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Commercial Passenger Vehicle Industry
Amendment (Further Reforms)
Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
General
The Commercial Passenger Vehicle Industry Amendment (Further Reforms)
Bill 2017 provides for and supports the implementation of the second stage of
reforms to the commercial passenger vehicle industry announced by the
Government on 23 August 2016.
The main purpose of the Bill is to establish a new and modern regulatory
regime for commercial passenger vehicles that focuses on safety and the
provision of consumer protections.
The Bill effectively replaces the existing regulatory scheme for taxi-cabs and
hire cars that is specified in Part VI of the Transport (Compliance and
Miscellaneous) Act 1983.
The Bill achieves this by inserting new parts in the Commercial Passenger
Vehicle Industry Act 2017 (the Principal Act) which--
• establish a new safety duties scheme for the commercial
passenger vehicle industry to clarify industry accountability for
safety and help improve the safety of passengers and drivers;
• enable regulations to be made to provide protections to
consumers of commercial passenger vehicle services following
changes to enable service providers to set fares for those
services;
• establish a registration scheme for all commercial passenger
vehicles;
581373 1 BILL LA INTRODUCTION 18/10/2017
• re-enact provisions in the current regulatory scheme essential
for the future regulation of commercial passenger vehicle
services, including--
• the accreditation of all drivers of commercial passenger
vehicles;
• the registration of booking service providers;
• establishing authorised officers and providing for
compliance and investigation powers for the regulator
and authorised officers;
• powers for the regulator to take administrative actions
and provide affected parties with review rights;
• the public register of permission holders; and
• provisions relating to the general administration of the
Principal Act including regulation making powers.
The regulator is the Taxi Services Commission, which, under the Bill, is
renamed the Commercial Passenger Vehicle Commission (the regulator).
The Bill makes a range of amendments to other Acts that are consequential to
the commercial passenger vehicle reforms provided for in the Bill.
Commercial Passenger Vehicle Safety Principles and Duties
The Bill imposes a new regime of best practice safety regulation for the
commercial passenger vehicle industry.
The Bill imposes a safety duties scheme on the commercial passenger vehicle
industry, including the owners of commercial passengers vehicles, booking
service providers, persons who have control over the provision of
commercial passenger vehicles, and suppliers of services and equipment to
owners of commercial passenger vehicles.
Duty holders will be required to ensure the safety of commercial passenger
vehicle services, so far as is reasonably practicable.
A duty is also imposed on the driver of a commercial passenger vehicle to
take reasonable care for their own safety.
The Bill outlines the principles of commercial passenger vehicle safety,
including principles relating to shared responsibility, accountability for
managing safety risks, enforcement, timeliness and transparency,
participation, consultation and involvement of all affected persons.
2
The Bill specifies that the concept of ensuring safety, so far as is reasonably
practicable, relates to the elimination or reduction of risks to safety.
In addition, the Bill provides guidance as to what is reasonably practicable
in relation to ensuring safety.
The Bill provides for the making of codes of practice to provide practical
guidance to the commercial passenger vehicle industry on how to comply
with the safety duties. Compliance with a code of practice is not mandatory,
but, a duty holder will be taken to have complied with their duty if a code of
practice is complied with.
Fare Flexibility and Consumer Protections
The Bill will change the system of fare regulation for commercial passenger
vehicle services.
The Bill will repeal the maximum fare regulation scheme that applies to
taxi-cabs in the Metropolitan Melbourne Zone and the Urban and Large
Regional Zone. Under existing arrangements, the Essential Services
Commission sets maximum fares for taxi services.
The Bill will repeal price notification system that applies to Regional Zone
and Country Zone taxi-cabs.
The Bill does not make changes to the regulation of fares for hire car
services, as such fares are currently not regulated.
The changes made by the Bill will enable the commercial passenger vehicle
industry to set their own fares.
The Bill provides for a range of consumer protections to support the
transition to a system of flexible fares for commercial passenger vehicle
services.
The Bill enables the regulator to monitor fares for all commercial passenger
vehicle services. The regulator will be required to publish an annual report
on its fare monitoring activity and an analysis of the impact of fares on
consumer outcomes. The regulator will also monitor the impact of the
$1 per trip levy on fares, established by Part 2 of the Principal Act (to be
renumbered as Part 11 by clause 16 of the Bill).
The Bill contains heads of power to make regulations to provide consumer
protections for users of commercial passenger vehicle services. Examples of
regulations that could be made include--
3
• regulations which require booking service providers, providers
of commercial passenger vehicle services, or the driver--as the
case may be--to provide an estimate of a fare to the hirer
before the trip commences;
• requirements for service providers to use a meter or a fare
calculation device (e.g. a smartphone app) when complex fare
rates or schedules are used (i.e. when the total amount of the
fare is not fixed or agreed to before the trip commences);
• regulations which require fares or hiring rates to be
prominently displayed--either inside or outside of the vehicle
used to provide the service--or otherwise made available to the
hirer of the vehicle (e.g. on the website of the provider); and
• regulations which prescribe the standard to which fare
information provided to hirers must adhere to, or prescribe the
information that must be provided.
Registration of Commercial Passenger Vehicles
The Bill establishes a new scheme for the registration of commercial
passenger vehicles.
The scheme imposes a requirement to register a vehicle used to provide a
commercial passenger vehicle service.
The Bill makes it an offence for a provider of a commercial passenger vehicle
service to provide a service if that vehicle is not registered.
In addition, the Bill makes it an offence for a booking service provider to
provide a booking service involving an unregistered vehicle. This offence
makes a booking service provider accountable for the service provided.
Re-enacting components of the existing regulatory framework
The Bill will re-enact several provisions from the Transport (Compliance
and Miscellaneous) Act 1983.
All drivers of commercial passenger vehicles (persons who provide a
commercial passenger vehicle service as the driver of the vehicle) will be
required to hold a driver accreditation and undergo initial and weekly
criminal background checks and medical checks as required by the regulator.
The Bill enables a driver accreditation to remain in effect until it is cancelled
by the regulator or surrendered, which is longer than the current three year
maximum.
4
All providers of booking services will need to register as a booking service
provider with the regulator. The Bill simplifies the process to register by
providing the regulator with discretion to register if the responsible person of
the booking service provider is a "fit and proper person".
Surcharges for credit cards and other non-cash payment methods in
commercial passenger vehicles will continue to be regulated alongside the
Reserve Bank of Australia's surcharge scheme (the RBA scheme).
Legislative provisions ensure that the Victorian scheme does not overlap with
the RBA scheme. The Essential Services Commission will continue to have
power to determine the maximum surcharge (currently set at five per cent).
The regulator will continue to have powers to determine conditions
implied in all driver agreements (also known as bailment agreements)
between owners of vehicles and drivers of commercial passenger vehicles.
The regulator will monitor industry developments to determine whether it is
necessary to set implied conditions in such agreements as the reforms are
implemented.
The Bill provides a range of compliance monitoring and investigation powers
for the regulator and authorised officers. The Bill provides the regulator and
authorised officers appointed under the Principal Act with the powers
necessary to monitor compliance with and enforce the new requirements
under the amended Act, particularly the new commercial passenger vehicle
safety duties scheme. The Bill also provides for powers for the regulator to
take administrative actions and provide affected parties with review rights.
The Bill re-enacts the provisions for the public register of commercial
passenger vehicle industry participants, which will be referred to as the
register of permission holders. The regulator will continue to maintain a
public register to enable the community to access information on the
industry, such as the status of a driver's accreditation or whether certain
vehicles or booking service providers are registered.
The Bill also provides for provisions and powers necessary for the
administration of the new regulatory scheme, including regulation making
powers, regulatory fees, inquiry powers, and information collection,
gathering and sharing powers.
5
Repeal of the existing regulatory regime
The Bill will repeal the existing regulatory scheme for commercial passenger
vehicles in Part VI of the Transport (Compliance and Miscellaneous)
Act 1983.
All taxi and hire car licences will be abolished. The Bill will deem all
holders of taxi and hire car licences to have registered the motor vehicle, to
which the licence relates, under the Principal Act.
Taxi zones established under the Transport (Compliance and
Miscellaneous) Act 1983 will abolished. Providers of commercial passenger
vehicle services will be permitted to provide those services anywhere in the
State.
Not all of Part VI of the Transport (Compliance and Miscellaneous)
Act 1983 will be repealed. The accreditation scheme for drivers of buses
used to provide commercial bus services, commercial minibus services,
and local bus services will remain in the Transport (Compliance and
Miscellaneous) Act 1983. This means that bus drivers will continue to be
regulated under that Act.
Amendments to other Acts
The Bill amends several other Victorian Acts to reflect the changes made by
the Bill to the commercial passenger vehicle regulatory framework.
The Bill amends the Road Safety Act 1986 to provide that all drivers using a
motor vehicle to provide commercial passenger vehicle services must have a
0*00 blood alcohol concentration when providing those services.
The Bill amends the Transport Integration Act 2010 to--
• change the name of the Taxi Services Commission to the
Commercial Passenger Vehicle Commission; and
• make changes to Commission's functions and powers to enable
effective and efficient regulation of the commercial passenger
vehicle industry.
Overview of the Bill
The following sections provide an overview of the content of the Bill.
The Commercial Passenger Vehicle Industry Amendment (Further Reforms)
Bill 2017 is divided into 4 Parts and contains one Schedule.
Part 1 of the Bill deals with preliminary matters.
6
Part 2 of the Bill amends the Principal Act--
• to provide for new definitions necessary in the new regulatory
framework; and
• to insert new Parts and Schedules necessary for the future
regulation of commercial passenger vehicle services; and
• to renumber existing provisions in that Act.
Part 3 of the Bill makes consequential amendments to other Acts of
Parliament, including--
• the Bus Safety Act 2009;
• the Duties Act 2000;
• the Environment Protection Act 1970;
• the Essential Services Commission Act 2001;
• the Liquor Control Reform Act 1998;
• the Ombudsman Act 1973;
• the Public Administration Act 2004;
• the Road Safety Act 1986;
• the Taxation Administration Act 1997;
• the Transport (Compliance and Miscellaneous) Act 1983;
• the Transport Integration Act 2010; and
• the Workplace Injury Rehabilitation and Compensation
Act 2013.
Part 4 of the Bill provides for the repeal of the Amending Act.
Schedule 1 of the Bill makes consequential amendments provided for by
Part 3 of the Bill.
7
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purpose of the Bill, which is to amend the
Commercial Passenger Vehicle Industry Act 2017--
• to provide for a new regulatory framework for the
regulation of the commercial passenger vehicle industry
in Victoria, including--
• new safety duties for commercial passenger
vehicle industry participants; and
• registration schemes for commercial passenger
vehicles and booking service providers; and
• an accreditation scheme for drivers of
commercial passenger vehicles; and
• certain protections to--
• consumers of commercial passenger
vehicle services; and
• drivers of commercial passenger vehicles;
and
• to re-enact, with modifications, certain provisions of the
Transport (Compliance and Miscellaneous) Act 1983
for the purpose of the new regulatory framework
referred to above; and
• to make consequential amendments to the Transport
(Compliance and Miscellaneous) Act 1983 and
other Acts, including amendments to the Transport
(Compliance and Miscellaneous) Act 1983 that will
have the effect of enabling providers of commercial
passenger vehicles services and booking services to
set fares in relation to the provision of commercial
passenger vehicle services under the new regulatory
framework referred to above.
Clause 2 provides for the commencement of the Bill.
Subclause (1) provides that, subject to subsection (2), the Bill
comes into operation on a day or days to be proclaimed.
8
Subclause (2) provides that if a provision of the Bill does not
come into operation before 7 July 2018, it comes into operation
on that day.
Clause 3 provides that, in the Bill, the Commercial Passenger Vehicle
Industry Act 2017 is called the Principal Act.
Part 2--Amendment of Commercial Passenger Vehicle
Industry Act 2017
Part 2 of the Bill makes changes to the Principal Act to provide for the new
framework for the regulation of commercial passenger vehicles. The Bill
achieves this by repealing existing spent provisions in the Principal Act,
inserting new provisions in that Act, and renumbering those provisions.
Clause 4 repeals Parts 3 and 4 of the Principal Act. Parts 3 and 4 of that
Act as originally enacted provided for amendments to the
Transport (Compliance and Miscellaneous) Act 1983 and
other Acts.
Clause 5 substitutes the purposes section of the Principal Act. The new
purpose of the Principal Act is different to the purpose of the Bill
as it reflects the new framework for the regulation of commercial
passenger vehicles contained in the amended Principal Act.
Clause 5 provides that the main purposes of the Act are--
• to provide for a new regulatory framework for the
regulation of the commercial passenger vehicle industry
in Victoria, including--
• new safety duties for commercial passenger
vehicle industry participants; and
• registration schemes for commercial passenger
vehicles and booking service providers; and
• an accreditation scheme for drivers of
commercial passenger vehicles; and
• certain protections for--
• consumers of commercial passenger
vehicle services; and
• drivers of commercial passenger vehicles;
and
9
• to impose a levy on the carrying out of commercial
passenger vehicle service transactions--
• to recover the cost of transitional assistance
provided to certain participants in the
commercial passenger vehicle industry; and
• to partly fund the regulation of the commercial
passenger vehicle industry.
Clause 6 amends section 2 of the Commercial Passenger Vehicle
Industry Act 2017.
Clause 6(1) amends the default commencement date for the
Commercial Passenger Vehicle Industry Act 2017. The new
default commencement date is 1 July 2018. This change is
necessary to enable the commercial passenger vehicle service
levy (Part 2 of that Act) to commence on the first day of a
quarter, in the event of the default commencement of Part 2 of
that Act.
Clause 6(2) inserts a foot note at the foot of section 2 of the
Commercial Passenger Vehicle Industry Act 2017, which
contains commencement provisions, to explain that, as a result of
the Bill, Parts 3 and 4 of the Commercial Passenger Vehicle
Industry Act 2017 were repealed after they came into force and
section 20 of that Act, which deals with regulations, was repealed
and re-enacted as part of section 289.
Clause 7 provides for new definitions to be inserted into the Commercial
Passenger Vehicle Industry Act 2017, including the following
key definitions--
authorised officer means a person appointed under section 125;
booking service provider means a person who provides a
booking service;
category 1 offence means an offence listed in new Part 1 of new
Schedule 1, inserted by clause 20 of the Bill;
category 2 offence means an offence listed in new Part 2 of new
Schedule 1, inserted by clause 20 of the Bill;
category 3 offence means an offence listed in new Part 3 of new
Schedule 1, inserted by clause 20 of the Bill;
10
commercial passenger vehicle safety means safety associated
with the provision of commercial passenger vehicle services;
compliance and investigative purposes means purposes related
to ascertaining whether an industry law has been or is being
complied with;
costs incurred in making the journey includes--
• fuel costs; and
• maintenance costs; and
• parking costs; and
• insurance costs; and
• vehicle depreciation;
disqualifying offence means a category 1 offence, a category 2
offence or a category 3 offence;
drive, in relation to a motor vehicle, includes being in control of
the vehicle;
driver accreditation means an accreditation under new Part 5 of
the Principal Act;
driver agreement means an agreement made between the
owner of a commercial passenger vehicle and another person
(the driver) under which the driver is permitted to have
possession of the commercial passenger vehicle for the purpose
of driving it but does not include an agreement for the purchase
of the vehicle or a contract of employment or of service;
industry law means--
• the Principal Act; or
• regulations made under the Principal Act; or
• section 81, 82, 83 or 83A of the Crimes Act 1958 but
only in respect of conduct that constitutes or could
constitute a contravention of any of those sections that
arises out of--
• arranging, procuring or providing a commercial
passenger vehicle service; or
• processing or failing to process a payment for a
commercial passenger vehicle service; or
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• making or failing to make a payment under a
driver agreement; or
• imposing a non-cash payment surcharge; or
• section 324 of the Crimes Act 1958 (which provides
that persons involved in commission of an offence are
taken to have committed the offence) to the extent that it
relates to--
• an offence against the Principal Act or the
regulations; or
• an offence against a provision referred to in
section 81, 82, 83 or 83A of the Crimes
Act 1958 constituted by conduct referred to in
relation to those offences set out above;
• the rules made under section 95D of the Road Safety
Act 1986 as applying in relation to commercial
passenger vehicle services (e.g. the Road Safety Road
Rules 2017); or
• regulations made under the Road Safety Act 1986 for
the purposes of item 34 of Schedule 2 to that Act as
those regulations apply in relation to commercial
passenger vehicle services;
industry premises has the meaning given in new section 3B of
the Principal Act (to be renumbered as section 5, see clause 14 of
the Bill);
monitoring, compliance and enforcement policy means the
policy referred to in new section 275 of the Principal Act;
non-cash payment processing device means a device--
• used, or intended to be used, to process a non-cash
payment transaction; or
• that enables a non-cash payment transaction to be
processed;
(Examples of non-cash payment processing devices (an EFTPOS
machine, a smartphone or a computer tablet) are given.)
non-cash payment processing service means a service that
facilitates the processing of a non-cash payment transaction but
does not include a service relating to a fee or charge imposed in
12
respect of the use of a credit card, charge card or debit card
levied--
• by a participant in a designated payment system within
the meaning of the Payment Systems (Regulation)
Act 1998 of the Commonwealth and is of a kind
covered by a standard in force under section 18 of that
Act; or
• by a person who acts consistently with a voluntary
undertaking given by the person to, and accepted by,
the Reserve Bank of Australia;
non-cash payment surcharge--this definition refers to the
meaning given in new section 112 of the Principal Act;
non-cash payment transaction means the payment, other than by
cash, of any amount due in respect of the hiring of a commercial
passenger vehicle;
owner of a commercial passenger vehicle includes--
• a joint owner of the vehicle; and
• any person who has use of the vehicle under a hiring or
hire-purchase agreement; and
• any person in whose name the vehicle is registered
under the Road Safety Act 1986 or a corresponding law
of another State or a Territory--
but does not include an unpaid vendor of the vehicle under a
hire-purchase agreement;
permission means--
• a commercial passenger vehicle registration under new
Part 3 of the Principal Act; or
• a booking service provider registration under new Part 4
of the Principal Act; or
• a driver accreditation;
permission holder means--
• a person in whose name a commercial passenger vehicle
is registered under new Part 3 of the Principal Act; or
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• a registered booking service provider; or
• an accredited driver;
provider of an unbooked commercial passenger vehicle service
means--
• the owner of the commercial passenger vehicle used in
the provision of the service (relevant vehicle) if the
driver of the relevant vehicle is an employee of the
owner; or
• in any other case, the driver of the relevant vehicle;
prescribed amount of a non-cash payment surcharge is--
• the maximum amount of the surcharge as determined
by the ESC under new Division 3 of Part 6 of the
Principal Act; or
• until the first such determination, 5% of the amount that
would be payable in respect of the hiring to which the
surcharge relates if that amount were paid in cash;
public care objective--this definition refers to the meaning given
in new section 69 of the Principal Act;
registered booking service provider means a person registered
under new Part 4 of the Principal Act;
regulator means the Commercial Passenger Vehicle Commission
established by section 115B of the Transport Integration
Act 2010;
relevant person, in relation to an applicant for registration under
new Part 4 or a registered booking service provider, means--
• if the applicant or provider is an individual, each
manager of the applicant or provider; or
• if the applicant or provider is a partnership, each partner
and each manager of the applicant or provider; or
• if the applicant or provider is an unincorporated body or
association other than a partnership, each member of the
committee of management, and each manager, of the
body or association; or
14
• if the applicant or provider is a company, a co-operative
or an incorporated association, each officer and each
manager of the company, co-operative or incorporated
association; or
• if the applicant or provider is a body corporate
other than a company, co-operative or incorporated
association, each officer and each manager of the body
corporate;
responsible person, in relation to an applicant for registration or
a registered booking service provider, means--
• if the applicant or registered person is an individual, the
applicant or registered booking service provider; or
• in any other case, a relevant person nominated by the
applicant or registered booking service provider as the
responsible person;
retention period, in relation to a thing seized under new Part 7 of
the Principal Act, means a period of 90 days after the seizure of
the thing;
Subclause (2) substitutes new definitions for commercial
passenger vehicle and commercial passenger vehicle service.
Subclause (2) provides that in section 3(1) of the Principal Act,
commercial passenger vehicle means a motor vehicle registered
under new Part 3 of that Act, and commercial passenger vehicle
service has the meaning given in new section 3A of that Act
(new section 3A is to be renumbered as section 4, see clause 14
of the Bill).
Subclause (2) also clarifies that the definition of motor vehicle in
the Principal Act does not include a bus used to provide a bus
service, and repeals the definition of TSC in that Act.
Subclause (3) repeals section 3(2) of the Principal Act.
That subclause is being re-enacted as the new definition of
provider (of an unbooked commercial passenger vehicle service).
Clause 8 inserts new sections 3A and 3B in the Principal Act (to be
renumbered as sections 4 and 5, see clause 14 of the Bill) to
provide for the meaning of commercial passenger vehicle
service and industry premises in that Act.
15
New section 3A (to be renumbered as section 4, see clause 14 of
the Bill) provides that commercial passenger vehicle service is
the carriage, for a fare or other consideration, of one or more
passengers in a motor vehicle on a journey that begins in Victoria
and ends at one or more destinations, whether in or outside
Victoria.
Commercial passenger vehicle service also includes driving or
being in charge or a motor vehicle while being available to
provide that service, and driving a motor vehicle to collect a
passenger to provide that service. However, charitable passenger
services and vehicle pooling services, and driving while available
to provide those services or to collect a passenger for those
services, are not commercial passenger vehicle services.
The driving of a vehicle in connection with an ambulance service
or for the purpose of a non-emergency patient transport service is
also not a commercial passenger vehicle service.
New section 3B (to be renumbered as section 5, see clause 14 of
the Bill) provides that industry premises are a building or facility
used in connection with the provision of--
• a commercial passenger vehicle service; or
• a booking service; or
• a non-cash payment processing service.
New section 3B(2) provides that residential premises are not
industry premises.
Clause 9 inserts new sections 5A to 5C in the Principal Act to explain the
meaning of persons charged with an offence and charges not
finally disposed of, and to provide for the objectives of that Act
following the commencement of amendments made by the Bill.
(Sections 5A, 5B and 5C will be renumbered as sections 8, 9
and 10, see clause 14 of the Bill).
New section 5A (to be renumbered as section 8, see clause 14
of the Bill) explains the meaning of persons charged with an
offence when used in the Act.
A reference to a person who has been charged with an offence is
a reference to a person--
• against whom an indictment has been filed for the
offence; or
16
• against whom a charge-sheet charging the offence has
been filed, whether or not either of the following has
been issued or served--
• a summons to answer to the charge; or
• a warrant to arrest the person.
New section 5B (to be renumbered as section 9, see clause 14 of
the Bill) explains the meaning of charges not finally disposed of
when used in the Act.
A reference to a charge that has not been finally disposed of is a
reference to a charge that has not been finally dealt with by--
• being withdrawn or by the discontinuance of the
prosecution; or
• being dismissed by a court; or
• the person charged being discharged by a court
following a committal proceeding; or
• the person charged being acquitted or found guilty of
the offence that was the subject of the charge by a court;
or
• any other prescribed means.
New section 5C (to be renumbered as section 10, see clause 14 of
the Bill) sets out the objectives of the Principal Act, which are to
promote--
• competition in the market for commercial passenger
vehicle services;
• commercial passenger vehicle safety (see clause 7 of the
Bill which is inserting the definition for this term into
section 3 of the Principal Act);
• the effective management of safety risks arising out of
the provision of commercial passenger vehicle services;
• continuous improvement in the management of
commercial passenger vehicle safety;
• public confidence in the safety of commercial passenger
vehicle services;
17
• the involvement of relevant stakeholders in commercial
passenger vehicle safety;
• a safety culture among persons who participate in the
provision of commercial passenger vehicle services;
• protections for users of commercial passenger vehicle
services; and
• transparency in transactions for the provision of
commercial passenger vehicle services.
Clause 10 inserts new section 6A and 6B in the Principal Act. (Sections 6A
and 6B will be renumbered as sections 12 and 13, see clause 14
of the Bill).
New section 6A (to be renumbered as section 12, see clause 14
of the Bill) provides that the Principal Act is transport legislation
within the meaning of the Transport Integration Act 2010.
The effect of this provision is that the regulator (the Commercial
Passenger Vehicle Commission), as a transport body, must have
regard to the transport system objectives and the decision making
principles in that Act and, if it is a specified transport body in
respect of a statement of policy principles made under that Act,
must have regard to the specified policy principles which apply
to it under that statement.
New section 6B (to be renumbered as section 13, see clause 14
of the Bill) makes clear the interaction of the Principal Act with
the Occupational Health and Safety Act 2004. This provision
is required because the safety duties imposed on the commercial
passenger vehicle industry under proposed new Part 2 (see clause
18 of the Bill) are similar to the general duties contained in the
Occupational Health and Safety Act 2004.
New subsection (1) provides that if a provision of the
Occupational Health and Safety Act 2004 or the regulations
applies to an activity in respect of which a duty is imposed under
proposed new Division 3 of Part 2, the provision under the
Occupational Health and Safety Act 2004 continues to apply,
and must be observed in addition to new Division 3 of Part 2 and
any regulations made for the purposes of that Division.
18
New subsection (2) provides that the Occupational Health and
Safety Act 2004 or the regulations made under it prevail to the
extent of the inconsistency with a provision of the Principal Act
or the regulations.
New subsection (3) provides that compliance with the Principal
Act or the regulations made under the Act is not in itself a
defence in any proceedings for an offence against the
Occupational Health and Safety Act 2004 or the regulations
made under that Act.
New subsection (4) provides that evidence of a relevant
contravention of the Principal Act or any regulations made under
the Act is admissible in a proceeding for an offence against the
Occupational Health and Safety Act 2004 or regulations made
under that Act.
Clause 11 substitutes the penalty at the foot of section 14(1) and section
14(5) of the Principal Act. Section 14 is currently contained in
Part 2 of the Act. Section 14 of the Act is to be renumbered as
new section 240 and Part 2 of the Act is to be renumbered as
Part 11 (see clauses 15 and 16 of the Bill).
Clause 11(1) substitutes the penalty at the foot of section 14(1) so
that the form of the penalty is consistent with the new penalties
being inserted into the Act by the Bill.
Clause 11(2) substitutes section 14(5) and the note at the foot of
that subsection. New section 14(5) provides that, to avoid doubt,
for the purposes of new section 215 of the Act, section 14(1) of
the Act imposes a requirement on a permission holder who is
liable to pay a levy to be registered. New section 215 of the Act
provides for when the regulator may take disciplinary action.
Clause 15 of the Bill will renumber section 14 of the Principal
Act as section 240.
The note under substituted section 14(5) of the Act explains
that the regulator may suspend or revoke the permission of a
permission holder who contravenes a requirement applying to the
permission holder under new Part 11 of the Act (as renumbered).
Clause 12 inserts new section 15A after section 15 of the Principal Act.
New section 15A confers a power on the Commissioner of State
Revenue to collect additional information. The purpose of this
information is to assist the administration of any rebates that may
apply for eligible commercial passenger vehicle trips.
19
New section 15A(1) provides that a person who is liable to
pay a levy must provide the Commissioner of State Revenue
information on the number of times commercial passenger
vehicle services were provided during a return period in a
geographic area or areas determined by the Commissioner of
State Revenue.
New section 15A(2) provides that the information is to be
provided in a manner and form determined by the Commissioner
and be provided at the same time as the person lodges a return.
New section 15A will be renumbered as section 242 by clause 15
of the Bill.
Clause 13 repeals section 20 of the Principal Act. The power to make
regulations under the Act is being re-enacted in new section 289
of the Act.
Clause 14 renumbers certain sections in Part 1 of the Principal Act.
Clause 15 renumbers certain sections of the original Part 2 of the Principal
Act, which is renumbered as new Part 11.
Clause 16 renumbers the heading to the original Part 2 of the Principal Act.
Part 11 is substituted for Part 2 in the heading to that Part.
Clause 17 renumbers cross references in the definitions in section 3 and in
sections 4 and 18 of the Principal Act.
Clause 18 inserts new Parts 2 to 10 in the Principal Act.
