Driving Instructors Act 1992 (NSW)

Driving Instructors Act 1992 No 3 An Act to provide for the licensing of instructors engaged for reward in teaching persons to drive motor vehicles; to repeal the Motor Vehicle Driving Instructors Act 1961; and for other purposes. Part 1 Preliminary 1 Name of Act This Act may be cited as the Driving Instructors Act 1992. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 2A Objects of Act The primary objects of this Act include— (a) to ensure that driving instructors meet minimum standards relating to competency and performance in driving instruction, probity and character in order to protect the community and to benefit the driving instruction industry, and (b) to minimise the potential for corruption in the driving instruction industry and inappropriate behaviour by driving instructors, and (c) to promote the safety and protection of persons receiving driving instruction. 3 Definitions (1) In this Act— application includes an application for the renewal of a licence. authorised officer means a person authorised in writing by Transport for NSW for the purposes of the provision of this Act in which the expression is used. driver licence means— (a) an Australian driver licence under the Road Transport Act 2013 (other than a learner licence, a provisional licence, a probationary licence or a restricted licence within the meaning of that Act), or (b) a corresponding licence under the law for the time being in force in any other country, to drive all classes of motor vehicles (or motor vehicles of the relevant class). driving instructor is defined in section 4. driving school is defined in section 5. instructions includes advice, demonstrations and courses of training. licence means a licence under this Act. misconduct means any conduct of the following kind— (a) sexual assault, whether in connection with the provision of driving instruction or otherwise, (b) sexual harassment in connection with the provision of driving instruction (including making an unwelcome sexual advance, or an unwelcome request for sexual favours, to a person, or engaging in other unwelcome conduct of a sexual nature in relation to a person), (c) fraud or dishonesty punishable on conviction by imprisonment, whether in connection with the provision of driving instruction or otherwise, (d) the commission of any offence involving dangerous driving, whether in connection with the provision of driving instruction or otherwise, (e) the commission of any offence involving assault, whether in connection with the provision of driving instruction or otherwise. motor vehicle means a motor vehicle (including any trailer towed by the vehicle) within the meaning of the Road Transport Act 2013. Transport for NSW or TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) In this Act, a reference to a relevant class of motor vehicles is a reference to a class of motor vehicles in respect of which the applicant for a licence has applied. (3) Notes included in this Act do not form part of this Act. 4 Meaning of "driving instructor" (1) For the purposes of this Act, a driving instructor is a person— (a) who— (i) instructs another person for the purpose of teaching that other person to drive a motor vehicle, or (ii) tests or assesses another person for the purpose of enabling that other person to obtain a driver licence or have it varied, and (b) receives a monetary or other reward for so teaching, testing or assessing (whether from the person being instructed, tested or assessed or otherwise). (1A) Subject to the regulations, any other reference in this Act (including subsections (2) and (3)) to a driving instructor or other person giving driving instructions to another person includes a reference to testing or assessing another person for the purpose of enabling that other person to obtain a driver licence or have it varied. (2) It does not matter whether the driving instructor gives instructions on the instructor's own account or in conjunction with any other person or as the agent or employee of any other person. (3) However, the regulations may provide that certain persons or classes of persons are not driving instructors for the purposes of this Act. 5 Meaning of "driving school" For the purposes of this Act, a driving school is a business (including any franchise or co-operative) that— (a) provides persons with instructions for the purpose of teaching those persons to drive motor vehicles, or (b) tests or assesses persons for the purpose of enabling those persons to obtain driver licences or have them varied. Part 2 Licences relating to driving instructors 6 Unlicensed driving instruction A person must not act as a driving instructor unless the person is the holder of a licence. Maximum penalty—50 penalty units. 7 Unlicensed person not to be employed as driving instructor A person must not engage or permit another person to act, as the person's employee or agent, as a driving instructor unless that other person is the holder of a licence. Maximum penalty—50 penalty units. 