New South Wales: Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW)

Point to Point Transport (Taxis and Hire Vehicles) Act 2016 No 34 An Act with respect to taxi and passenger hire vehicle services and booking services; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Point to Point Transport (Taxis and Hire Vehicles) Act 2016. 2 Commencement (1) This Act commences on a day or days to be appointed by proclamation, except as provided by subsection (2). (2) This Part, Parts 9 and 11, clause 1 of Schedule 2 and Schedules 3 and 5 [25] commence on the date of assent to this Act. 3 Definitions (1) In this Act— affiliated provider—see section 5 (1). authorised means authorised under this Act for the time being. authorised officer means an authorised officer appointed under Division 1 of Part 7 or a police officer. bus means— (a) a motor vehicle that seats more than 12 adults (other than a vehicle prescribed by the regulations), or (b) a vehicle of any class prescribed by the regulations for the purposes of this definition. close associate—see section 33. Commissioner means the Point to Point Transport Commissioner appointed under this Act. community transport service means the transport, by a motor vehicle, of specified individuals or specified classes of individuals under a community transport agreement entered into by the provider of the service with TfNSW. conviction for a disqualifying offence—see section 32 (4). disqualifying offence—see section 32 (1). facilitate the provision of a taxi service—see section 5 (3). fare includes any consideration paid or given to use a passenger service (whether or not it is paid or given to the provider of a booking service or the passenger service, a driver or any other person), but does not include a consideration of a kind prescribed by the regulations for the purposes of this definition. function includes a power, authority or duty, and exercise a function includes perform a duty. hire vehicle—see section 6. IPART means the Independent Pricing and Regulatory Tribunal established under the Independent Pricing and Regulatory Tribunal Act 1992. licensed means licensed under this Act for the time being. motor vehicle means a vehicle that is built to be propelled by a motor that forms part of the vehicle, but does not include an aircraft, a train or a vessel. nominated director or manager of a taxi service or a booking service means a director or manager of the service who is nominated for the time being under Part 3. owner of a taxi or hire vehicle means the person who is the registered operator of the vehicle within the meaning of the Road Transport Act 2013. passenger—see section 4 (1). passenger service—see section 4. premises include a place or vehicle. provide a booking service—see section 7. provide a passenger service—see section 4. provide a taxi service—see section 5 (2). provider of a booking service, passenger service or taxi service means the person who provides the service. road means a road within the meaning of section 4 (1) of the Road Transport Act 2013 (other than a road that is the subject of a declaration made under section 18 (1) (b) of that Act relating to all of the provisions of that Act). road related area means a road related area within the meaning of section 4 (1) of the Road Transport Act 2013 (other than a road related area that is the subject of a declaration made under section 18 (1) (b) of that Act relating to all of the provisions of that Act). safety duty—see section 9 (1). safety standard—see section 9 (2). taxi—see section 5 (1). taxi licence means a licence issued under Part 4. taxi service—see section 5 (1). TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. wheelchair accessible taxi means a taxi that has wheelchair access. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 4 Passenger services (1) In this Act— passenger does not include a person employed with respect to a passenger service or the provision of a booking service, or a person carrying out work for the provider of a passenger service or booking service, while carrying out work or on duty in that capacity. passenger service means the transport, by a motor vehicle (other than a bus), of passengers within, or partly within, this State for a fare. Note— A taxi service is a type of passenger service, as is a service provided using a hire vehicle. provide a passenger service means carry on the business of providing a passenger service. Note— This includes providing a taxi service. (2) The following services are not passenger services— (a) a community transport service, (b) a service conducted according to regular routes and timetables or according to regular routes and at regular intervals, (c) a service conducted according to one or more regular routes, in which each passenger is transported for a distance of not less than 40 kilometres. (3) A service that provides transport by a motor vehicle that is generally conducted on land that is not a road or road related area is not a passenger service. (4) The regulations may provide that the provision of any transport prescribed by the regulations for the purposes of this section is or is not a passenger service. 5 Taxi services and taxis (1) In this Act— affiliated provider means a person who provides a taxi service and who, for that purpose, obtains services from another provider who facilitates the provision of that taxi service. taxi means a motor vehicle used to provide a taxi service. taxi service means a passenger service where the transport is by a motor vehicle that— (a) plies or stands for hire on a road or road related area, or (b) is authorised under this Act to ply or stand for hire on a road or road related area (whether or not the motor vehicle is hired by other means for the purposes of providing the passenger service). (2) In this Act, provide a taxi service means carry on the business of— (a) facilitating the provision of a taxi service, or (b) providing a taxi service. (3) A person facilitates the provision of a taxi service if the person carries on the business of providing any one or more of the following services for taxis operating under a common service name and that are marked or painted in a uniform way— (a) co-ordination of the provision of taxi services, (b) provision, co-ordination or monitoring of security facilities for taxis, (c) setting of fares that may be charged for taxi services, Note— A fare set by a facilitator of a taxi service cannot contravene a fares order (see section 76). (d) co-ordination or provision of safety management systems for taxi services. (4) Subsection (3) does not limit the operation of subsection (2) (a). (5) The regulations may provide— (a) that a person who carries on a business prescribed by the regulations for the purposes of this section is or is not the provider of a taxi service, or (b) that the provision of any transport service prescribed by the regulations for the purposes of this section is or is not the provision of a taxi service. 6 Hire vehicles In this Act, a hire vehicle means a motor vehicle that is used to provide a passenger service that is not a taxi service. 