New Part 2 provides for safety principles and duties that apply
in respect of the provision of commercial passenger vehicle
services. This new Part imposes requirements and duties on
persons involved in or related to the provision of commercial
passenger vehicle services and booking services to ensure the
safety of those services, so far as is reasonably practicable.
The purpose of the new Part is to ensure the safety of passengers
of motor vehicles used to provide commercial passenger vehicle
services, drivers of motor vehicles used to provide commercial
passenger vehicle services, and members of the public.
20
Part 2--Safety duties and principles
New Part 2 consists of 4 Divisions.
Division 1--Principles of commercial passenger vehicle safety
Division 1 outlines the principles of commercial passenger
vehicle safety.
New section 16 outlines the principle of shared responsibility.
New subsection (1) states that commercial passenger vehicle
safety is the shared responsibility of--
• owners of motor vehicles used to provide commercial
passenger vehicle services; and
• drivers of motor vehicles used to provide commercial
passenger vehicle services; and
• booking service providers; and
• persons who have control over the provision of
commercial passenger vehicle services; and
• suppliers of services and equipment to the commercial
passenger vehicle industry; and
• the regulator; and
• members of the public.
New subsection (2) states that the level and nature of
responsibility that a person or a person within a class of person,
referred to in new subsection (1) has for commercial passenger
vehicle safety is dependent on--
• the nature of the risk to commercial passenger vehicle
safety that the person creates from the carrying out of an
activity or the making of a decision; and
• the capacity that that person has to control, eliminate or
mitigate that risk or any other risk to commercial
passenger vehicle safety.
New section 17 outlines the principle of accountability for
managing safety risks.
This section outlines that managing risks associated with the
provision of commercial passenger vehicle services is the
responsibility of the person best able to control the risk.
21
New section 18 outlines the principle of enforcement of this Act
and the regulations.
It states that enforcement of this Act and the regulations should
be undertaken for the purpose of--
• protecting public safety; and
• promoting improvement in commercial passenger
vehicle safety; and
• removing any incentive for unfair commercial
advantage that might be derived from contravening the
safety requirements under this Act or the regulations;
and
• influencing the attitude and behaviour of persons whose
actions may have adverse impacts on commercial
passenger vehicle safety.
New section 19 outlines the principle of timeliness and
transparency. It states that regulatory decision-making processes
for the commercial passenger vehicle industry should be timely
and transparent.
New section 20 outlines the principle of participation,
consultation and involvement of all affected persons. It states
that the persons and classes of persons referred to in section 16(1)
should--
• participate in or be able to participate in; and
• be consulted on; and
• be involved in--
the formulation and implementation of measures to manage risks
to commercial passenger vehicle safety.
New section 21 provides that the Parliament does not intend by
Division 1 of Part 2 to create any legal right in any person nor
give rise to any civil cause of action.
Division 2--The concept of ensuring safety
Division 2 relates to the concept of ensuring safety.
New section 22 of Division 2 outlines the concept of ensuring
safety.
22
New subsection (1) states that, to avoid doubt, a duty imposed on
a person under this Act or the regulations to ensure safety, so far
as is reasonably practicable, requires the person to--
• eliminate risks to safety so far as is reasonably
practicable; and
• if it is not reasonably practicable to eliminate risks to
safety, to reduce those risks so far as is reasonably
practicable.
New subsection (2) states that, to avoid doubt, for the purposes
of this Part, or regulations made for the purposes of this Part,
regard must be had to the following matters in determining what
is (or was at a particular time) reasonably practicable in relation
to ensuring safety--
• the likelihood of the hazard or risk concerned
eventuating;
• the degree of harm that would result if the hazard or risk
eventuated;
• what the person concerned knows, or ought reasonably
to know, about the hazard or risk and any ways of
eliminating or reducing the hazard or risk;
• the availability and suitability of ways to eliminate or
reduce the hazard or risk; and
• the cost of eliminating or reducing the hazard or risk.
Division 3--Safety duties
Division 3 relates to safety duties.
This Division imposes general duties on a range of industry
participants, being persons who have capacity to ensure the
safety of commercial passenger vehicle services. The duty of
ensuring the safety of commercial passenger vehicle services is
subject to the qualification of so far as is reasonably practicable.
New section 23 outlines the duties of owners of motor vehicles
used to provide commercial passenger vehicle services.
New subsection (1) states that an owner of a motor vehicle who
knows, or ought reasonably to know, that the vehicle is being
used, or is to be used, to provide commercial passenger vehicle
services must, so far as is reasonably practicable, ensure those
23
services are provided safely. The maximum penalty for a
contravention of this offence is 1800 penalty units for an
individual and 9000 penalty units for a body corporate.
New subsection (2) states that, without limiting new subsection
(1), an owner contravenes that subsection if the owner fails to do
any of the following--
• maintain the vehicle in a fit, serviceable and safe
condition;
• provide or maintain any equipment or systems used in
the vehicle in accordance with the regulations;
• provide sufficient information or instruction to the
driver of the vehicle who is using it to provide
commercial passenger vehicle services to enable that
driver to provide the services safely.
New subsection (3) provides that an offence against new
subsection (1) is an indictable offence.
New section 24 outlines the duties of booking service providers.
New subsection (1) states that a booking service provider must,
so far as is reasonably practicable, ensure commercial passenger
vehicle services provided by an associated driver are provided
safely. The maximum penalty for a contravention of this offence
is 1800 penalty units for an individual and 9000 penalty units for
a body corporate.
New subsection (2) states that without limiting new subsection
(1), a booking service provider contravenes that subsection if the
booking service provider fails to do any of the following--
• identify and manage risks to safety associated with
commercial passenger vehicle services provided by an
associated driver;
• acquire and maintain a database of the hazards or risks
relating to the provision of commercial passenger
vehicle services by associated drivers and the measures
taken to eliminate or reduce the hazards or risks;
• provide information, instruction, training or supervision
to associated drivers to enable those drivers to provide
commercial passenger vehicle services safely, including
implementing systems or processes for--
24
• the management of driver fatigue; and
• drug and alcohol testing of drivers; and
• the maintenance of commercial passenger
vehicles; and
• emergency management; and
• driver behaviour, competency and medical
fitness.
New subsection (3) provides that an offence against new
subsection (1) is an indictable offence.
New subsection (4) defines associated driver for the purposes of
this section. It states that an associated driver, in relation to a
booking service provider, means a driver of a motor vehicle who
provides commercial passenger vehicle services through booking
services provided by the provider.
New section 25 outlines the duties of persons who have control
over the provision of commercial passenger vehicle services.
New subsection (1) states that a person who has control over the
provision of commercial passenger vehicle services, must, so far
as is reasonably practicable, ensure those services are provided
safely. The maximum penalty for a contravention of this offence
is 1800 penalty units for an individual and 9000 penalty units for
a body corporate.
New subsection (2) provides that an offence against new
subsection (1) is an indictable offence.
New subsection (3) states that, for the purposes of section 25,
a person who has control over the provision of commercial
passenger vehicle services includes a person who would have
control if not for any agreement purporting to limit or remove
that control, and does not include a passenger.
New section 26 outlines the duties of suppliers of services or
equipment used in relation to the provision of commercial
passenger vehicle services.
New subsection (1) states that a person who supplies, installs,
maintains, repairs or modifies any thing and knows, or ought
reasonably to know, that the thing is used, or is to be used, in the
provision of commercial passenger vehicle services must--
25
• ensure, so far as is reasonably practicable, that the thing
is safe when used for a purpose for which it was
supplied, installed, maintained, repaired or modified;
and
• carry out, or arrange the carrying out, of such testing
and examination as may be necessary for compliance
with this section; and
• in the case of a thing to which a person must ensure,
so far as is reasonably practicable, that the thing is safe
if it is used for a purpose for which it was supplied,
installed, maintained, repaired or modified, that person
must take such action as is necessary to ensure that there
will be available in connection with the use of the thing
adequate information about--
• the use for which the thing was supplied,
installed, maintained, repaired or modified; and
• the results of any testing or examination; and
• any conditions necessary to ensure the thing is
safe when used for a purpose for which it was
supplied, installed, maintained, repaired or
modified.
The maximum penalty for a contravention of this offence is
1800 penalty units for an individual and 9000 penalty units for a
body corporate.
New subsection (2) provides that an offence against new
subsection (1) is an indictable offence.
New subsection (3) states that, for the purposes of new
subsection (1), if the person who supplies the thing--
• carries on the business of financing the acquisition of
the thing by customers; and
• has, in the course of that business, acquired an interest
in the thing solely for the purpose of financing its
acquisition by a customer from a third person or its
provision to a customer by a third person; and
26
• has not taken possession of the thing or has taken
possession of it solely for the purpose of passing
possession to that customer--
the reference in new subsection (1) to the person who supplies
that thing is instead taken to be a reference to the third person.
New subsection (4) states that this section does not apply to a
person who designs, commissions, constructs or manufactures a
motor vehicle.
New subsection (5) clarifies that in this section the definition of
supplies includes designs, commissions, constructs or
manufactures.
New section 27 outlines the duties of drivers providing
commercial passenger vehicle services.
New subsection (1) states that a driver of a motor vehicle who
provides or will be providing commercial passenger vehicle
services by means of the vehicle must--
• take reasonable care for the driver's own health and
safety; and
• take reasonable care for the health and safety of persons
who may be affected by the driver's acts or omissions;
and
• co-operate with a booking service provider with respect
to any action taken by the booking service provider to
comply with a requirement imposed by or under the
Principal Act or regulations made under it.
The maximum penalty for a contravention of this offence is
1800 penalty units.
New subsection (2) provides that an offence against new
subsection (1) is an indictable offence.
Division 4--Codes of practice
Division 4 provides for the development and use of codes of
practice.
New section 28 relates to codes of practice.
27
New subsection (1) states that for the purposes of providing
practical guidance to persons who may be placed under a duty by
or under Division 3 of new Part 2, the Minister may, subject to
section 32, approve one or more codes of practice.
New subsection (2) states that a code of practice--
• may consist of any code, standard, rule, specification
or provision relating to any aspect of commercial
passenger vehicle service safety; and
• may apply, incorporate or adopt any document
formulated or published by any body or authority as in
force at the time the code of practice is approved, or as
amended, formulated or published from time to time.
New subsection (3) allows for the approval of a code of practice
to take effect on the day on which notice of the approval is
published in the Government Gazette, or any later day specified
in the notice.
This section notes that a code of practice approved under this
section is disallowable by either House of Parliament under
section 35.
New section 29 outlines how revisions can be made to approved
codes of practice. Subject to new section 32, the Minister may
approve any revision of the whole, or any part, of an approved
code of practice or revoke the approval of a code of practice.
The approval of a revision to an approved code of practice takes
effect on the day on which notice of the approval of the revision
is published in the Government Gazette, or on any later day
specified in the notice.
New section 30 relates to the revocation of approvals of codes of
practice. This section states that approval of a code of practice
ceases to have effect at the end of the day on which notice of the
revocation of the approval is published in the Government
Gazette, or on any later day specified in the notice.
New section 31 relates to how approved codes of practice will be
made available. The Minister is required to give the regulator a
current copy of every approved code of practice; and a copy of
every document applied, incorporated or adopted by an approved
code of practice (in the form in which that document has effect in
the approved code of practice).
28
The regulator is required by new section 31(2) to be make these
documents available for inspection by members of the public
without charge at the regulator's office during normal office
hours and to publish them on the regulator's internet site.
New section 32 requires the Minister to consult before approving
a code of practice or a revision to a code of practice. Before the
Minister approves a code of practice or any revision of the whole,
or any part, of an approved code of practice under new section 28
or 29, the Minister must consult with persons or bodies that may
be affected by the code of practice, or revision of an approved
code of practice, to be approved.
New section 33 outlines the effect of an approved code of
practice. A person is not liable to any civil or criminal
proceedings by reason only that the person has failed to observe
any provision of an approved code of practice.
The section notes that a person who complies with a compliance
code may however, be taken to have complied with the Principal
Act, under new section 34.
New section 34 outlines the effect of compliance with regulations
or approved codes of practice. If--
• the regulations or an approved code of practice make
provision for or with respect to a duty or obligation
imposed by the Principal Act or regulations made under
it; and
• a person complies with the regulations or the approved
code of practice to the extent that it makes that
provision--
the person is, for the purposes of the Principal Act or the
regulations made under it, taken to have complied with the
Principal Act or the regulations made under it in relation to that
duty or obligation.
New section 35 outlines the process for tabling and disallowance
of a code of practice. The Minister is required to ensure that a
copy of an approved code is laid before each House of the
Parliament on or before the 6th sitting day after an approved code
of practice is published in the Government Gazette. A failure to
comply with this requirement does not affect the operation or
effect of the code of practice but the Scrutiny of Acts and
29
Regulations Committee of the Parliament may report the failure
to each House of the Parliament.
New subsection (3) provides that a code of practice may be
disallowed in whole or in part by either House of Parliament.
New subsection (4) states that Part 5 of the Subordinate
Legislation Act 1994 applies to a code of practice as if--
• a reference in that Part to statutory rule were a reference
to a code of practice; and
• a reference in section 23(1)(c) of that Act to
section 15(1) were a reference to new subsection (1).
New subsection (5) states that a reference to a code of practice in
this section includes a reference to any amendment to, or revision
of the whole or any part of, a code of practice.
Part 3--Registration of commercial passenger vehicles
New Part 3 provides for the registration of commercial passenger
vehicles.
Division 1--Preliminary
New Division 1 of Part 3 sets out preliminary matters.
New section 36 sets out the purpose of registration of motor
vehicles as commercial passenger vehicles, which is to provide a
method of establishing the identity of those vehicles and of who
is using them to provide commercial passenger vehicle services.
Division 2--Commercial passenger vehicle registration
offences
New Division 2 of Part 3 provides for offences relating to
commercial passenger vehicle registration.
New section 37 provides that it is an offence to drive a motor
vehicle for the purpose of providing a commercial passenger
vehicle service if the vehicle is not registered under new Part 2.
However, this does not apply if the person driving the motor
vehicle is an employee of the owner of that vehicle (the note at
the foot of new section 37 explains that new section 38 provides
that in those circumstances it is the owner who commits the
offence). This offence carries a maximum penalty of 60 penalty
units.
30
New section 38 provides that the owner of a motor vehicle
commits an offence if--
• a person drives the motor vehicle for the purpose of
providing a commercial passenger vehicle service; and
• that person is an employee of the owner; and
• the vehicle is not registered under new Part 3.
This offence carries a maximum penalty of 60 penalty units in the
case of an individual and 300 penalty units in the case of a body
corporate.
New section 39 provides that a person who provides a booking
service commits an offence if a commercial passenger vehicle
service is provided as a result of the provision of the booking
service, and the motor vehicle used to provide the commercial
passenger vehicle service is not registered under new Part 3.
This offence carries a maximum penalty of 60 penalty units in the
case of an individual and 300 penalty units in the case of a body
corporate.
Division 3--Commercial passenger vehicle registration
New Division 3 of Part 3 provides for the application for
registration, and the registration, of commercial passenger
vehicles and related matters.
New section 40 provides that the owner of a motor vehicle or a
person who has the owner's permission may apply to the
regulator to register the vehicle as a commercial passenger
vehicle under new Part 3.
New subsection (2) provides that an application for registration
must be made in the manner and form approved by the regulator
and must be accompanied by any information or thing required
by the regulator and the application fee (if any).
New subsection (3) provides that if the applicant is not the owner
of the motor vehicle in respect of which registration is sought,
the application must include the name of the owner.
New section 41 enables the regulator to require an applicant
who seeks to register a vehicle under new Part 3 to give further
information or do a thing that the regulator reasonably requires in
order to assess the application and to require the applicant to
verify any statement or information.
31
New section 42 provides that the regulator must register a motor
vehicle under new Part 3 if the regulator is satisfied that all the
requirements in relation to the application and applicant under
new Part 3 have been complied with.
New section 43 enables the regulator to impose any conditions
on a registration under new Part 3 that the regulator considers
appropriate. If the regulator imposes a condition on the
registration, the regulator is required to notify the person that
they have a right to a review of the imposition of the conditions
under new Part 12. Subsection (4) provides that a registration is
also subject to prescribed conditions.
New section 44 provides that a registration of a vehicle as a
commercial passenger vehicle remains in effect until cancelled or
surrendered.
New section 45 provides for annual registration fees in relation
to vehicle registration. A person in whose name the vehicle is
registered is required to pay the appropriate annual registration
fee determined by the regulator under new section 282 by the
date specified by the regulator. The regulator is required to give
written notice of the fee to be paid. The regulator is required to
specify a date that is the due date for the fee that is not less than
10 business days after the giving of the notice. The regulator
may cancel or suspend a registration if the person fails to pay the
registration by this date. The decision to cancel or suspend a
registration is not a reviewable decision under new Part 12.
New section 46 provides that the regulator may vary or revoke a
condition of, or impose new conditions on, a registration.
New subsection (2) provides that before varying or revoking
conditions of, or imposing new conditions on, a registration, the
regulator must give the person in whose name a motor vehicle
is registered under new Part 2 written notice of the proposed
variation, revocation or imposition and the reasons for it, and
allow the person to make written representations about the
proposed action within 10 business days after being notified of it.
The regulator and the person may agree to a different period in
which the person may respond.
New subsection (3) provides that new subsection (2) does not
apply if the regulator considers it necessary to take immediate
action in the interests of public safety.
32
New subsection (4) provides that the regulator must give the
person written notice of the action taken to vary or revoke a
condition imposed on a registration or to impose a new condition
as soon as practicable after taking the action.
New subsection (5) provides that the notice must include a
statement of reasons for taking that action and notify the person
that the person has a right to seek review of the regulator's
decision under new Part 12.
New section 47 provides that the person in whose name a vehicle
is registered commits an offence if they do not comply with any
conditions imposed on the registration of that vehicle including
prescribed conditions. This offence carries a maximum penalty
of 120 penalty units in the case of an individual and 600 penalty
units in the case of a body corporate.
New section 48 provides that the regulator may cancel the
registration of a motor vehicle by giving written notice to the
person in whose name the vehicle is registered. The registration
may be cancelled if the regulator believes, on reasonable
grounds, that the vehicle is no longer being used to provide a
commercial passenger vehicle service or for any prescribed
reason. The notice must include a statement of reasons for the
cancellation and inform the person of the right to a review
under new Part 12 of the decision to cancel the registration.
A cancellation of registration has effect from the date specified
in the notice of cancellation.
New section 49 provides that a person in whose name a
commercial passenger vehicle is registered may apply in writing
to surrender the registration.
New subsection (2) requires the regulator to consent to the
surrender.
New subsection (3) provides that the regulator may impose any
condition on the grant of its consent that the regulator considers
necessary to protect the interests of a third party.
New subsection (4) provides that is an offence if the person does
not comply with such a condition. The maximum penalty for a
contravention of this offence is 20 penalty units.
33
Division 4--Miscellaneous
New Division 4 of Part 3 contains offences relating to false
representations in relation to registration, and failing to indicate
that a vehicle is being used to provide a commercial passenger
vehicle service.
New section 50 provides that it is an offence to falsely represent
that a motor vehicle is registered under new Part 3. This offence
carries a maximum penalty of 30 penalty units in the case of an
individual and 150 penalty units in the case of a body corporate.
New section 51 provides that it is an offence to drive a
commercial passenger vehicle for the purpose of providing a
commercial passenger vehicle service if any thing that the
regulations require to be displayed is not prominently displayed
on the vehicle and clearly visible to any person approaching the
vehicle.
It is also an offence if a person drives a commercial passenger
vehicle for the purpose of providing a commercial passenger
vehicle service and a thing that the regulations require is not
installed or operating in the vehicle in the manner that the
regulations require.
This offence carries a maximum penalty of 60 penalty units.
Part 4--Registration of booking service providers
New Part 4 provides for the registration of booking service
providers.
New Part 4 is a re-enactment of Division 4 of Part VI of the
Transport (Compliance and Miscellaneous) Act 1983 with
amendments. Division 4 of Part VI imposes a requirement on
persons who provide a booking service to be accredited.
New Part 4 requires persons who provide a booking service
to be registered to provide that service.
New Part 4 consists of 4 Divisions.
Division 1--Preliminary
New Division 1 of Part 4 provides for preliminary matters
relating to the registration of booking service providers.
34
New section 52 provides for the purpose of registration.
The purpose of registration is to--
• provide a method of establishing the identity of--
• the providers of booking services; and
• the persons responsible for managing activities
relating to the provision by those providers of
those services; and
• enable booking service providers to be regulated for
reasons of public safety; and
• ensure that booking service providers meet prescribed
safety standards.
Division 2--Booking service offences
New Division 2 provides for offences.
New section 53 makes it an offence if a person provides a
booking service and is neither registered to provide that service
nor exempted under the regulations from the requirement to
be registered. This offence carries a maximum penalty of
240 penalty units in the case of an individual and 1200 penalty
units in the case of a body corporate.
New section 54 makes it an offence for a person to advertise
or in any way hold themselves out as able or willing to provide
a booking services unless registered to provide that service
or exempted under the regulations from the requirement to
be registered. This offence carries a maximum penalty of
240 penalty units in the case of an individual and 1200 penalty
units in the case of a body corporate.
New section 55 makes it an offence for a person to accept a
request from an unregistered booking service provider. In this
instance, a person commits an offence if--
• the person accepts a request from a booking service
provider for a person to be provided with a commercial
passenger vehicle service; and
• the person knows, or ought reasonably to know, that
the booking service provider is not registered under
new Part 4 or exempted under the regulations from the
requirement to be registered.
35
New subsection (2) makes various persons liable for an offence
under new section 55(1) and sets out the penalties in certain
circumstances. In the case of a booking service provider who is
an individual, a penalty not exceeding 240 penalty units applies.
In the case of a booking service provider who is a body
corporate, a penalty not exceeding 1200 penalty units applies.
In the case of a person who is an accredited driver, a penalty not
exceeding 60 penalty units applies. In any other case, a penalty
not exceeding 50 penalty units applies.
New section 56 makes it an offence to falsely represent that a
person is registered under new Part 4 or exempted under the
regulations from the requirement to be registered. The penalty in
the case of an individual is 30 penalty units. The penalty in the
case of a body corporate is 150 penalty units.
Division 3--Booking service provider registration
New Division 3 of Part 4 provides for registration as a booking
service provider and related matters.
New section 57 provides that a person may apply to the regulator
for registration under new Part 4 as a provider of a booking
service.
Applications for registration must be made in the manner and
form determined by the regulator and be accompanied by--
• the fee (if any) for the application determined by the
regulator under new section 282; and
• evidence, as required by the regulations, that each
relevant person in relation to the applicant, satisfies the
requirements for registration; and
• any other thing that is required by the regulations.
For applications by a person that is not an individual, the
applicant is required to nominate a relevant person as the
responsible person in relation to the applicant.
New subsection (3) states that the regulator may require any one
or more of the following in relation to an application--
• the applicant to do a thing specified by the regulator that
the regulator reasonably requires to assess the
application; or
36
• verification, by a statutory declaration, of any statement
made or information given for the purposes of the
application;
• the applicant to give further information for the purpose
of the application.
New subsection (4) states that any further information supplied
by the applicant under new subsection (3)(c) must be--
• if the regulations so provide, signed in accordance with
the regulations; and
• declared by each signatory to be true and correct.
New subsection (5) provides that in the case of an application
by a person that is not an individual, the regulator is entitled to
communicate with the relevant person nominated by the
applicant.
New section 58 outlines how an application for registration as
a booking service provider is determined. The regulator must
approve an application for registration if satisfied that the
applicant--
• is a fit and proper person to be registered; and
• has complied with the application requirements under
new Part 4.
In the event that the regulator is not satisfied about the matters
listed in new section 58(1), they regulator must refuse the
application.
New section 59 outlines what the regulator must do when an
application is refused. If the regulator decides to refuse the
application, the regulator must give the applicant a written notice
of the decision. The notice must include a statement of reasons
for the decision and that the applicant has a right to seek review
of the decision under new Part 12.
New section 60 provides that, in registering an applicant, the
regulator may impose any conditions on the registration that it
considers appropriate. The regulator is required to notify the
person they have a right to seek review of the decision under
new Part 12. A registration is also subject to any prescribed
condition.
37
New section 61 provides that registration remains in effect until
it is cancelled or surrendered.
New section 62 provides for annual registration fees.
A registered booking service provider is required to pay to the
regulator the appropriate annual fee determined by the regulator
under new section 282 by the date specified by the regulator.
The regulator is required to provide a written notice to the
person. The due date for the fee specified in the notice must
not be less than 10 business days after the notice is given.
The regulator may suspend or cancel a registration of a booking
service provider if the person fails to pay the annual fee.
New section 63 provides that the regulator may vary or revoke a
condition, or impose a new condition, on a registration.
New subsection (1) provides that the regulator may at any time
(on the regulator's own initiative or on the written application of
the registered person)--
• vary or revoke a condition imposed by the regulator on
a registration; or
• impose a new condition on a registration.
New subsection (2) requires the regulator before taking action
under new section 63(1)--
• to give the registered booking service provider written
notice of the action that the regulator proposes to take
and of the reasons for taking it; and
• to allow the registered booking service provider to make
written representations about the proposed action within
10 business days after being notified of it (or any other
period that the regulator and the registered provider
agree).
New subsection (3) outlines that new subsection (2) does not
apply if the regulator considers it necessary to take immediate
action in the interests of public safety.
New subsection (4) requires the regulator to give the registered
provider written notice of the action as soon as practicable.
New subsection (5) requires that the notice include a statement
of reasons for that action, and notify the person of their right to
seek review of the regulator's decision under new Part 12.
38
New section 64 makes it an offence to fail to comply with a
condition of registration. A registered booking service provider
commits an offence if they do not comply with any condition
imposed on the registration or any prescribed condition to which
that registration is subject. This offence carries a maximum
penalty not exceeding 120 penalty units for an individual or
600 penalty units for a body corporate.
New section 65 imposes an obligation on a registered booking
service provider to notify the regulator if there is a change to the
registration that is prescribed. It is an offence if the provider
does not notify the regulator of that change within 10 business
days after becoming aware of it. A person who commits an
offence against this new section is liable to a penalty not
exceeding 5 penalty units.
New section 66 relates to the surrender of registration.
A registered booking service provider may apply in writing to
the regulator for consent to the surrender of the registration.
The regulator must consent to the surrender but the regulator
may impose any condition on the grant of the consent that the
regulator considers necessary to protect the interests of a third
party. It is also an offence for a person to not comply with such
a condition. The maximum penalty for a contravention of this
offence is 20 penalty units.
Division 4--Miscellaneous
Division 4 relates to miscellaneous matters.
New section 67 makes it an offence for a booking service
provider to provide a booking service that results in a commercial
passenger vehicle service being provided by drivers who do not
hold a driver accreditation. A contravention of this offence
carries a maximum penalty of 60 penalty units for an individual
and 300 penalty units for a body corporate.
New Part 5 provides for the accreditation of commercial
passenger vehicle drivers. New Part 4 is a re-enactment of
Division 6 of Part VI of the Transport (Compliance and
Miscellaneous) Act 1983 with amendments. It will continue to
be a requirement for all drivers of commercial passenger vehicles
to hold an accreditation.
39
Part 5--Commercial passenger vehicle driver accreditation
New Part 5 consists of 5 Divisions.
Division 1--Preliminary
New Division 1 relates to interpretation.
New section 68 outlines the meaning of the phrase "persons
found guilty of an offence" used throughout new Part 5.
