A member of the Australian Defence Force (the ADF) has
… queried the legal basis as to fitting emergency lights (red/blue) and sirens to service police and ambulance vehicles.
Undoubtedly, no issue arises from their use in duties on commonwealth land. However, given the geographical spread of defence establishments, I can only assume circumstances arise whereby service emergency vehicles will utilise public roads.
In such an event, are service police vehicles classified ‘police vehicles’ in NSW, and as such, able to lawfully operate under urgent duty driving? Alternatively, does the ADF (and vehicles displaying ADO plates) hold some general exemption from the road rules?
Any insight you held would be greatly appreciated.
By virtue of ancient history, Acts of Parliament do not ‘bind’ the Crown unless they say they do. But the Crown is in theory the same Crown so an Act of the Parliament of NSW can bind the Crown in right of the Commonwealth and vice versa. The Road Transport Act 2013 (NSW) is the Act that authorises the making of the Road Rules 2014 (NSW). The Act says ‘This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament of this jurisdiction permits, the Crown in all its other capacities.’ To the extent that NSW can, it binds the Commonwealth too. What follows is that a commonwealth public servant driving a commonwealth car on a NSW road is bound by the NSW road rules unless there is a valid Commonwealth law that says something else.
The Australian Constitution (s 109) says that where there is a valid law of the Commonwealth and an inconsistent valid law of a state then the Commonwealth law prevails. There is not an exemption from the Road Rules but if the fitting of red/blue lights and sirens to a commonwealth vehicle (ADF, AFP, Air Services Australia) if authorised by a valid Commonwealth law, then it will be permitted regardless of state law.
The Defence Act 1903 (Cth) s 123 says:
A member of the Defence Force is not bound by any law of a State or Territory:
(a) that would require the member to have permission (whether in the form of a licence or otherwise) to use or to have in his or her possession, or would require the member to register, a vehicle, vessel … or other thing belonging to the Commonwealth; or
(b) that would require the member to have permission (whether in the form of a licence or otherwise) to do anything in the course of his or her duties as a member of the Defence Force.
If the ADF has determined to put lights and sirens on their cars then neither the ADF nor a member of the ADF needs permission from the state transport authority for permission nor do they need permission to use them in the course of their duties. That does not mean they can just run people over or drive as dangerously as they want. The driver (and the ADF) could still be negligent and could still breach provisions of the various items of traffic legislation as the Commonwealth is unlikely to give permission to drive carelessly. But with respect to fitting lights/sirens and urgent duty responding, this particular provision would appear to provide the necessary authority.