7 Booking services (1) In this Act, provide a booking service means carry on the business of— (a) taking bookings for taxis or hire vehicles to provide passenger services (whether immediately or at a later time), and (b) communicating the bookings to drivers for passenger services or providers of passenger services. (2) To avoid doubt, a person provides a booking service if— (a) the person contracts with, or arranges for, other persons to provide the passenger service for which a booking service is provided, or (b) the person provides a passenger service and takes bookings for that service. (3) For the purpose of determining whether a person provides a booking service, it does not matter— (a) that a booking is obtained or communicated remotely by means of an electronic device or other means not directly provided by the person who provides the booking service, or (b) that the provider of the booking service is located outside the State, if the passenger service is provided wholly or partly within this State. Note— In this Act, a passenger service involves transport of passengers wholly or partly within this State. (4) The regulations may provide— (a) that a person who carries on a business prescribed by the regulations for the purposes of this section does or does not provide a booking service, or (b) that the provision of a service or other thing prescribed by the regulations for the purposes of this section is or is not the provision of a booking service. 8 Act to bind Crown This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities. Part 2 Safety of services Division 1 Safety duties—principles 9 Safety duties and standards (1) In this Act, the safety duties for providers of passenger services and booking services, officers of providers and drivers for passenger services, are the duties that they have under Division 2. (2) In this Act, the safety standards for providers of passenger services and booking services, holders of taxi licences, owners of taxis and hire vehicles and drivers are the standards specified under Division 3. 10 Principles applying to safety duties (1) A safety duty cannot be transferred to another person. (2) A person can have more than 1 duty by virtue of being in more than 1 class of duty holder. (3) More than 1 person can concurrently have the same safety duty. (4) If more than 1 person has a safety duty for the same matter, each person— (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity. 11 What is "reasonably practicable" in ensuring safety In this Act, reasonably practicable, in relation to a safety duty, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including— (a) the likelihood of the hazard or the risk concerned occurring, and (b) the degree of harm that might result from the hazard or the risk, and (c) what the person concerned knows, or ought reasonably to know, about— (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. Division 2 Primary duty of care 12 Primary duty of care of passenger service providers (1) The provider of a passenger service must ensure, so far as is reasonably practicable, the health and safety of drivers and other persons while they are engaged in providing the service and of passengers or other persons in connection with the provision of the service. (2) Without limiting subsection (1), the provider of a passenger service must— (a) eliminate risks to safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to safety, minimise those risks so far as is reasonably practicable. 13 Primary duty of care of booking service providers (1) The provider of a booking service must ensure, so far as is reasonably practicable, the health and safety of drivers and other persons while they are engaged in providing a passenger service resulting from the use of the booking service and of passengers and other persons in connection with a passenger service resulting from the use of the booking service. (2) Without limiting subsection (1), the provider of a booking service must— (a) eliminate risks to safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to safety, minimise those risks so far as is reasonably practicable. 14 Duty of officers (1) If a provider of a passenger service or booking service has a safety duty under this Act (a duty holder), an officer of the duty holder must exercise due diligence to ensure that the duty holder complies with that duty or obligation. (2) An officer of a duty holder may be convicted or found guilty of an offence under this Act relating to a duty under this section whether or not the duty holder has been convicted or found guilty of an offence under this Act relating to the duty or obligation. (3) In this section— due diligence includes taking reasonable steps— (a) to acquire and keep up-to-date knowledge of safety matters relating to passenger services, and (b) to gain an understanding of the nature of the operations of the passenger service provided by the duty holder, or for which the duty holder provides a booking service, and generally of the hazards and risks associated with the operation of the passenger service, and (c) to ensure that the duty holder has available for use, and uses, appropriate resources and processes to eliminate or minimise risks to health and safety from the operation of the passenger service, and (d) to ensure that the duty holder has appropriate processes for receiving and considering information regarding incidents, hazards and risks and responding in a timely way to that information, and (e) to ensure that the duty holder has, and implements, processes for complying with any safety duty of the duty holder, and (f) to verify the provision and use of the resources and processes referred to in paragraphs (c)–(e). officer— (a) in relation to a body corporate, has the same meaning as officer has in relation to a corporation under section 9 of the Corporations Act 2001 of the Commonwealth, and (b) in relation to any other person, means an individual who makes, or participates in making, decisions that affect the whole, or a substantial part, of the passenger service or booking service provided by the person. 15 Duty of drivers The driver of a motor vehicle being used for a passenger service must, while the vehicle is being used for that purpose— (a) take reasonable care for his or her own health or safety, and (b) take reasonable care that his or her own acts or omissions do not adversely affect the health and safety of other persons, and (c) comply, so far as the driver is reasonably able, with any reasonable instruction that is given by the person providing the passenger service or a booking service to allow the person to comply with this Act, and (d) co-operate with any reasonable policy or procedure of the provider of the passenger service or a booking service relating to health or safety in connection with the provision of a passenger service that has been notified to drivers. 16 Safety duty offence—Category 1 (1) A person commits a Category 1 offence if— (a) the person has a safety duty, and (b) the person, without reasonable excuse, engages in conduct that exposes an individual to whom that duty is owed to a risk of death or serious injury or illness, and (c) the person is reckless as to the risk of an individual death or serious injury or illness. Maximum penalty— (a) in the case of an individual—$300,000 or 2 years imprisonment, or both, or (b) in the case of a body corporate—$3,000,000. (2) The prosecution bears the burden of proving that the conduct was engaged in without reasonable excuse. 