8 Unauthorised promotions (1) A person who is not the holder of a licence must not advertise or state that the person acts or is willing to act as a driving instructor. (2) A person who is not the holder of a licence authorising the person to act as a driving instructor in respect of motor vehicles of a particular class must not advertise or state that the person acts or is willing to act as a driving instructor in respect of vehicles of that class. (3) A person must not advertise or state that the person is willing to procure another person to act as a driving instructor, or as a driving instructor in respect of motor vehicles of a particular class, unless that other person is the holder of a licence authorising the person to act as a driving instructor or as a driving instructor in respect of the class concerned. (4), (5) (Repealed) Maximum penalty—50 penalty units. 9 Authority conferred by licence A licence authorises its holder to act, in accordance with any conditions imposed on the licence, as a driving instructor. 10 Prerequisites for licence (1) An applicant for a licence is not eligible to be issued with a licence unless the applicant— (a) has reached the age of 21 years, and (b) is the holder of a driver licence, and (c) has, for a period of not less than 3 years during the period of 4 years before the date of the application, held a driver licence, and (d) has been authorised by Transport for NSW to undertake, and has passed, a course in driving instruction approved by Transport for NSW and conducted by an organisation approved by Transport for NSW, and (e) either holds a working with children check clearance granted under the Child Protection (Working with Children) Act 2012 that is applicable to the work to be permitted by the licence or has a current application for such clearance under that Act. (2) An applicant for a licence is not eligible to be issued with a licence— (a) while serving a period of good behaviour under section 36 of the Road Transport Act 2013 (or a corresponding provision under the law of any other State or Territory), or (b) if the applicant is subject to an interim bar under the Child Protection (Working with Children) Act 2012. (3) Transport for NSW may exempt any person or class of persons from the requirement under subsection (1) (d) to be authorised to undertake, or to pass, a course in driving instruction. (4) Transport for NSW must not authorise a person to undertake a course in driving instruction for the purposes of subsection (1) (d) unless— (a) the person has made an application for a licence in accordance with section 11, and (b) Transport for NSW is satisfied that the person is of good repute and good character. (5) Subsection (1) (e) does not apply if the applicant would be exempt from a working with children check clearance under the Child Protection (Working with Children) Act 2012 for the work permitted by the licence. (6) Transport for NSW may exempt any person or class of persons from the requirement under subsection (1) (e) to hold a clearance or to have a current application for such a clearance if the licence to be issued is limited to the instruction of persons who are 18 years old or older. 11 Application for licence (1) An application for a licence is to be in a form approved by Transport for NSW and is to be lodged with Transport for NSW. (2) The application is to be accompanied by the fee prescribed by the regulations. 12, 13 (Repealed) 14 Consideration of information (1) In considering an application, Transport for NSW must take into account any information received from the Commissioner of Police and any other relevant information known to it. (2) (Repealed) 15 Testing of applicant Transport for NSW may require the applicant to submit to a test of any one or more of the following— (a) the applicant's competence as a driver of motor vehicles (or of motor vehicles of the relevant class), (b) the applicant's knowledge of the provisions of the road transport legislation within the meaning of the Road Transport Act 2013 that relate to drivers of motor vehicles and the driving of motor vehicles, (c) the applicant's knowledge of the provisions of this Act and of the regulations made under it, (d) the applicant's ability— (i) to teach persons to drive motor vehicles (or motor vehicles of the relevant class), or (ii) to test or assess persons seeking to obtain or vary driver licences for motor vehicles (or motor vehicles of the relevant class), (e) such other matters as may be prescribed by the regulations. 16 Medical certificates (1) Transport for NSW may require the applicant to obtain a certificate signed by a medical practitioner stating that the practitioner has personally examined the applicant and stating the medical practitioner's opinion as to whether, having regard to the inherent requirements of the occupation of driving instructor (including the safety of the public), the applicant is medically a fit person to act as a driving instructor. (2) Transport for NSW may require the applicant to obtain a certificate concerning the applicant's eyesight signed by a medical practitioner or a registered optometrist. (3) Transport for NSW may require that any certificate under this section be obtained from a medical practitioner or optometrist specified by Transport for NSW. 17 Determination of application After considering an application, Transport for NSW must— (a) issue a licence to the applicant, or (b) refuse the application and serve on the applicant a notice setting out its reasons for the refusal. 