This section clarifies that a reference to a person who has been
found guilty of an offence is a reference to a person--
• against whom a court has made a formal finding that
the person is guilty of the offence that has not been
subsequently quashed or set aside by a court; or
• from whom a court has accepted a plea that the person
is guilty of the offence that has not been subsequently
quashed or set aside by a court; or
• from whom a court has accepted an admission
under section 100 of the Sentencing Act 1991 (that is,
an admission to the commission of other additional
offences) that the person has committed the offence, or
from whom a similar admission has been accepted
under a provision of a law of a jurisdiction other than
Victoria that substantially corresponds to that section
that has not been subsequently quashed or set aside by a
court; or
• in relation to whom any of the following infringement
notices has taken effect as a conviction for the offence
specified in the notice--
• a safety work infringement notice to which
section 95(1) of the Transport (Safety Schemes
Compliance and Enforcement) Act 2014
applies;
• an infringement notice to which section 61A(2)
of the Marine (Drug, Alcohol and Pollution
Control) Act 1988 applies (that is, an
infringement for operating a vessel under the
influence of alcohol);
40
• a traffic infringement notice to which section
89A(2) of the Road Safety Act 1986 applies
(that is, an infringement for drink-driving,
drug-driving, or excessive speed); or
• against whom a finding has been made under--
• section 17(1)(b) or 38X(1)(b) of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997 that the person was not guilty
of the offence because of mental impairment; or
• section 17(1)(c) or 38X(1)(c) of the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997 that the person committed the
offence or an offence available as an alternative;
or
• the Crimes (Mental Impairment and Unfitness
to be Tried) Act 1997 of not guilty because of
mental impairment; or
• against whom a finding similar to a finding referred
to above under the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 has been made under a
provision of a law of a jurisdiction other than Victoria
that substantially corresponds to that Act or a section of
that Act referred to in that paragraph.
New section 69 defines the public care objective. The public
care objective is the objective that the services provided by
drivers of commercial passenger vehicles--
• be provided to persons using those services and to other
persons, particularly children and other vulnerable
persons--
• with safety; and
• with comfort, amenity and convenience; and
• be provided in a manner that is not fraudulent or
dishonest.
Examples of vulnerable person include the elderly and disabled
persons.
41
Division 2--Non-accredited offence
New Division 2 relates to non-accreditation offences.
New section 70 makes it an offence for a driver to provide
commercial passenger vehicle services without accreditation.
This section states that a person must not, as the driver of a
commercial passenger vehicle, provide a commercial passenger
vehicle service if the person is not accredited under this Part.
The maximum penalty for this offence is 60 penalty units.
Division 3--Driver accreditations
New Division 3 relates to driver accreditations.
New section 71 provides that a person may apply for the issue
of a driver accreditation. An application must be made in the
manner and form approved by the regulator, accompanied
by any information or thing required by the regulator, and
accompanied by the fee (if any) for the application determined
by the regulator under new section 282. The regulator may also
require the applicant to do additional things or provide additional
information and things in relation to the application.
In addition, the regulator may require an applicant for driver
accreditation to--
• be photographed at a place and in a manner specified by
the regulator; and
• give the regulator a specimen signature at a place and in
a manner specified by the regulator.
New section 72 outlines the tests, qualifications and other
requirements related to driver accreditations.
New subsection (1) states that the regulator may require an
applicant for driver accreditation to do all or any of the
following--
• undertake a specified prescribed course of training;
• obtain a specified prescribed qualification;
• pass specified prescribed tests including tests relating
to--
• the applicant's fitness to drive a vehicle; and
• the applicant's medical condition.
42
Under new subsection (2), the regulator may specify courses of
training by reference to either or both of the following--
• the name of the course;
• the provider of the course.
New subsection (3) states that, in specifying a course of training,
the regulator must--
• be satisfied about--
• its content and nature; and
• the materials, resources and equipment required
to provide it; and
• have regard to the public care objective.
New subsection (4) requires the regulator to publish the name
and provider of any course of training specified under this section
on the regulator's internet site.
New section 73 outlines the matters to which the regulator may
have regard in considering applications.
New subsection (1) provides that in considering an application
for the issue of a driver accreditation, the regulator may have
regard to any of the following--
• whether the applicant has at any time (before, on or
after the commencement of this section) been subject to
a finding referred to in section 14(1)(a) of the Working
with Children Act 2005;
• any infringement notice served on the applicant for a
transport offence--
• that has not been withdrawn or cancelled; and
• in relation to which information lodged under
section 40(1)(a) of the Infringements Act 2006
is not deemed to be a charge-sheet charging the
offence by operation of section 40(1)(b) of that
Act;
• any infringement notice served on the applicant for a
transport offence in relation to which information
lodged under section 71(1)(a) of the Infringements
43
Act 2006 is not deemed to be a charge-sheet charging
the offence by operation of section 71(1)(b) of that Act.
New subsection (2) provides that, in relation to an infringement
notice referred to in subsection (1), the regulator may have regard
to the following--
• the nature and gravity of the transport offence and its
relevance to the purpose for which the applicant seeks
to be accredited;
• when the transport offence is alleged to have been
committed;
• whether the transport offence still exists;
• the age of the applicant at the time of the alleged
commission of the transport offence;
• the applicant's behaviour since the alleged commission
of the transport offence;
• the likelihood of the applicant committing another
transport offence of the same kind; and
• whether the transport offence has been expiated;
• whether the decision to serve the infringement notice
has been subject to internal review under Division 3 of
Part 2 of the Infringements Act 2006;
• if the infringement notice was served for a traffic
infringement for which demerit points were incurred
under Part 4 of the Road Safety Act 1986, the effect on
the applicant of the operation of that Part including the
incurring of the demerit points;
• if the infringement notice was served for a traffic
infringement, whether the applicant made any of the
following statements under Part 6AA of the Road
Safety Act 1986 in relation to the traffic infringement--
• an illegal user statement;
• a known user statement;
• a sold vehicle statement;
• an unknown user statement;
44
• if the infringement notice was served for a traffic
infringement and the applicant made a known user
statement or a sold vehicle statement in relation to
the traffic infringement, whether a person made a
nomination rejection statement under Part 6AA of the
Road Safety Act 1986 in response to that statement;
• any information that the applicant has given the
regulator in relation to the infringement notice,
including reasons why the infringement penalty stated
in it was paid.
New subsection (3) provides that, in this section a transport
offence means--
• an offence under this Act or the regulations; or
• an offence under Part VI of the Transport
(Compliance and Miscellaneous) Act 1983 or
regulations made for the purposes of that Part; or
• a traffic infringement.
New section 74 outlines the timeframes within which the
regulator must deal with an application.
New subsection (1) states that subject to Division 3 of new
Part 5, the regulator must decide whether to approve or refuse
an application for accreditation within 20 business days after
receiving the application.
New subsection (2) provides that the regulator may, before the
expiry of the period specified in new subsection (1) or that period
as extended under this subsection, decide to extend the period
within which it may decide whether to approve or refuse an
application.
New subsection (3) provides that, if the regulator decides to
extend the period, the regulator must give the applicant written
notice of--
• that decision; and
• the new period within which it intends to make the
decision whether to approve or refuse an application.
45
New section 75 relates to the decision of the regulator to approve
or refuse an application for accreditation. The regulator, having
considered the matters referred to in new section 73, has
discretion to issue a driver accreditation if satisfied--
• that it is appropriate to do so having regard to the public
care objective; and
• that the applicant--
• is technically competent and sufficiently fit and
healthy to drive a motor vehicle for the purpose
of providing commercial passenger vehicle
services; and
• is a fit and proper person to provide a
commercial passenger vehicle service; and
• that the applicant has complied with the requirements
under this Part in relation to the application, including
paying the application fee (if any) determined by the
regulator under new section 282.
However, the regulator is required to refuse to issue a driver
accreditation if aware that the applicant--
• does not hold a driver licence, or probationary driver
licence, under the Road Safety Act 1986; or
• has been found guilty of a category 1 offence; or
• is a person who is subject to--
• reporting obligations imposed under Part 3 of the
Sex Offenders Registration Act 2004; or
• an extended supervision order or interim
extended supervision order made under the
Serious Sex Offenders Monitoring Act 2005;
or
• a supervision order or interim supervision order
within the meaning of the Serious Sex
Offenders (Detention and Supervision)
Act 2009.
46
The regulator, unless satisfied that the applicant has shown
that the issue of a driver accreditation is appropriate in the
circumstances, is also required to refuse to issue a driver
accreditation if aware that the applicant--
• has been found guilty of a category 2 offence; or
• is the subject of a charge for a category 1 offence that
has not been finally disposed of at the time of
considering the application.
New subsection (4) provides that, without limiting the discretion
of the regulator, the regulator may refuse to issue a driver
accreditation if aware that the applicant--
• has been found guilty of a category 3 offence; or
• is subject of a charge for a category 2 offence or
category 3 offence that has not been finally disposed of
at the time of considering the application.
New subsection (5) states that the regulator must not refuse to
issue a driver accreditation on a ground referred to in new
subsection (2) if a decision to refuse to issue an accreditation or
cancel an accreditation in respect of the person on that ground
has previously been set aside (without being remitted) by the
Victorian Civil and Administration Tribunal (VCAT).
New subsection (6) states that, in making a decision under new
section 75(3) or (4), the regulator may have regard to the
following matters in relation to the category 2 offence or
category 3 offence--
• the nature and gravity of the offence and its relevance to
the commercial passenger vehicle service to be provided
by the applicant;
• the period of time since the applicant committed the
offence;
• whether a finding of guilt or conviction was recorded;
• the sentence imposed for the offence;
• the age of the applicant when the offence was
committed;
• in relation to any sexual offence, the age of any victim;
47
• whether or not the conduct that constituted the offence
has been decriminalised since the offence was
committed;
• the applicant's behaviour since committing the offence;
• the likelihood of the applicant committing another such
offence in the future, in particular, any future threat to a
child or other vulnerable person;
• any information given by the applicant.
New section 76 provides that the regulator must give written
notice to an applicant of a decision to approve or refuse an
application for the issue of a driver accreditation. The notice is
required to include a statement of reasons for the decision and
alert the applicant to the right to a review of the decision under
new Part 12.
New section 77 relates to the imposition of conditions on a
driver accreditation. The regulator may impose conditions on a
driver accreditation on issuing the accreditation, but the regulator
must have regard to the public care objective when doing so.
The regulator has discretion to impose on a driver accreditation a
condition requiring the holder of the accreditation to undertake a
course of training or to pass a test specified under new section 72.
A driver accreditation is also subject to any prescribed
conditions.
The regulator is required to give the person to whom a driver
accreditation is issued a written copy of any conditions to which
the accreditation is subject.
New section 78 relates to certificates of accreditation.
The regulator is required to issue a certificate of accreditation
that--
• is in the form approved by the regulator; and
• sets out the name of the accredited driver.
New section 79 states that a driver accreditation remains in effect
until it is cancelled or surrendered.
New section 80 provides for the payment of annual accreditation
fees. An accredited driver is required to pay the annual
accreditation fee determined by the regulator (under new
section 282) and by the date specified by the regulator.
48
The regulator is required to give written notice of the amount of
the fee and when it is due. The due date specified in the notice
must not be less than 10 business days after the date the notice
is given. The regulator has discretion to cancel or suspend a
person's accreditation if the person does not pay the fee by the
date specified. The decision to cancel or suspend is not
reviewable under new Part 12.
New section 81 outlines that the regulator may vary or revoke a
condition, or impose new conditions, on a driver accreditation.
New subsection (1) provides that the regulator may at any time
(on the regulator's own initiative or on the written application of
the accredited driver), vary or revoke a condition imposed by the
regulator on a driver accreditation or impose a new condition.
The regulator is required to, in considering whether or not to vary
or revoke or impose a condition on a driver accreditation, have
regard to the public care objective.
New subsection (3) gives the regulator discretion to impose on a
driver accreditation a condition requiring the holder to undertake
a course of training or pass a test specified under new section 72.
New subsection (4) provides that the regulator must give to the
accredited person written notice of the action taken under new
subsection (1).
New subsection (5) provides that the notice must include a
statement of reasons for the decision and notify of the right
to a review of the decision under new Part 12.
New section 82 makes it an offence to fail to comply with
conditions. A person who is the holder of a driver accreditation
must comply with any conditions imposed on the accreditation
and any prescribed conditions. The maximum penalty for a
contravention of this offence is 30 penalty units.
New section 83 provides for the nature of a driver accreditation.
A driver accreditation--
• is personal to the person who holds it; and
• is not capable of being transferred or assigned to any
other person or of being otherwise dealt with by the
person who holds it; and
• does not vest by operation of law in any other person.
49
In addition, a purported transfer, assignment or lease of a driver
accreditation and any other purported dealing with a driver
accreditation by the person who holds it is of no effect. A person
commits an offence if the person purports to transfer or assign the
accreditation to any other person or otherwise purports to deal
with it (a maximum penalty not exceeding 60 penalty units
applies to this offence).
New section 83 does not apply to the surrender of a driver
accreditation in accordance with new Part 5.
New section 84 provides for the surrender of accreditation.
New subsection (1) states that the holder of a driver accreditation
may apply in writing to the regulator for consent to surrender it.
New subsection (2) states that an application under new
subsection (1) must be accompanied by the certificate of
accreditation unless--
• the certificate has already been returned to the regulator;
or
• the certificate has been lost, stolen or destroyed.
Under new subsection (3), if the certificate has been lost,
stolen or destroyed, the application must be accompanied by a
statement, verified by a statutory declaration signed by or on
behalf of the holder of the accreditation, that the certificate has
been lost, stolen or destroyed.
The regulator is required to consent to the surrender but the
regulator may impose any condition on the consent to surrender
that the regulator considers necessary to protect the interests of
a third party. A person commits an offence if--
• the regulator imposes a condition on a consent to
surrender a driver accreditation; and
• the condition applies to the person; and
• the person does not comply with the condition.
New subsection (7) states that the penalty for committing an
offence against new subsection (6) is a penalty not exceeding
20 penalty units.
50
Division 4--Disqualification from holding driver
accreditation
New Division 4 provides for the disqualification of a person from
holding a driver accreditation.
New section 85 relates to disqualification from applying for a
driver accreditation.
New subsection (1) provides that, if refused an accreditation,
the regulator has discretion to determine that the applicant is
disqualified from applying for a driver accreditation for a period
determined by the regulator.
Under new subsection (2), a period determined by the regulator
under new subsection (1) must not exceed 5 years.
New subsection (3) states that, in making a determination under
new subsection (1), the regulator must have regard to--
• the public care objective; and
• if the person has been found guilty of a category 2
offence or category 3 offence, the matters set out in
new section 75(6).
The regulator is required to give the applicant written notice of
disqualification as soon as practicable. The written notice is
required to include the period of disqualification, a statement
of reasons for disqualifying the person for that period, and a
statement as to the right for a review of the decision under new
Part 12.
New section 86 provides that a disqualification ceases if there has
been a relevant change of circumstances. A person who has been
disqualified under section 85 is not entitled to make a further
application for the issue of a driver accreditation until the period
determined by the regulator has elapsed or the regulator declares
that the disqualification ceases to have effect.
A person may apply in writing to the regulator for a declaration
that the disqualification ceases to have effect. The regulator is
required to declare that the disqualification ceases to have effect
if satisfied that there has been a relevant change in circumstances
in relation to the applicant.
51
A relevant change in circumstances, in relation to a person,
includes where--
• a charge that the person was subject to, that was
pending at the date of the disqualification, is finally
dealt with, without the person being found guilty of the
offence; or
• a finding of guilt of the person is quashed or set aside by
a court after the date of the disqualification; or
• a finding on which the decision to disqualify the person
under section 85 was based is quashed or set aside after
the date of the disqualification
Division 5--Driver accreditation offences
New Division 5 provides for driver accreditation offences.
New section 87 makes it an offence (punishable with a maximum
fine of 5 penalty units) for a holder of a driver accreditation not
to sign a certificate of accreditation on receipt. An accredited
driver does not commit an offence if the certificate is not issued
in paper form.
New section 88 makes it an offence (punishable with a maximum
fine of 5 penalty units) for a holder of a driver accreditation not
to notify the regulator of a change of address.
New section 89 makes it an offence (punishable with a maximum
fine of 5 penalty units) for an accredited driver not to notify the
owner of a commercial passenger vehicle or a booking service
provider of the suspension or cancellation of their driver
accreditation.
New section 90 makes it an offence for an accredited driver
not to notify the regulator of being charged with, or found
guilty of, a disqualifying offence or of becoming subject to
reporting obligations or an order of a kind referred to in new
section 75(2)(c). The maximum penalty for such an offence
is 5 penalty units.
New section 91 makes it an offence (punishable with a maximum
fine of 5 penalty units) for an accredited driver to retain an
illegible, altered or defaced certificate of accreditation.
52
New section 92 makes it an offence (punishable with a maximum
fine of 5 penalty units) for an accredited driver to retain a
certificate of accreditation if the accreditation is suspended or
cancelled.
New section 93 makes it an offence (punishable with a maximum
fine of 5 penalty units) for an accredited driver not to carry a
certificate of accreditation while driving to provide a commercial
passenger vehicle service.
New section 94 makes it an offence (punishable with a maximum
fine of 5 penalty units) for an accredited driver not to produce a
certificate of accreditation when asked.
Part 6--Consumer and driver protections
New Part 6 relates to consumer and driver protections.
New Part 6 consists of 3 Divisions.
Division 1--Driver agreements
New Division 1 relates to driver agreements. The provisions in
this new Division substantially re-enact those in Division 5C of
Part VI of the Transport (Compliance and Miscellaneous)
Act 1983.
Subdivision 1--Preliminary
Subdivision 1 relates to preliminary matters.
New section 95 provides for the definition of Small Business
Commission for the purposes of this Division.
Small Business Commission means the Small Business
Commission established under section 4 of the Small Business
Commission Act 2017.
New section 96 provides that Division 1 of new Part 6 applies
to a driver agreement whether made before or after the
commencement of section 18 of the Commercial Passenger
Vehicle Industry Amendment (Further Reforms) Act 2017.
Subdivision 2--Implied conditions
Subdivision 2 provides for the imposition of implied conditions
on driver agreements.
New section 97 provides that the regulator, by notice published in
the Government Gazette, may specify conditions to be implied in
every driver agreement.
53
New subsection (2) provides that, without limiting new
subsection (1), it is an implied condition of every driver
agreement that at least the specified percentage of the gross fares
that accrue when a commercial passenger vehicle is in the
possession of a driver under the agreement are to be retained by,
or paid to, the driver.
New subsection (3) states that an implied condition specified
under section 162L(1) of the Transport (Compliance and
Miscellaneous) Act 1983 and in force immediately before the
commencement of this section is to be taken to have been
specified by the regulator under new subsection (1).
New subsection (4) states that, in new subsection (2), specified
percentage means--
• the percentage specified for the purpose of new
subsection (2) in a notice published under new
subsection (1); or
• 55 per cent, if a percentage is not so specified.
New section 98 creates an offence if an implied condition
is breached. A party to a driver agreement must not breach
a condition of the agreement implied under section 97.
The maximum penalty for a contravention of this offence in
the case of an individual is 120 penalty units. In the case of
a body corporate, the maximum penalty is 600 penalty units.
Subdivision 3--Preliminary assistance in dispute resolution
Subdivision 3 provides for preliminary assistance in dispute
resolution.
New section 99 provides for the referral of disputes to the
regulator.
New subsection (1) states that, either party, or both parties, to a
driver agreement, or a person proposing to enter into a driver
agreement, may refer to the regulator a dispute concerning a
condition of the agreement or proposed agreement.
New subsection (2) states that, as soon as practicable after a
dispute is referred under new subsection (1), the regulator must
make an assessment of the nature of the dispute.
54
New subsection (3) states that after having made an assessment,
the regulator must decide whether--
• to provide preliminary assistance in resolving the
dispute; or
• for a dispute concerning a condition of an agreement, to
take action to enforce compliance with the agreement;
or
• if there are different aspects to the dispute, to both
provide preliminary assistance in resolving the dispute
and to take action to enforce compliance with the
agreement.
New subsection (4) states that the regulator must notify the
Minister in writing about the dispute if the regulator--
• considers that the dispute may raise an issue of
important public policy; and
• has decided to not take action to enforce compliance
with the agreement under new subsection (3).
New subsection (5) states that preliminary assistance that may be
provided by the regulator includes the giving of advice to ensure
that--
• the parties are fully aware of their rights and
obligations; and
• there is full and open communication between the
parties concerning the matter.
New subsection (6) provides that, a statement or admission made
in the course of the provision by the regulator of preliminary
assistance is not admissible in proceedings before VCAT under
Subdivision 5 or in any other legal proceedings.
New section 100 allows the Minister to refer disputes directly to
VCAT.
New subsection (1) states that new subsection (2) applies if the
Minister considers that the subject matter of a dispute notified
under new section 99(4) raises an issue of important public
policy.
New subsection (2) states that the Minister may refer the dispute
directly to VCAT for hearing under Subdivision 5, even if the
regulator is in the process of providing preliminary assistance.
55
New section 101 provides for unresolved disputes to be referred
to the Small Business Commission or VCAT.
New subsection (1) states that the regulator may certify in writing
that--
• preliminary assistance under this Subdivision has failed
to resolve the dispute; or
• preliminary assistance under this Subdivision has failed
to resolve the dispute and, in the regulator's opinion, the
dispute is unlikely to be resolved with the assistance of
the Small Business Commission.
New subsection (2) states that a certificate issued under new
subsection (1) must state that a party or both parties may refer
the dispute--
• to the Small Business Commission if the certificate
certifies preliminary assistance under this Subdivision
has failed to resolve the dispute; or
• to VCAT if the certificate certifies that preliminary
assistance under Subdivision 3 has failed to resolve the
dispute and, in the regulator's opinion, the dispute is
unlikely to be resolved with the assistance of the Small
Business Commission.
New subsection (3) states that as soon as practicable after issuing
a certificate under subsection (1), the regulator must provide a
copy of it to the parties to the dispute.
New subsection (4) provides that within 30 days after receiving a
copy of a certificate under new subsection (1), a party or both
parties to the dispute may refer the dispute to the Small Business
Commission or VCAT, as the case requires.
New subsection (5) outlines that this section does not apply, or
ceases to apply, if the Minister refers the dispute directly to
VCAT under new section 100(2).
Subdivision 4--Alternative dispute resolution
Subdivision 4 relates to alternative dispute resolution.
New section 102 outlines the function of the Small Business
Commission in relation to dispute resolution.
New subsection (1) states that this section applies if a dispute is
referred to the Small Business Commission under Subdivision 3.
56
New subsection (2) states that the Commission must make
arrangements to facilitate the resolution of the dispute by--
• mediation by a mediator; or
• another appropriate form of alternative dispute
resolution by a suitably qualified person.
New subsection (3) states that the Commission may join any
person that it considers appropriate to join as a party to the
dispute.
New subsection (4) states that the Commission is not subject to
the Minister's control or direction in exercising functions under
this Subdivision.
New section 103 provides for mediation or other alternative
dispute resolution.
New subsection (1) states that a party to a mediation or other
form of alternative dispute resolution may be represented by a
legal practitioner.
New subsection (2) states that the mediator or person conducting
the other form of alternative dispute resolution (the ADR official)
may meet with a party (alone or together with any other party)
without the party's legal representative being present.
New subsection (3) provides that the mediator or ADR official
may act under new subsection (2) only if they consider it
appropriate to do so.
New subsection (4) states that the mediator or ADR official must
determine the costs of, and associated with, the mediation or
other form of alternative dispute resolution (including their own
fees and expenses).
New subsection (5) outlines that the parties must pay the costs
determined under new subsection (4) in the proportions that they
agree or, if they cannot agree, in equal shares.
New subsection (6) states that the Small Business Commissioner
under section 18 of the Small Business Commission Act 2017
may personally act as a mediator or ADR official and is entitled
to be paid their fees and expenses for doing so.
New subsection (7) states that the Small Business
Commissioner's fees and expenses referred to in new subsection
(6) must not exceed the maximum amount (if any) that is
prescribed.
57
New subsection (8) provides that a mediator or ADR official
(including the Small Business Commissioner) is not civilly or
criminally liable in respect of the performance, in good faith, of
their functions under this section.
New section 104 provides that the Small Business Commission
may issue certificates.
New subsection (1) states that Small Business Commission may
certify in writing that alternative dispute resolution under this
Subdivision has failed, or is unlikely, to resolve a dispute referred
under Subdivision 3.
New subsection (2) states that a certificate under new subsection
(1) must include details of the parties to the dispute.
New subsection (3) states that the Commission may certify that a
party to the dispute has unreasonably refused to participate in
alternative dispute resolution under this Subdivision.
New subsection (4) states that a certificate issued under new
subsection (1) may be admitted in evidence in proceedings before
VCAT or a court.
New subsection (5) states that the Commission is not required to
give a party to the dispute an opportunity to be heard by, or make
submissions to, the Commission before issuing a certificate under
new subsection (1).
New section 105 provides that the parties may apply to VCAT.
This section states that if the Small Business Commission issues
a certificate under new section 104(1), a party or both parties to
the dispute may apply to VCAT for one or more orders under
new section 108.
Subdivision 5--VCAT proceedings
Subdivision 5 relates to VCAT proceedings.
New section 106 relates to the jurisdiction of VCAT.
New subsection (1) states that VCAT has jurisdiction to hear and
determine--
• the matter of a dispute referred to it--
• by the Minister under new section 100(2); or
• by a party or both parties to the dispute in
accordance with this Division; or
• an application by a party, or both parties, to a dispute
under new section 105.
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New subsection (2) states that neither the Minister or the
regulator is a party to a proceeding in respect of a dispute
referred by the Minister under new section 100(2), unless
joined by VCAT under section 60 of the Victorian Civil
and Administrative Tribunal Act 1998.
New section 107 outlines the time limits for certain complaints.
New subsection (1) states that VCAT must commence hearing
a dispute referred by the Minister under new section 100(2)
within 30 days after its referral.
New subsection (2) states that VCAT, constituted by a
presidential member within the meaning of the Victorian Civil
and Administrative Tribunal Act 1998, may extend the period
of 30 days under new subsection (1) by one further period of not
more than 30 days.
New section 108 relates to orders that VCAT can make.
New subsection (1) states that VCAT, in a proceeding under this
Subdivision, may by order do one or more of the following--
• determine the terms of any condition of a driver
agreement;
• require a party to pay money, by way of restitution or
compensation or otherwise, to a specified person;
• vary any condition of a driver agreement, other than one
implied under new section 97;
• declare that a condition of a driver agreement
(other than one implied under new section 97)
is of effect or is of no effect;
• require the refund of any money paid under a driver
agreement or under a driver agreement condition that
is of no effect;
• require anything else to be done that it is empowered
to require to be done under this Subdivision or the
Victorian Civil and Administrative Tribunal
Act 1998.
New subsection (2) provides that in addition to new
subsection (1), VCAT may--
• make an order in the nature of an order for specific
performance of a driver agreement; or
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• order rescission of a driver agreement; or
• order rectification of a driver agreement.
New subsection (3) states that, in ordering the payment of a sum
of money by a party, VCAT may order the payment of interest on
that sum by the party--
• at the rate fixed from time to time under section 2 of the
Penalty Interest Rates Act 1983; or
• at any lesser rate it thinks appropriate.
New section 109 provides that each party is to pay their own
costs.
New subsection (1) states that this section applies despite
anything to the contrary in Division 8 of Part 4 of the Victorian
Civil and Administrative Tribunal Act 1998.
New subsection (2) states that each party to a proceeding before
VCAT under this Subdivision is to pay their own costs in the
proceeding.
New subsection (3) outlines that at any time VCAT may make
an order that a party pay all or a specified part of the costs of
another party to the proceeding but only if VCAT is satisfied
that it is fair to do so--
• because the party refused to take part in, or withdrew
from, mediation or other form of alternative dispute
resolution under Subdivision 3; or
• having regard to the matters referred to in
paragraphs (a) to (e) of section 109(3) of the
Victorian Civil and Administrative Tribunal
Act 1998.
New subsection (4) states that in this section costs includes fees,
charges and disbursements.
Subdivision 6--Miscellaneous
Subdivision 6 relates to miscellaneous matters.
New section 110 provides that a statement or admission made in
the course of a mediation or other form of alternative dispute
resolution under Subdivision 4 is not admissible in proceedings
before VCAT under Subdivision 5 or in any other legal
proceedings.
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Division 2--Fare monitoring
Division 2 relates to fare monitoring by the regulator.
New section 111 states that the regulator is to monitor fares for
commercial passenger vehicle services.
New subsection (1) outlines that this section applies during the
5 year period beginning on the commencement of item 10.6 of
Schedule 1 to the Commercial Passenger Vehicle Industry
Amendment (Further Reforms) Act 2017.