17 Safety duty offence—Category 2 A person commits a Category 2 offence if— (a) the person has a safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness. Maximum penalty— (a) in the case of an individual—$150,000, or (b) in the case of a body corporate—$1,500,000. 18 Safety duty offence—Category 3 A person commits a Category 3 offence if— (a) the person has a safety duty, and (b) the person fails to comply with that duty. Maximum penalty— (a) in the case of an individual—$50,000, or (b) in the case of a body corporate—$500,000. 19 Multiple contraventions of safety duty provisions (1) Two or more contraventions of a provision of this Division by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more provisions of this Division to be charged as a single offence. (3) A single penalty only may be imposed in relation to 2 or more contraventions of this Division that are charged as a single offence. Division 3 Safety standards 20 Standards for passenger service providers and booking service providers (1) The regulations may specify safety standards for— (a) the providers of passenger services or booking services in respect of passenger services that are provided or facilitated by them or for which booking services are provided, and (b) the providers of booking services in respect of booking services. (2) Safety standards may be specified with respect to any of the following— (a) drivers (including driver licence requirements, competence, qualifications, driving records, criminal records, identification and fitness or medical requirements), (b) safety and registration of vehicles used for a passenger service and other requirements for those vehicles (including maintenance and security requirements), (c) insurance, (d) reporting of safety incidents or accidents, (e) records relating to vehicles, drivers and bookings, (f) provision of information to passengers, (g) safety management systems. (3) Subsection (2) does not limit the matters for which safety standards may be specified. 21 Standards for drivers (1) The regulations may specify safety standards for drivers who drive motor vehicles used for passenger services. (2) Safety standards may be specified with respect to any of the following— (a) driver licence requirements, competence, qualifications, driving records, criminal records, identification and fitness or medical requirements, (b) reporting of changes in health or other matters, (c) reporting of safety incidents or accidents, (d) compliance with safety requirements established by providers of passenger services or booking services, (e) provision of information to providers of passenger services or booking services. (3) Subsection (2) does not limit the matters for which safety standards may be specified. 22 Standards for owners and taxi licence holders (1) The regulations may specify safety standards in respect of owners of motor vehicles that are hire vehicles or taxis used for passenger services or holders of taxi licences. (2) Safety standards may be specified with respect to any of the following— (a) safety and registration of the vehicles and other requirements for the vehicles (including maintenance and security requirements and insurance), (b) drivers of the vehicles when used to provide passenger services (including driver licence requirements, competence, qualifications, driving records, criminal records, identification and fitness or medical requirements), (c) reporting of changes in ownership or other arrangements relating to vehicles or of other matters, (d) records relating to the vehicles, (e) reporting of safety incidents or accidents, (f) compliance with safety requirements established by providers of passenger services or booking services, (g) provision of information to providers of passenger services or booking services. (3) Subsection (2) does not limit the matters for which safety standards may be specified. 23 Safety standards offences (1) The regulations may make it an offence for the provider of a passenger service or a booking service, a driver or owner of a taxi or a hire vehicle or the holder of a taxi licence to contravene or to fail to ensure compliance with a safety standard specified by the regulations. (2) The regulations may make it an offence for the provider of a passenger service or a booking service, a driver or owner of a taxi or a hire vehicle or the holder of a taxi licence to fail to ensure, so far as is reasonably practicable, that a safety standard (whether or not it is specified for that person) is complied with. (3) The same safety standard may be specified for more than 1 class of persons. Division 4 Miscellaneous 24 Notifiable occurrences (1) The provider of a passenger service or booking service must report to the Commissioner, in accordance with the regulations, on any notifiable occurrence that affects the service (including a notifiable occurrence involving a passenger service for which a booking service provides bookings). Maximum penalty—100 penalty units. (2) In this section, a notifiable occurrence means an accident or incident of a kind that is prescribed by the regulations for the purposes of this section. 25 Dismissal or other victimisation of worker (1) This section applies to— (a) a person who dismisses a worker, terminates a contract for services or bailment with a worker or alters the position of a worker to the worker's detriment, and (b) a person who threatens to do any of those things to a worker, and (c) a person who refuses or fails to offer to engage a prospective worker, or treats a prospective worker less favourably than another prospective worker would be treated in offering terms of engagement. (2) The person is guilty of an offence if the person engaged in that conduct because the worker or prospective worker or other person— (a) has assisted or has given any information to a public authority in respect of a breach or alleged breach of this Act or the regulations, or (b) has made a complaint about a breach or alleged breach of this Act or the regulations to the person, a fellow worker, union, public authority or public official, or (c) assists or has assisted, or gives or has given any information to, a public agency in respect of a breach or alleged breach of this Act or the regulations, or (d) has made a complaint about a breach or alleged breach of this Act or the regulations to a former employer or bailor, former fellow worker, union, public authority or public official. Maximum penalty— (a) in the case of an individual—100 penalty units, or (b) in the case of a body corporate—500 penalty units. (3) A person may be guilty of an offence against subsection (2) only if the reason mentioned in subsection (2) (a), (b), (c) or (d) is the dominant reason why the person engaged in the conduct. (4) In proceedings for an offence against subsection (2), if all the facts constituting the offence other than the reason for the defendant's conduct are proved, the defendant bears the onus of proving that the reason alleged in the charge was not the dominant reason why the defendant engaged in the conduct. (5) If a person is convicted or found guilty of an offence against this section, the court may (in addition to imposing a penalty) make either or both of the following orders— (a) an order that the offender pay (within a specified period) such damages to the worker or prospective worker or other person against whom the offender discriminated as the court considers appropriate to compensate him or her, (b) an order that— (i) the worker be re-engaged in his or her former position or if that position is not available, in a similar position, or on the same terms, or (ii) the prospective worker be engaged in the position for which he or she had applied or a similar position. (6) In this section— public authority includes the Commissioner, TfNSW, an authorised officer, a police officer of another jurisdiction, an officer of a government sector agency (within the meaning of the Government Sector Employment Act 2013), a NSW government agency or an agency of the Commonwealth or another State or Territory. worker includes an employee, an individual who works as a contractor or subcontractor and an individual who is engaged as a bailee. 