18 Grounds for refusal of application (1) Transport for NSW must refuse an application if— (a) the applicant is not eligible to be issued with a licence as referred to in section 10, or (b) Transport for NSW is not satisfied that the applicant is a person of good repute and good character, or (c) Transport for NSW is not satisfied that the applicant is a fit and proper person to act as a driving instructor, or (d) the applicant refused to submit to, or did not pass, any test to which the applicant was required to submit under section 15, or (e) the applicant, if required to do so, did not obtain the medical or other certificate referred to in section 16, or (f) Transport for NSW has reason to believe that the applicant has engaged in bribery or fraud relating to the testing of applicants for driver licences under the Road Transport Act 2013 or former Road Transport (Driver Licensing) Act 1998 (or corresponding licences under the law in any other State, or in any Territory or country) or the issue of those licences, or (g) Transport for NSW is of the opinion that it would not be in the public interest for the applicant to hold a licence having regard to the applicant's record of offences (within the State or elsewhere) involving motor vehicles. (2) Transport for NSW may refuse an application if— (a) the applicant has been found guilty of an offence (within the State or elsewhere) or is charged with an offence (within the State or elsewhere), and (b) Transport for NSW is satisfied that granting the application would be inconsistent with any of the primary objects of this Act. (2A) Transport for NSW may refuse an application if, pursuant to section 26 (1) (g), Transport for NSW is satisfied that the applicant has at any time engaged in misconduct. (3) If an applicant is a person with a disability (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth), Transport for NSW must not refuse an application on the ground that the person is, because of that disability, not a fit and proper person to act as a driving instructor, unless the applicant because of that disability would be unable to carry out the inherent requirements of the occupation of driving instructor. (4) The following are to be taken into account in determining whether an applicant would be unable to carry out the inherent requirements of the occupation of driving instructor (as referred to in subsection (3))— (a) the applicant's past training, qualifications and experience relevant to the occupation of driving instructor, (b) if the applicant is already acting as a driving instructor, the applicant's performance in that occupation, (c) all other relevant factors that it is reasonable to take into account. 19 Conditional licences (1) A licence may be issued subject to such conditions as Transport for NSW may determine. (2) The conditions must be set out in writing in a document served on the licensee. (3) If a licence is issued subject to conditions, Transport for NSW must, on the applicant's request, serve on the applicant a notice setting out the reasons for TfNSW's decision to impose the conditions. (4) During the currency of a licence Transport for NSW may, by notice served on the holder of the licence, do either or both of the following— (a) revoke or vary any conditions imposed on the licence, (b) impose new conditions on the licence. (5) On the licensee's request, Transport for NSW must serve on the licensee a notice setting out the reasons for TfNSW's decision to vary the conditions imposed on the licence or to impose new conditions. 20 Contravention of conditions of licence A licensee must not contravene any condition to which the licence is subject. Maximum penalty—50 penalty units. 21 Employer to require compliance with conditions of licence A person must not permit a licensee who is the person's employee or agent to contravene any condition to which the licence is subject. Maximum penalty—50 penalty units. 22 Form of licence A licence issued to a person may consist, wholly or in part, of— (a) an endorsement on the person's driver licence, or (b) a separate document. 23 Renewal of licence (1) The holder of a licence may, at any time during the currency of the licence or within 90 days after its expiry, apply to Transport for NSW for a renewal of the licence. (2) The licence is renewed by the issue of a further licence— (a) that takes effect from the expiry of the holder's current licence, if the application for renewal was made before that expiry, or (b) that is taken to be effective from the date of application, if that application was made after the expiry. (3) Nothing in this section gives any force to a licence that has expired, or otherwise affects the operation of section 24. 