Passenger Transport Services Act 2011 (Tas)

Passenger Transport Services Act 2011 An Act to provide for the oversight, regulation and safety of certain passenger transport services and the operation of regular passenger transport services and for related purposes [Royal Assent 15 December 2011] Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows: PART 1 - Preliminary 1. Short title This Act may be cited as the Passenger Transport Services Act 2011 . 2. Commencement (1) Sections 1 , 3 , 68 and 69 and this section commence on the day on which this Act receives the Royal Assent. (2) The remaining provisions of this Act commence on a day to be proclaimed. 3. Interpretation (1) In this Act, unless the contrary intention appears – accredited means accredited under Part 2 as the operator of a passenger transport service or hire and drive passenger service, and accreditation has a corresponding meaning; accredited operator means a person holding accreditation; affiliated operator means an accredited operator who, under a contract or agreement in writing with a booking service provider, uses the safety, security and related systems of the booking service provider; annual fee means a fee prescribed under section 24A ; approved means approved by the Commission; authorised means authorised for the purposes of section 34 , and authorisation has a corresponding meaning; authorised officer means a person authorised by the Commission, under section 9(2) of the Traffic Act 1925 , in relation to a power or act under that Act or the Vehicle and Traffic Act 1999 ; body politic includes an agency or instrumentality of the body politic; booking service provider means a person who is a booking service provider under section 8A ; bus operator means a person holding accreditation in respect of a passenger transport service of the kind referred to in section 11(1)(b) ; Commission means the Transport Commission incorporated under section 4 of the Transport Act 1981 ; continuity fees means the fees, if any, required to be paid to ensure the continuity of an accreditation or authorisation, as referred to in section 24 and section 40(1) , respectively; conviction includes a finding of guilt without the recording of a conviction; employee includes a person engaged, either directly or indirectly, under a contract for services; external, accreditation, means accreditation that – (a) is issued, granted or conferred by an external regulator; and (b) confers on its holder, in that external regulator's jurisdiction, substantially similar status and entitlements as accreditation under this Act; external regulator means an agency of another State having responsibilities substantially similar to those of the Commission under Part 2 ; fare includes any form of financial consideration; hire and drive passenger service – see section 13 ; improvement notice means an improvement notice served under section 61A(1) , as amended, if at all, under section 61A(7) ; large passenger vehicle means, subject to any exceptions prescribed by the regulations, a motor vehicle with 10 or more seats; manned, motor vehicle, means a motor vehicle that is furnished with a driver; motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ; notify means give notice in writing; on-demand passenger transport service means a passenger transport service in relation to which a fare-paying passenger is transported, in a manned small passenger vehicle, to a destination nominated by the passenger, but does not include a regular passenger service; passenger, of a motor vehicle, includes the driver of the motor vehicle; passenger service means any service that involves the carriage of passengers on a public street by means of a motor vehicle; passenger service contract means a contract between the Secretary and an accredited passenger transport service operator for the operation of a regular passenger service; passenger transport service – see section 11(1) ; person includes a body politic; public street has the same meaning as in the Traffic Act 1925 ; registered operator, in relation to a vehicle, has the same meaning as in the Vehicle and Traffic Act 1999 ; regular passenger service – see section 35 ; regulations means regulations made and in force under this Act; relevant responsible person means the responsible person for the accredited service in respect of which the expression is used; responsible person – see section 18(3) , (4) and (5) ; ride-sourcing driver means a person who arranges, by means of ride-sourcing software, to carry on journeys, in a ride-sourcing vehicle driven by the person, passengers who – (a) arrange, by means of ride-sourcing software, to be so carried; and (b) provide to the person financial consideration for such journeys only by means of a system for electronic transfer of funds that is provided as part of the ride-sourcing software; ride-sourcing software means computer software that enables – (a) requests, for passengers to be carried on journeys in motor vehicles, to be received; and (b) such requests to be communicated to, and accepted by, drivers of motor vehicles; and (c) such passengers to provide to such drivers financial consideration, for carriage on