26 Relationship with work, health and safety and heavy vehicle legislation (1) If a provision of this Act and a provision of the Work Health and Safety Act 2011 or the Heavy Vehicle National Law (NSW) (other applicable law) deal with the same thing, and it is possible to comply with both provisions, a person must comply with both provisions. (2) However, to the extent it is not possible to comply with both provisions, the person must comply with the provision of the other applicable law. (3) Evidence of a relevant contravention of this Act is admissible in any proceeding for any offence under another applicable law. (4) If an act, omission or circumstance constitutes an offence under this Act and another applicable law, the offender is not liable to be punished twice for the offence. (5) Compliance with this Act or the regulations, or with any requirement imposed under this Act or the regulations is not, in itself, evidence that a person has complied with another applicable law or with a common law duty of care. Part 3 Authorisation of providers of taxi services and booking services Division 1 Authorisation offences 27 Provider of taxi service or booking service must be authorised (1) A person must not provide a taxi service or booking service unless the person is authorised to provide that service. Maximum penalty—$110,000. (2) An affiliated provider is not required to be authorised to provide a taxi service if the provision of that service is facilitated by another authorised provider of a taxi service. (3) A person who provides a passenger service must ensure that bookings for that service are not taken from the provider of a booking service unless the provider is authorised to provide that service under this Act. Maximum penalty—$110,000. (4) A driver who drives a motor vehicle used for a passenger service must not take bookings for the passenger service from the provider of a booking service unless the provider is authorised to provide that service under this Act. Maximum penalty—100 penalty units. 28 Aggravated provision of unauthorised services (1) A person is guilty of the offence of aggravated provision of an unauthorised taxi service or booking service if the person commits an offence under section 27 (1) in circumstances of aggravation. Maximum penalty (instead of any penalty under section 27 (1))— (a) in the case of an individual—$50,000, or (b) in the case of a body corporate— (i) if a court determines that one or more persons have obtained benefits that are reasonably attributable to the commission of the offence and can determine the total value of those benefits—3 times that total value or $10,000,000, whichever is the greater, or (ii) if the court does not determine that one or more persons have obtained any such benefits whose value can be determined—$500,000. (2) For the purposes of this section, an offence under section 27 (1) is committed by a person in circumstances of aggravation in the case of a taxi service if the person— (a) commits the offence (wholly or partly) by facilitating the provision of taxi services, and (b) recruits affiliated providers or other persons for the purpose of providing the taxi services facilitated, and (c) has previously been convicted of an offence under section 27 (1) in the circumstances specified in paragraphs (a) and (b). (3) For the purposes of this section, an offence under section 27 (1) is committed by a person in circumstances of aggravation in the case of a booking service if the person— (a) is not the provider of the passenger service for which the booking service is provided, and (b) recruits other persons for the purpose of providing the passenger service for which the booking service is provided, and (c) has previously been convicted of an offence under section 27 (1) in the circumstances specified in paragraphs (a) and (b). (4) If the court is satisfied that a person charged with an offence of aggravated provision of an unauthorised taxi service or booking service is not guilty of that offence but is satisfied on the evidence that the person is guilty of an offence under section 27 (1), the court may find the person guilty of the offence under that section, and the person is liable to punishment accordingly. 29 Provider of taxi service or booking service must comply with authorisation conditions A provider of a taxi service or booking service must not contravene a condition of the provider's authorisation. Maximum penalty—$110,000. Division 2 Applications for authorisation 30 Applications for authorisation (1) The following may apply for authorisation to provide a taxi service or booking service— (a) an individual, (b) 2 or more persons who intend to carry on the service jointly under a partnership or other agreement, (c) a body corporate incorporated under a law of this or any other jurisdiction (including the Corporations Act 2001 of the Commonwealth, the Associations Incorporation Act 2009 and the Co-operatives National Law (NSW)), (d) any other entity prescribed by the regulations. (2) An application for authorisation is to be made to the Commissioner. (3) An application is— (a) to be in a form approved by the Commissioner, and (b) to contain the information that the Commissioner requires to be provided, and (c) in the case of a body corporate, to specify 1 or more directors or managers as nominated directors or managers for the purposes of this Act, and (d) to be accompanied by the fee, if any, prescribed by the regulations. (4) The Commissioner may, by written notice given to the applicant, require the applicant to provide further information relevant to the application that is specified in the notice. (5) The Commissioner may from time to time determine the number of persons who are to be nominated as directors or managers under this section, either generally or in any particular case or class of cases. 