Passenger Transport Act 2014 (NSW)

Passenger Transport Act 2014 No 46 An Act with respect to passenger transport services; and to repeal the Passenger Transport Act 1990 and the Air Transport Act 1964. Part 1 Preliminary 1 Name of Act This Act is the Passenger Transport Act 2014. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Objects of Act The objects of this Act are as follows— (a) to facilitate the delivery of safe, reliable, efficient and integrated public passenger services that are responsive to customer needs, (b) to regulate certain public passenger services and the providers of those services, (c) to facilitate a flexible service procurement framework for public passenger services for the State that— (i) establishes clear lines of accountability for operators of services, and (ii) provides mechanisms to improve access to public transport, and (iii) encourages innovation in service development, including the use of new technologies. 4 Definitions (1) In this Act— accredited means accredited under this Act for the time being. air route licence means a licence for a regulated air route in force under Division 2 of Part 3. air transport service—see section 7. authorised means authorised under this Act for the time being. authorised officer means an authorised officer appointed under Division 1 of Part 9 or a police officer. Board of Inquiry means a Board of Inquiry constituted by the Minister under section 140. bus means— (a) a motor vehicle that seats more than 12 adults, or (b) a vehicle of any class prescribed by the regulations for the purposes of this definition. bus service means a public passenger service provided by a bus, and includes a community transport service that provides transport by bus. charter service means a public passenger service provided by a bus or a ferry where— (a) the provision of the service is pre-booked for hire for an agreed fee and individual fares are not payable by the passengers to the operator or driver, and (b) the hirer is entitled to determine the route for the journey and the time of travel, and (c) all passengers' journeys have a common origin or common destination, or both, and (d) the service is not provided in accordance with a fixed schedule. Chief Investigator means the Chief Investigator of the Office of Transport Safety Investigations appointed under section 45 of the Transport Administration Act 1988. close associate—see section 13. community transport service—see section 6. driver of a vehicle means the person who drives the vehicle or, if it is an aircraft or a vessel, is the pilot of the aircraft or the master for the time being of the vessel and drive a vehicle includes pilot an aircraft or vessel. driver authority means an authority to drive a vehicle granted under Part 4. fare includes any consideration paid or given to use a public passenger service (whether or not it is paid or given to the operator or driver), but does not include a consideration of a kind prescribed by the regulations for the purposes of this definition. ferry means— (a) a vessel that seats more than 8 adults, or (b) a vessel of any class prescribed by the regulations for the purposes of this definition. ferry service means a public passenger service provided by means of a ferry. 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. operate a public passenger service means to carry on the business of providing the service. passenger—see section 5 (6). passenger service contract means a contract entered into under Division 1 of Part 3. premises include a vehicle. public passenger service—see section 5 (1). rail passenger service means the carriage of passengers for a fare by train, but does not include any rail passenger service of a class prescribed for the purposes of this definition. railway has the same meaning as it has in the Rail Safety National Law (NSW), but does not include a railway to which that Law does not apply. railway operations has the same meaning as it has in the Rail Safety National Law (NSW), but does not include any thing to which that Law does not apply. railway premises has the same meaning as it has in the Rail Safety National Law (NSW), and includes a vehicle being used by the operator of a rail passenger service for the carriage of passengers in connection with that service, but does not include any railway premises to which that Law does not apply. regular air service—see section 7 (4). regulated air route means an air route declared to be a regulated air route under section 7 (2). 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). Sydney Metro means Sydney Metro constituted under the Transport Administration Act 1988. tourist service means a public passenger service provided by a bus or ferry or other vehicle prescribed by the regulations for the purposes of this definition that is a pre-booked service designed to transport tourists to destinations on a publicly available itinerary, or a service designed to transport tourists where the journeys of each passenger have a common origin or destination (or both). train has the same meaning as in the Rail Safety National Law (NSW), and includes a vehicle being used by the operator of a rail passenger service for the carriage of passengers in connection with that service. Note— A train is defined as being 2 or more units of rolling stock coupled together, at