24 When licence is in force (1) A licence is in force for the period specified in the licence unless it is suspended or cancelled. (2) Apart from any suspension or cancellation that may be effected under this Act, a licence is suspended or cancelled (as the case may be) while the holder's driver licence is suspended or cancelled. (3) A licence is also suspended during any other period while the licensee is not the holder of a driver licence. 25 Tests or certificates during currency of licence (1) Transport for NSW may at any time during the currency of a licence require its holder to submit to any tests of the kind referred to in section 15 or to obtain any medical or other certificate referred to in section 16. (2) Requirements under this section are to be made only as often as Transport for NSW considers necessary in the public interest. 26 Grounds for suspension or cancellation of licence (1) Transport for NSW may suspend or cancel a licence on any of the following grounds— (a) the licence was issued erroneously or granted in consequence of any false or fraudulent document, statement or representation, (b) any prescribed fee for the licence is due and unpaid, (c) the holder of the licence— (i) has been found guilty of an offence against this Act or the regulations, or (ii) has been found guilty of, or has charges pending before a court for, any other offence (within the State or elsewhere) and Transport for NSW is satisfied that suspending or cancelling the licence will promote one or more of the primary objects of this Act, (d) the holder of the licence has contravened a condition to which the licence is subject, (e) the holder of the licence refuses to submit to, or does not pass, any of the tests Transport for NSW requires the holder to submit to under section 25 or does not obtain a medical or other certificate referred to in that section, (f) (Repealed) (g) Transport for NSW is satisfied that the holder of the licence engaged in misconduct, (h) the holder of the licence does not hold a working with children check clearance under the Child Protection (Working with Children) Act 2012 or does not have a current application for such clearance under that Act, (i) Transport for NSW is satisfied that the holder of the licence is not a person of good repute or good character, (j) Transport for NSW is satisfied that the holder of the licence is not a fit and proper person to act as a driving instructor, (k) Transport for NSW has reason to believe that the holder of the licence has engaged in bribery or fraud relating to the testing of applicants for driver licences under the Road Transport Act 2013 or former Road Transport (Driver Licensing) Act 1998 (or corresponding licences under the law in any other State, or in any Territory or country) or the issue of those licences, (l) having regard to the objects of the Act, Transport for NSW is of the opinion that the holder of the licence is a person who no longer displays the competencies, or is no longer suitable, to act as a driving instructor, (m) Transport for NSW is of the opinion that it would not be in the public interest for the holder of the licence to continue to hold a licence having regard to his or her record of offences (within the State or elsewhere) involving motor vehicles. (1A) Transport for NSW may issue a caution to the holder of a licence instead of suspending or cancelling the licence under subsection (1). (2) (Repealed) (2A) If alleged misconduct on the part of the holder of a licence is reported to Transport for NSW under section 54A or 54B, Transport for NSW may suspend the person's licence until the matter has been dealt with if of the opinion that such action is necessary due to the serious nature of the alleged misconduct. (3) If the holder of a licence is a person with a disability (within the meaning of the Disability Discrimination Act 1992 of the Commonwealth), Transport for NSW must not cancel a licence on the ground that the holder is, because of that disability, not a fit and proper person to act as a driving instructor, unless the holder because of that disability would be unable to carry out the inherent requirements of the occupation of driving instructor. (4) The following are to be taken into account in determining whether a holder of a licence would be unable to carry out the inherent requirements of the occupation of driving instructor (as referred to in subsection (3))— (a) the holder's past training, qualifications and experience relevant to that occupation, (b) if the holder is already acting as a driving instructor, the holder's performance in that occupation, (c) all other relevant factors that it is reasonable to take into account. 27 Notification of suspension or cancellation of licence (1) Transport for NSW must serve on a driving instructor whose licence it has suspended or cancelled a notice— (a) informing the instructor of the suspension or cancellation, and (b) setting out the reasons for TfNSW's decision to suspend or cancel the licence, and (c) specifying the period within which the instructor must return the licence to Transport for NSW. (2) The suspension or cancellation takes effect when the notice is served on the driving instructor concerned or on such later date as is specified in the notice. 