such journeys, only by way of the electronic transfer of funds by a system that is provided; and (d) identification of, and recording of the details of, such drivers and vehicles and the origin, destination and duration of such journeys; and (e) satisfaction rating services to be provided – by means of the computer software; ride-sourcing vehicle means a small passenger vehicle that is used by a person to carry on journeys, in the vehicle, driven by the person, passengers who – (a) arrange, by means of ride-sourcing software, to be so carried; and (b) provide to the person financial consideration for such journeys only by means of a system for electronic transfer of funds that is provided as part of the ride-sourcing software; rights of review means rights of review under Part 4 ; seat, of a motor vehicle – see section 5(3) ; Secretary means the Secretary of the Department; serious offence means – (a) an offence under sections 124 , 125A , 125B , 125C , 125D , 126 and 127 of the Criminal Code ; or (b) an offence under sections 158 , 167A , 167B , 170, 172 and 172A of the Criminal Code; or (c) an offence under Chapter XIX or XX of Part V of the Criminal Code ; or (d) an offence under section 7A , 37B or 37C of the Police Offences Act 1935 ; or (e) an offence under section 32 of the Traffic Act 1925 ; or (f) an offence under Division 1 of Part 3 , Part 4 or section 53 or 64 of the Vehicle and Traffic Act 1999 ; or (g) an offence prescribed by the regulations as a serious offence for the purposes of this Act; service means, according to the context, a passenger transport service, hire and drive passenger service or regular passenger service; service development plan means a document prepared by the operator of a regular passenger service setting out the operator's views regarding its potential for improvement under the operator's passenger service contract; service eligibility guidelines – see section 51 ; service operator means the person operating the service in respect of which the expression is used; small passenger vehicle means a motor vehicle with fewer than 10 seats or a motor vehicle that is approved under the Taxi and Hire Vehicle Industries Act 2008 for use as a wheelchair-accessible taxi, a remote area wheelchair-accessible taxi or a substitute wheelchair-accessible taxi; State includes Territory; statutory rule means a statutory rule for the purposes of the Rules Publication Act 1953 ; transport concern – see section 11 ; transport costs includes the cost of fuel, tolls, parking, entry fees and, if applicable, vehicle hire or leasing costs. (2) In this Act, a reference to a passenger service, passenger transport service, hire and drive passenger service or regular passenger service is taken to include a reference to a part of the service. 4. Timing of administrative actions of Commission Where a provision of this Act requires the Commission to take an action consequent on making a decision or another occurrence, then, unless the contrary intention appears, the provision is to be taken as requiring the Commission to take the action as soon as practicable after making the decision or as soon as practicable after the other occurrence. 5. Determination of seating capacity (1) For the purposes of this Act, a motor vehicle is taken always to have the number of seats it had when originally manufactured, regardless of whether any of those seats has been – (a) permanently or temporarily removed from the motor vehicle; or (b) permanently or temporarily converted to or adapted to another use. (2) However, if, as a result of a modification, a motor vehicle has more seats than it had when originally manufactured as determined under subsection (1) , then, for the purposes of this Act, the motor vehicle is taken to have, after the modification, that higher number of seats. (3) For the purposes of this Act – seat, of a motor vehicle, includes – (a) the driver's seat; and (b) an individual seating position on a bench seat; and (c) a demountable seat (being a seat that is so designed and constructed as to be capable of being readily removed from the motor vehicle without the need to structurally alter the motor vehicle); and (d) a modifiable seat (being a seat that is so designed and constructed as to be capable of being readily retracted, collapsed or folded away when not in use or of being readily converted or adapted to another use such as a sofa, bed or storage); and (e) a seat that, to be used, requires the temporary retraction, collapsing or folding-away of a moveable console or armrest; and (f) a position or space on the floor of the vehicle that is purposely designed or adapted to accommodate, or is dedicated or reserved for the use of, a wheelchair. 6. Act does not apply to personal private use of motor vehicles (1) Nothing in this Act restricts, governs or otherwise applies to the personal private use of a motor vehicle. (2) In this section – personal private use, of a motor vehicle, means its use by an individual to carry members of the individual's family, or friends of the individual's family (even if any such passenger makes, or offers or is asked to make, some contribution towards the transport costs or does, or offers, or is asked, to do, some of the driving). 