Another question from WA

A couple of law students commenting on a post about police using phones while driving and stating that  Road Traffic Code 2000 r280 provides an exemption to r265.  I don’t believe that’s the case, am I missing something? When the phrase “A provision of these regulations does not apply” are they meaning everything after that statement or in that part?

Rule 265 of the Road Traffic Code 2000 (WA) says ‘A driver of a vehicle must not use a mobile phone while the vehicle is moving, or is stationary but not parked, unless…’ the phone can be used hands free or is in a secure mount.  There is no exemption for police.

Rule 280 is the traditional exemption for police.  It says

A provision of these regulations does not apply to the driver of an emergency vehicle being used for official duties by a police officer if —

(a) in the circumstances —

(i) the driver is taking reasonable care; and

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


(b) the vehicle is moving; and

(c) in the case of a motor vehicle, it is displaying a blue or red flashing light or sounding an alarm.

The statement ‘A provision in these regulations…’ means the entire Road Traffic Code.  If it meant just a part of the code it would refer to ‘this part’.

So that means rule 280 does provide an exemption from r 265 but only when the police are proceeding to an emergency under lights and sirens, in which case you might think talking on the phone is not exercising reasonable care, but all circumstances are different.  If the criteria of r 280 are met, there is an exemption from r 265.

Compare this however to the situation in NSW.  In the Road Rules 2014 (NSW) rule 300(1) is in the same terms as r 265 of the WA Code.  What NSW has, and WA does not, is r 300(1)(c) which says that the rule against using a mobile phone does not apply if ‘the vehicle is an emergency vehicle or a police vehicle’. (And yes, they are meant to be national road rules).

An emergency vehicle is a vehicle driven by an emergency worker in the course of his or her duties in an emergency, so it is not open ended exemption for SES members and firefighters.  But a police vehicle is ‘any vehicle driven by police officer… in the course of his or her duties as a police officer’ (s 4). No reference there to an emergency or use of lights etc.  So a police officer in NSW can use a mobile phone whilst driving.  In WA they can do so only when proceeding to an emergency.