31 Determination of applications for authorisation generally (1) The Commissioner may determine an application for authorisation to provide a taxi service or booking service by granting or refusing the application. (2) The Commissioner must not grant an application for authorisation unless satisfied that the applicant meets the general standards for authorisation or the standards for a current provider. (3) The general standards for authorisation are as follows— (a) that the applicant has not been convicted of a disqualifying offence and that there are no current proceedings against the applicant for a disqualifying offence, (b) that a close associate of the applicant has not been convicted of a disqualifying offence and that there are no current proceedings against a close associate of the applicant for any such offence, (c) in the case of a body corporate, that the directors or managers nominated for the purposes of this Part are directly involved in the day-to-day management of the service and that at least one of the directors or managers nominated is a resident of this State, (d) in the case of a body corporate, that none of the directors or managers nominated for the purposes of this Part have been convicted of a disqualifying offence and that there are no current proceedings against any of those directors or managers for a disqualifying offence. (4) The standards for a current provider are as follows— (a) that the applicant is the holder of an authorisation under this Act to provide another service of the same or a different kind, (b) that the applicant has demonstrated that the applicant complies with any standards applicable to the authorisation being applied for that are additional to those for the authorisation currently held, (c) that the applicant is not the subject of any action being taken or proposed to be taken by the Commissioner relating to an authorisation held by the applicant. (5) In the case of a joint application for an authorisation, each person applying for the joint authorisation must meet the requirements for authorisation. (6) The regulations may prescribe additional standards that are required to be met for authorisation, either generally or in a particular case or class of cases. 32 Disqualifying offences (1) For the purposes of this Act, a disqualifying offence is an offence (under the law of this State or any other jurisdiction) prescribed by the regulations for the purposes of this section. (2) The regulations may prescribe— (a) different disqualifying offences for taxi service providers, booking service providers and close associates, and (b) different disqualifying offences for different categories of taxi service providers and booking service providers, and (c) circumstances in which an offence is or is not a disqualifying offence. (3) This Act extends to convictions by courts for disqualifying offences whether or not the convictions occurred before the commencement of this Act. (4) In this Act, a conviction for a disqualifying offence includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. 33 Close associates (1) The Commissioner may refuse to grant an authorisation on the ground that a close associate of the applicant has previously held an authorisation (whether for the operation of the same or a different service) that has been cancelled. (2) For the purposes of this Act, a person is a close associate of an applicant for authorisation as a provider of a taxi service or booking service, or a provider of a service, if the person— (a) holds or will hold any relevant financial interest, or is or will be entitled to exercise any relevant power (whether in the person's own right or on behalf of any other person), in the business of the applicant or provider that is or will be carried on under the authority of the authorisation, and by virtue of that interest or power is or will be able (in the opinion of the Commissioner) to exercise a significant influence over or with respect to the management or operation of that business, or (b) holds or will hold any relevant position, whether in the person's own right or on behalf of any other person, in the business of the applicant or provider that is or will be carried on under the authority of the authorisation, or (c) is or will be engaged as a contractor or employed in the business of the applicant or provider that is or will be carried on under the authority of the authorisation. (3) For the purposes of this section, a financial institution is not a close associate by reason only of having a relevant financial interest in relation to a business. (4) The provisions of this section extend to relevant financial interests and relevant powers even if those interests and powers are not payable, exercisable or otherwise enforceable as a matter of law or equity, but are nevertheless payable, exercisable or otherwise enforceable as a matter of fact. (5) In this section— relevant financial interest, in relation to a business, means— (a) any share in the capital of the business, or (b) any entitlement to receive any income derived from the business, or to receive any other financial benefit or financial advantage from the carrying on of the business, whether the entitlement arises at law or in equity or otherwise, or (c) any entitlement to receive any rent, profit or other income in connection with the use or occupation of premises on which the business is or is to be carried on (such as, for example, an entitlement of the owner of the premises at which the business is carried on to receive rent as lessor of the premises). relevant position means— (a) the position of director, manager or corporate secretary, or (b) any other position, however designated, if it is an executive position. relevant power means any power, whether exercisable by voting or otherwise and whether exercisable alone or in association with others— (a) to participate in any directorial, managerial or executive decision, or (b) to elect or appoint any person to any relevant position. 34 Grants of authorisation (1) An authorisation to provide a taxi service or booking service granted by the Commissioner may authorise the provider— (a) to provide 1 or more specified services, or (b) to operate a service having specified characteristics. (2) The Commissioner may grant an application for authorisation unconditionally or subject to the conditions specified in the authorisation. Note— The Commissioner may also vary or revoke the conditions of an authorisation at any time (see section 40). 35 Form of authorisation An authorisation is to be in the form approved by the Commissioner. 36 Term of authorisation (1) An authorisation is in force for the period specified by the Commissioner in the authorisation unless it is sooner cancelled. (2) An authorisation does not have effect while suspended and the suspension of an authorisation does not affect the day on which the term of an authorisation expires. 37 Renewal of authorisation (1) An authorisation may be renewed on application to the Commissioner made before the authorisation expires. (2) This Act applies to an application for the renewal of an authorisation in the same way as it applies to an application for an authorisation. 38 Notice of authorisation decision (1) The Commissioner must give an applicant for authorisation or renewal of an authorisation written notice of the decision on the application. (2) If notice of a decision is not given to an applicant within 90 days of an application being made, the application is taken to have been refused. (3) Subsection (2) does not prevent an application from being granted after the period of 90 days has elapsed. 