least 1 of which is a locomotive or other self-propelled unit or a unit of rolling stock that is a locomotive or other self-propelled unit. Rolling stock includes a light rail vehicle. Transport for NSW or TfNSW means Transport for NSW constituted under the Transport Administration Act 1988. transport safety employee means an operator of a bus service or ferry service who performs transport safety work and any of the following persons who performs transport safety work for the operator— (a) an employee or contractor of the operator, (b) a person who performs the work on a voluntary basis for the operator (irrespective of whether the person receives out-of-pocket expenses). transport safety inquiry means an inquiry under Division 3 of Part 8. transport safety investigation means an investigation under section 133. transport safety investigator means a transport safety investigator appointed under section 146. transport safety work means any of the following classes of work carried out in relation to a bus service or a ferry service— (a) work relating to the driving or operation of a vehicle, the loading or disembarking of passengers, the movement of a vehicle or the berthing of a vessel, (b) work relating to the repair, maintenance or upgrading of vehicles, terminals, wharves or maintenance facilities, (c) work involving the development, management or monitoring of safe working systems for public passenger services, (d) any other work that is prescribed by the regulations as transport safety work. vehicle includes an aircraft, a train, or a vessel. 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. 5 Public passenger services (1) In this Act, public passenger service means the transport, by a motor vehicle, vessel, aircraft, train, or other vehicle prescribed by the regulations for the purposes of this definition, of passengers within, or partly within, New South Wales for a fare. (2) A community transport service is also a public passenger service for the purposes of this Act. (3) 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 public passenger service. (4) A road-ferry service under the control of a roads authority under the Roads Act 1993 is not a public passenger service. (5) A service providing transport by a motor vehicle that is generally conducted on land that is not a road or road related area is not a public passenger service. (5A) Subject to this Act, a passenger service under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 is not a public passenger service. (6) In this Act, passenger does not include a transport safety employee employed with respect to a public passenger service or any person carrying out work for the operator of a public passenger service, or any authorised officer or transport safety investigator, while carrying out work or on duty in that capacity. 6 Community transport services In this Act, community transport service means the transport, by a vehicle, of specified individuals or specified classes of individuals under a community transport agreement entered into by the operator of the service with TfNSW. 7 Air transport services (1) In this Act, air transport service means a public passenger service that consists of transport by an aircraft on a regular air service for a regulated air route. (2) The Minister may, by order published in the Gazette, declare a specified air route from a place in New South Wales to another place in New South Wales to be a regulated air route. (3) In determining whether to make an order the Minister must have regard to the following matters— (a) the needs of the public of New South Wales as a whole, and of the public of any area or district, for air transport services along the route, (b) fostering competition between airlines in relation to the route, (c) the effect, if any, on the maintenance and development of adequate and reasonable public air transport services within New South Wales of the operation of aircraft over the route, (d) the effect, if any, on the economic development of, or on the environment in, any area or district within New South Wales, of the operation of aircraft over the route. (4) A service is a regular air service for the purposes of this section if it is provided— (a) in accordance with a fixed schedule, or (b) on 5 or more occasions within any period of 28 days. 8, 9 (Repealed) 10 Act to be construed not to exceed legislative power of State (1) This Act is to be construed as operating to the full extent of, but so as not to exceed, the legislative power of the State. (2) If a provision of this Act, or the application of a provision of this Act to a person, subject matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of the State— (a) it is a valid provision to the extent to which it is not in excess of the power, and (b) the remainder of this Act, and the application of the provision to other persons, subject matters or circumstances, is not affected. (3) This section applies to this Act in addition to, and without limiting the effect of, any provision of this Act. 11 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 Accreditation of operators of public passenger services Division 1 Preliminary 12 (Repealed) 13 Meaning of "close associate" (1) For the purposes of this Act, a person is a close associate of an applicant for accreditation as an operator, or an operator, of a public passenger 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 operator that is or will be carried on under the authority of the accreditation, and by virtue of that interest or power is or will be able (in the opinion of TfNSW) 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 operator that is or will be carried on under the authority of the accreditation, or (c) is or will be engaged as a contractor or employed in the business of the applicant or operator that is or will be carried on under the authority of the accreditation. (2) 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. (3) 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. (4) 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. 