28 Return of licence (1) A driving instructor served with a notice informing the instructor of the suspension or cancellation of the instructor's licence must, within the time specified in the notice, return the licence to Transport for NSW. Maximum penalty—20 penalty units. (2) A person need not comply with subsection (1) if the suspension or cancellation is stayed by order of the Local Court under section 31. (3) A driving instructor whose licence expires must return the licence to Transport for NSW not later than 3 days after the expiry. Maximum penalty—20 penalty units. (4) A driving instructor whose driver licence is suspended or cancelled must return the licence issued under this Act to Transport for NSW not later than 3 days after the suspension or cancellation. Maximum penalty—20 penalty units. (5) A requirement in this section (and in section 29) that a licence be returned is a requirement that the licence itself, together with any document or notice setting out or varying conditions imposed on the licence and any photograph or other means of identifying the holder, be delivered to a place nominated by Transport for NSW in writing to the holder so that Transport for NSW may record the suspension, cancellation or change of address concerned. 29 Change of address The holder of a licence whose address (as shown on the licence) changes must, within 7 days after the change, notify Transport for NSW in writing of the change and return the licence to Transport for NSW for amendment. Maximum penalty—20 penalty units. 30 Duplicate licence (1) Transport for NSW may issue a duplicate licence to replace a licence that has been destroyed, lost, stolen or mutilated. (2) Before issuing a duplicate licence, Transport for NSW may require— (a) proof to its satisfaction that the licence has been destroyed, lost, stolen or mutilated, and (b) payment of the prescribed fee, and (c) lodgment with it of copies of a photograph of the licensee. Part 3 Appeals relating to licences 31 Appeal against decision of TfNSW (1) A person may appeal to the Local Court against the refusal of the person's application for a licence, except if the application was refused on the ground that the applicant was not eligible to hold a licence as referred to in section 10. (2) A person may appeal to the Local Court against the imposition or variation of any condition on the person's licence. (3) A person may appeal to the Local Court against the suspension or cancellation of the person's licence. (4) Notice of an appeal is to be lodged with the Local Court and with Transport for NSW within 28 days after the date on which the person was notified of the relevant decision of Transport for NSW. (5) The notice of appeal must specify the grounds of appeal. (6) An appeal does not operate to stay the effect of TfNSW's decision unless the Local Court otherwise orders. (7) If the effect of a decision is stayed under this section, it is stayed only for so long as any conditions imposed by the Local Court when ordering the stay are complied with. 32 Procedure on notice of appeal (1) The relevant registrar of the Local Court must give notice of the time and place of the hearing of the appeal to Transport for NSW and to the appellant. (2) The hearing of an appeal may proceed regardless of any omission from or error in a notice given under this section or the failure to give the notice if the Local Court is satisfied that the appellant and Transport for NSW knew of the time and place of the hearing and were not prejudiced by the omission, error or failure to give notice. 33 Procedure on appeal (1) An appeal under this Part is to be heard before the Local Court. (2) The Local Court is to hear and determine the appeal and may confirm (with or without variation) or disallow the decision appealed against, or make any other order, as seems just to the Local Court. (3) The Local Court is not bound to observe the rules of law governing the admission of evidence but may inform itself of any matter in such manner as it sees fit. (4) The civil standard of proof applies in proceedings on an appeal. (5) Any material considered by Transport for NSW in reaching the decision the subject of the appeal and copies of any notices, documents or letters served on the appellant by Transport for NSW together with details of their service are admissible in the proceedings. (6) The authenticity of any such material, notices, documents, letters and service must be certified by an authorised officer. (7) The decision of the Local Court given in any appeal under this Part is final, is taken to be the decision of Transport for NSW and is to be carried into effect accordingly. Part 4 Certain persons prohibited from conducting etc driving schools 34 Definition In this Part, prohibition order means an order made by the Local Court under this Part and for the time being in force which prohibits a person from conducting a driving school or engaging in the control, management or administration of a driving school. 