New subsection (2) provides that the regulator must monitor fares
for commercial passenger vehicle services with a view to--
• keeping Victorian consumers and the Government
informed about the economic performance of the
commercial passenger vehicle industry; and
• supporting the efficient operation of the industry by--
• monitoring, describing and analysing trends in
fares for commercial passenger vehicle services;
and
• identifying and highlighting potential areas of
misuse of market power that warrant further
investigation.
A Note to this subsection states that the regulator has power
under new section 264 to require the provision of any
information, or the production of any documents, that may assist
it in performing its functions.
The regulator is required to prepare an annual report on the
conduct of its activities under this section and may at any time,
on its own initiative, prepare a special report on the conduct of
those activities.
New subsection (5) states that, in preparing a report, the regulator
must have regard to the need to ensure that information obtained
by it, that is of a commercially-sensitive nature, is not disclosed
in the report.
New subsection (6) states that the regulator must submit a copy
of any report prepared by the regulator under new section 111 to
the Minister administering this Division.
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New subsection (7) states that the regulator must ensure that a
copy of any report submitted under new subsection (6) is
published on the regulator's internet site.
Division 3--Non-cash payment surcharge
Division 3 relates to non-cash payment surcharges. This new
Division substantially re-enacts sections 144B to 144K of the
Transport (Compliance and Miscellaneous) Act 1983.
New section 112 outlines the meaning of non-cash payment
surcharges.
New subsection (1) states that, subject to new subsection (2), a
non-cash payment surcharge is a fee or charge--
• added to the amount otherwise payable by the hirer in
respect of the hiring of a commercial passenger vehicle
because the payment of the amount otherwise payable is
made wholly or partly by means of a non-cash payment
transaction; or
• payable by the owner or driver of a commercial
passenger vehicle or by all or any of them because the
payment of an amount payable in respect of the hiring
of the vehicle is made wholly or partly by means of a
non-cash payment transaction.
New subsection (2) states that a non-cash payment surcharge
does not include a fee or charge that is imposed in respect of the
use of a credit card, charge card or debit card--
• by a participant in a designated payment system within
the meaning of the Payment Systems (Regulation)
Act 1998 of the Commonwealth and is of a kind
covered by a standard in force under section 18 of that
Act; or
• by a person consistently with a voluntary undertaking
given by the person to, and accepted by, the Reserve
Bank of Australia.
The Reserve Bank of Australia, under section 18 of the Payment
Systems (Regulation) Act 1998 of the Commonwealth, has
determined that fees or charges imposed for the payment of a
taxi fare are excluded for the purpose of Standard No. 3 of 2016.
This means that fees or charges relating to the use of a credit
card, charge card or debit card in non-taxi commercial passenger
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vehicles are covered by the Reserve Bank scheme and not under
the Victorian scheme.
New subsection (3) states that a fee or charge may be a non-cash
payment surcharge irrespective of whether it is--
• payable for accepting or processing, or both accepting
and processing, payment made by means of a non-cash
payment transaction or for any other reason; or
• set as a percentage of the amount otherwise payable
in respect of the hiring of the commercial passenger
vehicle or as a fixed amount or as an amount fixed
on a sliding scale of any kind or on any other basis.
New section 113 outlines the cap on non-cash payment
surcharges.
New subsection (1) states that this section applies to a non-cash
payment surcharge that--
• exceeds the prescribed amount; or
• results in the prescribed amount being exceeded in the
circumstances set out in new subsection (2).
New subsection (2) states that the circumstances are that the
surcharge is added to any other such surcharge charged or
collected, or to be charged or collected, by the same or any other
person in respect of the same hiring of a commercial passenger
vehicle, irrespective of whether the surcharges are payable by the
same person or by 2 or more persons.
New subsection (3) states that a person must not--
• impose, whether directly or indirectly, a non-cash
payment surcharge to which this section applies; or
• directly initiate the collection in the commercial
passenger vehicle of a non-cash payment surcharge to
which this section applies or of an amount that includes
such a surcharge.
The maximum penalty for a contravention of this offence, in the
case of an individual, is 240 penalty units. In the case of a body
corporate, the maximum penalty is 1200 penalty units.
A Note at the foot of the provision states that new section 285
(criminal liability of officers of bodies corporate--failure to
exercise due diligence (evidential burden of proof)) applies to
an offence against this subsection.
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New subsection (4) states that a person does not commit an
offence against new subsection (3) because of a non-cash
payment surcharge charged or collected, or to be charged or
collected, by another person in respect of the hiring of a
commercial passenger vehicle if--
• the person presents or points to evidence that suggests a
reasonable possibility that the person did not know, and
could not reasonably be expected to have known, that
the other person had charged or collected, or was to
charge or collect, a non-cash payment surcharge in
respect of that hiring; and
• the contrary is not proved (beyond reasonable doubt) by
the prosecution.
New subsection (5) states that, the reference in new subsection
(3) to a person includes--
• any person who provided or maintains any equipment
(whether or not installed in the commercial passenger
vehicle) or any application or software that enabled the
non-cash payment transaction to be made; and
• any person who manages or administers the whole or
any part of a system under which non-cash payment
transactions may be made; and
• the owner and driver of the commercial passenger
vehicle.
New section 114 makes it an offence to enter into certain
contracts in relation to non-cash payment surcharges.
New subsection (1) provides that a person who is the owner or
driver of a commercial passenger vehicle or a provider of a
booking service must not--
• enter into a contract, arrangement or understanding with
any person that has the purpose or effect specified in
new subsection (2); or
• agree to give effect to a contract, arrangement or
understanding entered into by any other persons that has
that purpose or effect.
The maximum penalty for a contravention of this offence, in the
case of an individual, is 60 penalty units. In the case of a body
corporate, the maximum penalty is 300 penalty units.
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A Note at the foot of the subsection states that section new 285
(criminal liability of officers of bodies corporate--failure to
exercise due diligence (evidential burden of proof)) applies to
an offence against this section.
New subsection (2) states that the purpose or effect is directly
or indirectly causing a non-cash payment surcharge to which
new section 113 applies to be paid in respect of a hiring of a
commercial passenger vehicle.
New section 115 relates to civil penalties.
New subsection (1) states that the Supreme Court may order a
person to pay, as a debt due to the State, a civil penalty of an
amount not exceeding $1 000 000 for a natural person or
$5 000 000 for a body corporate.
New subsection (2) states that the Supreme Court may make an
order under new subsection (1) if satisfied, on an application
made by the regulator, that the person has--
• contravened new section 113(3); or
• attempted to contravene new section 113(3); or
• aided, abetted, counselled or procured a person to
contravene new section 113(3); or
• induced, or attempted to induce, whether by threats,
promises or otherwise, a person to contravene new
section 113(3); or
• been in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person
of new section 113(3); or
• conspired with others to contravene new section 113(3).
New subsection (3) states that the regulator may make an
application under this section at any time within 6 years after the
contravention or other conduct covered by new subsection (2).
New subsection (4) states that the Supreme Court may relieve a
person, other than a body corporate, from liability to a civil
penalty in a proceeding under this section if it appears to it that--
• the person has, or may have, engaged in conduct in
contravention of section 113(3) or conduct referred to
in new subsection (2) that relates to a contravention of
new section 113(3); but
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• the person acted honestly and reasonably and, having
regard to all the circumstances of the case, ought fairly
to be excused.
New section 116 states that the Supreme Court must give
preference to making an order for compensation if it considers
that--
• it is appropriate to order a person (the defendant) to pay
a civil penalty under new section 115(1) in relation to--
• a contravention of new section 113(3); or
• conduct referred to in new section 115(2) that
relates to a contravention of new section 113(3);
and
• it is appropriate to order the defendant to pay
compensation under new section 120 to a person
who has suffered loss or damage because of that
contravention or conduct; and
• the defendant does not have sufficient financial
resources to pay both the civil penalty and the
compensation.
New section 117 outlines the interplay between civil penalties
and criminal proceedings.
New subsection (1) states that an application cannot be made
to the Supreme Court under new section 115 in relation to a
contravention of new section 113(3) if the person has been
convicted or acquitted of an offence constituted by conduct that
is substantially the same as the conduct to which the application
relates.
New subsection (2) states that the Supreme Court must stay a
proceeding under new section 115 against a person if a criminal
proceeding is or has been commenced against the person for an
offence constituted by conduct that is substantially the same as
the conduct to which the application under that section relates.
New subsection (3) states that a proceeding stayed in accordance
with new subsection (2) must be dismissed by the Supreme Court
if the person is convicted or acquitted of the offence but
otherwise may be resumed by it.
New subsection (4) states that a criminal proceeding may be
commenced against a person for conduct that is substantially the
same as conduct to which an application under new section 115
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relates or in respect of which an order has been made under that
section.
New subsection (5) states that evidence of information given, or
evidence of the production of documents, by a person is not
admissible in a proceeding against the person for an offence if--
• the person previously gave the evidence or produced the
documents in a proceeding against the person under new
section 115; and
• the conduct alleged to constitute the offence is
substantially the same as the conduct to which the
proceeding under that section related.
New subsection (6) states that new subsection (5) does not apply
to a criminal proceeding in respect of the falsity of evidence
given in a proceeding under new section 115.
New section 118 provides for the recovery of the surcharge as a
debt.
New section 119 relates to proceeding for damages.
New subsection (1) states that this section applies if a person
suffers loss or damage because of--
• conduct engaged in by another person in contravention
of new section 113(3); or
• conduct referred to in new section 115(2) engaged in
by another person that relates to a contravention of new
section 113(3).
New subsection (2) states that the person may recover the amount
of the loss or damage in a proceeding commenced against that
other person in any court of competent jurisdiction.
New subsection (3) states that a proceeding under new subsection
(2) may be commenced at any time within 6 years after the day
on which the cause of action that relates to the conduct accrued.
New section 120 relates to compensation orders.
New subsection (1) states that this section applies if a person
(the injured person) suffers, or is likely to suffer, loss or damage
because of--
• conduct engaged in by another person in contravention
of new section 113(3); or
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• conduct referred to in new section 115(2) engaged
in by another person that relates to a contravention
of new section 113(3).
New subsection (2) states that the Supreme Court may make any
other order or orders that it thinks appropriate against the person
who engaged in the conduct on an application made by--
• the injured person; or
• the regulator on behalf of one or more injured persons.
New subsection (3) states that an order must be an order that the
Supreme Court considers will--
• compensate the injured person, or any injured person, in
whole or in part for the loss or damage; or
• prevent or reduce the loss or damage suffered, or likely
to be suffered, by the injured person or any injured
person.
New subsection (4) states that an application may be made under
new subsection (2) at any time within 6 years after the day on
which the cause of action that relates to the conduct accrued.
New subsection (5) states that an application may be made under
new subsection (2) even if no other proceeding (whether criminal
or civil) has been commenced under this Division in relation to
the relevant conduct.
New subsection (6) states that the regulator must not make an
application on behalf of an injured person who has not consented
in writing to the making of the application on their behalf.
New section 121 relates to the application of the Essential
Services Commission Act 2001.
New subsection (1) states that for the purposes of the Essential
Services Commission Act 2001--
• this Division is relevant legislation; and
• the non-cash payment transaction industry is a regulated
industry.
New subsection (2) states that, if there is any inconsistency
between a provision of this Division and a provision of the
Essential Services Commission Act 2001, the provision of this
Division prevails.
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New section 122 outlines the objective of the Essential Services
Commission (ESC).
New subsection (1) states that the objective of the ESC in relation
to the non-cash payment transaction industry is to promote
efficiency by regulating the amount that may be imposed by way
of a non-cash payment surcharge.
New subsection (2) states that, in seeking to achieve the objective
specified in new subsection (1), the ESC must ensure that persons
facilitating the making of non-cash payment transactions are able
to recover the reasonable cost of accepting and processing such
transactions.
New subsection (3) states that, in this section reasonable cost
includes any fees payable for the acquisition of transactions
involving the use of debit, credit or charge cards.
New section 123 outlines the powers in relation to non-cash
payment service regulation. For the purposes of Part 3 of the
Essential Services Commission Act 2001--
• non-cash payment transactions are prescribed services;
and
• the maximum amounts of non-cash payment surcharges
are prescribed prices.
New section 124 relates to the exercise of regulatory functions by
the ESC.
New subsection (1) states that the ESC may regulate prescribed
prices by determining different prices according to circumstances
specified in the determination if it considers it necessary to do so
in order for it to comply with new section 122(2).
New subsection (2) states that new subsection (1) does not limit
section 33(5) of the Essential Services Commission Act 2001.
New subsection (3) states that the ESC must make a price
determination no later than 12 months after the day on which
section 18 of the Commercial Passenger Vehicle Industry
Amendment (Further Reforms) Act 2017 comes into
operation.
New subsection (4) states that the ESC must complete a review
of a price determination no later than 2 years after it is made.
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Part 7--Investigation powers
New Part 7 re-enacts various provisions (including
Division 4ABA) of Part VII of the Transport (Compliance
and Miscellaneous) Act 1983 with amendments.
New Part 7 consists of 9 Divisions.
Division 1--Authorised officers
New Division 1 contains provisions relating to how authorised
officers may be appointed, identity cards of authorised officers,
directions made by the regulator to an authorised officer, and
impersonation of an authorised officer.
New section 125 relates to the appointment of authorised
officers.
New subsection (1) states that the regulator may appoint as an
authorised officer any person who the regulator considers is
suitably qualified or trained to exercise the powers of an
authorised officer under the Principal Act and the regulations
made under it. Those powers include--
• a power to enter, search and inspect industry premises
or a commercial passenger vehicle for compliance and
investigative purposes with a search warrant, or with
consent;
• a limited power to enter, search and inspect industry
premises or a commercial passenger vehicle for
compliance and investigative purposes without a search
warrant or consent under specified circumstances and
for a specified purpose;
• a power to remove or seize prescribed material from a
vehicle or premises;
• a power to direct a specified person to produce
information or a document or a device required under
industry law, or relating to the provision of commercial
vehicle operations or booking services;
• a power to issue directions to the driver of a commercial
passenger vehicle to produce identification or to stop or
move a vehicle for inspection;
• a power to issue a defect notice for a vehicle;
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• a power to serve an improvement notice on a person,
or amend or cancel or extend the compliance period
for that improvement notice, or to serve a clearance
certificate on a person if all of the requirements of the
improvement notice have been complied with;
• a power to serve a prohibition notice on a person, or
amend a prohibition notice, or to serve a certificate on
the person to the effect that all of the matters that gave
rise to the prohibition notice have been remedied; and
• a power to serve an infringement notice on a person.
New subsection (2) states that the appointment of an authorised
officer by the regulator is for a term, and subject to the conditions
specified in the instrument of appointment.
New subsection (3) states that, without limiting the conditions to
which the appointment may be subject, a condition may
specify--
• the functions and powers under the Principal Act or the
regulations made under it that the authorised officer
may not perform and exercise; or
• the only functions and powers under that Act or those
regulations that the authorised officer may perform or
exercise; or
• the circumstances or manner in which the authorised
officer must perform or exercise a function or power
under that Act or those regulations.
New section 126 relates to identity cards for authorised officers.
New subsection (1) states that the regulator must issue an identity
card to an authorised officer.
New subsection (2) clarifies that an identity card must
• state the name of the person to whom the card is issued;
and
• indicate that the person is an authorised officer; and
• include
• a photograph of the person; and
• include the prescribed matters.
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New section 127 relates to how and when an authorised officer
must produce their identity card for inspection.
New subsection (1) states that an authorised officer must produce
their identity card for inspection--
• before exercising a power under--
• an industry law; or
• section 13 or 84ZY of the Road Safety
Act 1986; or
• if asked to do so by any person at any time during the
exercise of a power under--
• an industry law; or
• section 13 or 84ZY of the Road Safety
Act 1986.
New subsection (2) clarifies that an authorised officer is not
required to produce their identity card when asked to do so if--
• the officer reasonably believes that this would--
• affect the safety or welfare of any person, or
• frustrate the effective exercise of a power
referred to in new subsection (1); or
• the request to produce the card is made by a person to
whom the officer has already produced the card on the
same day before exercising a power referred to in new
subsection (1).
New subsection (3) states that a failure to produce an identity
card does not invalidate anything done by an authorised officer.
New section 128 relates to the directing of an authorised officer
by the regulator.
New subsection (1) states that the regulator may give a direction
to an authorised officer in relation to that officer's performance
or exercise of a function or power under an industry law or
sections 13, 14(1), 84ZY, 77 or 88 of the Road Safety Act 1986.
New subsection (2) clarifies that a direction issued by the
regulator may be of a general nature or may relate to a specified
matter or class of matter.
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New section 129 relates to the return of identity cards.
This section states that a person who ceases to be an authorised
officer must return their identity card to the regulator as soon as
practicable. The penalty for a failure to do so is 10 penalty units.
New section 130 relates to the impersonation of an authorised
officer. This section states that a person who is not an authorised
officer must not, in any way, hold themselves out to be an
authorised officer. The penalty for this offence is 60 penalty
units.
Division 2--Power of entry without consent or a search
warrant
New Division 2 contains provisions relating to the purposes for
which, and the circumstances in which, an authorised officer may
enter premises or a vehicle without consent or a search warrant.
New section 131 relates to the power for authorised officer to
enter premises or vehicle without consent or search warrant.
This section provides that an authorised officers may enter
industry premises or a commercial passenger vehicle without
consent--
• only for a purpose specified in new section 132; and
• only in the circumstances specified in new section 133.
New section 132 relates to the purposes for which authorised
officers may exercise their power to enter premises or vehicle
without consent or search warrant.
New subsection (1) states that an authorised officer may enter
premises or a vehicle under new section 131 for a purpose
relating to ascertaining whether an industry law has been or is
being complied with in relation to--
• commercial passenger vehicle services; or
• a commercial passenger vehicle; or
• equipment on or in a commercial passenger vehicle
(e.g. a security camera, an emergency warning device,
a driver protection screen and a taximeter); or
• subject to new subsection (2), payments made or due
under a driver agreement; or
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• subject to new subsection (3), payments made in respect
of the hiring of a commercial passenger vehicle.
New subsection (2) clarifies that entry by an authorised officer
to a vehicle or premises in relation to payments made or due
under a driver agreement is only permitted if the authorised
officer believes on reasonable grounds that the entry is necessary
to prevent the concealment, loss or destruction of evidence of a
breach of the conditions of a driver agreement.
New subsection (3) specifies that entry is only permitted in
relation to payments made or due in respect of the hiring of a
commercial passenger vehicle if the authorised officer believes
on reasonable grounds that the entry is necessary to prevent the
concealment, loss or destruction of evidence of non-compliance
with an industry law.
New section 133 relates to the circumstances in which authorised
officers may exercise their power to enter premises or vehicle
without consent or search warrant under new section 131.
New subsection (1) states that the circumstances in which an
authorised officer may, under new section 131, enter industry
premises, or a commercial passenger vehicle at industry premises
without consent or a search warrant, are that the entry is at a time
when the premises are being used, or are usually being used, in
the provision of--
• a commercial passenger vehicle service; or
• a booking service; or
• a non-cash payment processing service.
New subsection (2) states that the circumstances in which
an authorised officer may, under new section 131, enter a
commercial passenger vehicle at a place that is not industry
premises without consent or a search warrant are that--
• the vehicle is not being used for private purposes and
• the vehicle is not located on residential premises; and
• either of the following persons is present--
• the driver of the vehicle; or
• the person in whose name the vehicle is
registered under new Part 3.
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New subsection (3) clarifies that for the purposes of new
subsection (2), a vehicle is not being used for private purposes
if it is being driven for the purposes of providing a commercial
passenger vehicle service.
New section 134 provides that the power to enter includes the
power to search and inspect.
New subsection (1) states that an authorised officer who enters or
proposes to enter industry premises or a commercial passenger
vehicle under new section 131 may search and inspect the
premises or vehicle for compliance and investigative purposes.
New subsection (2) clarifies that the authorised officer may be
assisted by any person in that search or inspection.
This new section includes a Note that new Division 5 confers
further powers on the authorised officer.
New section 135 relates to the providing of notice of entry for
a commercial passenger vehicle not on industry premises if no
prior notice has been given.
New subsection (1) provides that this section applies if an
authorised officer, under new section 131--
• enters a commercial passenger vehicle at a place that is
not industry premises; and
• does so without giving prior notice to either--
• the driver of the vehicle; or
• the person in whose name the vehicle is
registered under new Part 3.
New subsection (2) states that as soon as practicable after
entering the vehicle, the authorised officer must take all
reasonable steps to notify the driver of the vehicle, and if the
vehicle is not registered under new Part 3 in the driver's name,
the person in whose name the vehicle is registered under that
Part.
New section 136 relates to the provision of a notice of entry in
the absence of certain persons being present.
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New subsection (1) clarifies that this section applies if--
• an authorised officer enters industry premises or a
commercial passenger vehicle at industry premises
under new section 131 (i.e. without consent or a search
warrant); and
• neither the person with control or management of the
premises nor the occupier of the premises is present.
New subsection (2) states that on leaving the premises or vehicle,
the authorised officer must leave a notice setting out--
• the time of the entry; and
• the purpose of the entry; and
• a description of things done while on the premises or in
the vehicle; and
• the time of departure; and
• the procedure for contacting the regulator for further
details of the entry.
New section 137 relates to the provision of a notice of entry into
industry premises if prior notice of the entry was not given.
New subsection (1) clarifies that this section applies if an
authorised officer, under new section 131--
• enters industry premises, or a commercial passenger
vehicle at industry premises; and
• does so without giving prior notice to either--
• the person with control or management of the
premises; or
• the occupier of the premises.
New subsection (2) states that as soon as practicable after
entering the premises, the authorised officer must take all
reasonable steps to notify the manager or the occupier of the
premises.
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Division 3--Power of entry without warrant but with consent
New section 138 relates to entry by authorised officers into
premises or a vehicle for compliance and investigative purposes
with consent.
This new section states that an authorised officer may do either of
the following things for compliance and investigative purposes--
• enter any industry premises at any time if the person
with control or management of the premises, or the
occupier of the premises, consents to the entry;
• enter any commercial passenger vehicle at any time if
the driver of the vehicle, or the person in whose name
the vehicle is registered under new Part 3, consents to
the entry.
New section 139 relates to the procedure for entry by
authorised officers into premises or a vehicle for compliance
and investigative purposes with consent.
New subsection (1) states that before an authorised officer asks a
person for consent to enter into premises or a vehicle under new
section 138, the officer must inform the person--
• of the purpose of the entry, and
• that the person is not required to consent.
New subsection (2) clarifies that if the consent is given, the
authorised officer may ask the person to sign an acknowledgment
of the consent.
New subsection (3) specifies that the acknowledgment must
state--
• that the person has been informed--
• of the purpose of the entry; and
• that the person is not required to consent;
• the purpose of the entry;
• that the person gives the authorised officer consent to
enter the premises or vehicle and exercise powers under
this new Part; and
• the time and date the consent was given.
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New subsection (4) requires that if the person signs the
acknowledgment, the authorised officer must immediately
give a copy to the person.
New subsection (5) states that if, in any proceeding, an
acknowledgment of consent is not produced to the court, it
must be presumed, unless the contrary is proved, that no
person consented to the entry.
New section 140 provides that the power to enter includes the
power to search and inspect.
New subsection (1) states that an authorised officer who enters or
proposes to enter industry premises or a commercial passenger
vehicle with consent under new section 138 may search and
inspect the premises or vehicle for compliance and investigative
purposes.
New subsection (2) states that in searching and inspecting the
premises or vehicle, the authorised officer may be assisted by
any person.
This new section includes a Note that new Division 5 confers
further powers on the authorised officer.
Division 4--Search warrants
New section 141 relates to the issue of a search warrant.
New subsection (1) states that an authorised officer may apply to
a magistrate for the issue of a search warrant for a place, a motor
vehicle or a non-cash payment processing device if the officer
believes on reasonable grounds that there is, or may be within the
next 72 hours, in the place or in or on the vehicle or device,
evidence of the commission of an offence against an industry
law.
New subsection (2) states that if a magistrate is satisfied that
there are reasonable grounds for the belief referred to in new
subsection (1), the magistrate may issue a search warrant
authorising an authorised officer named in the warrant, and any
assistants the officer considers necessary--
• to enter the place named or described in the warrant
(if any); or
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• to enter a motor vehicle--
• named or described in the warrant, or
• at the place named or described in the warrant
(if any); or
• to inspect a motor vehicle or non-cash payment
processing device--
• named or described in the warrant; or
• at the place named or described in the warrant
(if any); or
• to search a place or vehicle referred to in this subsection
for any thing named or described in the warrant and to
seize any such thing.
This new subsection contains a Note that new Division 5 confers
further powers on the authorised officer and that a thing includes
a document (see section 38 of the Interpretation of Legislation
Act 1984).
New subsection (3) clarifies that in addition to any other
requirement, a search warrant issued under this new section
must--
• state the offence suspected; and
• state the name of, or describe--
• the place or motor vehicle to be searched; or
• the motor vehicle or non-cash payment
processing device to be inspected; and
• include a description of the thing or information for
which the search is to be made; and
• state the conditions to which the warrant is subject
(if any); and
• state whether entry is authorised to be made at any time
or during stated hours; and
• state a day, not later than 7 days after the issue of the
warrant, on which the warrant ceases to have effect.
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New subsection (4) states that a search warrant must be issued in
accordance with the Magistrates' Court Act 1989 and in the
form set out in the regulations under that Act.
New subsection (5) states that despite section 78 of the
Magistrates' Court Act 1989, a search warrant must not
authorise an authorised officer to arrest a person.
New subsection (6) clarifies that subject to any provision to the
contrary in this new Part, the rules to be observed with respect to
search warrants mentioned in the Magistrates' Court Act 1989
extend and apply to warrants under this new section.
New section 142 relates to the seizure of things not mentioned in
search warrant.
This section provides that a search warrant also authorises the
authorised officer executing the warrant, in addition to the
seizure of any thing of the kind described in the warrant, to seize
any thing which is not of the kind described in the warrant if the
authorised officer believes on reasonable grounds that--
• the thing will afford evidence about the commission of
an offence against an industry law; and
• it is necessary to seize that thing to prevent--
• its concealment, loss or destruction; or
• its use in the commission of an offence against
an industry law.
New section 143 relates to announcement before entry under a
search warrant.
New subsection (1) states that before executing a search warrant,
the authorised officer named in the warrant or a person assisting
the officer must--
• announce that the officer or other person is authorised
by the warrant to enter the place or motor vehicle named
or described in the warrant; and
• give any person at the place or in control of the vehicle
an opportunity to allow entry to the place or into the
vehicle.
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New subsection (2) clarifies that the authorised officer or
person assisting the officer is not required to comply with
new subsection (1) if the officer or other person believes on
reasonable grounds that immediate entry to the place or into
the vehicle is required to ensure--
• the safety of any person; or
• that the effective execution of the search warrant is not
frustrated.
New section 144 relates to the giving of a copy of search warrant
by the authorised officer.
New subsection (1) states that this new section applies if any of
the following persons is present at the execution of a search
warrant--
• if the warrant is for the search of a place--
• the occupier of that place; or
• a person who apparently represents the occupier;
or
• if the warrant is for the search of a motor vehicle--
• the driver of the vehicle; or
• if the vehicle is a commercial passenger vehicle,
the person in whose name it is registered under
new Part 3.
New subsection (2) states that under this new section, the
authorised officer must--
• identify themselves to that person by producing their
identity card for inspection by that person; and
• give that person a copy of the execution copy of the
warrant.
New section 145 relates to the use of evidence obtained under a
search warrant in civil penalty proceedings
This new section provides that a thing obtained under a search
warrant is not inadmissible as evidence in a proceeding for a civil
penalty under new section 115 by reason only of the fact that the
search warrant was issued in respect of the commission of an
offence.
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Division 5--Additional powers relating to search and entry
New section 146 provides definitions.