7. Act does not apply to private passenger services (1) Nothing in this Act restricts, governs or otherwise applies to a private passenger service. (2) Any question or dispute as to whether a particular passenger service is a private passenger service is to be determined by the Commission, and the determination is binding. (3) In determining whether a particular passenger service is a private passenger service, the Commission may have regard to – (a) guidelines, if any, it approves for the purpose; and (b) such other factors as the Commission reasonably considers relevant. (4) In this section – passenger service includes a group of such services; private passenger service means a passenger service that is – (a) provided by means of a small passenger vehicle; and (b) operated exclusively by persons having a common affiliation; and (c) not available to the general public. 8. Act does not apply to incidental passenger services (1) Nothing in this Act restricts, governs or otherwise applies to – (a) the carriage of persons under a private car-pooling arrangement; or (b) the carriage of persons in or on a motorised buggy or similar specialised vehicle within the precincts of – (i) a golf course, sports ground or other sporting venue; or (ii) a tourist attraction; or (iii) an hotel; or (iv) an industrial complex; or (v) an aerodrome; or (c) the carriage of passengers in or on a motor vehicle that is configured as, and being used solely as, a novelty vehicle such as a "toy train" in a public park or a float in a Christmas parade or other community pageant; or (d) the carriage of persons in prescribed motor vehicles or by prescribed persons or prescribed passenger services or in prescribed circumstances. (2) In this section – private car-pooling arrangement means – (a) an arrangement whereby several individuals travel together in one small passenger vehicle on a journey, on the basis that they will share the transport costs or driving duties, or both; or (b) an arrangement whereby several individuals agree to transport one another in each other's small passenger vehicle, turn and turn about over a given period, correspondingly apportioning transport costs, for the purpose of commuting to work or to a regular sporting, recreational or other activity of common interest; or (c) an arrangement analogous to an arrangement referred to in paragraph (a) or (b) . 8A. Meaning of booking service provider (1) For the purposes of this Act, a person is a booking service provider if the person carries on the business of – (a) receiving requests for persons to be transported for financial consideration by a small passenger vehicle (other than a luxury hire car, or a restricted hire vehicle, each within the meaning of the Taxi and Hire Vehicle Industries Act 2008 ) that is being operated as part of a passenger transport service; and (b) arranging or facilitating the acceptance of those requests by or on behalf of drivers of small passenger vehicles. (2) In determining whether a person (the service provider) is a booking service provider, it does not matter – (a) whether or not the transport of a person by a small passenger vehicle is provided by a driver as an agent, bailee or employee of the service provider; or (b) whether the agreement or arrangement in accordance with which the transport of a person by a small passenger vehicle is provided is between – (i) the driver and passenger; or (ii) the service provider and either the driver or passenger; or (iii) any other persons; or (c) whether the fare or other consideration for the transport of a person by a small passenger vehicle is paid to the driver by – (i) the service provider; or (ii) the passenger; or (iii) any other person; or (d) whether or not an act referred to in subsection (1)(a) or (b) involves the use of a wholly or partly automated electronic system, including ride-sourcing software; or (e) whether or not the service provider is located outside the State; or (f) whether or not the service provider also receives requests for persons to be carried as passengers outside the State. (3) A person who owns, operates or controls a wholly or partly automated electronic system, which may include ride-sourcing software, that performs the acts referred to in subsection (1)(a) or (b) is taken to be a booking service provider. (4) A person prescribed for the purposes of this subsection is taken to be a booking service provider. (5) A person prescribed for the purposes of this subsection is taken to not be a booking service provider, despite anything to the contrary in the other provisions of this section. 9. Act binds Crown This Act binds the Crown in right of Tasmania and, so far as the legislative power of Parliament permits, in all its other capacities. PART 2 - Accreditation Division 1 - Accreditation policy 10. Operator of passenger transport service must be accredited (1) A person must not operate a passenger transport service unless the person is accredited in respect of that service and that accreditation is not suspended. Penalty: Fine not exceeding – (a) 200 penalty units for a body corporate or body politic; or (b) 100 penalty units for an individual. (2) Subsection (1) does not apply in relation to the operation, for the purposes of a passenger transport service, by a ride-sourcing driver of a ride-sourcing vehicle under an arrangement with a booking service provider. 