14 Application of Part This Part does not apply to the following public passenger services— (a) a service that is provided using aircraft, other than an air transport service, (b) a service that is provided using a vessel or a train (not being a motor vehicle being used by the operator of a rail passenger service for the carriage of passengers in connection with that service). Note— For accreditation of public passenger services provided by train (including light rail), see the Rail Safety National Law (NSW) and for provisions relating to ferries or other vessels, see the Marine Safety Act 1998. Division 2 Accreditation offences 15 Operator of public passenger service must be accredited A person must not operate a public passenger service unless the person is accredited as the operator of that service. Maximum penalty—1,000 penalty units. 16 Operator of public passenger service must comply with accreditation conditions An operator of a public passenger service must not contravene a condition of the operator's accreditation. Maximum penalty—1,000 penalty units. Division 3 Applications for accreditation 17 Applications for accreditation (1) The following persons may apply for accreditation as an operator of a public passenger service— (a) an individual, (b) 2 or more individuals who intend to carry on the public passenger 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)). (2) An application for accreditation is to be made to TfNSW for the public passenger service. (3) An application is— (a) to be in a form approved by TfNSW, and (b) to contain the information that TfNSW requires to be provided, and (c) in the case of a body corporate, to specify one or more directors or managers as nominated directors or managers for the purposes of this Part, and (d) to be accompanied by the fee prescribed by the regulations. (4) TfNSW 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) TfNSW 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. 18 Determination of applications for accreditation generally (1) TfNSW may determine an application for accreditation as an operator of a public passenger service by granting or refusing the application. (2) TfNSW must not grant an application for accreditation as the operator of a public passenger service unless it is satisfied that the applicant meets the general standards for accreditation or the standards for a current operator. (3) The general standards for accreditation (other than as the operator of a public passenger service that is an air transport service) are as follows— (a) that the applicant is a fit and proper person to be responsible for the management of a public passenger service, (b) in the case of a body corporate, that the directors or managers nominated for the purposes of this Part are fit and proper persons to be responsible for the management of a public passenger service, (c) that the applicant has demonstrated the capacity to comply with the standards for financial viability, passenger and public safety and vehicle maintenance prescribed by the regulations for any such service or operator. (d) (Repealed) (4) The general standards for accreditation as an operator of a public passenger service that is an air transport service are as follows— (a) that the applicant is a fit and proper person to be responsible for the management of a public passenger service, (b) in the case of a body corporate, that the directors or managers nominated for the purposes of this Part are fit and proper persons to be responsible for the management of a public passenger service, (c) that the applicant and the applicant's aircraft, pilots and passengers will be adequately insured, (d) that the applicant owns, or has sufficient rights to operate, the aircraft to be used by the applicant. (5) The standards for a current operator are as follows— (a) that the applicant is the holder of an accreditation to operate another public passenger service of the same or a different kind, (b) that the applicant has demonstrated that the applicant complies with any standards applicable to the accreditation being applied for that are additional to those for the accreditation currently held, (c) that the applicant is not the subject of any action being taken or proposed to be taken by TfNSW relating to an accreditation held by the applicant. (6) In the case of a joint application for an accreditation, each individual applying for the joint accreditation must meet the requirements for accreditation. (7) The regulations may prescribe additional standards that are required to be met for accreditation as an operator of a public passenger service, either generally or in a particular case or class of cases. 