New subsection (1) provides definitions for terms used in this
new Division. It clarifies that in this Division--
• assistant means a person assisting an authorised officer,
as described in new section 134(2), 140(2), 141(2),
148(3) or 149(3) (i.e. any person who assists the
authorised officer in the search and inspection of a
premises or vehicle), in relation to the entry of the
location being investigated;
• location being investigated means the industry
premises, motor vehicle, or other place that the
authorised officer enters;
• purpose of the investigation means--
• in the case of entry effected under a search
warrant, the purpose of obtaining evidence about
the commission of an offence against an industry
law; and
• in the case of entry effected under new
section 131 (entry without consent or a search
warrant) or 138 (entry with consent but without
a search warrant), compliance and investigative
purposes.
New subsection (2) clarifies that in this new Division, a reference
to something at a location being investigated means, if that
location is a motor vehicle, something on or in the vehicle.
New section 147 relates to the application of this new Division.
This section states that this Division applies in relation to an
authorised officer who--
• enters industry premises under new section 131 or 138
or under a search warrant; or
• enters a commercial passenger vehicle under new
section 131 or 138; or
• enters a motor vehicle under a search warrant; or
• enters any other place under a search warrant.
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New section 148 is concerned with general investigation powers
relating to entry of industry premises or other places.
New subsection (1) states that this section applies if the location
being investigated is industry premises or any other place.
New subsection (2) provides that the authorised officer may, do
any of the following things for the purpose of the investigation--
• inspect a non-cash payment processing device at the
premises or place;
• make a sketch of the premises or place or of a thing
found there;
• perform tests;
• record images or sound (this subsection includes a Note
to see new section 153 in relation to the admissibility of
these recordings);
• search for, inspect or copy relevant documents that are
at the premises or place;
• direct a person at the premises or place to give the
officer reasonable help to--
• search or inspect the premises or place; or
• exercise the officer's powers under this
subsection;
• exercise any other power conferred on the officer by or
under the Principal Act.
New subsection (3) states that in doing anything referred to in
new subsection (2), the authorised officer may be assisted by
any person.
New subsection (4) clarifies that in this section, reasonable help
includes helping the authorised officer to find and gain access to
a thing at the premises or place (including electronically stored
material and information).
New section 149 relates to general investigation powers relating
to entry of a motor vehicle.
New subsection (1) clarifies that this new section applies if the
location being investigated is a motor vehicle.
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New subsection (2) provides that the authorised officer may
search and inspect the motor vehicle and do any of the following
things for the purpose of the investigation--
• inspect a non-cash payment processing device in or on
the vehicle;
• make a sketch of the vehicle or anything in or on it;
• perform tests;
• record images or sound (this subsection includes a Note
to see new section 153 in relation to the admissibility of
these recordings);
• search for, inspect or copy relevant documents that are
in or on the vehicle;
• extract or copy any information that is held in any
engine management system or related system of the
vehicle;
• direct any of the following persons to give the officer
reasonable help to search or inspect the vehicle or
exercise the officer's powers under this new
subsection--
• the driver of the vehicle;
• if the vehicle is a commercial passenger vehicle,
the person in whose name the vehicle is
registered under new Part 3;
• if the vehicle is at industry premises, a person at
those premises;
• exercise any other power conferred on the officer by or
under the Principal Act.
New subsection (3) provides that in doing anything referred to in
new subsection (2), the authorised officer may be assisted by any
person.
New subsection (4) clarifies that in this section, reasonable help
includes--
• helping the authorised officer to find and gain access
to a thing in or on the motor vehicle (including
electronically stored material and information); and
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• running the engine of a motor vehicle; and
• operating equipment on or in a motor vehicle; and
• operating a non-cash payment processing device.
New section 150 relates to the use or seizure of electronic
equipment.
New subsection (1) clarifies that this new section applies if--
• the authorised officer or an assistant finds at the location
being investigated a device--
• that is a non-cash payment processing device; or
• that is or includes a disk, tape or other device for
the storage, receipt, generation, transmission or
retrieval of information; and
• the authorised officer believes on reasonable grounds
that the device sent, transmitted or generated
information that is relevant to--
• the purpose of the investigation; or
• if the entry is effected under new section 131
(i.e. without consent or a search warrant) or 138
(i.e. with consent but without a search warrant), a
condition of a driver accreditation has been or is
being breached; and
• the authorised officer believes on reasonable grounds
that the information is accessible from the device.
New subsection (2) provides that the authorised officer or
assistant may--
• access the information; by--
• operating the device; or
• using equipment that is at the location being
investigated; or
• direct a person who is referred to in new subsection (5),
and who is present at the location being investigated
(i.e. the driver of the vehicle, the person in whose name
the vehicle is registered, the occupier of the location
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being searched, or an employee of that occupier) to
access the information; by--
• operating the device; or
• using equipment that is at the location being
investigated.
New subsection (3) provides that if the authorised officer or
assistant accesses information of a kind referred to in new
subsection (1) (i.e. information relevant to the investigation,
or to a breach of a condition or restriction on a driver
accreditation), the officer or assistant may--
• put the information in documentary form and seize
those documents; or
• copy the information to a disk, tape or storage device
and remove that disk, tape or storage device from the
location being investigated; or
• subject to new subsection (4), seize either or both of the
following--
• the device;
• the equipment (if any) that enables that access; or
• direct a person who is referred to in subsection (5), and
who is present at the location being investigated, to--
• put the information in documentary form and
seize those documents; or
• copy the information to a disk, tape or storage
device and remove that disk, tape or storage
device from the location being investigated;
New subsection (4) relates to the seizure of mobile phones or
devices or equipment. This section states that an authorised
officer or assistant must not seize a device, or equipment that
enables access to information on the device under new subsection
(3)(c), unless--
• it is not practicable to retrieve the information from the
device as described in new subsection (3)(a) or (b); and
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• if the device is a mobile phone--
• the phone is found during the execution of a
search warrant; and
• the phone is named or described in the warrant as
a thing that may be seized.
New subsection (5) provides that the authorised officer or
assistant may give a direction under new subsection (2)(b) or new
subsection (3)(d) (i.e. to operate equipment to access information,
put information in documentary form, or copy information) to the
following persons--
• if the location being searched is a motor vehicle--
• the driver of the vehicle; or
• the person in whose name the vehicle is
registered under new Part 3; and
• otherwise--
• the occupier of that place; or
• a person who appears to represent the occupier.
New subsection (6) provides that an authorised officer or
assistant must not operate or seize equipment for a purpose
referred to in this section unless the officer or assistant believes
on reasonable grounds that the operation or seizure can be carried
out without damage to the equipment.
New section 151 relates to equipment for examining or
processing. This new section states that the authorised officer or
an assistant may bring to the location being investigated any
equipment that is reasonably necessary for the examination or
processing of a thing found at the location to determine whether
the thing may be seized.
New section 152 relates to the use of equipment already at
premises, place or vehicle.
New subsection (1) states that subject to new subsection (2), the
authorised officer or an assistant may operate any equipment that
is already at the location being investigated for the purpose of
carrying out an examination or processing of a thing found at the
location to determine whether the thing may be seized.
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New subsection (2) clarifies that the authorised officer or
assistant must not operate the equipment unless the officer or
assistant believes on reasonable grounds that--
• the equipment is suitable for the examination or the
processing; and
• the examination or processing can be carried out
without damage to the equipment.
New section 153 relates to the admissibility of a recording that
includes the image or voice of a passenger.
New subsection (1) states that this section applies if--
• under new section 148(2)(d) or 149(2)(d) (i.e. the
recording of images or sound during a search), the
authorised officer or assistant records--
• images of any part of a motor vehicle; or
• sound audible from or in a motor vehicle; and
• the recording includes the image or voice of a passenger
of the motor vehicle.
New subsection (2) states that the recording is not inadmissible
as evidence by reason only of the fact that it includes the image
or voice of the passenger if capturing that image or voice does
not appear to have been the main reason for making the
recording.
Division 6--Additional power to remove material from motor
vehicle
New section 154 relates to the removal of material from a motor
vehicle that an officer believes is being used as an unregistered
commercial passenger vehicle.
New subsection (1) states that if an authorised officer believes on
reasonable grounds that a motor vehicle is being used for the
purpose of providing a commercial passenger vehicle service but
is not registered under new Part 3, the officer may remove from
the vehicle and seize any of the following material in or on the
vehicle--
• a thing referred to in new section 51(1)(b) or (c);
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• any other thing that indicates that the vehicle is being
used to provide a commercial passenger vehicle service;
• prescribed material.
New subsection (2) clarifies that new subsection (1) applies
whether the authorised officer--
• has entered the motor vehicle under new section 131
(i.e. without consent or a search warrant), or new
section 138 (i.e. with consent, but without a search
warrant), or a under a search warrant; or
• is inspecting the motor vehicle in accordance with new
Division 8.
Division 7--Seized things
New Division 7 contains provisions relating to how things may
be seized and retained, how they may be returned, and under
what circumstances they may be forfeited.
New section 155 relates to receipts for seized things.
New subsection (1) states that an authorised officer who seizes
a thing under a search warrant, or seizes electronic equipment
and accesses or copies data from it under new section 150, or
removes material from a vehicle that the officer suspects is
operating unregistered as a commercial passenger vehicle under
new section 154, must give a receipt for the thing to--
• if the thing was seized at industry premises or any other
place, either of the following persons who is present at
the premises or place--
• the occupier of the premises or place;
• a person who appears to represent that occupier;
or
• if the thing was seized from a motor vehicle, either--
• the driver of the vehicle; or
• if the vehicle is a commercial passenger vehicle,
the person in whose name the vehicle is
registered under new Part 3.
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New subsection (2) states the receipt must--
• identify the thing seized; and
• state the name of the authorised officer who seized the
thing; and
• state the reason why the thing was seized.
New subsection (3) states that if for any reason it is not
practicable for an authorised officer to provide a receipt, in
compliance with new subsection (1), the officer may--
• send the receipt, by post, to a person referred to in new
subsection (1) (as the case requires); or
• if the thing was seized at industry premises or any other
place, leave the receipt at the premises or place in a
conspicuous position and in a reasonably secure way; or
• if the thing was seized from a motor vehicle, affix the
receipt to the vehicle in a conspicuous position and in a
reasonably secure way.
New section 156 relates to the provision of copies of certain
seized things to the owner by authorised officers.
New subsection (1) clarifies that this section applies if an
authorised officer seizes under this new Part--
• a document; or
• a thing that can be readily copied; or
• a storage device containing information that can be
readily copied.
New subsection (2) states that the authorised officer must give a
copy of the document, thing or information to the owner or
custodian of the document, thing or device as soon as practicable
after the seizure.
New subsection (3) clarifies that the requirement to provide a
copy of the seized thing to the owner under new subsection (2)
does not apply if the authorised officer is unable to identify the
owner or custodian of the document, thing or device.
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New section 157 relates to the return of seized things.
New subsection (1) states that if an authorised officer seizes a
thing under this new Part, the officer must take reasonable steps
to return the thing to the person from whom it was seized if the
reason for its seizure no long exists.
New subsection (2) states that if the thing has not been returned
before the end of the retention period, the authorised officer must
take reasonable steps to return it unless--
• proceedings have commenced within the retention
period and those proceedings (including any appeal)
have not been completed; or
• the Magistrates' Court makes an order under new
section 158 extending the retention period; or
• the thing has been forfeited to the State under new
section 159.
New section 158 relates to an extension of the retention period by
the Magistrates' Court.
New subsection (1) states that an authorised officer may apply to
the Magistrates' Court for an extension of the retention period in
respect of a thing seized under this new Part.
New subsection (2) clarifies that the application must be made
within--
• the retention period; or
• if the Magistrates' Court extends the period within
which the application must be made, that extended
period.
New subsection (3) clarifies that on an application for extension
of the retention period under new subsection (1), the Magistrates'
Court may order the extension applied for if satisfied that
extension is necessary--
• for the purposes of an investigation into whether an
offence has been committed against an industry law; or
• to enable evidence of an offence against an industry law
to be obtained for the purposes of a prosecution;
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• to enable evidence of a contravention of new
section 113(3) (i.e. the imposition of a non-cash
payment surcharge that exceeds the prescribed cap
amount) to be obtained for the purposes of an
application for an order under new section 115(2).
New subsection (4) provides that the Magistrates' Court may
adjourn an application for extension of the retention period under
new subsection (1) to enable notice of the application to be given
to any person.
New section 159 relates to the forfeiture of a seized thing.
New subsection (1) states that the regulator may declare by
instrument that a thing that has been seized and retained under
this new Part is forfeited to the State. The regulator may do
this if the regulator--
• cannot find the thing's owner despite making reasonable
enquiries; or
• cannot return the thing to the owner despite making
reasonable efforts; or
• considers it necessary to retain the thing to prevent the
commission of an offence against an industry law.
New subsection (2) states that if a thing is forfeited to the State
under new subsection (1)(c) to prevent the commission of an
offence against an industry law, the regulator must give the
previous owner written notice of the forfeiture as soon as
practicable after making the declaration unless the regulator
cannot find the previous owner despite making reasonable
enquiries.
New subsection (3) clarifies that a notice of forfeiture under new
subsection (2) must--
• include a statement of reasons for the action taken; and
• inform the previous owner that they have a right to
seek review of the regulator's decision to make the
declaration under new Part 12.
New Part 12 sets out each of the decisions made under
the Principal Act, or the regulations made under it, that
are reviewable; and who is eligible to apply for review
of a reviewable decision.
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New subsection (4) states that material seized under new
section 154 may, on the owner or driver of the vehicle being
found guilty of an offence against new section 37(1) (offence for
a vehicle owner to drive an unregistered vehicle for commercial
passenger vehicle service) or 38(1) (offence for a vehicle
owner to allow an employee to drive an unregistered vehicle for
commercial passenger vehicle service), be forfeited by order of
the court.
Division 8--Directions, defect notices, removal of material
New Division 8 contains provisions in relation to directions
that the regulator or an authorised officer may give to industry
participants, powers in relation to issuing defect notices for
commercial passenger vehicles, and provisions relating to the
removal and seizure of materials.
New section 160 relates to a direction to require production of
information, documents and related items.
New subsection (1) provides that the regulator or an authorised
officer may, for compliance and investigative purposes, direct a
person specified in new subsection (2) to provide--
• information or a document that is required to be kept
under an industry law; or
• information or a document or device or other thing in
the person's possession or control relating to--
• commercial passenger vehicle operations; or
• the provision of booking services; or
• the provision of a non-cash payment processing
service; or
• a non-cash payment surcharge.
New subsection (2) clarifies that the direction may be given to--
• a booking service provider; or
• an accredited driver; or
• the owner of a commercial passenger vehicle; or
• the person in whose name a motor vehicle is registered
under new Part 3; or
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• a person who the regulator or authorised officer
believes on reasonable grounds may be able to provide
information, a document, device (including a non-cash
payment processing device) or other thing to the
regulator or officer.
New subsection (3) states that a person who is given a direction
under new subsection (1) must comply with the direction unless
the person has a reasonable excuse. The failure to do so is an
offence which carries a penalty of 60 penalty units for an
individual, or 300 penalty units for a body corporate.
New subsection (4) states that the regulator or authorised officer
may--
• inspect any document, device or other thing that is
produced; or
• copy or print any document that is produced; or
• copy any device or other thing that is produced; or
• seize and remove any document, device or other thing
that is produced that the regulator or officer believes
on reasonable grounds provides, or may on further
inspection provide, evidence of a contravention of an
industry law.
New section 161 relates to the manner of giving direction under
new section 160.
New subsection (1) states that the regulator must give a direction
under new section 160 in writing.
New subsection (2) states that an authorised officer may give a
direction to a person to provide information or a document or
device or other thing under new section 160 either orally or in
writing.
New subsection (3) clarifies that whether given orally or in
writing, the direction must state where, to whom and how the
information, document, device or other thing is to be produced.
New subsection (4) states that if giving the direction orally, the
authorised officer must--
• state whether the direction is to be complied with
immediately or within a specified period; and
94
• warn the person to whom the direction is given that it is
an offence under new section 160(3) to not comply with
the direction.
New subsection (5) states that if giving the direction in writing,
the regulator or authorised officer must ensure that the
direction--
• states the period within which it is to be complied with;
and
• states that it is an offence under new section 160(3) to
not comply with the direction.
New subsection (6) provides that the direction may--
• require that a document produced is a copy of the
original; or
• require that a document that is produced in electronic
form is accompanied by sufficient information to enable
the regulator or authorised officer to access the
document.
New subsection (7) provides that the direction may specify--
• the particular information, or a particular document,
device or other thing, that is to be produced; or
• the particular class of information, document, device or
other thing that is to be produced.
New section 162 relates to directions given to the driver of
commercial passenger vehicle by an authorised officer.
New subsection (1) states that an authorised officer may, for
compliance and investigative purposes, direct the driver of a
motor vehicle--
• to produce for inspection any licence, permit or
document which is required to be carried in, or by the
driver of, a commercial passenger vehicle; or
• to state their name and address; or
• to stop the vehicle; or
• to keep the vehicle stationary for a sufficient period of
time for the vehicle to be inspected; or
95
• to move the vehicle to the nearest convenient and safe
place for the vehicle to be inspected; or
• to present a commercial passenger vehicle at a
reasonable time and place for inspection by--
• an authorised officer; or
• a police officer; or
• a prescribed person.
New subsection (2) states that subject to new subsection (5), a
driver who is given a direction by an authorised officer under
new subsection (1) must comply with the direction unless the
person has a reasonable excuse. The failure to do so is an
offence which carries a penalty of 10 penalty units.
New subsection (3) clarifies that a direction under new
subsection (1)(c) (i.e. to stop the vehicle) or (d) (i.e. to keep
the vehicle stationery) may be given by the officer calling or
signalling to the driver.
New subsection (4) states that it is a defence to a charge for
an offence against new subsection (2) relating to a direction
under new subsection (1)(c) (i.e. to stop the vehicle) or (d)
(i.e. to keep the vehicle stationary) that the accused was
obeying a provision of the rules made under section 95D of
the Road Safety Act 1986. Currently, these are the Road
Safety Rules 2017.
New subsection (5) states that if a direction under new subsection
(1)(f) (i.e. a direction to present the vehicle for inspection and
examination at a particular time and place) is given to a driver
who is not the person in whose name the vehicle is registered
under new Part 3, the driver must, as soon as practicable, notify
the person in whose name the vehicle is registered of--
• the direction; and
• if the driver has not been, or is not, reasonably able to
comply with the direction, that fact.
The failure to comply with new subsection (5) is an offence
which carries a penalty of 5 penalty units.
96
New subsection (6) states that a person who, under new
subsection (5), is notified of a direction must comply with the
direction unless the person has a reasonable excuse. Failure to
do so is an offence which carries a penalty of 20 penalty units.
New subsection (7) clarifies that in this section, driver means a
person who is in charge of the vehicle within the meaning of
section 3AA of the Road Safety Act 1986. That is--
• a person who is attempting to start or drive the motor
vehicle;
• a person with respect to whom there are reasonable
grounds for the belief that they intend to start or drive
the motor vehicle;
• a commercial driving instructor who is teaching a
person to drive while that person is driving or in charge
of the vehicle;
• an accompanying licensed driver while the person who
they are sitting beside is driving or in charge of the
vehicle.
New section 163 relates to directions made by the regulator that a
vehicle be inspected.
New subsection (1) states that the regulator may, for compliance
and investigative purposes, direct the person in whose name a
motor vehicle is registered under new Part 3 to present the
vehicle at a reasonable time and place for inspection by--
• an authorised officer; or
• a police officer; or
• a prescribed person.
New subsection (2) states that a person who is given a direction
under new subsection (1) must comply with the direction unless
the person has a reasonable excuse. Failure to do so is an offence
which carries a penalty of 20 penalty units.
New section 164 relates to the issuing of a defect notice by an
authorised officer or police officer.
New subsection (1) clarifies that this new section applies in
relation to an inspection undertaken in accordance with any
provision of the Principal Act.
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New subsection (2) provides that an authorised officer or police
officer who inspects a commercial passenger vehicle may issue a
defect notice for the vehicle if the authorised officer or police
officer is satisfied that the vehicle--
• is unsafe, unsuitable or unfit for use; or
• does not comply with--
• the Principal Act or the regulations made under
it; or
• a condition of the registration for that vehicle
under new Part 3.
New subsection (3) clarifies that a defect notice is issued by
serving the notice on the person in whose name the vehicle is
registered under new Part 3.
New subsection (4) states that a defect notice--
• must identify the vehicle and the defect in respect of
which the notice is issued; and
• must state that the person to whom the notice is issued
must fix that defect; and
• must state a time and date after which the vehicle must
not be driven unless the defect is fixed; and
• may direct the person to whom the notice is issued to
present the vehicle for further inspection at a specified
location and at a specified time and date.
New subsection (5) states that the person in whose name the
vehicle is registered under new Part 3 must not drive the vehicle,
or permit the vehicle to be driven, after the time and date referred
to in new subsection (4)(c) unless the defect has been fixed.
A failure to comply with new subsection (5) is an offence which
carries a penalty of 20 penalty units.
New subsection (6) states that if a defect notice includes a
direction to present the vehicle for further inspection at a
specified location and at a specified time and date, the person to
whom the notice is issued must comply with that direction unless
the person has a reasonable excuse.
A failure to comply with new subsection (6) is an offence which
carries a penalty of 20 penalty units.
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New section 165 relates to a direction to provide evidence of an
inspection.
New subsection (1) states that this new section applies if a
direction under this new Part requiring that a commercial
passenger vehicle be inspected is given to the person in whose
name the vehicle is registered under new Part 3.
New subsection (2) states that the person who gave the direction
may direct the person in whose name the vehicle is registered
under new Part 3 to provide evidence of the inspection.
New subsection (3) states that a direction under new subsection
(2) may specify the kind of evidence that is to be provided.
New subsection (4) states that a person who is given a direction
under new subsection (2) (requiring that a commercial passenger
vehicle be inspected) must comply with the direction unless the
person has a reasonable excuse. Failure to do so is an offence
which carries a penalty of 10 penalty units.
Division 9--Miscellaneous
New section 166 relates to the use of force.
New subsection (1) states that this new section applies in relation
to a power--
• that is conferred on an authorised officer under this new
Part; and
• under which the officer may--
• enter a place or a motor vehicle; or
• do anything at any place or in any motor vehicle.
New subsection (2) provides that in exercising a power to which
this new section applies, the authorised officer may use only so
much force as is reasonably necessary to effect the entry or to do
the thing.
New section 167 relates to authorised officers or assistants
causing as little inconvenience as possible.
This new section states that in exercising a power conferred on an
authorised officer or an assistant under this new Part, the officer
or assistant must--
• cause as little inconvenience as possible; and
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• not remain at any place or in any motor vehicle longer
than is reasonably necessary.
New section 168 relates to compensation for damage caused
during exercise of powers under this new Part.
New subsection (1) states that the regulator must pay
compensation for any damage caused by an authorised officer,
or a person assisting an authorised officer, in exercising
(or purporting to exercise) any power conferred under this new
Part.
However, new subsection (2) clarifies that the regulator is not
liable to pay compensation to a person for any damage caused
during any inspection or search conducted in accordance with a
search warrant under new Division 4 or in accordance with new
Division 5 or 6 if--
• the thing that was the object of the inspection or search
is found; and
• that thing provides evidence of a contravention of an
industry law; and
• the damage caused was no more than reasonably
necessary in inspecting, or searching for, the thing.
New subsection (3) states that in determining the amount of
compensation payable in relation to any damage caused to
electronic equipment, regard must be had to--
• whether any of the following persons were available at
the time to provide a warning or guidance as to the
operation of the equipment--
• the occupier of the place at which the inspection
or search occurred (or an employee or agent of
the operator);
• the driver of the motor vehicle that was searched
or inspected;
• the person in whose name that vehicle is
registered under new Part 3; and
• whether any warning or guidance was given by a
person referred to in paragraph (a) of the new
subsection (i.e. the occupier of the place at which
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the inspection or search occurred or an employee
or agent of the operator); and
• whether the warning or guidance was appropriate in the
circumstances.
New section 169 relates to the abrogation of privilege against
self-incrimination.
New subsection (1) states that a person is not excused from
complying with a direction given under this Part on the ground
that complying with the direction may result in information being
provided that--
• might incriminate the person; or
• may make the person liable to a penalty.
New subsection (2) states that the material specified in new
subsection (3)--
• is not admissible in evidence against the person referred
to in that subsection in a criminal proceeding, or a
proceeding for the imposition of a civil penalty, other
than a proceeding in respect of the provision of false
information; and
• must not be used in any action, proceeding or process
that may make the person liable to a penalty, other than
a proceeding in respect of the provision of false
information.
New subsection (3) clarifies that the specified material is--
• information obtained from an individual under a
direction given under this new Part (other than
information contained in any document or item that the
person is required to keep under an industry law); and
• information, or a document or thing, obtained as a direct
result or indirect consequence of information referred to
in the above paragraph (a).
New section 170 relates to the non-abrogation of client legal
privilege.
This new section provides that nothing in this new Part requires a
person to produce a document that would disclose or otherwise
provide information that is the subject of client legal privilege.
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Part 8--Enforcement measures
New Part 8 provides for enforcement measures.
New Part 8 consists of 7 Divisions.
Division 1--Improvement notices
New Division 1 relates to improvement notices.
New section 171 relates to service of improvement notices
New subsection (1) states that this section applies if the regulator
or an authorised officer reasonably believes that a person--
• is contravening a provision of the Principal Act or
regulations made under it; or
• has contravened a provision of the Principal Act or
regulations made under it in circumstances that make
it likely that the contravention will continue or be
repeated; or
• is providing commercial passenger vehicle services that
threaten safety.
New subsection (2) states that, subject to this section, the
regulator or the authorised officer may serve an improvement
notice requiring the person--
• to remedy the contravention; or
• to prevent a likely contravention from occurring; or
• to remedy the things or operations causing the
contravention or likely contravention; or
• to provide commercial passenger vehicle services in a
manner that is not likely to threaten safety.
New subsection (3) provides that before serving an improvement
notice under this section, an authorised officer must inform the
regulator of the authorised officer's intention to do so.
New section 172 relates to the contents of improvement notices.
New subsection (1) states that an improvement notice must--
• if the notice relates to a contravention or likely
contravention of the Principal Act or regulations
made under it--
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• state that the regulator or the authorised officer
believes the person--
• is contravening a provision of the
Principal Act or regulations made under
it; or
• has contravened a provision of the
Principal Act or regulations made under
it in circumstances that make it likely
that the contravention will continue or be
repeated; and
• state the provision the regulator or the officer
believes is being, or has been, contravened; and
• briefly state how the provision is being, or has
been, contravened; and
• state the day before which the person is required
to remedy the contravention or likely
contravention; and
• in any other case--
• state that the regulator or the officer believes the
person is providing, or has provided, commercial
passenger vehicle services that threaten safety;
and
• briefly state how the commercial passenger
vehicle services are threatening, or have
threatened, safety; and
• state the day before which the person is required
to provide commercial passenger vehicle
services, so that safety is not threatened or likely
to be threatened; and
• set out the penalty for non-compliance with the notice;
and
• inform the person that they have a right to seek review
of the regulator's decision to serve the notice under new
Part 12; and
• state that the notice is served under new section 171.
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New subsection (2) states that an improvement notice served on
a person who the regulator reasonably believes is contravening
a provision of the Principal Act or regulations made under it,
or has contravened a provision of Principal Act or regulations
made under it in circumstances that will make it likely that
the contravention will continue or be repealed, may include
directions concerning the action to be taken to remedy the
contravention or prevent the likely contravention, to which the
notice relates.
New subsection (3) provides that an improvement notice served
on a person on the ground that the regulator or an authorised
officer reasonably believes that a person is providing commercial
passenger vehicle services that threaten safety may include
directions concerning the action to be taken so that commercial
passenger vehicle safety is not threatened or likely to be
threatened.
New subsection (4) provides that an improvement notice may
include recommendations.
New subsection (5) provides that the day stated for compliance
with the improvement notice must be reasonable in all the
circumstances.
New section 173 outlines directions in improvement notices.
This section states that a direction included in an improvement
notice may--
• refer to an approved code of practice; and
• offer the person on whom it is served a choice of ways
in which to remedy the contravention or likely
contravention.
New section 174 relates to compliance with improvement
notices.
New subsection (1) provides that a person on whom an
improvement notice is served must comply with the notice
within the period specified in the notice unless the person
has a reasonable excuse. The maximum penalty in the case
of an individual is $50 000 and the penalty in the case of a
body corporate is $500 000.