39 Joint authorisation (1) If 2 or more persons are jointly authorised to provide a taxi service or booking service, each of those persons has the obligations of a provider of that service under this Act and the regulations. (2) A person (other than an individual) that is jointly authorised to provide a taxi service or booking service must meet the same standards for authorisation as a body corporate seeking authorisation in its own right. Division 3 Conditions of authorisation 40 Conditions of authorisation generally (1) An authorisation to provide a taxi service or booking service is subject to the following conditions— (a) any conditions imposed by the Commissioner and in force from time to time, (b) any conditions specified by this Act or prescribed by the regulations. (2) The Commissioner may at any time, by written notice given to an authorised provider, impose a condition on the authorisation or vary or revoke a condition of the authorisation imposed by the Commissioner. (3) The Commissioner must not impose a condition on an authorisation that is inconsistent with this Act or the regulations. 41 Changes to nominated directors and managers (1) A provider of a taxi service or booking service may, by written notice given to the Commissioner, nominate, or revoke the nomination of, a director or manager for the purposes of this Part. Note— An authorisation may be suspended or cancelled if the provider does not meet an authorisation standard, including the requirement that a nominated director or manager be directly involved in the day-to-day management of a taxi or booking service. An authorisation is automatically suspended if there are no nominated directors or managers for a body corporate. (2) It is a condition of the authorisation of a body corporate that the body corporate give written notice to the Commissioner, within 21 days, if a director or manager of the body corporate who has been nominated for the purposes of this Part dies or ceases to be a director or manager of the body corporate. 42 Safety standards It is a condition of an authorisation to provide a taxi service or booking service that the provider comply with the safety standards for a provider of any such service. 43 Availability of documents It is a condition of an authorisation to provide a taxi service or a booking service that the provider keep any records required to be kept by the provider under this Act, or under the Taxation Administration Act 1996 in its application to the passenger service levy, in this State or in a form that may be accessed from, or made available in, this State. 44 Taxi identification It is a condition of the authorisation of a provider of a taxi service that each taxi used to provide the service is identified as a taxi and is marked or painted in a uniform way that identifies it as a taxi used by the service. Division 4 Variation, suspension or cancellation of authorisation 45 Variation, suspension or cancellation of authorisation generally The Commissioner may vary, suspend or cancel an authorisation to provide a taxi service or booking service if— (a) the provider does not comply with a standard required to be met for authorisation to provide the service to which the authorisation relates, or (b) the provider fails to comply with a condition of the authorisation, or (c) the provider fails to comply with this Act or the regulations, or (d) a close associate of the provider has previously held an authorisation (whether for the operation of the same or a different service) that has been cancelled, or (e) in the opinion of the Commissioner, the service has been or is being conducted in a manner that causes danger to the public, or (f) for any other reason the Commissioner thinks fit. Note— The Commissioner may also vary or revoke the conditions of an authorisation at any time (see section 40). 46 Automatic suspensions (1) If 2 or more persons hold a joint authorisation to provide a taxi service or booking service and any 1 of them dies or ceases to jointly provide the service— (a) the authorisation is automatically suspended 21 days after the death or cessation if the Commissioner has not been notified before that time of the death or cessation, and (b) the authorisation may be cancelled, suspended or varied under this Act because of the death or cessation (whether before or after any such cessation). (2) If an authorised provider that is a body corporate ceases to have any directors or managers who are nominated for the purposes of this Part, the authorisation is automatically suspended when the body corporate ceases to have any directors or managers so nominated until new directors or managers are nominated in accordance with this Part. (3) Nothing in this section prevents the Commissioner from cancelling an authorisation that is suspended by this section. 46A Surrender of authorisation (1) A provider may, at any time, surrender an authorisation to provide a taxi service or booking service by giving the Commissioner a notice of surrender. (2) A notice of surrender must be in the form approved by the Commissioner and specify the date for the surrender to take effect. (3) The Commissioner must cancel the authorisation— (a) if the date specified for the surrender to take effect is on or before the day on which the Commissioner receives the notice—on receiving the notice, or (b) if the date specified for the surrender to take effect is after the day on which the Commissioner receives the notice—on the date specified. Part 4 Taxi licences Division 1 Licensing offences 47 Taxis must be licensed A person must not use a motor vehicle to provide a taxi service unless— (a) the provider, or an employee, contractor or affiliated provider of that provider, is the holder of a taxi licence for the motor vehicle, or (b) the motor vehicle is a stand-by taxi used in accordance with this Act and the regulations. Maximum penalty— (a) $110,000, or (b) for a second or subsequent offence by an individual within 5 years of a previous offence—$110,000, or 12 months imprisonment, or both. 48 Holder of taxi licence must comply with licence conditions The holder of a taxi licence must not contravene a condition of the licence. Maximum penalty—$110,000. 49 Stand-by taxis (1) An authorised provider of a taxi service may use a taxi that is not licensed (a stand-by taxi) if a licensed taxi used in the service is out of operation for repair or service, but only if the stand-by taxi complies with this section. (2) The stand-by taxi must— (a) display the number-plates of the licensed taxi in addition to the number-plates allocated to the stand-by taxi, and (b) be registered within the meaning of the Road Transport Act 2013, and (c) to the satisfaction of the Commissioner, comply with the standards prescribed for taxis, and (d) except to the extent authorised by the Commissioner, comply with the conditions of the taxi licence of the licensed taxi that it is replacing, and (e) display a sign in accordance with the regulations identifying it as a stand-by taxi, and (f) comply with any other requirements prescribed by the regulations for the purposes of this section. (3) A stand-by taxi while used in accordance with this section is taken, for the purposes of this Act and the regulations, to be a taxi for which a taxi licence is in force. Division 2 Applications for licences 50 Categories of taxi licences (1) The Commissioner may issue different categories of taxi licences. (2) TfNSW is to determine the categories of taxi licences that may be issued by the Commissioner. 