19 Close associates TfNSW may refuse to grant an accreditation on the ground that a close associate of the applicant has previously held an accreditation (whether for the operation of the same or a different public passenger service), or an air route licence, that has been cancelled. 20 Grants of accreditation (1) An accreditation to operate a public passenger service granted by TfNSW may accredit the operator— (a) to operate one or more specified public passenger services, or (b) to operate a public passenger service having specified characteristics. (2) TfNSW may grant an application for accreditation unconditionally or subject to the conditions specified by TfNSW in the accreditation. Note— TfNSW may also vary the conditions of an accreditation at any time (see section 26). 21 Form of accreditation An accreditation is to be in the form approved by TfNSW. 22 Term of accreditation (1) An accreditation is in force for the period specified by TfNSW in the accreditation unless it is sooner cancelled. (2) An accreditation does not have effect while suspended and the suspension of an accreditation does not affect the day on which the term of an accreditation expires. 23 Renewal of accreditation (1) An accreditation may be renewed on application to TfNSW made before the accreditation expires. (2) This Act applies to an application for the renewal of an accreditation in the same way as it applies to an application for an accreditation. 24 Notice of accreditation decision (1) TfNSW must give an applicant for accreditation or renewal of an accreditation 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. 25 Joint accreditation If 2 or more individuals are jointly accredited as operators of a public passenger service, each of those individuals has the obligations of an operator of that service under this Act or the regulations. Division 4 Conditions of accreditation 26 Conditions of accreditation generally (1) An accreditation to operate a public passenger service is subject to the following conditions— (a) any conditions imposed by TfNSW and in force from time to time, (b) any conditions specified by this Act or prescribed by the regulations. (2) TfNSW may at any time, by written notice given to an accredited operator, impose a condition on the accreditation or vary or revoke a condition of the accreditation imposed by TfNSW. (3) TfNSW must not impose a condition on an accreditation that is inconsistent with this Act or the regulations. (4) Without limiting subsection (1), the regulations may prescribe conditions of accreditation relating to reporting occurrences of a specified kind to TfNSW or other persons. 27 Changes to nominated directors and managers (1) An operator of a public passenger service may, by written notice given to TfNSW, nominate, or revoke the nomination of, a director or manager for the purposes of this Part. Note— An accreditation may be suspended or cancelled if the operator does not meet an accreditation standard, including the requirement that a nominated director or manager be a fit and proper person to be responsible for the management of a public passenger service. An accreditation is automatically suspended if there are no nominated directors or managers for a body corporate. (2) It is a condition of the accreditation of a body corporate that is an operator of a public passenger service that the operator give written notice to TfNSW, within 21 days, if a director or manager of the body corporate nominated for the purposes of this Part dies or ceases to be a director or manager of the body corporate. 28 Operation of regulated air routes It is a condition of the accreditation of an operator of an air transport service that the operator must not operate a regular air service on a regulated air route unless the operator holds an air route licence for that route. 29 Bus services—drug and alcohol programs and testing (1) Drug and alcohol program It is a condition of an accreditation of an operator of a bus service— (a) that the operator prepares and implements a drug and alcohol program for its transport safety employees that complies with guidelines approved by TfNSW for the purposes of this section and published in the Gazette, and (b) that the operator ensures that all transport safety employees employed, or contracted, by the operator to perform transport safety work are not under the influence of alcohol or any other drug when about to carry out, or while on duty for the purposes of carrying out (whether or not carrying out), transport safety work. (2) The drug and alcohol program is to include any matters required to be included by the guidelines approved by TfNSW for the purposes of this section. (3) Without limiting subsection (1) (a), the guidelines are to include provisions for or with respect to the following— (a) protocols for fair procedures relating to the operation of the drug and alcohol program, (b) education and assistance of transport safety employees in relation to the drug and alcohol program. (4) Random testing TfNSW may at any time arrange with accredited operators of bus services for the random testing of any person about to carry out transport safety work or on duty for the purposes of carrying out transport safety work for the presence of alcohol or any other drug to ensure that the operators are complying with the conditions imposed by this section. (5) Definition For the purposes of this section, a transport safety employee is to be regarded as being about to carry out transport safety work if the employee— (a) has left home or a temporary residence for work (being transport safety work), and (b) has not commenced work after having so left home or the temporary residence. 