Transport (Taxi-Cab Accreditation and Other Amendments) Bill

Transport (Taxi-cab Accreditation and Other Amendments) Bill

Introduction Print

EXPLANATORY MEMORANDUM

551474

BILL LA INTRODUCTION 20/7/2006

Clause Notes

PART 1—PRELIMINARY

Clause 1sets out the purpose of the Bill, which is—

• to amend the Transport Act 1983—
• to provide for the accreditation of certain participants in the taxi-cab industry;

• to enable the penalties for transport infringements and ticket infringements to vary depending on whether they are issued by members of the police force or authorised officers;

• to make other miscellaneous to the Act;
• to make minor amendments to the Transport Legislation (Further Amendment) Act 2006.

Clause 2provides for the commencement of the various clauses of the Bill.

Sub-clause (1) provides for a number of provisions of the Bill to come into operation on the day after the day on which the Bill receives the Royal Assent.

Sub-clauses (2) and (3) provide for Part 2 of the Bill (relating to the accreditation scheme introduced by the Bill) and Division 2 of Part 3 of the Bill (which makes unrelated amendments to the licensing scheme for taxi-cabs) to come into operation on respective days to be proclaimed.

Sub-clause (5) provides that Division 5 of Part 3 of the Bill, which contains provisions which will remove a temporary power for the making of regulations providing for certain exemptions from the requirement to be accredited, comes into operation on the second anniversary of the coming into operation of Part 2 of the Bill.

PART 2—TAXI-CAB ACCREDITATION AMENDMENTS

Clause 3inserts a new Division 4 into Part VI of the Transport Act 1983, which establishes an accreditation scheme for certain participants in the taxi-cab industry.

Under the scheme, taxi-cab licence holders, taxi-cab operators and the providers of taxi-cab network services will be required to be accredited. A taxi-cab licence holder is, in all cases, the person who holds the relevant taxi-cab licence. A taxi-cab operator is the taxi-cab licence holder if the right to operate a vehicle under the relevant licence has not been assigned under section 150 of the Act or, if that right has been assigned, the assignee (see the amendment made by clause 18(d)). Taxi-cab network services are defined in new section 130A inserted by this clause. These services are typically provided by taxi depots and other associations of operators and drivers known as secondary networks.

The new Division is divided into 8 Subdivisions.

Subdivision 1—Preliminary

New section 130 sets out the purpose of accreditation under the Division, which is to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations by ensuring that only suitable persons hold taxi-cab licences, operate taxi-cabs or permit them to be operated or provide taxi-cab network services.

New section 130A defines certain terms used in the Division, including the key terms "officer", "relevant person", "responsible person", "taxi-cab network service", "tier 1 offence", "tier 2 offence" and "tier 3 offence". The section also prescribes how a number of other references in the Division are to be construed, including a reference to an application for accreditation, which is to include a reference to an application for renewal of accreditation.

Subdivision 2—Requirement for Accreditation

New section 131 makes it an offence, attracting a maximum penalty of 60 penalty units, for the operator of a taxi-cab to operate the taxi-cab, or permit it to be operated, unless the operator is accredited under the Division as a taxi-cab operator. (Note that "operate" denotes a different concept from "operator" —see the definition of "operate" in section 86(1) of the Transport Act 1983 and the amendment to that definition made by clause 18(c)).

New section 131A is a similar provision relating to the providers of taxi-cab network services.

Sub-section (1) makes it an offence for a person to provide a taxi-cab network service, or to advertise or in any other way hold themselves out as able or willing to provide a taxi-cab network service, unless the person is accredited under the Division to provide that service or is exempted by the regulations from the requirement to be accredited. (Note that exemption by the regulations is intended as a short term transitional measure to facilitate the introduction of this type of accreditation and will beremoved after two years—see clauses 2(7) and 23(1). Thisoffence will attract a maximum penalty of 240 penalty units in the case of a natural person and 1200 penalty units in the case of a body corporate.

Sub-section (2) provides that sub-section (1) does not apply in a number of cases where it would otherwise have unintended consequences.

Subdivision 3—Application for Accreditation

New section 132 contains provisions relating to the making of applications for accreditation.

Sub-section (1) provides that a person (which includes a body corporate, an unincorporated body or association and a partnership) may apply to the licensing authority for accreditation as a taxi-cab licence holder or as a taxi-cab operator or as a provider of taxi-cab network services. However, sub-section (5) limits the operation of this provision.

Sub-sections (2), (3) and (4) set out various administrative requirements relating to applications for accreditation.

Sub-section (5) provides that an unincorporated body or association, not being a partnership, is not capable of applying for, or holding, an accreditation as a taxi-cab licence holder or a taxi-cab operator.

Sub-section (6) provides that, except where the applicant is an individual, the licensing authority may communicate with the nominated responsible person in relation to the application.

New section 132A imposes a time limit of 90 days within which the licensing authority must decide whether to approve or refuse an application for accreditation. However, the section also provides a process in accordance with which the licensing authority may extend that period.

