to the post in question is below.

http://mypolice.qld.gov.au/bundaberg/2015/03/16/myth-buster-emergency-vehicles/

In the post, they state that in order to give way to an emergency vehicle (in an emergency situation), a driver may drive through a red light (if safe). I was of the understanding that this was not the case, and I’m sure I remember several cases a few years ago, in which someone did this, was caught by a red light camera, and had no choice but to pay the fine.

I imagine you have already answered such questions before, but any guidance you could provide would be much appreciated. It scares me that even in posts as recent as this year, such instructions appear on official websites.

It’s true that the Bundaberg police say:

Any emergency service vehicle with emergency lights and/or sirens operating have priority right of way under ALL circumstances.

If behind you, you MUST pull over and allow the emergency vehicle room to pass. You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so.

They are not alone; the Queensland Government also says ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ (https://www.qld.gov.au/transport/safety/rules/emergency-vehicles/index.html).

The Western Australia Department of Fire and Emergency Services, on the other hand, say ‘Remember, you cannot break the law to give way to an emergency vehicle, for example, driving through a red light (http://www.dfes.wa.gov.au/safetyinformation/Pages/givewaytoemergencyvehicles.aspx).  The National Roads and Motorists Association (the NRMA) agree, they say ‘Remember, you are required to abide by road rules at all times (http://www.mynrma.com.au/blog/2013/09/26/tips-for-assisting-emergency-vehicles/).

The Australian Federal Police do not commit themselves one way or the other (http://www.police.act.gov.au/roads-and-traffic/share-the-road/emergency%20vehicles), neither do the police in Townsville (also in Queensland) (http://mypolice.qld.gov.au/townsville/2013/05/22/keeping-clear-of-police-and-emergency-vehicles/).

So what’s the correct answer? The Australian Road Rules are meant to be nationally consistent, but there are discrepancies so I’m going to refer to both the Queensland and West Australian versions.

The first relevant rule says that the driver of an emergency vehicle is exempt from the road rules provided they are taking reasonable care and sounding a sire or displaying, in Queensland a red flashing light, and in Western Australia a blue or red flashing light (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 306; Road Traffic Code 2000 (WA) r 281).   In neither jurisdiction does that exemption apply to everyone and for obvious reasons.  An emergency service vehicle gets the exemption in part because it is fitted with emergency warning devices and, hopefully, hi-vis markings (see https://ambulancevisibilityblog.wordpress.com/).   The siren is meant to draw people’s attention to the presence of a vehicle nearby and the lights and markings draw attention to where it is.  A person who hears a siren may be looking for an emergency vehicle and will not expect a private vehicle to move into their path.   So rule the Queensland rule 306, Western Australia rule 281 provide an exemption for the driver of an emergency vehicle only.

So what is the obligation upon other road users when an emergency vehicle approaches them? In Western Australia they must ‘give way to, and make every reasonable effort to give a clear and uninterrupted passage to, every police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm’ (Road Traffic Code 2000 (WA) r 60).

In Queensland it is different.  In Queensland ‘If a driver is in the path of an approaching police or emergency vehicle that is displaying a flashing blue or red light (whether or not it is also displaying other lights) or sounding an alarm, the driver must move out of the path of the vehicle as soon as the driver can do so safely’ (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 78(2).

The differences are substantial. The Western Australia law says the driver must make a ‘reasonable effort’.  What is reasonable depends upon all the circumstances, and must consider other relevant laws.   In WA a driver facing a red traffic light ‘shall stop as near as practicable to but before reaching the nearest appropriate traffic‑control signal and shall not proceed beyond the signal’ (Road Traffic Code 2000 (WA) r 40).     Asking what is reasonable must take into account that the driver must not proceed beyond the signal.  It would not be reasonable to pass the red signal nor would it be reasonable to expect the driver to do so.

In Queensland the obligation upon a driver to make way for an emergency vehicle is more assertive.  In that state the driver ‘must move out of the path of the vehicle’ (emphasis added).   As in Western Australia, a Queensland driver facing a red light ‘must stop’ at various places identified in the regulation depending on the type of intersection, and must not proceed until the signal changes to ‘green or flashing yellow’ (Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 56).    So now there are two conflicting provisions, the driver ‘must’ move out of the path of the emergency vehicle but must stop at the red light.   How is that conflict resolved?

One website, ‘Practical Motoring’, says (at https://practicalmotoring.com.au/car-advice/emergency-vehicle-approaches-behind/):

The Australian Road Rules are quite specific about your responsibility when faced with an emergency vehicle sounding its alarm or flashing red and blue lights: you must move out of its way as soon as it is safe to do so. This regulation overrules any other road rule, so if your only option is to enter the intersection through a red light, that is what you must do.