30 Other Acts not affected by testing provisions Nothing in this Act or the regulations derogates from the operation of Division 4 of Part 2 of Schedule 3 to the Road Transport Act 2013. Note— Schedule 2 contains regulation-making powers for procedures for testing for alcohol and other drugs. 31 Bus services—safety management systems (1) It is a condition of the accreditation of an operator of a bus service that the operator has, and implements, a safety management system that complies with this section. (2) The safety management system must be documented and must— (a) identify any significant risks that have arisen or may arise from providing the bus service, including carrying out any associated transport safety work, and (b) specify the controls (including audits, expertise, resources and staff) that are to be employed by the operator to manage the risks and to monitor safety outcomes in relation to the provision of the bus service, and (c) comply with any requirements prescribed by the regulations or set out in any guidelines issued by TfNSW under this section and published in the Gazette. (3) TfNSW may issue guidelines with respect to policy objectives and safety initiatives to be adopted by operators in safety management systems. (4) An operator must, if directed to do so by TfNSW, vary a safety management system. Note— A community transport service that uses buses is also a bus service. 32 (Repealed) Division 5 Variation, suspension or cancellation of accreditation 33 Variation, suspension or cancellation of accreditation generally (1) TfNSW may vary, suspend or cancel the accreditation of an operator if— (a) the operator does not comply with a standard required to be met for accreditation as the operator of the public passenger service to which the accreditation relates, or (b) the operator fails to comply with a condition of the accreditation, or (c) the operator fails to comply with this Act or the regulations or an applicable passenger service contract or air route licence, or (d) a close associate of the operator has previously held an accreditation (whether for the operation of the same or a different public passenger service), or an air route licence, that has been cancelled, or (e) for any other reason it thinks fit. Note— TfNSW may also vary the conditions of an accreditation at any time (see section 26). (2) Without limiting subsection (1), TfNSW may take action under this section on the ground that an accredited operator of a public passenger service or a director or manager nominated for the purposes of this Part is not a fit and proper person to be responsible for the management of a public passenger service if TfNSW is of the opinion that the operator has failed, on written request given to the operator by TfNSW, to provide TfNSW with sufficient evidence that the operator, director or manager is a fit and proper person to be responsible for the management of a public passenger service. (3) TfNSW may take action against an operator or person on the ground referred to in subsection (2) without making a written request referred to in that subsection. 34 (Repealed) 35 Automatic suspensions (1) If 2 or more individuals hold a joint accreditation and any one of them dies or ceases to jointly provide the public passenger service— (a) the accreditation is automatically suspended 21 days after the death or cessation if TfNSW has not been notified before that time of the death or cessation, and (b) the accreditation 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 accredited operator that is a body corporate ceases to have any directors or managers who are nominated for the purposes of this Part, the accreditation is automatically suspended when the body ceases to have any directors or managers so nominated. Part 3 Service procurement Division 1 Passenger service contracts 36 Passenger service contracts (1) TfNSW may enter into a passenger service contract on behalf of the State for the provision of a public passenger service with an accredited operator of a public passenger service or the operator of a public passenger service who is not required to be accredited under this Act. (2) TfNSW may enter into a passenger service contract that is subject to a condition precedent that requires a party to obtain an accreditation to operate a public passenger service. (3) A passenger service contract may relate to, but is not limited to, any of the following— (a) a particular area or route, (b) one or more modes of transport, (c) services for specified passengers or classes of passengers. (4) TfNSW may invite passenger service contracts by tender or in any other manner TfNSW thinks fit. (5) A passenger service contract is to specify the term of the contract. (6) A passenger service contract is not to provide a right to renew the contract. (7) A passenger service contract may provide for the operator of the public passenger service to have the first right to negotiate a fu