11. What is a passenger transport service operator? (1) For the purposes of this Act, a person is taken to operate a passenger transport service if – (a) the person operates a manned small passenger vehicle on a public street for the purpose of carrying passengers, where – (i) the passengers, or any of them, have to pay a fare; and (ii) the passenger service so provided is available to any member of the general public and a transport concern; or (b) the person operates a manned large passenger vehicle on a public street for the purpose of carrying passengers, regardless of whether – (i) the passengers, or any of them, have to pay a fare; or (ii) the passenger service so provided is available to any member of the general public or a transport concern; or (c) the person is a booking service provider. (2) To avoid doubt, it is immaterial for the purposes of subsection (1) whether – (a) the driver of the small passenger vehicle or large passenger vehicle is the service operator or an employee or agent of the service operator; or (b) at any particular stage of the journey, the small passenger vehicle or large passenger vehicle is actually carrying any passengers. (3) For the purposes of subsection (1) , a passenger service is taken to be a transport concern if it is operated by a business or undertaking – (a) as its sole activity; or (b) as one of its main activities; or (c) as an integral and indispensable component of its sole activity or one of its main activities, not merely as an incidental, occasional or dispensable adjunct to that activity. (4) Any question or dispute as to whether a particular passenger service is a transport concern is to be determined by the Commission, and the determination is binding. (5) In determining whether a particular passenger service is primarily a transport concern, the Commission may have regard to – (a) whether passenger transport is the primary purpose or main focus of the service operator; and (b) whether the service has more of a commercial focus (being operated for profit in its own right) or a goodwill focus (being provided as a courtesy for the patrons or guests of the service operator, and where no charge is made for the service itself); and (c) whether the service operator advertises or presents itself as, or in any other way purports to be, a passenger transport entity; and (d) whether the service operator advertises or presents the service as a dedicated passenger transport service or as a service that is ancillary to another activity; and (e) whether the service operator could still engage in its main or primary activities without operating the service, directly or at all; and (f) the scale and value of the resources used for the service relative to those used for other activities, if any, of the service operator; and (g) the scale, frequency and nature of the service and the scale and nature of associated materiel, equipment and facilities; and (h) relevant motor vehicle ownership and leasing arrangements; and (i) the antecedents of the service operator and, if applicable, the nature of any relevant business, or corporate, relationships; and (j) such other factors as the Commission reasonably considers relevant. 12. Operator of hire and drive passenger service must be accredited A person must not operate a hire and drive passenger service unless the person is accredited in respect of that service. Penalty: Fine not exceeding – (a) 200 penalty units for a body corporate or body politic; or (b) 100 penalty units for an individual. 13. What is a hire and drive passenger service operator? (1) For the purposes of this Act, a person is taken to operate a hire and drive passenger service if the person – (a) hires out an unmanned motor vehicle; and (b) the primary purpose of the hiring is the carriage of passengers rather than the carriage of goods or some other purpose. (2) For the purposes of subsection (1) , it is immaterial whether the hirer of the motor vehicle intends to – (a) drive the motor vehicle personally (with or without other passengers) or have another person drive the motor vehicle, (with or without other passengers); or (b) use the motor vehicle as a fixed or mobile dwelling to any extent; or (c) put the motor vehicle to a use to which, by virtue of section 6 , 7 or 8 , this Act does not apply. (3) For the purposes of this section, where a person who owns or is in charge of a motor vehicle ("owner") contracts for another person ("hiring agent") to hire it out on the owner's behalf, the hiring agent, not the owner, is taken to operate the hire and drive passenger service. (4) Notwithstanding subsection (1) , where an accredited operator in respect of any service hires an unmanned motor vehicle for the purposes of operating that service, the person who does the hiring out is not, on that account, taken to be operating a hire and drive passenger service for the purposes of this Act. 14. Voluntary accreditation A person who, by means of a small passenger vehicle, operates a passenger service that is not required to be accredited may nonetheless voluntarily apply for accreditation in respect of that service. 