New subsection (2) clarifies that it is not an offence to fail to
comply with recommendations in an improvement notice.
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New section 175 provides for amendments to improvement
notices.
New subsection (1) provides that an improvement notice that has
been served may be amended by the regulator or any authorised
officer.
New subsection (2) provides that an amendment of an
improvement notice is effected by serving on the person affected
a notice stating the terms of the amendment.
New subsection (3) provides that an amendment of an
improvement notice is ineffective if it purports to deal with
a contravention of a different provision of the Principal Act
or regulations made under it from that dealt with in the
improvement notice as first served.
New subsection (4) provides that a notice of an amendment of an
improvement notice must--
• state the reasons for the amendment; and
• inform the person affected that they have a right to seek
review of the regulator's decision to amend the notice
under Part 12; and
• state that it is served under this section.
New section 176 provides for cancellation of improvement
notices.
New subsection (1) states that an improvement notice served on a
person may only be cancelled by the regulator.
New subsection (2) provides that notice of cancellation of an
improvement notice is required to be served on the person
affected.
New section 177 provides for clearance certificates for
improvement notices.
New subsection (1) provides that this section applies if the
regulator or an authorised officer is satisfied that a person on
whom an improvement notice has been served has complied with
all the requirements of, or a specific requirement of, that notice.
New subsection (2) provides that the regulator or an authorised
officer must serve a clearance certificate on the person to the
effect that (as the case requires)--
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• all of the requirements of the improvement notice have
been complied with; or
• the specific requirement of the improvement notice has
been complied with.
New subsection (3) provides that the clearance certificate must be
served as soon as practicable after the regulator or an authorised
officer is so satisfied.
New subsection (4) provides that a requirement of the
improvement notice to which the clearance certificate relates
ceases to operate when the person receives the certificate.
New section 178 provides that proceedings for offences are not
affected by improvement notices or clearance certificates.
New subsection (1) provides that the service, amendment or
cancellation of an improvement notice does not affect any
proceeding for an offence against the Principal Act or regulations
made under it in connection with any matter in respect of which
the improvement notice was served.
New subsection (2) provides that the service of a clearance
certificate under new section 177 in respect of an improvement
notice does not affect any proceeding for an offence against
the Principal Act or regulations made under it in connection
with any matter in respect of which the improvement notice
was served.
New section 179 provides for the extension of time for
compliance with improvement notices.
New subsection (1) provides that this section applies if a person
has been served with an improvement notice.
New subsection (2) provides that the regulator or an authorised
officer may, by written notice given to the person, extend the
compliance period for the improvement notice.
New subsection (3) provides that the regulator or the authorised
officer may only extend the compliance period if the period has
not ended.
New subsection (4) provides that in this section compliance
period means the period stated in the improvement notice served
under section 171, and includes that period as extended under this
section.
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Division 2--Prohibition notice
New Division 2 provides for prohibition notices.
New section 180 provides for the service of prohibition notices.
New subsection (1) provides that this section applies if the
regulator or an authorised officer reasonably believes that--
• an activity is occurring in relation to commercial
passenger vehicle services that involves or will involve
an immediate risk to safety; or
• an activity may occur in relation to commercial
passenger vehicle services that, if it occurs, will involve
an immediate risk to safety.
New subsection (2) provides that the regulator or an authorised
officer may serve a prohibition notice on a person who has, or
appears to have, control over the activity prohibiting the carrying
on of the activity, or the carrying on of the activity in a specified
way.
New subsection (3) provides that, despite new section 192, a
prohibition notice may be given orally, but must be confirmed by
written notice served on the person as soon as practicable after it
is given.
New section 181 relates to the contents of prohibition notices.
New subsection (1) provides that a prohibition notice must--
• state that the regulator or the authorised officer believes
that grounds for the service of the prohibition notice
exist and the basis for that belief; and
• briefly state the activity that the regulator or the officer
believes involves or will involve the risk and the matters
that give or will give rise to the risk; and
• state the provision (if any) of the Principal Act or
regulations made under it that the regulator or the
officer believes is being, or is likely to be, contravened
by that activity; and
• set out the penalty for contravening the notice; and
• inform the person that they have a right to seek review
of the regulator's decision to serve the notice under new
Part 12; and
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• state that the notice is served under new section 180.
New subsection (2) provides that a prohibition notice may
include directions.
New subsection (3) provides that a prohibition notice may
include recommendations.
New section 182 provides for directions in prohibition notices.
A direction included in a prohibition notice may do any one or
more of the following--
• refer to an approved code of practice;
• specify measures to be taken to remedy the risk,
activities or matters to which the notice relates, or
the contravention or likely contravention referred
to in new section 181(1)(c);
• offer the person on whom it is served a choice of ways
in which to remedy--
• the risk, activities or matters to which
the notice relates, or the contravention
or likely contravention referred to in
new section 181(1)(c);
• the matter or matters that involve, or will
involve, an immediate risk to safety.
New section 183 provides for compliance with prohibition
notices.
New subsection (1) provides that a person on whom a prohibition
notice is served must comply with the notice unless the person
has a reasonable excuse. The maximum penalty in the case of an
individual is $150 000 and the maximum penalty in the case of a
body corporate is $1 500 000.
New subsection (2) provides that it is not an offence to fail to
comply with recommendations in a prohibition notice.
New section 184 provides for amendments of prohibition notices.
New subsection (1) states that a prohibition notice that has
been served may be amended by the regulator or any authorised
officer.
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New subsection (2) provides that an amendment of a prohibition
notice is effected by serving on the person affected a notice
stating the terms of the amendment.
New subsection (3) provides that an amendment of a prohibition
notice is ineffective if it purports to prohibit the carrying out of
an activity that is different from the activity prohibited by the
prohibition notice as first served.
New subsection (4) provides that a notice of an amendment of a
prohibition notice must--
• state the reasons for the amendment; and
• inform the person affected that they have a right to seek
review of the regulator's decision to amend the notice
under new Part 12; and
• state that it is served under this section.
New section 185 provides for the withdrawal of prohibition
notices.
New subsection (1) provides that a prohibition notice served on a
person may only be withdrawn by the regulator.
New subsection (2) provides that notice of the withdrawal of a
prohibition notice is required to be served on the person affected.
New section 186 provides for certificates that matters that give
rise to immediate risks to safety have been remedied.
New subsection (1) provides that this section applies if the
regulator or an authorised officer is satisfied that a person served
with a prohibition notice has remedied all of the matters or the
matter that--
• gave, or will give, rise to an immediate risk to safety;
and
• is specified in the prohibition notice.
New subsection (2) provides that the regulator or an authorised
officer must serve a certificate on the person to the effect that
(as the case requires)--
• all of the matters or the matter that gave rise to an
immediate risk to safety because of the activity
specified in the prohibition notice have been remedied;
or
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• all of the matters or the matter that could have given rise
to an immediate risk to safety because of the activity
specified in the prohibition notice have been remedied.
New subsection (3) provides that the certificate must be served as
soon as practicable after the regulator or authorised officer is so
satisfied.
New subsection (4) provides that a matter stated in the
prohibition notice that has been remedied to the satisfaction of
the regulator or authorised officer, and to which the certificate
relates, ceases to operate when the person receives the certificate.
New section 187 provides that proceedings for offences are not
affected by prohibition notices or certificates.
New subsection (1) provides that the service, amendment, or
withdrawal of a prohibition notice does not affect any proceeding
for an offence against the Principal Act or regulations made
under it in connection with any matter in respect of which the
prohibition notice was served.
New subsection (2) provides that the service of a certificate
under new section 186 in respect of a prohibition notice does
not affect any proceeding for an offence against the Principal
Act or regulations made under it in connection with any matter
in respect of which the prohibition notice was served.
New section 188 outlines when the regulator may carry out an
action.
New subsection (1) provides that this section applies if a person
on whom a prohibition notice is served fails to take reasonable
steps to comply with the notice.
New subsection (2) provides that the regulator may take any
remedial action the regulator believes reasonable to make the
situation safe after giving written notice to the person on whom
the prohibition notice was served of--
• the regulator's intention to take that action; and
• the person's liability for the costs of that action.
New section 189 provides for the power of the regulator to take
other remedial action.
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New subsection (1) provides that this section applies if--
• the regulator reasonably believes that circumstances in
which a prohibition notice can be served exist; and
• after taking reasonable steps, the regulator cannot find
the person with control or management of the premises
or vehicle in relation to which the notice would be
served.
New subsection (2) provides that the regulator may take any
remedial action necessary to make the situation safe.
New section 190 provides for the costs of remedial or other
action. This section states that the regulator may recover, as a
debt due to the regulator in a court of competent jurisdiction, the
reasonable costs of any remedial action taken under--
• section 188, from the person on whom the prohibition
notice is served; or
• section 189, from any person on whom the prohibition
notice could have been served in respect of the matter.
Division 3--General requirements applying to notices
New Division 3 provides for general requirements applying to
notices.
New section 191 provides a definition for notice. It provides
that, in this Division, notice means an improvement notice or a
prohibition notice.
New section 192 provides that a notice must be in writing.
New section 193 provides for minor variations of notices.
The regulator or an authorised officer may make minor changes
to a notice--
• for clarification; or
• to correct errors or references; or
• to reflect changes of address or other circumstances.
New section 194 relates to formal irregularities or defects in a
notice. This section states that a notice is not invalid merely
because of--
• a formal defect or irregularity in the notice unless the
defect or irregularity causes or is likely to cause
substantial injustice; or
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• a failure to use the correct name of the person on whom
the notice is served if the notice sufficiently identifies
the person and is served or given to the person in
accordance with section 195.
New section 195 provides for serving notices.
New subsection (1) provides that a notice may be served on a
person--
• in accordance with section 288; or
• if the notice relates to industry premises, by leaving it
• at the premises to which the notice relates; or
• with a person who is or appears to be the person
with control or management of those premises;
or
• if the notice relates to a motor vehicle, by leaving it--
• on the vehicle to which the notice relates; or
• with a person who is or appears to be in control
of that vehicle.
Division 4--Injunctions
New Division 4 provides for injunctions
New section 196 provides for injunctions for contravention of
specified provisions.
New subsection (1) states that this section applies to the
following provisions (the specified provisions)--
• section 53 (new section 53 makes it an offence if
provider of booking service is not registered);
• section 54 (new section 54 makes it an offence to
advertise booking services unless registered)
• section 55 (new section 55 makes it an offence to
accept a request from an unregistered booking service
provider);
• section 113(3) (new section 113(3) makes it an offence
to impose or collect a non-cash payment surcharge).
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New subsection (2) states that the Supreme Court may grant an
injunction, in any terms that it considers appropriate, if satisfied
that a person has engaged, or is proposing to engage, in conduct
that constitutes or would constitute--
• a contravention of a specified provision; or
• attempting to contravene a specified provision; or
• aiding, abetting, counselling or procuring a person to
contravene a specified provision; or
• inducing, or attempting to induce, whether by threats,
promises or otherwise, a person to contravene a
specified provision; or
• being in any way, directly or indirectly, knowingly
concerned in, or party to, the contravention by a person
of a specified provision; or
• conspiring with others to contravene a specified
provision.
New subsection (3) provides that, without limiting subsection (2),
the Supreme Court may grant an injunction under that subsection
restraining a person from doing any thing specified in
subsection (4)--
• for a specified period; or
• except on specified terms and conditions.
New subsection (4) provides that the things are--
• receiving or accepting requests for a person to be
provided with a commercial passenger vehicle service
(whether or not as part of, or incidental to, the carrying
on of another business); or
• facilitating the receiving or acceptance of requests for a
person to be provided with a commercial passenger
vehicle service; or
• carrying on a business or supplying goods or services
(whether or not as part of, or incidental to, the carrying
on of another business).
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New subsection (5) provides that the Supreme Court may only
grant an injunction under new subsection (2) on an application
made by the regulator.
New subsection (6) provides that the power of the Supreme Court
to grant an injunction under new subsection (2) restraining a
person from engaging in conduct may be exercised--
• whether or not it appears to the Court that the person
intends to engage again, or to continue to engage, in
conduct of a kind referred to in that subsection; and
• whether or not the person has previously engaged in
conduct of that kind; and
• whether or not there is an imminent danger of
substantial damage to any other person if the person
engages in conduct of that kind.
New subsection (7) provides that the power of the Supreme Court
to grant an injunction under new subsection (2) requiring a
person to do an act or thing may be exercised--
• whether or not it appears to the Court that the person
intends to refuse or fail again, or to continue to refuse or
fail, to do that act or thing; and
• whether or not the person has previously refused or
failed to do that act or thing; and
• whether or not there is an imminent danger of
substantial damage to any other person if the person
refuses or fails to do that act or thing.
New subsection (8) provides that, on an application under new
subsection (2), the Supreme Court may grant an injunction by
consent of all the parties to the proceeding, whether or not the
Court is satisfied as required by that subsection.
New subsection (9) provides that, if in the opinion of the
Supreme Court it is desirable to do so, the Supreme Court may
grant an interim injunction pending the determination of an
application under new subsection (2).
New subsection (10) provides that, in granting an interim
injunction, the Supreme Court must not require the applicant or
any other person to give any undertakings as to damages as a
condition of doing so.
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New section 197 provides for injunctions for non-compliance
with an improvement notice or prohibition notice.
New subsection (1) provides that the regulator may apply to the
Magistrates' Court for an injunction--
• compelling a person to comply with an improvement
notice or a prohibition notice; or
• restraining a person from contravening an improvement
notice or a prohibition notice.
New subsection (2) provides that the regulator may do so--
• whether or not a proceeding has been commenced for an
offence against the Principal Act or regulations made
under it in connection with any matter in respect of
which the notice was served; and
• whether or not any period for compliance with the
notice has expired.
New Division 5--Enforceable voluntary undertakings
New Division 5 provides for enforceable voluntary undertakings.
New section 198 provides for enforceable voluntary undertakings
by registered booking service providers.
New subsection (1) provides that the regulator may accept a
written undertaking given by a registered booking service
provider in connection with a matter relating to a contravention
or alleged contravention by the provider of the Principal Act or
regulations made under it.
New subsection (2) provides that the regulator must not accept an
undertaking under new subsection (1) if--
• the undertaking is in connection with a matter relating
to a contravention or alleged contravention of an
indictable offence under the Principal Act; and
• the regulator considers that it would be appropriate for
the regulator to prosecute that offence.
New subsection (3) provides that the giving of an undertaking
does not constitute an admission of guilt by the provider in
respect of the contravention or alleged contravention to which
the undertaking relates.
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New section 199 provides for notice of decisions and reasons for
decision. The regulator must give the registered booking service
provider seeking to give an undertaking written notice of--
• the regulator's decision to accept or reject the
undertaking; and
• the reasons for the decision.
New section 200 outlines when an undertaking is enforceable.
It states that an undertaking takes effect and becomes
enforceable--
• when the regulator's decision to accept the undertaking
is given to the registered booking service provider who
gave the undertaking; or
• at any later date specified by the regulator.
New section 201 provides for compliance with undertakings.
A registered booking service provider who has given an
undertaking that is in effect, must not contravene the undertaking.
The maximum penalty in the case of an individual is 60 penalty
units. In the case of a body corporate, the maximum penalty is
300 penalty units.
New section 202 provides for what happens if there is a
contravention of an undertaking.
New subsection (1) provides that this section applies if the
regulator considers that a registered booking service provider has
contravened an undertaking accepted by the regulator from that
provider.
New subsection (2) provides that the regulator may apply to the
Magistrates' Court for enforcement of the undertaking.
New subsection (3) provides that, if the Magistrates' Court is
satisfied that the provider has contravened the undertaking, the
Magistrates' Court, in addition to imposing any penalty, may
make any of the following orders--
• an order that the provider must comply with the
undertaking or take specified action to comply with the
undertaking;
• an order discharging the undertaking;
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• an order directing the provider to pay to the regulator--
• the costs of the proceeding; and
• the reasonable costs of the regulator in
monitoring compliance with the undertaking in
the future;
• any other order that it considers appropriate in the
circumstances.
New subsection (4) provides that a registered booking service
provider must comply with an order under this section.
The maximum penalty in the case of an individual is 60 penalty
units. In the case of a body corporate, the maximum penalty is
300 penalty units.
New subsection (5) provides that nothing in this section prevents
a proceeding being commenced for the contravention or alleged
contravention of the Principal Act or regulations made under it to
which the undertaking relates.
New section 203 provides for the withdrawal or variation of
undertakings.
New subsection (1) provides that a registered booking service
provider who has given an undertaking may withdraw or vary the
undertaking with the written agreement of the regulator.
New subsection (2) provides that the provisions of the
undertaking cannot be varied to provide for a different alleged
contravention of the Principal Act or regulations made under it.
New section 204 provides for proceedings for alleged
contraventions.
New subsection (1) provides that, subject to this section, no
proceeding for a contravention or alleged contravention of the
Principal Act or regulations made under it may be commenced
against a registered booking service provider if an undertaking
is in effect in relation to that contravention.
New subsection (2) provides that no proceeding may be
commenced for a contravention or alleged contravention of this
Act or the regulations against a registered booking service
provider who has--
• given an undertaking in respect of that contravention;
and
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• completely discharged the undertaking.
New subsection (3) provides that the regulator may accept
an undertaking in respect of a contravention or alleged
contravention before a proceeding in respect of that
contravention has been finalised.
New subsection (4) provides that, if the regulator accepts an
undertaking before a proceeding is finalised, the regulator must
take all reasonable steps to have the proceeding discontinued as
soon as possible.
Division 6--Infringement notices
New Division 6 provides for infringement offences.
New section 205 provides for infringement notices.
New subsection (1) provides that a police officer or an authorised
officer who has reason to believe that a person has committed a
prescribed infringement offence may serve an infringement
notice on that person.
New subsection (2) provides that an offence referred to in
subsection (1) for which an infringement notice may be served
is an infringement offence within the meaning of the
Infringements Act 2006.
New subsection (3) provides that the penalty for the purposes
of this section in respect of any infringement is the amount
prescribed in respect of that infringement.
Division 7--Specific court orders
New Division 7 provides for specific court orders.
New section 206 provides for commercial benefits penalty
orders.
New subsection (1) provides that a court that finds a person
guilty of an offence under the Principal Act or regulations made
under it may make an order under this new section on application
by--
• the prosecutor; or
• the regulator.
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New subsection (2) provides that the court may make a
commercial benefits penalty order requiring the person to pay, as
a fine, an amount not exceeding 3 times the amount estimated by
the court to be the gross commercial benefit that--
• was obtained or obtainable, by the person or by an
associate of the person, from the commission of the
offence; and
• in the case of a journey that was interrupted or not
commenced because of action taken by an authorised
officer in connection with the commission of the
offence--would have been obtained or obtainable, by
the person or by an associate of the person, from the
commission of the offence had the journey been
completed uninterrupted.
New subsection (3) provides that, in estimating the gross
commercial benefit that was or would have been obtained or
obtainable from the commission of the offence, the court may
take into account--
• benefits of any kind, whether monetary or otherwise;
and
• monetary savings or a reduction in any operating or
capital expenditure of any kind achieved or achievable
because of the commission of the offence; and
• any other matter that it considers relevant.
New subsection (4) provides that, in estimating the gross
commercial benefit that was or would have been obtained or
obtainable from the commission of the offence, the court is
required to disregard any costs, expenses or liabilities incurred
by the person or by an associate of the person.
New subsection (5) provides that nothing in this section prevents
the court from ordering payment of an amount that is--
• less than 3 times the estimated gross commercial
benefit; or
• less than the estimated gross commercial benefit.
New subsection (6) defines associate for the purposes of new
section 206.
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New section 207 provides for supervisory intervention orders.
New subsection (1) provides that a court that finds a person
guilty of an offence under the Principal Act or regulations made
under it may make an order under section 207 on application
by--
• the prosecutor; or
• the regulator.
New subsection (2) provides that the court may make a
supervisory intervention order requiring the person (at the
person's own expense and for a specified period not exceeding
one year) to do all or any of the following--
• to do specified things that the court considers will
improve the person's compliance with the Principal Act
or regulations made under it, including (for example)
the following--
• appointing or removing staff to or from
particular activities or positions;
• training and supervising staff;
• obtaining expert advice as to maintaining
appropriate compliance;
• installing monitoring, compliance, managerial or
operational equipment;
• implementing monitoring, compliance,
managerial or operational practices, systems
or procedures;
• to implement specified monitoring, compliance,
managerial or operational practices, systems or
procedures subject to the direction of one or more
of the following as specified in the order--
• the regulator; or
• a person nominated by the regulator;
• to furnish compliance reports to the regulator or the
court, or both, as specified in the order;
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• to appoint a person to have responsibilities--
• to assist the person in improving compliance
with the Principal Act or regulations made under
it, or specified provisions of the Principal Act or
regulations made under it; and
• to monitor the person's performance in
complying with the Principal Act or regulations
made under it, or specified provisions of the
Principal Act or regulations made under it and
in complying with the requirements of the order;
and
• to furnish compliance reports to the regulator or
court, or both, as specified in the order.
New subsection (3) provides that the court may specify matters
that are to be dealt with in compliance reports and the form and
manner in which and frequency with which compliance reports
are to be prepared and furnished.
New subsection (4) provides that the court may require that
compliance reports or parts of compliance reports be made
public, and may specify the form and manner in which and
frequency with which they are to be made public.
New subsection (5) provides that a court may only make an
order under this section against a person if the court considers
the person to be a systematic or persistent offender against the
Principal Act or regulations made under it.
New subsection (6) provides that the court may only make a
supervisory order if it is satisfied that the order is capable of
improving the person's ability or willingness to comply with the
Principal Act or regulations made under it, having regard to--
• the offences against the Principal Act or regulations
made under it of which the person has been previously
found guilty; and
• the offences against the Principal Act or regulations
made under it for which the person has been proceeded
against by way of unwithdrawn infringement notices;
and
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• any other offences or other matters that the court
considers to be relevant to the conduct of the person
in connection with--
• the provision of commercial passenger vehicle
services; or
• the provision of booking services.
New subsection (7) provides that the order may direct that any
other penalty or sanction imposed for the offence by the court is
suspended until the court determines that there has been a
substantial failure to comply with the order.
New subsection (8) provides that a court may revoke or amend a
supervisory intervention order on the application of--
• the regulator; or
• the person in respect of whom the order was made, but
only if the court is satisfied that there has been a change
of circumstances warranting revocation or amendment.
New subsection (9) defines compliance report for the purposes
of section 207.
New section 208 provides for an offence for the contravention of
supervisory intervention orders. A person who is subject to a
requirement of a supervisory intervention order must not engage
in conduct that results in a contravention of the requirement.
The maximum penalty for a contravention of this offence, in the
case of an individual, is 120 penalty units. In the case of a body
corporate, the maximum penalty is 600 penalty units.
New section 209 provides for exclusion orders.
New subsection (1) provides that a court that finds a person
guilty of an offence against the Principal Act or regulations made
under it may make an order under this section on application
by--
• the prosecutor; or
• the regulator.
New subsection (2) provides that, for the purpose of restricting
opportunities for the person to commit or be involved in the
commission of further offences against the Principal Act or
regulations made under it, the court may, if it considers it
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appropriate to do so, make an exclusion order prohibiting the
person, for a specified period, from--
• providing, or being otherwise involved in the providing
of, commercial passenger vehicle services or booking
services; or
• being a director, secretary or officer concerned in the
management of a body corporate involved in the
carrying out of commercial passenger vehicle services
or booking services.
New subsection (3) provides that the court may only make an
order under this section if it considers the person to be a
systematic or persistent offender against the Principal Act or
regulations made under it.
New subsection (4) provides that the court may only make an
order under this section if it is satisfied that the person should not
continue the things the subject of the proposed order and that a
supervisory intervention order is not appropriate, having regard
to--
• the offences against the Principal Act or regulations
made under it of which the person has previously been
found guilty; and
• any other offences or other matters that the court
considers to be relevant to the conduct of the person in
connection with the provision of commercial passenger
vehicle services or booking services.
New subsection (5) provides that a court may revoke or amend
the exclusion order on the application of--
• the regulator; or
• the person in respect of whom the order was made, but
only if the court is satisfied that there has been a change
of circumstances warranting the revocation or
amendment.
New section 210 provides for an offence for the contravention of
exclusion orders. A person who is subject to an exclusion order
commits and offence if the person engages in conduct that results
in a contravention of the order. The maximum penalty for a
contravention of this offence, in the case of an individual, is
120 penalty units. In the case of a body corporate, the maximum
penalty is 600 penalty units.
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New section 211 provides for release on the giving of a safety
undertaking.
New subsection (1) provides that, if a court convicts a person
or finds a person guilty of an offence against the Principal Act
or regulations made under it, the court may (with or without
recording a conviction) adjourn the proceeding for a period of
up to 2 years and make an order for the release of the offender
on the offender giving an undertaking with specified conditions.
New subsection (2) provides that an undertaking must specify the
following conditions--
• that the offender appears before the court if called on to
do so during the period of the adjournment and, if the
court so specifies, at the time to which the further
hearing is adjourned;
• that the offender does not commit, during the period of
the adjournment, any offence against the Principal Act
or the regulations made under it;
• that the offender observes any special conditions
imposed by the court.
New subsection (3) provides that, without limiting any special
conditions imposed by the court, the court may impose on an
offender special conditions that the offender--
• engage a consultant, who is approved in writing by the
regulator, to advise on or assist with safety matters; or
• develop and implement a systematic approach to
managing risks to safety that arise or may arise in the
conduct of the offender's undertaking; or
• arrange for the carrying out of an audit of the offender's
undertaking in relation to safety by an independent
person who is approved in writing by the regulator.
New subsection (4) provides that an offender who has given an
undertaking under this section may be called on to appear before
the court--
• by order of the court; or
• by notice issued by the proper officer (within the
meaning of section 72(4) of the Sentencing Act 1991)
of the court.
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New subsection (5) provides that an order or notice under new
subsection (4) must be served on the offender not less than 4 days
before the time specified in it for the appearance.
New subsection (6) provides that, if the court is satisfied at the
time to which a further hearing of a proceeding is adjourned that
the offender has observed the conditions of the undertaking, it
must discharge the offender without any further hearing of the
proceeding.
New subsection (7) provides that the court may make an order
under this section in relation to an offender in addition to or
instead of--
• imposing a penalty on the offender; or
• making any other order that the court may make in
relation to the offence.
New section 212 provides for variations or contraventions of
orders under section 211. Section 78 and Divisions 1 and 2 of
Part 3C of the Sentencing Act 1991 (and any definitions in that
Act of terms used in that section or Divisions 1 and 2 of that Part)
apply to an order under section 211 for the release of an offender
as though they were incorporated into the Principal Act and as
though--
• a reference to Subdivision (2) or (3) were instead a
reference to section 207; and
• a reference to section 72 or 75 were a reference to
section 211; and
• a reference to a prescribed person, a member of a
prescribed class of person, the informant or a police
prosecutor were instead a reference to the regulator; and
• the reference in section 83AC of the Sentencing
Act 1991 to a level 10 fine were instead a reference to a
fine not exceeding 10 penalty units for an individual or
50 penalty units for a body corporate; and
• any other necessary modifications were made.
New section 213 provides for adverse publicity orders.
New subsection (1) provides that a court that finds a person
guilty of an offence against the Principal Act or regulations made
under it may make an order under this section on application
by--
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• the prosecutor; or
• the regulator.
New subsection (2) provides that the court may make an adverse
publicity order requiring the offender to do all or any of the
following within the period specified in the order--
• publicise, in the way specified in the order and
within the period specified in the order, the offence,
its consequences, the penalty imposed and any other
related matter;
• notify a specified person or a person of a specified class,
in the way specified in the order and within the period
specified in the order, of the offence, its consequences,
the penalty imposed and any other related matter;
• give the regulator, within 5 business days after the end
of the period specified in the order, evidence that the
action or actions were taken by the offender in
accordance with the order.
New subsection (3) provides that the court may make an order
under this section in addition to--
• imposing a penalty on the offender; or
• making any other order that the court may make in
relation to the offence.
New subsection (4) provides that this section does not limit a
court's powers under any other provision of the Principal Act.