35 Application for prohibition order Transport for NSW may apply to the Local Court for a prohibition order. 36 Grounds on which prohibition order may be made (1) A prohibition order may be made against a person only if the Local Court is satisfied that the person is conducting a driving school or engaging in the control, management or administration of a driving school and that the person— (a) has (whether in connection with the driving school or otherwise) engaged in bribery or fraud relating to the testing of applicants for driver licences under the Road Transport Act 2013 or former Road Transport (Driver Licensing) Act 1998 (or corresponding licences under the law in any other State, or in any Territory or country) or the issue of those licences, or (b) has been found guilty of an offence (within the State or elsewhere) involving fraud or dishonesty and punishable on conviction by imprisonment for 3 months or more, or (c) has been found guilty of an offence against section 54A, 54B or 54C. (2) Without limiting subsection (1) (b), a prohibition order may also be made against a person if— (a) the Local Court is satisfied that the person is conducting a driving school or engaging in the control, management or administration of a driving school, and (b) the person has been found guilty of an offence (within the State or elsewhere), and (c) the Local Court is satisfied that the making of the order will promote one or more of the primary objects of this Act. 37 Making of prohibition order (1) The Local Court may, on application by Transport for NSW and on being satisfied that the order is warranted, order a person not to conduct a driving school or engage in the control, management or administration of a driving school— (a) in any way, or (b) in a way stated in the order, or (c) otherwise than in a way stated in the order. (2) Transport for NSW must serve a copy of the prohibition order on the person the subject of the order. 38 Application for variation or revocation of prohibition order (1) Application for variation or revocation of a prohibition order may be made to the Local Court by the person the subject of the order or by Transport for NSW. (2) The Local Court may, on that application, vary or revoke the prohibition order or refuse to vary or revoke it. (3) If the Local Court varies the prohibition order, Transport for NSW must serve a copy of the order varying the original order on the person the subject of the order. 39 Appeal against making or variation of prohibition order (1) An appeal lies to the Supreme Court against a decision of the Local Court to make or vary a prohibition order. (2) No appeal against such a decision may be made later than 28 days after the date of service of the copy of the order or of the order varying the order (as the case may be) on the person the subject of the order. 40 Determination of appeal (1) The Supreme Court is to hear and determine the appeal and may confirm (with or without variation) or disallow the decision appealed against, or make any other order, as seems just to the Court. (2) The decision of the Supreme Court given in any appeal under this Part is final, is taken to be the decision of the Local Court and is to be carried into effect accordingly. 41 Court procedure (1) The Local Court determining an application, and the Supreme Court hearing an appeal, under this Part are not bound to observe the rules of law governing the admission of evidence but may inform themselves of any matter in such manner as they see fit. (2) The civil standard of proof applies in any such proceeding. 42 Costs The Local Court determining an application, and the Supreme Court hearing an appeal, under this Part may make such orders as to costs as seem just to the Court concerned. 43 When order takes effect (1) A prohibition order or an order varying a prohibition order takes effect 28 days after the date of service of the copy of the order on the person the subject of the order, unless an appeal against the decision is lodged with the Supreme Court within that time. (2) If an appeal against a decision of the Local Court is lodged within 28 days after the date of service of the order, the relevant order does not take effect until the Supreme Court upholds the decision or the appeal is withdrawn. (3) An order revoking a prohibition order takes effect as soon as it is made. 44 Contravention of terms of order (1) A person the subject of a prohibition order must not contravene any of its terms. (2) A person must not permit another person to conduct a driving school or to engage in the control, management or administration of a driving school in contravention of a prohibition order if the person knows, or could reasonably be expected to know, that the other person is subject to the order. Maximum penalty—50 penalty units. Part 5 Records relating to driving instructors and driving schools 45 TfNSW to