August 2000 Volume 81 Number 8 "serving the protectors"
By Eugene McGee

THE NEED FOR SPEED

ith the commencement of the Australian Road Rules on December 1, 1999, came a significant alteration to the protection afforded to police officers by SA traffic legislation.

Previously, section 40(c) of the Road Traffic Act, 1961, set out the protection to be afforded to police officers and provided the relevant exemptions to “any motor vehicle driven by a member of the Police Force in the execution of duty”.

The Full Court in Tester versus Police rejected a contention by the Commissioner that:

...a member of the Police Force was entitled to the protection of the section only if it was necessary for the execution of duty to exceed the speed limit...

The Full Court was firmly of the view that it was not incumbent upon a member of the force seeking the protection of Section 40 to prove a need to speed, but rather that the occasion on which the protection of the section was sought involved:

...the performance of duties recognised by law as being integral to the unique role of a police officer...one of the core duties of a police officer...

The protection of section 40 was attracted by the classification of the duty being performed, not by any proof of a necessity to exceed the speed limit while performing the duty.

The protection of section 40 has never extended to driving without due care or driving at a speed or in a manner dangerous to the public, and therefore was never a blanket protection for all driving behaviour.

NEW EXEMPTIONS FOR DRIVERS OF POLICE VEHICLES

By contrast, rule 305 of the Australian Road Rules is cast in terms of reasonableness - reasonable care by the driver and it being reasonable that the rule charged should not apply.

RULE 305

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

1. in the circumstances:
   
   (i) the driver is taking reasonable care; and
   (ii) it is reasonable that the provision should not apply; and
   
   
2. if the vehicle is a motor vehicle that is moving - the vehicle is displaying a blue or red flashing light or sounding an alarm.

(2) Sub rule(1)(b) does not apply to the driver if, in the circumstances, it is reasonable:

1. not to display the light or sound the alarm; or
2. for the vehicle not to be fitted or equipped with a blue or red flashing light or an alarm.

As was the case with previous section 40 of the Road Traffic Act, the exemption does not extend to driving the vehicle without due care or driving the vehicle at a speed or in a manner dangerous to the public. Those offences are not contained within the Australian Road Rules and therefore the exemption under Section 305 cannot extend to them.

Police vehicle is defined under the dictionary provision as:

...any vehicle driven by a person who is -

1. a police officer for the provisions; and
2. driving the vehicle in the course of his or her duties as a police officer.

Police officer is defined by a combination of the dictionary provision and regulation 44 of the Road Traffic (Road Rules-Ancillary and Miscellaneous Provisions) Regulations, 1999, to include members of the South Australia Police.

The definition of police officer may extend the activities being undertaken by a police office beyond the “core duties” under the previous legislation. While that phraseology has not yet been the subject of determination by a court in South Australia, there could be an argument that it is intended to cover a broader range of activities than were previously afforded protection.

That broadening of protection is accompanied by a requirement that the officer seeking the protection establish that reasonable care was being exercised and that the protection is reasonable in the circumstances.

The effect of the new provision is arguably to broaden the protection in terms of the range of activities to which it applies but to incorporate directly an objective requirement by the use of the word “reasonable” in the provision.

REASONABLE

Driver taking reasonable care - that would include an objective assessment of the degree of care exercised by the driver. That assessment would include consideration of factors such as the geographical conditions in which the driving occurs, traffic and weather conditions, and particular road features.

AND

Reasonable that the provision should not apply - this requirement, which is in addition to the requirement that the driver is exercising reasonable care, could accommodate a consideration of the circumstances giving rise to the driving. The consideration could include an assessment of the degree of urgency of the task being undertaken; what consequences could follow from delay; whether the driving is in response to information indicating there is a danger to life.

The new provisions require the motor vehicle to be displaying blue or red flashing light or sounding an alarm, unless it is not reasonable that they be displayed or they are not fitted.

While the areas of activities to which the protection can be afforded may have been broadened, there is now an unarguable and objective test of reasonableness between the driving being considered and the immediate traffic circumstances, and the general circumstances surrounding the driving.

An example could be that of two drivers who, in two separate vehicles equipped with the same information conveyed to them by police communications, are detected both travelling considerably in excess of the speed limit but at significantly different speeds.

In those circumstances that objective assessment, and in particular as to whether it is reasonable that the provision should not apply, can lead to a decision in which the driver travelling at a lower speed is afforded the protection of rule 305, whereas the driver travelling at a much higher speed may be prosecuted on the basis that it is not reasonable that the provision apply.

The result of the introduction of rule 305 is that police officers need to consider even more carefully the proportion between the emergency to which they are responding and the danger created by the speed or the manner in which they are driving.

Rule 305 effectively now puts an onus on the police officer to establish a need to speed.

The Author

An Adelaide University graduate in law (1983) and former SA police officer, Eugene McGee has chiefly practiced criminal law, including matters relating to police regulations. He has:

• Acted as counsel for the Police Association in the Royal Commission into Aboriginal Deaths in Custody.
• Had involvement as a solicitor in war crimes trials.
• Been a member of the Criminal Law Committee of the Law Society of South Australia.

He is currently engaged in private practice.

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