New section 132B empowers the licensing authority, subject to this Subdivision, to approve an application for accreditation if the licensing authority is satisfied that the applicant is suitable to be accredited and has complied with the application requirements under this Subdivision.

New section 132C provides that an accreditation remains in force until either it is cancelled or surrendered or the period specified in the certificate of accreditation (which must not be more than five years) expires (whichever occurs first).

New section 132D relates to mandatory refusal of accreditation.

Sub-section (1) provides that the licensing authority must refuse an application for accreditation if he or she believes on reasonable grounds that any one of a number of circumstances exists. These circumstances are spelt out in paragraphs (a) and(b) of the sub-section.

Paragraph (a), which relates only to accreditation as a taxi-cab operator or as a provider of taxi-cab network services, specifies as circumstances where the applicant, or a relevant person in relation to the applicant—

• has been found guilty of a tier 1 offence; or

• is subject to certain obligations or a certain order referred to in the Working with Children Act 2005.

Paragraph (b), which applies in all cases, specifies as circumstances, where the applicant—

• is disqualified under new section 132H or 135A from applying for the relevant accreditation; or

• does not meet certain requirements in relation to having knowledge of the activities in respect of which accreditation is sought or the competency and capacity (other than financial) to meet relevant business and service standards determined under the Division or the financial capacity to meet those business and service standards.

Sub-section (2) specifies a number of matters to which the licensing authority may have regard in determining the financial capacity of an applicant.

Sub-section (3) specifies a number of circumstances in which an applicant must not be taken to have the required financial capacity.

Note, however, that an applicant to which this section applies has recourse to the Victorian Civil and Administrative Tribunal (VCAT) in relation to a refusal under this section.

New section 132E provides that the licensing authority must refuse an application for accreditation if certain other circumstances apply unless the licensing authority is satisfied that the applicant has demonstrated that the issue of the accreditation is appropriate having regard to the purpose of accreditation set out in section 130. These other circumstances are—

• in the case of an application for accreditation as a taxi-cab licence holder, where the licensing authority is aware that the applicant, or a relevant person in relation to the applicant, has been found guilty of a tier 1 or tier2 offence;

• in the case of an application for accreditation as a taxi-cab operator or as a provider of taxi-cab network services, if the licensing authority is aware that the applicant, or a relevant person in relation to the applicant, has been found guilty of a tier 2 offence.

New section 132F specifies a number of circumstances in which the licensing authority may refuse an application for accreditation.

Sub-section (1) specifies as circumstances where the licensing authority is aware that the applicant, or a relevant person in relation to the applicant, has been found guilty of a tier 3 offence or is the subject of a charge for a disqualifying offence (which is a tier 1 offence or a tier 2 offence or a tier 3 offence) that has not been finally disposed of at the time of considering the application.

Sub-section (2) sets out a number of matters to which the licensing authority must have regard in exercising a discretion under sub-section (1).

Sub-section (3) specifies circumstances in relation to contraventions of the Transport Act 1983 or of business and service standards applicable to, or conditions, restrictions or other limitations imposed on, an accreditation held, or previously held, by the applicant under the Division.

Sub-section (4) provides that nothing in this section limits a discretion of the licensing authority to approve or refuse an application for accreditation.

Sub-section (5) makes it clear that, in exercising a discretion to approve or refuse an application for accreditation, the licensing authority may have regard to the place of residence or business of an applicant or relevant person and, where the applicant is a company, its place of registration and its principal place of business.

New section 132G requires that, if the licensing authority decides to refuse to accredit an applicant, the licensing authority must, in writing and as soon as practicable, notify the applicant of the decision and of the applicant's rights to apply to VCAT for a review of the decision and give the applicant a statement of reasons for the decision.

New section 132H provides that, if the licensing authority decides to refuse an application for accreditation, the licensing authority may disqualify the applicant from applying for accreditation of that kind for the period, not exceeding 5 years, determined by the licensing authority.

Subdivision 4—Accreditation Conditions and Business and Service Standards

New section 133 deals with restrictions and conditions concerning accreditation.

Sub-sections (1) and (2) empower the licensing authority, in accrediting an applicant, to limit the accreditation in any way the licensing authority thinks appropriate, including by imposing conditions that are not inconsistent with any conditions set out in the regulations that apply to the accreditation, and by restricting the scope of the accreditation.

Sub-section (3) provides that an accreditation is also subject to any condition set out in the regulations that applies to the accreditation.

Sub-sections (4) and (5) impose conditions on the accreditation of a taxi-cab operator and a provider of taxi-cab network services respectively in relation to arrangements approved by the licensing authority for the provision of such taxi-cab network services as are specified by the licensing authority.

New section 133A empowers the licensing authority at any time, on his or her own initiative or on the written application of the accredited person, to vary or revoke a condition, restriction or other limitation imposed by the licensing authority on an accreditation or to impose a new condition, restriction or other limitation.

The section also sets out administrative processes and requirements in relation to the exercise by the licensing authority of his or her powers under the section.