If the lawmakers intended that ‘This regulation overrules any other road rule’ they would say so.  For example in Western Australia ‘Every pedestrian and driver shall obey the signal by hand or the reasonable oral direction given by a police officer’ or other authorised officer (Road Traffic Code 2000 (WA) r 272).  What if the police officer directs the driver to do something that is contrary to some other provision of the regulations? That is provided for in regulation 272(2) which says ‘It is a defence to any prosecution notice of a breach of these regulations that the accused was, at the time of the alleged offence, acting in conformity with a signal or direction given under subregulation (1)’.   This is an example where the lawmakers have determined that the obligation to obey police does ‘overrule’ the other road rules, and that is clearly stated. If the obligation to make way for emergency vehicles was to ‘overrule’ the other road rules, then some similar statement would also appear in the Road Traffic Code 2000 (WA) r 60, but it doesn’t.

In Queensland it is different.  Remember that the Transport Operations (Road Use Management–Road Rules) Regulation 1999 (Qld) s 78(2) says a driver ‘must’ move out of the path of an emergency vehicle, but what if the only way to do that is to breach the rules that say one must stop at a red light or keep left?  Section 78(3) says ‘This section applies to the driver despite any other section of this regulation’ that is in Queensland, the obligation to make way for an emergency vehicle does appear to ‘overrule’ the other road rules.

So what’s the correct answer?  The advice that ‘You may drive onto the wrong side of the road or drive through a red traffic light to get out of the way of an emergency vehicle if it is safe to do so’ is correct in Queensland, but not in Western Australia.

In fact Western Australia seems to be the exception because the law is in the same terms in Queensland and in:

  • the Australian Capital Territory (‘Australian Road Rules – February 2012’ cl 78, incorporated into ACT Law by the Road Transport (Safety and Traffic Management) Regulation 2000 (ACT), s 6);
  • New South Wales (Road Rules 2014 (NSW), r 78);
  • the Northern Territory (Traffic Regulations (NT), Schedule 3, cl 78);
  • South Australia (Australian Road Rules (SA) r 78);
  • Tasmania (Road Rules 2009 (Tas) r 78); and
  • Victoria (Road Safety Road Rules 2009 (Vic) r 78).

And what of the NRMA’s advice that ‘you are required to abide by road rules at all times’ (http://www.mynrma.com.au/blog/2013/09/26/tips-for-assisting-emergency-vehicles/)?  Well that’s true, but rule 78 is one of those road rules, so making way for an emergency vehicle is  abiding by the road rules.

Of course it’s never that simple.  As they say on ‘Practical Motoring’

Of course, with so many intersections observed by “safety” cameras and red light cameras, this may not be as simple as it appears. And cameras are machines, so they won’t take the various circumstances into account …

If a driver does enter an intersection with a red light camera they could expect to receive a traffic infringement notice as the officer reviewing the photo probably won’t see the emergency vehicle and he or she may also take a different view on whether the driver’s actions were ‘safe’.   The driver would need to write to police asking them to withdraw the notice and if that fails, elect to take the matter to court and argue the issue before a Magistrate.  That, in turn, may require that the driver makes inquiries with the relevant emergency service to confirm that they had a vehicle proceeding at that intersection at that time and in an extreme case, the driver may want to subpoena the driver of the emergency vehicle to confirm that the actions taken were safe.    At that point one might decide it’s just easier and quicker to pay the ticket.

If a driver does enter an intersection or cross to the wrong side of the road and have an accident then it is axiomatic that they did not do so when they could ‘do so safely’.  They could expect, at least, a traffic infringement notice.    Should someone be killed or injured they could expect to get charged with a more serious offence eg ‘Dangerous operation of a vehicle’ (Criminal Code (Qld) s 328A).  Equally if they are involved in a collision the other driver, or their insurer, would no doubt look to the driver-at-fault’s insurer with all the implications that has for the no-claim bonus and next year’s premium.  The fact that the driver was making way for an emergency vehicle will not mean the accident was not their fault if they traveled through a red light or onto the wrong side of the road.

Fundamentally the clause allows the police to choose not to issue a ticket and be able to justify their action according to law but it does put a very large burden on the driver who, without training and without emergency warning devices, must make a quick and potentially very dangerous call.   The clause may allow, even require, a driver to enter an intersection against a red light or cross to the wrong side of the road, but they do so at their own risk.