I have previously written on displaying P plates on SES vehicles in Victoria. (Probationary Licence Holders and driving emergency vehicles in Victoria (July 18, 2014)).   A volunteer with the NSW RFS now seeks advice on the relevant rules in NSW. My correspondent has not only asked the question, he’s largely answered it too.   With some minor editing, he writes:

I would like some more clarification on some issues I have been having recently. I posted a comment on your blog in response to an article you wrote about driving VIC SES vehicles with P plates and under operational conditions in July last  year https://emergencylaw.wordpress.com/2014/07/18/probationary-licence-holders-and-driving-emergency-vehicles-in-victoria/#comments. Thank you very much for the advice you offered at the time, however I am still unclear on the finer points and have been in several discussions/ arguments with other members. I am a fully operational member of the NSW RFS and possess a P2 (green P) license. I have also obtained an MR license through the RFS, which was obviously authorised by my brigade captain and the district office.

I have looked at the Road Transport (Driver Licensing) Regulation 2008 (NSW) r 28, which states that:

(1) A provisional P2 licence of class C, class LR, class MR or class HR is subject to the condition (in addition to any others that may be attached to the licence) that the holder must not drive any motor vehicle unless a sign, issued or authorised by the Authority and displaying the letter “P” in green on a white background, is displayed:…

(2) However, the driver of an emergency vehicle or police vehicle (within the meaning of the Road Rules 2014), is exempt from that condition while driving the vehicle in the performance of his or her duty.

I then went on to look at the Road Rules 2014 (NSW), which state:

“emergency vehicle” means 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.

 “emergency worker” means:

(b) a member of a fire or rescue service operated by a NSW Government agency … providing transport in the course of an emergency…

Then I looked at the NSW RFS Safe Driving Standard Operating Procedures October 2008, which state that:

Provisional Class Two (P2 – Green “P” Plate) Licence Holders

1.13 P2 licence holders are authorised to drive RFS operational vehicles, unless restricted by local SOPs authorised by their District manager.

 1.14 P2 licence holders are required to display green “P” plates except where noted in clause 1.16.

 1.15 P2 licence holders requested to respond, in the absence of a fully licenced driver, must inform FireCom of their licence status at the time of the request and await an explicit instruction to respond if required.

 1.16 P2 licence holders are exempt from displaying green “P plates” on RFS vehicles while driving the vehicle in the course of an emergency. 

I have been told by numerous people within my brigade and others in my district that I cannot respond under any circumstances, however my interpretation of the above is; the law clearly says there is no restriction on a P plate driver responding and the SOP infers that you can respond with permission from fire control. This also brings up the problem that we are a small brigade which often struggles to get a crew together if there is an incident during the week, which often means our crew leader acts as driver as well, if response driving is required, which is far from ideal, even when there is a fully qualified driver present (me), who could respond and free up the crew leader to do his job of managing the radios etc.  I also noted there is nothing specifically said about P platers in the response driving section of the RFS SOP. The SOP also seems to be in contradiction to the Australian road regulations and the road transport (driver licensing) regulation 2008 – REG 28, when it comes to displaying P plates. Surely the relevant legislation overrides the SOP?

It has been the topic of much discussion/ heated argument recently at my brigade and I seem to get a different answer and interpretation from each person I speak to. I was actually reprimanded today by a field officer about not wearing P plates on a vehicle when I had been told minutes before by another field officer not to worry about putting them on. If you could please provide some clarification on these issues it would be MUCH appreciated!

As I said my correspondent not only asked the question, he also answered it when he said ‘the law clearly says there is no restriction on a P plate driver responding and the SOP infers that you can respond with permission from fire control’.

In summary –

The Road Rules 2014 (NSW) make no mention at all about provisional licence holders in rule 306, ie the rule that gives the exemption from the Road Rules for the divers of emergency vehicles, nor is the person’s licence type in the definition of who is an emergency worker.   So there is nothing in the Road Rules 2014 that would say that a provisional licence holder cannot drive under response conditions.

The RFS Safe Driving Standard Operating Procedures does not, in my view, contradict the law. The SOPs say that a P2 licence holder is required to display ‘P plates’ [1.14] except when driving in the course of an emergency [1.16]. That is what the Regulations also say. The Road Transport (Driver Licensing) Regulation 2008 (NSW) say that a P2 licence holder must display P plates (r 28(1)) except when driving an emergency vehicle (r 28(2)). Remember, however, that the Road Rules 2014 say a fire appliance is only an emergency vehicle when it is being used to provide ‘transport in the course of an emergency…’   The Road Transport (Driver Licensing) Regulation 2008 (NSW) therefore say that a P2 licence holder must display their P plates unless responding to an emergency. That is the same as the RFS SOP,

I would say that the SOP does not merely imply that a P2 driver can engage in response driving, it is quite explicit. A P2 licence holder can drive under response condition provided three conditions are met:

1)        Such driving is not inconsistent with ‘local SOPs authorised by their District manager’;

2)        There is an ‘absence of a fully licenced driver’; and

3)        There is ‘an explicit instruction [from FIRECOM] to respond’.

Compare this to the rule for P1 licence holders – ‘P1 licence holders are not authorised to respond’ [1.11]. If P2 licence holders were not to respond, then [1.11] would be repeated for P2 licence holders.

What does ‘absence of a fully licenced driver’ mean? In the scenario given, the crew leader is acting as the driver. Presumably the crew leader has an unrestricted licence that is he or she is fully licensed. On one view condition (2) is not met so the provisional licence holder should not drive.   If however the crew leader said that he or she was unable or unwilling to drive due to their other duties that would mean that there was a fully licensed driver present, but not available to drive the appliance. Does that mean there is an ‘absence of a fully licenced driver’?

I would think that ‘absence of fully licenced driver’ must mean ‘absence of an available fully licenced driver’. As a volunteer organisation, members may turn out who are licensed but who are simply unwilling, for whatever reason, to drive in emergency conditions. If the presence of a licensed driver, who has made it clear that he or she does not want to drive in emergency conditions, means there is a fully licensed driver then there could be no response as the conditions to allow a P2 driver have not been met but the other driver has declined to drive, as he or she is entitled to do. It must follow that there is an ‘absence of a fully licenced driver’ if there is no fully licensed driver who is able or wiling to drive, even if they are physically present and willing to turn out. An express instruction from FIRECOM in those circumstances would be an acknowledgment that there was an ‘absence of fully licenced driver’.   If the fully licenced driver is willing to drive, even if they are also the crew leader, then condition (2) is not met and the P2 licence holder cannot drive under response conditions.