New section 133B makes it an offence for an accredited person to fail to comply with any condition, restriction or other limitation imposed on the accreditation by or under this Division of which the person has been given notice. The maximum penalty for this offence is, in the case of an accreditation as a taxi-cab licence holder or a taxi-cab operator, 30 penalty units and in the case of an accreditation as a provider of taxi-cab network services, 120penalty units for a natural person and 600 penalty units for abody corporate.

New section 133C relates to business and service standards applicable to an accreditation.

Sub-section (1) empowers the Minister, by notice published in the Government Gazette, to determine minimum business and service standards to be met by all accredited persons or by a specified class, or specified classes, of accredited person.

Sub-sections (2) and (3) impose public consultation requirements on the Minister before he or she may determine business and service standards under sub-section (1).

Sub-section (4) specifies the matters in relation to which business and service standards may be determined under the section.

Subdivision 5—Certificates of Accreditation

New section 134 relates to the issuing of certificates of accreditation.

Sub-section (1) requires the licensing authority, on accrediting an applicant, to allocate an accreditation number to the accredited person and to issue a certificate of accreditation that is in the form approved by the licensing authority and contains the details specified in the sub-section.

Sub-section (2) requires the licensing authority, on accrediting an applicant, to also give the accredited person a copy of the business and service standards applicable to the accreditation.

Sub-section (3) provides for the issuing, on application by the accredited person, of a replacement certificate of accreditation if the licensing authority is satisfied that the certificate last issued to the accredited person has been lost, stolen or destroyed.

Sub-section (4) makes it an offence, attracting a maximum penalty of 20 penalty units, for a person who has made an application under sub-section (3) on the ground that a certificate has been lost or stolen and who subsequently recovers the lost or stolen certificate, to fail, within 14 days after the certificate was recovered, to notify the licensing authority of the recovery and to return the certificate to the licensing authority unless informed by the licensing authority that this is not necessary.

New section 134A relates to the production of a certificate of accreditation.

Sub-section (1) empowers a member of the police force or a person authorised by the Director of Public Transport to require a person, who is carrying out an activity for which an accreditation is required and who claims to be accredited to carry out that activity, to produce the person's certificate of accreditation for inspection.

Sub-section (2) makes it an offence, attracting a maximum penalty of 5 penalty units, for an accredited person to fail to produce the person's certificate of accreditation for inspection when required to do so under sub-section (1).

Sub-section (3) provides for a defence against a charge under the section if the defendant had a reasonable excuse for failing to produce his or her certificate when required to do so under sub-section (1) and if, within five days after being required to so produce it, he or she produces it at the place directed by the member of the police force or the authorised person.

Subdivision 6—Disciplinary Action and Improvement Notices

New section 135 sets out the grounds on which the licensing authority may take disciplinary action against an accredited person in respect of an accreditation held by that person. Theseare that the licensing authority is satisfied—

• that a ground for refusal of an application for the accreditation under section 132D, 132E or 132F exists in relation to the accredited person or a relevant person in relation to the accredited person;

• that a ground for the service on the accredited person of an improvement notice in respect of the accreditation exists;

• that the accreditation was obtained because of a false or misleading statement made, or false and misleading information supplied, by the accredited person or a relevant person in relation to the accredited person;

• that a relevant person in relation to the accredited person has failed to comply with a requirement under section 137A(6) (which relates to the provision of information to the licensing authority by a relevant person).

New section 135A deals with disciplinary action that may be taken by the licensing authority in relation to accreditations.

Sub-section (1) sets out the range of disciplinary actions which may be taken by the licensing authority. These are—

• to cancel the accreditation and disqualify the holder from applying for an accreditation of that kind for a period not exceeding 5 years;

• to suspend the accreditation for any period;

• if the accreditation is already suspended, to cancel it and disqualify the holder as above or to suspend it for an additional period;

• to direct the accredited person or a relevant person in relation to the accredited person to undertake particular training;

• to impose a new condition, restriction or other limitation on, or vary a condition, restriction or other limitation on, the accreditation;

• to reprimand the accredited person.

Sub-section (2) makes it clear that, if an accredited person holds more than one kind of accreditation, the licensing authority may take disciplinary action in relation to any one or more of the accreditations.

Sub-section (3) provides that, if the licensing authority is satisfied that a ground for refusal of an application for accreditation under section 132D(a)(i) or (ii) exists in relation to the accredited person or a relevant person in relation to the accredited person, the licensing authority must cancel the accreditation and disqualify the holder from applying for an accreditation of that kind for a period not exceeding 5 years.

New section 135B sets out the procedure which must be followed by the licensing authority in taking any disciplinary action specified in section 135A.

Sub-sections (1) and (2) provide that, if the licensing authority proposes to take disciplinary action against an accredited person, he or she must serve a disciplinary notice on the person and set out the required contents of that notice.

Sub-section (3) requires the licensing authority, in deciding whether to take disciplinary action, to consider any submission made by the accredited person in response to the disciplinary notice as to why the proposed action should not be taken.