Part 9--Disciplinary action
New Part 9 outlines disciplinary action under the amended
Principal Act. This new Part combines and re-enacts several
provisions in the Transport (Compliance and Miscellaneous)
Act 1983 which provided for disciplinary action under that Act
(for example, Subdivision 6 of Division 4, section 146,
sections 169F to 169L of Part VI).
New section 214 outlines when the regulator may take
disciplinary action. The regulator has discretion to take
disciplinary action under new Part 9 against a permission
holder in respect of a permission held by that person if the
regulator is satisfied--
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• that the permission holder has contravened or is
contravening a condition imposed on the permission;
• that the permission was obtained because of false or
misleading information given as part of or in relation to,
the application for the permission;
• that the permission holder has contravened a
requirement applying to the permission holder under--
• Part 11 or any regulations made for the purposes
of that Part (Part 11 provides for the commercial
passenger vehicle service levy); or
• the Taxation Administration Act 1997 as it
applies to Part 11 and any regulations for the
purposes of that Part;
• in the case of a registered booking service provider--
• the provider's registration or a relevant person
is relation to the registration, has contravened
or is contravening a provision of the amended
Principal Act or regulations; or
• the provider would no longer satisfy any one or
more of the matters the regulator must consider
when deciding to register the provider;
• in the case of an accredited driver, that the person--
• has been found guilty (see Part 5 for the meaning
of found guilty of an offence) of a category 2
offence or a category 3 offence or is subject to a
charge for a disqualifying offence that has not
been finally disposed of; or
• would no longer satisfy any one or more of the
matters that the regulator must consider when
deciding whether to approve or refuse to approve
the application for the driver accreditation.
New section 215 provides that the regulator may take one or
more of the following actions in relation to a permission holder--
• cancel the permission;
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• if a permission is cancelled, disqualify the holder from
applying for a permission of that kind for a specified
period not exceeding 5 years;
• suspend the permission for a specified period or until a
specified event occurs;
• if the permission is already suspended, do either of the
following--
• cancel the permission and disqualify the holder
from applying for a permission of that kind for a
period not exceeding 5 years;
• suspend the permission for an additional period;
• warn the permission holder that more serious action
may be taken in the future if the holder repeats the
behaviour;
• reprimand the permission holder;
• if the permission holder is an accredited driver--
• require the accredited driver to undertake a
course of training or to pass a test specified
under section 72;
• impose a new condition on, or vary a condition
on, the accreditation.
The provision clarifies that the regulator may take action in
relation to any one or more of the permissions if a permission
holder holds more than one kind of permission.
New section 216 outlines the procedure for taking disciplinary
action, if the regulator proposes to take disciplinary action
against a permission holder under new Part 9. The regulator is
required to serve on the permission holder a notice (referred in
the provision as a disciplinary notice) that--
• specifies the proposed action (including any proposed
period of suspension or disqualification); and
• if the permission holder holds more than one
permission, specified the permission or permissions
to which the proposed action relates; and
• specifies the grounds for the proposed action; and
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• invites the permission holder to make a written
submission within a specified period as to why
the proposed action should not be taken.
The period specified in the disciplinary notice, by which the
permission holder must make the submission, may be--
• if an immediate suspension notice is also served under
section 220, a period of at least 10 business days after
the day on which the disciplinary notice is served on the
permission holder; or
• in any other case, a period of at least 20 business days
after the day on which the disciplinary notice is served
on the permission holder.
New section 217 allows the regulator to extend the time
for making submissions in relation to disciplinary notices.
A permission holder who is served a notice may request the
regulator to extend the time within which the holder must make
a submission under a notice under that section. That application
must be in writing and set out the reasons for the request.
On receiving a request to extend the time, the regulator may
extend the time within which the holder may make the
submission, by written notice served on the permission holder.
The notice must state the new date by which the permission
holder may make the submission.
New section 218 provides that, if the regulator is satisfied that
grounds for taking disciplinary action against a permission holder
have been established, the regulator may take any disciplinary
action specified in the notice or disciplinary action that is less
severe.
The regulator is required to consider any submission made to the
regulator in accordance with a notice served on the holder in
deciding whether to take disciplinary action. The regulator
must also, as soon as practicable, serve written notice on the
permission holder of the decision with respect to taking, or not
taking, disciplinary action. The written notice must set out--
• the disciplinary action being taken; and
• the reasons for the decision; and
• the date on which any cancellation, suspension,
disqualification or new or varied condition, takes effect.
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The date set out in the notice must not be earlier than 5 business
days after the day on which the notice is served.
New section 219 provides that the regulator must cancel a driver
accreditation if the holder of the accreditation--
• is found guilty (as defined in new Part 5) of a
category 1 offence; or
• becomes subject to--
• reporting obligations imposed under Part 3 of
the Sex Offenders Registration Act 2004; or
• a supervision order or interim supervision
order within the meaning of the Serious Sex
Offenders (Detention and Supervision)
Act 2009.
However, the regulator must not cancel a driver accreditation of a
person on a ground referred to in new section 219(1) if any of the
following decisions in respect of the person has been previously
set aside (but not remitted) by VCAT on that ground--
• a decision to refuse to issue a driver accreditation; or
• a decision to cancel an accreditation.
New section 220 provides for the immediate suspension of a
permission at the discretion of the regulator.
The regulator may serve an immediate suspension of a
permission if--
• the regulator has decided to serve, or has served, a
disciplinary notice on a permission holder; and
• believes, on reasonable grounds, that it is in the public
interest that the permission held by the person be
suspended as soon as practicable before a decision is
made to take action under section 218 in relation to
that person (in forming this belief, the regulator must
consider the circumstances leading to the decision to
serve the disciplinary notice, and the grounds specified,
or proposed to be specified, in the disciplinary notice).
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An immediate suspension notice served in relation to a
permission ends--
• if the permission is cancelled or suspended under
section 218--when the cancellation or suspension
takes effect; or
• if a condition is imposed on the permission, or a
condition on the permission is varied--when the
condition or varied condition takes effect; or
• in any other case--when the permission holder is
notified under section 218(3) of the decision made
on the disciplinary notice.
New section 221 outlines the circumstances in which the
regulator must immediately suspend a driver accreditation.
The regulator must serve on the accredited driver a notice
(an immediate suspension notice) suspending the driver's
accreditation if the driver is subject to a charge for a category 1
offence that has not been finally disposed of.
An immediate suspension notice served in relation to a driver
accreditation ends--
• if the accreditation is cancelled under section 219(1)(a),
on the day of that cancellation;
• if the person is found not guilty of the offence, on the
day of that finding; or
• if the charge is dismissed by a court or is withdrawn, on
the day of that dismissal or withdrawal; or
• if the proceeding for the hearing of the charge is
discontinued by the prosecution, on the day of that
discontinuance; or
• if the person charged is discharged by a court following
a committal proceeding, on the day of that discharge.
New section 222 provides that the regulator must suspend an
accredited driver's driver accreditation if the driver has their
driver licence or probationary licence under the Road Safety
Act 1986 suspended or cancelled under that Act. A suspension
under this section remains in effect until the regulator reinstates
the person's driver accreditation in accordance with section 223.
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New section 223 provides that a driver accreditation can be
reinstated in certain circumstances where it has been suspended.
The regulator must reinstate a driver accreditation that is
suspended in accordance with section 222 if--
• the person who holds the suspended accreditation gives
evidence, to the satisfaction of the regulator, that--
• the suspension of the person's driver licence or
probationary licence under the Road Safety
Act 1986 has ceased; or
• the person has been granted a driver licence or
probationary licence under the Road Safety
Act 1986; and
• there are no grounds for the regulator to consider taking
disciplinary action under new Part 9.
New section 224 imposes a requirement on an accredited
driver to notify the regulator of a suspension or cancellation of a
driver licence or probationary licence. The holder of the driver
accreditation must notify the regulator within 5 business days and
return the certificate of accreditation. The maximum penalty for
a contravention of this offence is 5 penalty units.
New section 225 outlines the effect of suspension of permission
if a person's permission is suspended under new Part 9 of the
amended Principal Act. During the period of the suspension, the
permission is taken not to be in effect and the person is taken not
to be either a person in whose name the vehicle is registered, or
a registered booking service provider or an accredited driver.
The person is also disqualified from applying for a permission of
that kind.
New section 226 relates to the re-instatement of driver
accreditation. The regulator is required to reinstate a person's
accreditation if--
• the regulator has suspended the driver accreditation of a
person under section 218 pending the hearing of a
charge for a disqualifying offence, and
• the person is not found guilty of the offence.
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Part 10--Register of permission holders
New Part 10 re-enacts Division 6A of Part VI of the Transport
(Compliance and Miscellaneous) Act 1983.
Division 1--Establishment of register
New section 227 requires the regulator to keep a register of
permission holders.
New subsection (2) provides that the regulator must include on
the register an entry for each permission holder that includes the
name of the permission holder and prescribed details.
Under new subsection 2, the regulator has discretion to include
the following details for each permission holder--
• business contact details (including a telephone number,
fax number, postal address, email address and internet
site);
• if the permission holder is a person in whose name a
motor vehicle is registered under new Part 3, details of
the vehicle;
• details of any booking service for which the person is
registered as the provider under new Part 3;
• if the permission holder is an accredited driver, details
of the issue of the certificate of accreditation under new
section 78.
New section 228 provides that the regulator must keep a public
version of register. The public version of the register must not
include any information to which public access is restricted under
Division 2 of new Part 10 or new section 252. The regulator is
required to make a copy of the public version of the register
available at their office during office hours for any person to
inspect free of charge and may publish a copy of the public
version of the register on the regulator's internet site.
New section 229 provides that the regulator may correct
any error or omission in the register of permission holders
(including the public version of that register). The regulator
may also make a correction by--
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• inserting information; or
• amending information; or
• omitting information.
Division 2--Restriction of public access to information
New section 230 outlines what happens when information is
included on the register. The regulator must determine whether
public access to any of the information is to be restricted for the
purposes of new section 228(2) when including information in
the register of permission holders. The regulator has discretion
to determine that public access is to be restricted--
• indefinitely; or
• for a specified period.
The regulator must not determine that public access is to be
restricted unless the regulator is satisfied that the restriction is
justified in the circumstances. For example, the regulator may
be satisfied that a person's privacy needs to be protected.
New section 231 provides for the notification to affected person
that information is to be made publicly available if the regulator
determines under new section 230 that public access to any
information on the register is not to be restricted. The regulator
is required by new section 231(2) to give written notice to the
person to whom that information relates. A notice under new
subsection (2) must--
• be in writing; and
• specify the information that is to be made publicly
available.
New subsection (4) provides that, for the purpose of new
section 228(2), public access is restricted until the earlier of--
• 20 business days after the day on which the person is
notified under new subsection (2); or
• the day on which the person consents to the information
being made publicly available.
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New section 232 provides that a person may apply to the
regulator to restrict public access to information on the
register of permission holders that relates to the person.
Applications must--
• be in writing; and
• specify the information to which the person wants
public access to be restricted.
When a person makes an application, public access to the
information is restricted until the application is determined.
However, information is not restricted if the person has
previously made an application under new subsection (1) or
new section 251(1)(b) (which provides for VCAT review of
the decision).
New section 233 provides for the determination of applications to
restrict information. The regulator is required to decide whether
public access to any of the information to which the application
relates is to be restricted for the purposes of new section 228(2)
when it receives an application. The regulator must not decide
that public access is to be restricted unless the regulator is
satisfied that the restriction is justified in the circumstances.
If the regulator does decide that public access is to be restricted,
the regulator must restrict public access--
• indefinitely; or
• for a specified period.
New section 234 provides for the notification of decisions.
The regulator must notify the person to whom the information
relates within 10 business days of making a decision under new
section 233. The written notification must--
• specify--
• the information to which public access is to be
restricted; and
• the information to which public access is not to
be restricted.
• include a statement of reasons for the determination;
and
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• inform the person that they have a right of review of the
determination under new Part 12.
In addition, public access to the information to which public
access is not to be restricted is restricted until the earlier of--
• 20 business days after the day on which the person is
notified under new subsection (1); or
• the day on which the person consents to the information
being made publicly available.
Clause 19 inserts new Parts 12 to 14 in the Principal Act.
Part 12--Internal review and VCAT decisions
New Part 12 provides for internal review of, and VCAT decisions
in relation to, decisions under the Principal Act.
Division 1--Interpretation
New Division 1 provides for interpretative provisions relating to
the review of decisions.
New section 247 sets out the reviewable decisions for the
purposes of internal review.
New subsection (1) identifies certain decisions made under the
amended Principal Act as reviewable decisions. New subsection
(1) also identifies who is eligible to apply for review of a
reviewable decision.
The Note at the foot of new subsection (1) specifies that
additionally, under section 251(1)(b), VCAT may review a
decision by the regulator about whether public access to certain
information on the register of industry participants is to be
restricted.
New subsection (2) provides that a reviewable decision does not
include a decision referred to in subsection (1) that was--
• affirmed, varied or substituted for another decision
under section 250; or
• made by the regulator and not by a delegate of the
regulator.
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Division 2--Internal review
New section 248 relates to applications for internal review.
New subsection (1) provides that an eligible person may apply to
the regulator for review of a reviewable decision.
The Note at the foot of subsection (1) outlines that Division 3 of
new Part 12 provides for the review by VCAT of a reviewable
decision.
New subsection (2) provides that an application under subsection
(1) must be made within--
• 20 business days after the day on which the decision
first came to the eligible person's notice; or
• such longer period as the regulator allows.
New subsection (3) provides that an application under subsection
(1) must be made in the manner and form determined by the
regulator.
New section 249 provides that the regulator may stay the
operation of a decision subject to application for internal review.
New subsection (1) provides that an application under
section 248(1) does not affect the operation of the reviewable
decision or prevent the taking of any action to implement it
unless the regulator stays the operation of the decision pending
the determination of the internal review--
• on the regulator's own initiative; or
• on the application of the applicant for review.
New subsection (2) provides that the regulator must make a
decision on an application for a stay within 2 business days after
the making of the application.
New subsection (3) provides that if the regulator has not made a
decision in accordance with subsection (2), the regulator is taken
to have made a decision to grant a stay.
New subsection (4) provides that the regulator may attach any
conditions to a stay of the operation of a reviewable decision that
the regulator considers appropriate.
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New section 250 provides for the determination of applications
for internal review.
New subsection (1) provides that, on receiving an application
made in accordance with section 248(1), the regulator must make
a fresh decision--
• that affirms or varies the reviewable decision; or
• that sets aside the reviewable decision and substitutes
another decision that the regulator considers
appropriate.
New subsection (2) provides that the regulator must give a
written notice (a decision notice) to the applicant setting out--
• the decision of the regulator under subsection (1) and
the reasons for the decision; and
• the findings on material questions of fact that led to the
decision, referring to the evidence or other material on
which those findings were based.
New subsection (3) provides that the regulator must give a
decision notice to the applicant within 20 business days after the
application is made.
New subsection (4) provides that if the regulator does not
comply with subsection (3), the regulator is taken to have made a
decision to affirm the reviewable decision.
Division 3--VCAT review
New Division 3 provides for VCAT review of decisions made
under the amended Principal Act.
New section 251 provides for the review of the regulator's
decisions by VCAT.
New subsection (1) provides that an eligible person may apply to
VCAT for review of--
• a decision referred to in the table in section 247(1)
made by the regulator under section 250, or otherwise;
or
• a decision under section 233(1).
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New subsection (2) provides that, for the purposes of
subsection (1), a person whose interests are affected by a
decision under section 233(1) is an "eligible person" in relation
to that decision.
New subsection (3) provides that subsection (1) does not apply
to a refusal of the regulator to issue a driver accreditation or to a
cancellation of a driver accreditation in the circumstances in
which section 253 applies.
New subsection (4) provides that VCAT must not make a
decision that would give rise to the issue of a driver accreditation
unless satisfied of the matters in section 75(1)(b).
New subsection (5) provides that VCAT may have regard to
certain matters when making a decision on a matter involving a
disqualifying offence.
New subsection (6) provides that an application under
subsection (1) must be made within 28 days after the later of--
• the day on which the decision of the regulator was
made; or
• if, under the Victorian Civil and Administrative
Tribunal Act 1998, the person requests a statement of
reasons for the decision, the day on which the statement
of reasons is given to the person or the person is
informed under section 46(5) of that Act that a
statement of reasons will not be given.
New section 252 provides for the review by VCAT in relation to
a decision not to restrict public access to information under new
section 251(1).
Division 4--VCAT orders in relation to category 1 offenders
New section 253 provides for VCAT's review in relation to
category 1 offenders.
New subsection (1) provides that the section applies to the
following persons--
• a person whose application for the issue or renewal of a
driver accreditation is refused on the grounds that the
regulator has become aware that the applicant--
• has been found guilty of a category 1 offence; or
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• is subject to reporting obligations imposed
under Part 3 of the Sex Offenders Registration
Act 2004; or
• is subject to an extended supervision order
or interim extended supervision order made
under the Serious Sex Offenders Monitoring
Act 2005; or
• is subject to a supervision order or interim
supervision order within the meaning of the
Serious Sex Offenders (Detention and
Supervision) Act 2009;
• a person who is disqualified from applying for a driver
accreditation under new section 85;
• whose driver accreditation is cancelled under new
section 219.
New subsection (2) provides that the person may apply to VCAT
for an order either that the regulator issue or reinstate the driver
accreditation, or cancel the disqualification.
New subsection (3) provides that, on an application under new
subsection (2), VCAT may, by order, direct the regulator to--
• issue a driver accreditation to the applicant; or
• reinstate the driver accreditation of the applicant; or
• make a determination cancelling the disqualification of
the applicant.
New subsection (4) provides that VCAT must not make an order
under new subsection (3) to issue, renew or reinstate a driver
accreditation unless--
• VCAT is satisfied that the applicant is technically
competent and sufficiently fit and healthy to drive a
commercial passenger vehicle and is a fit and proper
person to provide a commercial passenger vehicle
service; and
• the applicant has demonstrated that the issue or
reinstatement is appropriate having regard to the public
care objective; and
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• VCAT is satisfied that--
• the making of the order would not pose an
unjustifiable risk to the safety of users of
commercial passenger vehicle services; and
• in all the circumstances, it is in the public interest
to make the order.
New subsection (5) provides that, for the purposes VCAT
making an order that would not pose an unjustifiable risk to the
safety of persons using services provided by the drivers of
commercial passenger vehicles, VCAT--
• must have regard to the following matters which are
specified in new section 75(6)--
• the nature and gravity of the offence and its
relevance to the service to be provided by the
applicant;
• the period of time since the applicant committed
the offence;
• whether a finding of guilt or conviction was
recorded;
• the sentence imposed for the offence;
• the age of the applicant when the offence was
committed;
• in relation to any sexual offence, the age of any
victim;
• whether or not the conduct that constituted the
offence has been decriminalised since the
offence was committed;
• the applicant's behaviour since committing the
offence;
• the likelihood of the applicant committing
another such offence in the future, in particular,
any future threat to a child or other vulnerable
person;
• any information given by the applicant.
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New subsection (6) provides that if VCAT refuses to make an
order applied for under subsection (2), VCAT may, by order,
disqualify the person from applying for a driver accreditation for
a period not exceeding 5 years.
New subsection (7) provides that a period of disqualification
under an order under subsection (6) may be in substitution of a
period of disqualification imposed by the regulator.
Part 13--Information gathering and handling
New Part 13 provides for the gathering and handling of
information by the regulator.
The new Part is a re-enactment of Subdivisions 4, 5 and 5A of
Division 9A of Part VI of the Transport (Compliance and
Miscellaneous) Act 1983.
Division 1--Confidential or commercially sensitive
information
New section 254 provides for the definition of sensitive
information which is applicable to new Part 13.
New section 255 provides for restrictions on the disclosure or
use of sensitive information. The regulator must not disclose or
use sensitive information other than in accordance with this new
Division.
New section 256 provides that the regulator may use sensitive
information in the performance of a function or exercise of a
power under, or in connection with, the amended Principal Act
or the Transport Integration Act 2010.
New section 257 provides for the disclosures by the regulator
required for performance of its function or exercise of power
which are permitted in certain cases.
New subsection (1) provides that the regulator may disclose
sensitive information in the performance of a function or
exercise of a power under, or in connection with, the amended
Principal Act or the Transport Integration Act 2010 if the
regulator has--
• invited submissions, and considered any made, in
accordance with subsection (2); and
• formed an opinion referred to in subsection (3); and
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• given notice in accordance with subsection (4).
New subsection (2) provides that, if the regulator has invited
submissions, and considered any made, in accordance with new
subsection (1), the regulator must--
• give the person from whom the regulator obtained or
who has given the sensitive information (the provider)
an opportunity to make a submission to the regulator
specifying--
• why the information is of a confidential or
commercially sensitive nature; and
• the detriment that would be caused by the
disclosure of the information; and
• give the same opportunity to each person--
• who the regulator knows gave the information to
the provider; and
• whose identity and address is known to the
regulator; and
• consider any submission made.
New subsection (3) provides that, the opinion is either--
• the disclosure would not cause detriment to--
• the provider; and
• any other person who the regulator knows gave
the information to the provider; or
• that, although the disclosure would cause detriment to a
person, the public benefit in disclosing the information
outweighs that detriment.
New subsection (4) provides that the regulator must give written
notice to--
• the provider; and
• each person--
• who the regulator knows gave the information to
the provider; and
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• whose identity and address is known to the
regulator.
• New subsection (5) provides that the notice must--
• state that the regulator wants to disclose the
sensitive information; and
• specify the nature of the intended disclosure; and
• set out detailed reasons why the regulator wants
to make the disclosure; and
• state the opinion that the regulator has formed in
relation to the recipient of the notice under new
subsection (3); and
• set out detailed reasons why the regulator has
formed that opinion; and
• include a copy of Division 1 of new Part 13.
New section 258 provides for the disclosure or use of sensitive
information by the regulator if it is required by or under any Act
of Parliament.
New section 259 provides that the regulator may disclose or use
sensitive information with the consent of the person who gave the
information.
New section 260 provides that the regulator may disclose or use
sensitive information in legal proceedings at the direction of a
court or tribunal.
New section 261 provides that the regulator may disclose or use
sensitive information if the information is in the public domain at
the time it is disclosed or used.
Division 2--Exempt freedom of information documents
New section 262 provides that the regulator must not disclose or
use information contained in an FOI exempt document other than
in accordance with Division 2 of new Part 13 of the amended
Principal Act.
New section 263 provides that the regulator may use information
contained in an FOI exempt document in the performance of a
function or exercise of a power under, or in connection with, the
amended Principal Act or the Transport Integration Act 2010.
144
Division 3--Power of regulator to obtain and share
information
New section 264 provides the regulator with a general power to
obtain information and documents.
New subsection (1) provides that the regulator may, by written
notice, require a permission holder who it believes is capable of
providing information or producing documents that may assist it
in performing its functions--
• to provide, in accordance with the notice, that
information to the regulator; or
• to produce those documents, in accordance with the
notice, to the regulator or a person specified in the
notice who is acting on its behalf; or
• to appear before the regulator at a time and place
specified in the notice to provide that information, either
orally or in writing, or produce those documents.
The Note at the foot of new subsection (1) outlines that a notice
under subsection (1) may be given to a permission holder by
serving it in accordance with section 288.
New subsection (2) provides that a person must not--
• refuse or fail to comply with a notice under new
subsection (1) to the extent that the person is capable
of complying with it; or
• in purported compliance with a notice under this
section, knowingly provide information that is false
or misleading; or
• obstruct or hinder the regulator in exercising a power
under new section 264.
The penalty for a contravention of this offence is 120 penalty
units for an individual and 600 penalty units for a body corporate.
New subsection (3) provides that nothing in new section 264
entitles or requires a person to provide information or produce a
document--
• that is the subject of client legal privilege; or
• if its provision or production might tend to incriminate
the person or make the person liable to a penalty.
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New subsection (4) provides that any information provided or
document produced by a person in compliance with a notice
under new subsection (1) is not admissible in evidence against
the person in any proceedings other than proceedings under that
section.
New subsection (5) provides that if any documents are produced
to the regulator under new section 264, the regulator may--
• inspect the documents or authorise a person to do so;
• make copies of, or take extracts from, the documents
and retain possession of those copies and extracts.
New section 265 provides how complaints against the regulator
must be dealt with.
New subsection (1) provides that any person may complain to the
Secretary about the exercise of a power by the regulator under
Division 3 of new Part 13.
New subsection (2) provides that the Secretary must--
• investigate any complaint; and
• provide a written report to the complainant on the
results of the investigation.
New section 266 provides for information sharing.
New subsection (1) provides that the regulator may enter into an
arrangement with a relevant agency for the purposes of sharing or
exchanging information held by the regulator and the relevant
agency.
New subsection (2) provides that the information to which an
information sharing arrangement may relate is limited to the
following--
• information concerning investigations, inquiries, law
enforcement, assessment of complaints or any
registration or accreditation matters;
• probity assessments and reference checks concerning
persons who provide, or propose to provide, commercial
passenger vehicle services;
• any other information affecting the interests of users of
commercial passenger vehicle services;
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• information relating to the administration and
enforcement of Part 11;
• any other information of a prescribed kind.
New subsection (3) provides that, under an information sharing
arrangement, the regulator and the relevant agency are
authorised--
• to request and receive information held by the other
party to the arrangement; and
• to disclose information to the other party.
New subsection (4) provides that the regulator and the relevant
agency may only do a thing authorised under new subsection (3)
to the extent that the information is reasonably necessary to
assist--
• the regulator in the exercise of functions under the
amended Principal Act or the Transport Integration
Act 2010; or
• the relevant agency concerned in the exercise of the
agency's functions.
New subsection (5) provides that, without limiting new
subsections (3) and (4), the regulator may, whether as part of an
information sharing arrangement or otherwise, also--
• refer to a commercial passenger vehicle agency or
law enforcement agency any matter (including any
complaint) with respect to the commercial passenger
vehicle industry or that affects the interests of users of
commercial passenger vehicle services; or
• receive any matter of a type described above (at the first
dot point) from a commercial passenger vehicle agency
or law enforcement agency; or
• conduct a joint investigation into any such matter
with a commercial passenger vehicle agency or law
enforcement agency.
New subsection (6) provides that new section 266 does not
limit--
• the powers of the regulator under the amended Principal
Act or the Transport Integration Act 2010; or
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• the operation of new section 267; or.
• the operation of any other Act under which a relevant
agency is authorised or required to disclose information
to another person or body; or
• the giving of information--
• to a court or tribunal in the course of legal
proceedings; or
• under an order of a court or tribunal; or
• to the extent reasonably required to enable the
investigation or the enforcement of a law of the
State or of any other State or of a Territory or of
the Commonwealth; or
• to the ESC; or
• with the written authority of the Secretary; or
• with the written authority of the person to whom
the information relates.
New subsection (7) provides that, in new section 266--
• commercial passenger vehicle agency means an agency
of the State, or of the Commonwealth, or of another
State or a Territory or of an overseas jurisdiction, that
exercises functions under an enactment with respect to
commercial passenger vehicle services;
• law enforcement agency means--
• Victoria Police or the police force or police
service of another State or of a Territory or of an
overseas jurisdiction; or
• the Australian Federal Police; or
• the Australian Criminal Intelligence
Commission; or
• any other authority or person responsible for the
investigation or prosecution of offences against
the laws of the State or of the Commonwealth,
another State or a Territory or an overseas
jurisdiction;
148
• relevant agency means--
• a commercial passenger vehicle agency; or
• a law enforcement agency; or
• the ESC; or
• the Commissioner of State Revenue; or
• any other agency of the State or of the
Commonwealth, another State or a Territory or
an overseas jurisdiction; or
• any other person or body that exercises
functions, in the public interest, that involve
protecting the interests of users of commercial
passenger vehicle services.
Proposed new section 267 imposes a duty on the Chief
Commissioner of Police to notify the regulator of certain matters
relating to offences.
New subsection (1) provides that the Chief Commissioner of
Police must take all reasonable steps to ensure that the
regulator--
• is notified as soon as practicable after the Chief
Commissioner becomes aware that a notifiable person
has been charged with--
• a category 1 offence; or
• a category 2 offence; or
• a category 3 offence; and
• is given the details in respect of the charge requested by
the regulator.