51 Applications for taxi licences (1) The following persons may apply for a taxi licence— (a) an individual, (b) 2 or more persons who intend to hold the licence jointly under a partnership or other agreement, (c) a body corporate incorporated under a law of this or any other jurisdiction (including the Corporations Act 2001 of the Commonwealth, the Associations Incorporation Act 2009 and the Co-operatives National Law (NSW)). (2) An application for a taxi licence is to be made to the Commissioner. (3) An application is— (a) to be in the form approved by the Commissioner, and (b) to contain the information that the Commissioner requires to be provided, and (c) to be accompanied by the fee, if any, prescribed by the regulations. (4) (Repealed) (5) The Commissioner may, by written notice given to the applicant, require the applicant to provide further information relevant to the application that is specified in the notice. 52 Determination of applications for taxi licences generally (1) The Commissioner may determine an application for a taxi licence by granting or refusing the application. (2) The Commissioner must not grant an application for a taxi licence unless satisfied that the applicant meets any requirements specified by the regulations. (3) In the case of a joint application for a taxi licence, each person applying for the joint licence must meet the requirements for the licence. 53 (Repealed) 54 Conditions of taxi licences The Commissioner may grant an application for a taxi licence unconditionally or subject to the conditions specified by the Commissioner in the licence. 55 Form of taxi licences A taxi licence is to be in the form approved by the Commissioner. 56 (Repealed) 57 Term of taxi licences (1) A taxi licence is in force for a period of 12 months unless it is sooner cancelled. (2) A taxi licence does not have effect while suspended and the suspension of a licence does not affect the day on which the term of a licence expires. 58 Renewal of taxi licences (1) A taxi licence may be renewed by the Commissioner on application to the Commissioner made before the expiry of the licence. (2) This Act applies to an application for the renewal of a taxi licence in the same way it applies to an application for a taxi licence. 59 Notice of decision (1) The Commissioner must give an applicant for a taxi licence or renewal of a licence written notice of the decision on the application. (2) If notice of a decision is not given to an applicant within 90 days of an application being made, the application is taken to have been refused. (3) Subsection (2) does not prevent an application from being granted after the period of 90 days has elapsed. Division 3 Conditions of taxi licences 60 Conditions of taxi licences generally (1) A taxi licence is subject to the following conditions— (a) any conditions imposed by the Commissioner and in force from time to time, (b) any conditions specified by this Act or prescribed by the regulations. (2) The Commissioner may at any time, by written notice given to the holder of a taxi licence, impose a condition on the licence or vary or revoke a condition of the licence imposed by the Commissioner. (3) The Commissioner must not impose a condition on a taxi licence that is inconsistent with this Act or the regulations. (4) The regulations may— (a) apply conditions of a taxi licence to a provider who carries on a taxi service using the taxi the subject of the licence, and (b) apply conditions of the licence to any such provider instead of the holder of the licence or to both the provider and the holder, and (c) make it an offence for the provider to fail to comply with an applicable condition. 61 Safety standards It is a condition of a taxi licence that the holder of the licence comply with the safety standards for the holder of any such licence. Divisions 4, 5 62–68 (Repealed) Division 6 Variation, suspension or cancellation of taxi licences 69 Variation, suspension or cancellation of taxi licences generally (1) The Commissioner may vary, suspend or cancel a taxi licence if— (a) the holder fails to comply with a condition of the licence, or (b) the holder, or owing to the default of the holder or any agent or member of staff of the holder, fails to comply with this Act or the regulations, or (b1) without limiting paragraph (b), the holder provides a taxi service without being— (i) authorised to provide the service, or (ii) an affiliated provider, or (c) the taxi service for which the licensed taxi is used has been or is being conducted in a manner that causes danger to the public, or (d) for any other reason the Commissioner thinks fit. Note— The Commissioner may also vary the conditions of a taxi licence at any time (see section 60). (2) To avoid doubt, the variation, suspension or cancellation of a taxi licence does not prevent the taking of proceedings, or the issuing of a penalty notice, for an offence, or an alleged offence, under this Act. 69A Surrender of taxi licence (1) A holder of a taxi licence may, at any time, surrender the taxi licence by giving the Commissioner a notice of surrender. (2) A notice of surrender must be in the form approved by the Commissioner and specify the date for the surrender to take effect. (3) The Commissioner must cancel the taxi licence— (a) if the date specified for the surrender to take effect is on or before the day on which the Commissioner receives the notice—on receiving the notice, or (b) if the date specified for the surrender to take effect is after the day on which the Commissioner receives the notice—on the date specified. Division 7 70–73 (Repealed) Part 5 Fares 74 Referrals to IPART (1) The Minister may, with the approval of the Minister administering the Independent Pricing and Regulatory Tribunal Act 1992, refer all or any of the services provided by 1 or more passenger services to IPART for a recommendation as to the following— (a) appropriate fares for the service or services, (b) appropriate fares for specified fares or classes of fares for the service or services. (2) A referral may do any or all of the following— (a) specify a period within which IPART is to report to the Minister on its recommendation, (b) require IPART to consider specified matters when making its investigations for the purposes of its report. (3) IPART may request the Minister to refer a matter to IPART under this section. (4) A referral may be varied or withdrawn by the Minister, with the approval of the Minister administering the Independent Pricing and Regulatory Tribunal Act 1992. A variation or withdrawal of a referral does not affect the operation of this Act or that Act in respect of a report on the referral, or the subject-matter of the report, if the report was received by the Minister from IPART before the variation or withdrawal. 