New subsection (2) provides that the regulator may only request
details of a charge referred to in new subsection (1) that the
regulator reasonably requires to exercise functions under the
amended Principal Act.
New subsection (3) provides that the Chief Commissioner of
Police must take all reasonable steps to ensure that the regulator
is notified as soon as practicable of how a charge for an offence
referred to in new subsection (1) has been finally dealt with.
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New subsection (4) provides that a notifiable person means a
person who holds a driver accreditation or a person who has
applied for a driver accreditation.
Part 14--General
New Part 14 provides for general matters in relation to the Act.
Division 1--Offences
New section 268 provides for offences in relation to the assault or
the obstruction of an authorised officer.
New subsection (1) provides that a person must not assault or
incite or encourage any other person to assault a person specified
in the provision who is acting in the execution of their duty under
the amended Principal Act or any other Act, or under regulations
made under the amended Principal Act or any other Act.
Persons specified in the provision include authorised officers
appointed under the amended Principal Act, persons assisting
authorised officers, and any other officer or agent of the
regulator.
The maximum penalty for a contravention of this offence is
level 9 imprisonment for an individual and 300 penalty units for a
body corporate.
New subsection (2) provides that a person must not, without
reasonable excuse--
• resist, obstruct, hinder or refuse to comply with a lawful
request or direction of an officer or agent referred to in
subsection (1); or
• incite or encourage any other person to resist, obstruct,
hinder or refuse to comply with a lawful request or
direction of an officer or agent referred to in subsection
(1).
The maximum penalty for a contravention of this offence is
60 penalty units for an individual and 300 penalty units for a
body corporate.
New subsection (3) provides that--
• a direction under new section 160(1), 162(1), 163(1)
or 165(2); and
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• a defect notice under new section 164--
is not a lawful request or direction for the purpose of the offence
in new section 268(2).
The Note at the foot of subsection (3) refers the reader to
new sections 160(3),162(2), 163(2), 164(6) and 165(4) for
requirements relating to compliance with directions and notices.
New section 269 provides for offences in relation to the giving of
false or misleading information.
New subsection (1) provides that a person who is required by or
under the amended Principal Act to provide information must not
provide information that the person knows is false or misleading
in a material way (whether because it omits any relevant
information or otherwise) unless the person indicates (whether in
writing or otherwise) the respect in which the information is false
or misleading, and, if practicable, provides the correct
information.
The maximum penalty for a contravention of this offence is
60 penalty units for an individual and 300 penalty units for a
body corporate.
New subsection (2) provides that a person who is required by or
under the amended Principal Act to provide information must not
provide information that is false or misleading in a material way
(whether because it omits any relevant information or otherwise)
being reckless as to whether or not the information is false or
misleading in a material way.
The maximum penalty for a contravention of this offence is
60 penalty units for an individual and 300 penalty units for a
body corporate.
New sections 270 and 271 are re-enactments of sections 158B
and 158C of the Transport (Compliance and Miscellaneous)
Act 1983.
New section 270 provides for offences relating to security
cameras and privacy of passengers.
New subsection (1) provides that a person must not download or
print an image or other data obtained from the use of a security
camera installed in a commercial passenger vehicle unless--
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• the person is acting in accordance with--
• an agreement under new section 271; and
• the regulations (if any); or
• the person is employed by the regulator or the person's
services are being used by the regulator in accordance
with section 115R(2) of the Transport Integration
Act 2010 and is acting in accordance with--
• the written authorisation of the regulator; and
• the regulations (if any).
The penalty for a contravention of this offence is 240 penalty
units for an individual and 1200 penalty units for a body
corporate.
New subsection (2) provides that a person must not--
• possess, publish, transmit or disclose to any other
person an image or any other data obtained from the use
of a security camera in a commercial passenger vehicle;
or
• transmit images or data directly from a security camera
in a commercial passenger vehicle--
unless the person is acting in accordance with--
• the written authorisation of the regulator; and
• the regulations (if any).
The penalty for a contravention of this offence is 240 penalty
units in the case of an individual and 1200 penalty units in the
case of a body corporate.
New subsection (3) provides that the regulator's written
authorisation is subject to--
• the conditions determined by the regulator and specified
in the authorisation (if any); and
• the prescribed conditions (if any).
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New subsection (4) provides that a person must not make an
audio recording of any passenger of a commercial passenger
vehicle.
The penalty for a contravention of this offence is 240 penalty
units in the case of an individual and 1200 penalty units in the
case of a body corporate.
New subsection (5) provides that nothing in new section 270--
• applies to prohibit anything done by a police officer in
the course of his or her duty that would be lawful apart
from this section; or
• affects or takes away from the provisions of the
Surveillance Devices Act 1999.
New section 271 provides for agreements in relation to images
obtained from security cameras.
New subsection (1) provides that the regulator may make an
agreement with a person for the downloading or printing of
images or other data obtained from the use of a security camera
installed in a commercial passenger vehicle.
New subsection (2) provides that the agreement may authorise
the person with whom it is made, or a person employed or
engaged by that person, to download or print images or other
data obtained from the use of a security camera installed in a
commercial passenger vehicle, on the terms and conditions
contained in the agreement.
New subsection (3) provides that the Privacy and Data
Protection Act 2014 applies to a person with whom the regulator
makes an agreement under this section as if--
• the person were a contracted service provider within the
meaning of that Act; and
• the agreement were a State contract within the meaning
of that Act.
New subsection (4) provides that without limiting the application
of new subsection (3), an agreement under this section between
the regulator and a person must provide that the person is bound
by the following things with respect to any act done or practice
engaged in by the person for the purposes of the agreement--
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• the Information Privacy Principles under the Privacy
and Data Protection Act 2014; and
• any applicable code of practice under that Act.
New subsection (4) also provides that the person is bound by
those things with respect to that act or practice in the same way
and to the same extent that the regulator would have been bound
if it had been directly done or engaged in by the regulator.
New section 272 provides for notification of incidents.
A person on whom a safety duty is imposed under Division 3
of Part 2 of the amended Principal Act must notify the regulator
of a prescribed incident in accordance with the regulations.
The penalty for a contravention of this offence is 50 penalty
units.
Division 2--Regulator inquiries
New Division 2 is a re-enactment of Division 7 of Part VI of the
Transport (Compliance and Miscellaneous) Act 1983.
New section 273 provides for inquiries by the regulator.
New subsection (1) provides that this section applies to an
inquiry conducted by the regulator under section 115F(1)(dc) of
the Transport Integration Act 2010.
New subsection (2) provides that at least one Commissioner of
the Taxi Services Commission must preside at the inquiry.
New subsection (3) provides that subject to the new Division, the
regulator may conduct the inquiry in any manner it considers
appropriate.
New subsection (4) provides that if directed to do so by the
Minister, the regulator must conduct an inquiry into any matter
relating to the commercial passenger vehicle industry.
New subsection (5) provides that a direction made by the
Minister under subsection (4) must be in writing.
New section 274 provides that, without limiting section
115F(1)(df) of the Transport Integration Act 2010, at the
conclusion of an inquiry the regulator must give the Minister a
report on the outcomes of the inquiry. This report must be in
writing.
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Division 3--Monitoring, compliance and enforcement policy
New Division 3 provides for the development of a monitoring,
compliance and enforcement policy.
New Division 3 is a re-enactment of Subdivision 5B of
Division 9A of Part VI of the Transport (Compliance and
Miscellaneous) Act 1983.
New section 275 provides that the regulator must develop a
policy to promote compliance with, and enforcement of, industry
laws.
This policy must set out--
• proportionate, cost effective and efficient options for
monitoring and promoting compliance with, and
enforcement of, industry laws; and
• how enforcement agencies will use those options to
monitor and promote compliance with, and enforcement
of, industry laws.
The regulator is required to publish the policy on its internet
site no later than 12 months after the commencement of new
section 275. The regulator also is required to review the policy
every 3 years.
New section 276 provides that the regulator must consult the
following persons when developing or reviewing a policy--
• Victoria Police;
• the Information Commissioner appointed under
section 6C of the Freedom of Information Act 1982;
• the Roads Corporation; and
• persons who participate in the commercial passenger
vehicle industry.
The regulator may consult with persons who regulate commercial
passenger vehicle industries in other jurisdictions when
developing and reviewing the policy if the regulator considers
that it would be useful to do so.
New section 277 specifies the content of a monitoring,
compliance and enforcement policy. The policy must provide
guidance on--
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• the exercise of the following kinds of powers under an
industry law--
• monitoring and compliance powers;
• investigation powers;
• enforcement powers; and
• the exercise of powers under sections 13, 14(1), 84ZY,
77 and 88 of the Road Safety Act 1986 by authorised
officers or the regulator and in relation to commercial
passenger vehicle services; and
• the measures to be adopted by the regulator to promote
compliance with, and enforcement of, the industry laws.
The policy may provide guidance on other matters relevant to
monitoring compliance with, and enforcement of, industry laws.
New section 278 specifies what the regulator must do to
coordinate and support implementation of the policy.
The regulator must provide training, guidance and support
to authorised officers for the purpose of coordinating and
supporting the implementation of the monitoring, compliance
and enforcement policy. The regulator may coordinate and
support the implementation of the policy in any other manner
the regulator determines to be appropriate.
New section 279 requires that persons involved in compliance,
monitoring and enforcement activities under an industry law
or a provision of the Road Safety Act 1986 referred to in
section 277(1)(b) must, so far as is reasonably practicable, have
regard to the monitoring, compliance and enforcement policy
when performing functions and duties and exercising powers
under that law.
Division 4--Proceedings and evidentiary provisions
New section 280 provides who may commence proceedings for
offences against an industry law.
New subsection (1) provides that a proceeding under an industry
law (including a proceeding for an offence against an industry
law) may only be commenced by--
• the regulator; or
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• an authorised officer with the written authorisation of
the regulator (either generally or in a particular case); or
• a police officer.
New subsection (2) provides that a written authorisation of an
authorised officer is sufficient authority to continue a proceeding
in any case where the court amends the charge-sheet, warrant or
summons.
New subsection (3) provides that an authorised officer who
commences a proceeding may conduct the proceeding before the
court.
New subsection (4) provides that without limiting section 328 of
the Criminal Procedure Act 2009, the person commencing a
proceeding under subsection (1) may appear--
• by another person authorised by the regulator; or
• even if the informant is not a police officer, by a police
prosecutor.
New subsection (5) provides that despite subsection (1), the
Director of Public Prosecutions may commence a proceeding for
an indictable offence against an industry law.
New section 281 provides for evidentiary certificates. In any
proceeding for an offence against an industry law, a certificate
signed, or purporting to be signed, by the regulator or an
authorised officer stating any of the matters specified in the
provision is admissible in evidence and, in the absence of
evidence to the contrary, is proof of the matters stated.
Division 5--Other
New section 282 provides for regulatory fees. New subsection
(1) provides that the regulator, by notice published in the
Government Gazette, may determine--
• the fees payable for applications for permissions;
• annual registration fees payable by persons in whose
name the vehicle is registered under new Part 3 or a
registered booking service provider;
• annual accreditation fees payable by accredited drivers.
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New subsection (2) requires the regulator to obtain the
approval of the Minister for any fee the regulator determines
under section 282(1).
New subsection (3) provides that fees determined may--
• be of general or limited application;
• differ according to differences in time, place or
circumstance.
New subsection (4) states that a fee determined under
section 282(1) takes effect on--
• the day the notice under which it is determined is
published in the Government Gazette; or
• if that notice specifies a later date, that date.
New section 283 provides for regulatory exemptions.
New subsection (1) provides that the regulator, by written notice,
may exempt a person from a requirement under the Principal Act
or regulations made under it if the regulator is satisfied that--
• the person is substantially complying with the
requirement; or
• the person has adequately achieved the purpose of the
requirement; or
• the person's compliance with the requirement would,
in the particular circumstances, be impracticable,
unnecessary, or inappropriate.
New subsection (2) provides that an exemption may be either
indefinite or for a specified period and either absolute or on
specified conditions.
New subsection (3) provides that the regulator may at any time
suspend or cancel an exemption, or alter its period or its terms
and conditions, by written notice given to the person given the
exemption.
New section 284 provides for the criminal liability of officers of
bodies corporate in failing to exercise due diligence.
New subsection (1) provides that, if a body corporate commits
an offence against a provision specified in section 284(2), an
officer of the body corporate also commits an offence against the
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provision if the officer failed to exercise due diligence to prevent
the commission of the offence by the body corporate.
New subsection (2) provides that, for the purposes of subsection
(1), the following offences are specified--
• section 23(1)--failure by owner of a motor vehicle to
comply with the duty specified in that provision;
• section 24(1)--failure by booking service provider to
comply with the duty specified in that provision;
• section 25(1)--failure by person with control over the
provision of a commercial passenger vehicle service to
comply with the duty specified in that provision;
• section 26(1)--failure by supplier to comply with the
duty specified in that provision;
• section 39--offence to provide booking service
involving an unregistered vehicle;
• section 53--offence if booking service provider is not
registered;
• section 56--false representation in relation to booking
service provider registration;
• section 64--offence by booking service provider to fail
to comply with conditions of registration;
• section 160(3)--failure to comply with direction to
require production of information, documents and
related items;
• section 174(1)--failure to comply with improvement
notice;
• section 183(1)--failure to comply with prohibition
notice; and
• section 270(1), (2) and (4)--offences related to security
cameras and privacy of passengers.
New subsection (3) provides that, in determining whether an
officer of a body corporate failed to exercise due diligence, a
court may have regard to--
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• what the officer knew, or ought reasonably to have
known, about the commission of the offence by the
body corporate; and
• whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence by the body corporate; and
• what steps the officer took, or could reasonably have
taken, to prevent the commission of the offence by the
body corporate; and
• any other relevant matter.
New subsection (4) provides that, without limiting any other
defence available to the officer, an officer of a body corporate
may rely on a defence that would be available to the body
corporate if it were charged with the offence with which the
officer is charged and, in doing so, the officer bears the same
burden of proof that the body corporate would bear.
New subsection (5) provides that an officer of a body corporate
may commit an offence against a provision specified in
subsection (2) whether or not the body corporate has been
prosecuted for, or found guilty of, an offence against that
provision.
New subsection (6) defines body corporate and officer for the
purposes of new section 284.
New section 285 provides for criminal liability of officers
of bodies corporate in failing to exercise due diligence
(evidential burden of proof).
New subsection (1) provides that, subject to subsection (3), if a
body corporate commits an offence against a provision specified
in subsection (2), an officer of the body corporate also commits
an offence against the provision.
New subsection (2) provides that, for the purposes of subsection
(1), the following provisions are specified--
• section 113(3)--failure to comply with cap on non-cash
payment surcharge; and
• section 114(1)--offences to enter certain contracts
relating to non-cash payment surcharge.
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New subsection (3) provides that an officer of a body corporate
does not commit an offence against a provision specified in
subsection (2) if--
• the officer presents or points to evidence that suggests
a reasonable possibility that the officer exercised due
diligence to prevent the commission of the offence by
the body corporate; and
• the contrary is not proved (beyond reasonable doubt) by
the prosecution.
New subsection (4) provides that, in determining whether an
officer of a body corporate exercised due diligence, a court may
have regard to--
• what the officer knew, or ought reasonably to have
known, about the commission of the offence by the
body corporate; and
• whether or not the officer was in a position to influence
the body corporate in relation to the commission of the
offence by the body corporate; and
• what steps the officer took, or could reasonably have
taken, to prevent the commission of the offence by the
body corporate; and
• any other relevant matter.
New subsection (5) provides that, without limiting any other
defence available to the officer, an officer of a body corporate
may rely on a defence that would be available to the body
corporate if it were charged with the offence with which the
officer is charged and, in doing so, the officer bears the same
burden of proof that the body corporate would bear.
New subsection (6) provides that an officer of a body corporate
may commit an offence against a provision specified in
subsection (2) whether or not the body corporate has been
prosecuted for, or found guilty of, an offence against that
provision.
New subsection (7) defines body corporate and officer for the
purposes of new section 285.
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New section 286 provides that section 209 is declared to be a
Corporations legislation displacement provision for the purposes
of section 5G of the Corporations Act in relation to the provisions
of Chapter 2D of that Act.
The note at the foot of the provision specifies that section 5G
of the Corporations Act provides that if a State law declares a
provision of a State law to be a Corporations legislation
displacement provision, any provision of the Corporations
legislation with which the State provision would otherwise be
inconsistent does not apply to the extent necessary to avoid the
inconsistency.
New section 287 provides that if the Principal Act or regulations
made under it provide that a person commits an offence, that
reference to the person must--
• in the case of a partnership, be read as a reference to
each member of the partnership; and
• in the case of an unincorporated body or unincorporated
association, be read as a reference to each member of
the committee of management of the body or
association.
New section 288 provides for the service of documents.
Subsection (1) provides that a document to be served on, or given
to, a person under the Principal Act or regulations made under it
may be served or given--
• if the person to be served or given the document is a
person who is not a company or a registered foreign
company within the meaning of the Corporations Act--
• by delivering it personally to the person; or
• by sending it by post to the person at the person's
usual or last known residential or business
address; or
• by leaving it at the person's usual or last known
residential or business address with a person at
the premises who appears to be at least 16 years
old and appears to be residing or employed there;
and
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• if the person to be served or given the document is a
company or a registered foreign company within the
meaning of the Corporations Act, by serving it in
accordance with section 109X or 601CX of that Act,
as the case requires.
New subsection (2) provides that a document to be served on,
or given to, a permission holder under the Principal Act or
regulations made under it may be served on, or given to, the
permission holder by--
• sending it by post to the holder at the last address the
holder has given to the regulator; or
• leaving it with a person at the premises at the last
address the holder has given to the regulator who
appears to be at least 16 years old and residing or
employed there.
New section 289 provides for a power to make regulations under
the Act. Section 20 of the Principal Act is repealed by clause 13
of the Bill and re-enacted in new section 289.
New subsection (1) provides that the Governor in Council may
make regulations for or with respect to--
• any matter or thing specified in Schedule 2;
• any matter or thing required or permitted to be
prescribed or necessary to be prescribed to give effect
to this Act.
New subsection (2) provides that the regulations may--
• be of general or of limited application;
• differ according to differences in time, place or
circumstance;
• confer a discretionary authority or impose a duty on a
specified person or a person of a specified class;
• provide in a specified case or class of case for the
exemption of persons or things from any of the
provisions of the regulations, whether unconditionally
or on specified conditions, and either wholly or to such
an extent as is specified;
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• apply, adopt or incorporate any matter contained in any
document whether--
• wholly or partially or as amended by the
regulations; or
• as in force at a particular time; or
• as in force from time to time;
• impose a penalty not exceeding 20 penalty units for a
contravention of the regulations.
New subsection (3) provides that the Minister must not
recommend the making of regulations specifying an amount
of $1 or more as the amount of the levy unless the ESC
recommends the specification of that amount in accordance
with subsection (4).
New subsection (4) provides that the ESC must not recommend
the specification of an amount unless the ESC is satisfied that it
is the lowest amount that is reasonably likely to result in the total
amount of the levy collected in the beginning 1 July 2018 and
ending 30 June 2026, being equal to the cost of the transitional
assistance package up to the end of that period.
New subsection (5) clarifies that the transitional assistance
package, referred to in subsection (4) comprises--
• money paid by the State to participants in the
commercial passenger vehicle industry to assist them in
relation to changes to the law applying to that industry
made by the Principal Act; and
• $112 million (as at 30 June 2017), being State revenue
foregone as a result of those changes; and
• costs incurred in administering new Part 11 and any
regulations made for the purposes of that Part; and
• administrative and compliance costs incurred in
connection with the administration of grants paid to
commercial passenger vehicle industry participants or
rebate or subsidy schemes established and maintained to
support those participants.
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New section 290 provides for transitional provisions.
The transitional provision are provided for by new Schedule 3
to be inserted in the Principal Act by clause 20 of the Bill.
Clause 20 inserts new Schedules 1, 2 and 3 after new Part 14 in the
Principal Act.
New Schedule 1 provides for the meaning of Category 1, 2 and 3
offences in the Principal Act. Category 1, 2 and 3 offences are
relevant to the driver accreditation scheme under new Part 4 of
the Principal Act. The categorised offences in new Schedule 1
re-enacts the corresponding definitions in section 86 of the
Transport (Compliance and Miscellaneous) Act 1983.
New offences are included as category 2 offences. The new
offences are sections 77A, 77B, 79, and 79A of the Crimes
Act 1958 which relate to home invasion, aggravated home
invasion, carjacking and aggravated carjacking respectively.
Under new Part 5, the regulator is required to refuse an
application for accreditation, unless the regulator is satisfied
the issue of the driver accreditation is appropriate in the
circumstances.
New Schedule 2 provides for the subject matter for regulations
that may be made under the Principal Act. This includes
regulations relating to--
• safety duties;
• the registration of vehicles as commercial passenger
vehicles;
• booking service providers;
• driver accreditations;
• consumer protections in respect of fares;
• non-cash payment surcharges;
• operational requirements;
• infringement offences;
• the commercial passenger vehicle service levy;
• forms.
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New Schedule 3 provides for a range of transitional provisions in
relation to the repeal of the existing framework for the regulation
of commercial passenger vehicles. The transitional provisions do
not affect or take away from the Interpretation of Legislation
Act 1984.
Part 3--Amendment of other Acts
Clause 21 provides for consequential amendments to a range of other
Victorian Acts. On the coming into operation of an item in
Schedule 1, the Act specified in the heading to that item is
amended as set out in the item.
Part 4--Repeal of amending Act
Clause 22 provides for the repeal of this Act on 7 July 2019 noting that the
repeal of the Act on that date does not affect the continuing
operation of the amendments made by it.
Schedule 1--Consequential amendments
Item 1 provides for amendments to the definition of bus in the Bus
Safety Act 2009. This amendment is consequential to the repeal
of the licensing scheme in Part VI of the Transport
(Compliance and Miscellaneous) Act 1983. Under the
Principal Act, a bus used to provide a bus service will not be
regulated as a commercial passenger vehicle.
Item 2 provides for consequential amendments to the Duties Act 2000.
Item 3 provides for a consequential amendment to the Environment
Protection Act 1970.
Item 4 provides for amendments to the Essential Services Commission
Act 2001.
Item 4.1 amends the definition of essential service in section 3 of
the Essential Services Commission Act 2001. The effect of this
change is that the Essential Services Commission no longer has
power to determine fares in respect of the taxi industry.
Item 4.2 inserts a new definition of non-cash payment
transaction industry in section 3 of the Essential Services
Commission Act 2001. This definition is required because the
Essential Services Commission has a function under the Principal
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Act to determine the prescribed amount of the non-cash payment
surcharge.
Item 4.3 repeals a redundant definition.
Item 5 provides for a consequential amendment to the Liquor Control
Reform Act 1998.
Item 6 provides for amendments to the Ombudsman Act 1973.
The amendments are consequential to the change in name of the
Commercial Passenger Vehicle Commission and the provision
of authorised officers under the Principal Act. The effect of
the amendments is that the Commercial Passenger Vehicle
Commission and an authorised officer under the Principal Act
are specified entities under the Ombudsman Act 1973.
Item 7 provides for an amendment to the Public Administration
Act 2004 which is consequential to the change in the name of the
Commercial Passenger Vehicle Commission. The effect of the
amendment is that the Chairperson of the Commercial Passenger
Vehicle Commission will have all the functions of a public
service body Head.
Item 8 provides for amendments to the Road Safety Act 1986.
Item 8.1 amends section 3(1) of the Road Safety Act 1986 to
provide for new definitions in that Act.
Item 8.2 amends section 13(6)(c) of the Road Safety Act 1986
to provide that an authorised officer appointed under the
Principal Act has power to inspect motor vehicles and trailers and
issue defect notices under the Road Safety Act 1986.
Item 8.3 amends section 52(1C) of the Road Safety Act 1986 to
provide that a person who is using a vehicle for the purpose of
providing commercial passenger vehicle services must have a
0*00 concentration of alcohol present in the blood or breath of the
person.
Items 8.4 to 8.7 amend the Road Safety Act 1986 to replace
references to the Taxi Services Commission with the Commercial
Passenger Vehicle Commission.
Items 8.8 and 8.9 amends the operator onus scheme in the Road
Safety Act 1986. The effect of these amendments are that an
operator (within the meaning of the Road Safety Act 1986) of a
commercial passenger vehicle, previously regulated as a taxi-cab,
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may make an unknown user statement in relation to that vehicle
and may make a known user statement in relation to that vehicle
in circumstances where the driver of the vehicle is not specified
in the records of that operator.
Item 9 provides for amendments to the Taxation Administration
Act 1997. The amendments are consequential to clauses 15
and 16 which renumber Part 2 of the Principal Act as new Part 11
and consequential to the change in name for the Commercial
Passenger Vehicle Commission. A Note is inserted in the
Taxation Administration Act 1997 to clarify that the original
section 79 of the Commercial Passenger Vehicle Industry
Act 2017 is to be repealed by this Act and a new section 79 is to
be inserted by this Act.
Item 10 provides for amendments to the Transport (Compliance and
Miscellaneous) Act 1983. The existing regulatory scheme for
commercial passenger vehicles is contained in Part VI of the
Transport (Compliance and Miscellaneous) Act 1983.
Item 10.1 repeals several redundant definitions in sections 2(1)
and 86(1) of the Transport (Compliance and Miscellaneous)
Act 1983 and inserts into section 2(1) of that Act new definitions
of Commercial Passenger Vehicle Commission and CPVC.
Item 10.7 repeals Divisions 4, 5, 5B and 5C of Part VI
(other than certain provisions which relate to the regulation of
taxi fares) of the Transport (Compliance and Miscellaneous)
Act 1983. The effect of this repeal is that--
• operators of taxi-cabs will no longer be required to hold
an accreditation as a taxi-cab operator;
• the commercial passenger vehicle licensing scheme will
be abolished;
• taxi zones will be abolished (commercial passenger
vehicles previously licensed as taxi-cabs will no longer
be restricted to operating in the zone specified in the
licence).
Item 10.8 repeals the provisions in the Transport (Compliance
and Miscellaneous) Act 1983 which relate to the regulation of
fares for taxi services.
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Items 10.9 to 10.19 amends the driver accreditation scheme in
the Transport (Compliance and Miscellaneous) Act 1983.
The effect of the amendments is that certain bus drivers will
continue to be regulated under the Transport (Compliance
and Miscellaneous) Act 1983 and be required to hold an
accreditation under that Act. Drivers of commercial passenger
vehicles will be regulated under new Part 5 of the Principal Act.
Items 10.20 to 10.31 provide for the repeal of provisions which
relate to the regulation of commercial passenger vehicles and
will be re-enacted in the Principal Act. The items also make a
number of minor consequential amendments.
Item 11 provides for amendments to the Transport Integration
Act 2010.
Item 11 changes the name of the Taxi Services Commission to
the Commercial Passenger Vehicle Commission and makes
other changes to the functions and powers of the Commercial
Passenger Vehicle Commission.
Item 11.1 makes changes to section 3 of the Transport
Integration Act 2010 to remove redundant definitions and to
substitute references to the Taxi Services Commission with the
Commercial Passenger Vehicle Commission.
Item 11.2 inserts new definitions of Commercial Passenger
Vehicle Commission and commercial passenger vehicle service
in section 3 of the Transport Integration Act 2010.
Items 11.3 to 11.12 makes consequential substitutions to the
name of the Commission in various sections of the Transport
Integration Act 2010.
Items 11.13 to 11.17 makes changes to the functions of the
Commission to reflect the new framework for the regulation of
commercial passenger vehicles.
Item 11.18 repeals section 115SB of the Transport Integration
Act 2010 to remove a redundant reporting requirement.
Item 11.19 inserts new section 203B in the Transport
Integration Act 2010 to provide for a saving and transitional
provision in relation to the change in name of the Commercial
Passenger Vehicle Commission.
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Item 12 provides for an amendment to the Workplace Injury
Rehabilitation and Compensation Act 2013. This amendment
is consequential to the driver agreement scheme being re-enacted
in the Principal Act.
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