75 IPART investigations and recommendations (1) IPART is to conduct investigations and report to the Minister on the appropriate fares if a referral is made under this Part. (2) IPART may report to the Minister on any matter it considers relevant that arises from an investigation under this Part. (3) IPART is to consider the following matters in making a recommendation under this Part— (a) the cost of providing the services, (b) the need for greater efficiency in the supply of services so as to reduce costs for the benefit of consumers and taxpayers, (c) the protection of consumers from abuses of monopoly power in terms of prices, pricing policies and standards of service, (d) the social impact of the recommendation, (e) the impact of the recommendation on the use of passenger transport and the need to increase the proportion of travel undertaken by sustainable modes such as public transport, (f) standards of quality, reliability and safety of the services (whether those standards are specified by legislation, agreement or otherwise), (g) any matter specified in the referral to IPART, (h) any other matter IPART considers relevant. (4) IPART must indicate what regard it has had to the matters specified in this section in any report of a recommendation under this Part. (5) Sections 13A–14A and Divisions 6 and 7 of Part 3 of the Independent Pricing and Regulatory Tribunal Act 1992 apply to an investigation and report by IPART under this Part in the same way as they apply to a determination, investigation or report under that Act. The provisions so apply as if a reference in those provisions to the Minister were a reference to the Minister administering this Act. 76 Fares orders (1) TfNSW may, by order published on the NSW legislation website (a fares order), determine the following for all or any of the services provided by 1 or more passenger services— (a) the maximum fares for the service or services, (b) specified maximum fares or classes of fares for the service or services. (2) TfNSW may have regard to any recommendation of IPART under this Part when making a fares order. (3) A fares order may specify a fare or specify the manner in which a fare is to be calculated. (4) A fares order may also approve other arrangements for remuneration in connection with the service. (5) A person must not demand a fare for the provision of a service that— (a) exceeds the amount of the fare determined for the service under a fares order, or (b) contravenes arrangements for remuneration approved by a fares order. Maximum penalty—100 penalty units. (6) This section does not prevent the provider of a passenger service from demanding a fare that is, or making contracts or arrangements for the provision of a service for which the fare is, lower than that determined under a fares order. 77 Non-cash payment surcharges (1) A fares order may specify the maximum amount payable for a non-cash payment surcharge or surcharges for the same hiring of a taxi or hire vehicle. (2) In this Part, a non-cash payment surcharge means a fee or charge (however calculated)— (a) added to the amount otherwise payable by a hirer of a taxi or hire vehicle because the amount payable for the hire is paid wholly or partly by the use of a debit, credit, pre-paid or charge card, or (b) payable by all or any of the owner or driver of, or holder of a taxi licence for, a taxi or hire vehicle or the provider of a service using a taxi or hire vehicle because an amount payable for the hire of the taxi or hire vehicle is paid wholly or partly by the use of a debit, credit, pre-paid or charge card. (3) Without limiting subsection (2), a fee or charge may be a non-cash payment surcharge whether or not it is payable for accepting or processing payment made by the use of a debit, credit, pre-paid or charge card and whether or not the fee or charge is based on the amount payable for a hire. (4) A non-cash payment surcharge does not include a fee or charge imposed in respect of the use of a debit, credit, pre-paid or charge card by— (a) a participant in a designated payment system within the meaning of the Payment Systems (Regulation) Act 1998 of the Commonwealth, or (b) a person consistently with a voluntary undertaking given by the person to, and accepted by, the Reserve Bank of Australia. (5) This section does not limit the operation of section 76 (5). 78 Overcharging for non-cash payment surcharge (1) If a non-cash payment surcharge that contravenes a fares order is imposed, the following persons are guilty of an offence— (a) the person who imposed the surcharge, (b) the owner or driver of the taxi or hire vehicle and the holder of the taxi licence for the taxi, (c) the provider of the service using the taxi or hire vehicle, (d) any person who provided or maintains any equipment installed in the taxi or hire vehicle that enabled the surcharge to be imposed, (e) any person who manages or administers the whole or any part of the system under which the amounts due for the hiring concerned may be paid by the use of a debit, credit, pre-paid or charge card. (2) A person must not collect in a taxi or hire vehicle, or initiate the collection in a taxi or hire vehicle of, a non-cash payment surcharge that contravenes a fares order. (3) A person must not collect, for the purposes of or while providing a booking service, a non-cash payment surcharge that contravenes a fares order. (4) It is a defence to an offence under this section if the defendant establishes that— (a) the taxi non-cash payment surcharge was imposed or collected or its collection was initiated by another person, and (b) the defendant did not know, and could not reasonably be expected to know, that the other person had charged or collected, or would initiate the charge or collection of, a taxi non-cash payment surcharge in respect of that hiring. Maximum penalty— (a) in the case of a body corporate—$110,000, or (b) in the case of an individual—100 penalty units. 79 Estimate of fares to be provided for booked services (1) A person who provides a passenger service to a passenger who obtains the service by using a booking service, and the person who provided the booking service, must before the commencement of the journey ensure that the passenger is provided with an estimate of the fare that complies with this section. (2) The fare estimate must— (a) be in writing or in another form approved by the Commissioner, and (b) express the amount of the fare in Australian currency or in any other manner prescribed by the regulations, and (c) indicate any variation in the fare that is likely to occur and the way in which the variation is to be calculated. (3) If a person who provides a passenger service or a booking service and the passenger agree on a fare before the commencement of the journey, the person who provides the service must not demand a fare for the service that exceeds the amount agreed with the passenger. (4) A person who provides a passenger service or a booking service must not fail to comply with this section. Maximum penalty— (a) in the case of a driver—20 penalty units, or (b) in the case of an individual (other than a driver)—100 penalty units, or (c) in the case of a body corporate—$110,000. (5) In this section, person who provides a passenger service includes the driver who transports the passenger. (6) Nothing in this section permits a person to charge a fare of an amount, or in circumstances, that would contravene any other provision of this Act or the regulations. 80 Fare setting by providers of services (1) A requirement made by the provider of a passenger service who facilitates the provision of a passenger service, or by the provider of a booking service who provides that service to a provider of a passenger service, that the person who provides the passenger service or the driver charges a specified amount (however determined) for the provision of the transport that is facilitated or booked is specifically authorised by this Act for the purposes