15. Purpose of accreditation (1) The purpose of mandatory accreditation is to ensure that the operator of a passenger transport service or hire and drive passenger service – (a) is a fit and proper person to operate the service; and (b) implements, as far as reasonably practicable, appropriate safety, security and related systems for the service; and (c) has the requisite competence and capacity to manage the safety, security and related risks associated with operating the service; and (d) is held accountable for any deficiencies in the safety, security or related performance of the service. (2) The purpose of voluntary accreditation is to encourage and assist the operator of the relevant passenger service to – (a) implement, as far as reasonably practicable, appropriate safety, security and related systems for the service; and (b) develop and maintain the competence and capacity to manage the safety, security and related risks associated with operating the service; and (c) take responsibility for, and address, any deficiencies in the safety, security or related performance of the service. 16. Safety, security and related operational standards of accredited services (1) For accreditation purposes, the Commission may approve safety, security and related standards for – (a) passenger transport services or hire and drive passenger services generally; or (b) different kinds of passenger transport services or hire and drive passenger services; or (c) specific passenger transport services or hire and drive passenger services. (2) In approving the standards, the Commission may liaise with such industry bodies, standards bodies, regulatory authorities and other interested parties as it considers necessary or expedient. (3) The Commission may publish an approval as it considers necessary or expedient. 17. Who may be accredited? (1) Any of the following may be accredited under this Part: (a) a person; (b) a partnership; (c) an incorporated body; (d) an unincorporated body. (2) If a partnership is accredited, the members of the partnership are jointly and severally liable under this Part in relation to the accreditation. Division 2 - Application and accreditation procedure 18. Application for accreditation (1) An application for accreditation is to be made to the Commission. (2) The application is to be in accordance with section 66 . (3) If the applicant is a body politic, a partnership or an incorporated or unincorporated body it must, by the application, nominate a natural person to be the responsible person for the accreditation. (4) The person nominated is to be – (a) in the case of a body politic – a member or senior employee of the body politic; and (b) in the case of a partnership – one of the partners; and (c) in the case of an incorporated body – one of its officers or employees; and (d) in the case of an unincorporated body – one of its members. (5) The role of the responsible person is to – (a) act as the Commission's primary contact regarding the safety, security and related performance of the relevant service; and (b) oversee the day-to-day safety, security and related performance of the relevant service; and (c) be responsible for ensuring that the relevant service meets applicable regulatory safety, security and related standards. 19. Determination of application for accreditation (1) On receiving an application for accreditation, the Commission is to – (a) consider the application; and (b) approve or refuse to approve the application. (2) For the purposes of subsection (1) , the Commission – (a) is to take into account the criteria or other matters, if any, prescribed by the regulations; and (b) may take into account any other matters it considers relevant in the circumstances having regard to section 15 . (3) The Commission must refuse to approve the application if it reasonably determines that – (a) the applicant is not a fit and proper person to be accredited; or (b) if applicable, the nominated responsible person is not a fit and proper person to be so nominated; or (c) the applicant will not be able (or is unlikely to be able) to meet the safety, security and related standards, if any, approved under section 16 for the service that the applicant is proposing to operate. (4) Without limiting the matters that may be relevant for subsection (3)(a) and (b) , the Commission may determine that a natural person is not a fit and proper person to be accredited, or nominated as a responsible person, if the person – (a) has a conviction for a serious offence; or (b) has, in another jurisdiction, a conviction for an offence of a kind that would constitute a serious offence if committed in Tasmania; or (c) has a history of non-compliance regarding any previous accreditation or any external accreditation; or (d) has a history of non-compliance regarding the Taxi and Hire Vehicle Industries Act 2008 ; or (e) is subject to a driving disqualification order under – (i) section 55 of the Sentencing Act 1997 ; or (ii) section 37F of the Police Offences Act 1935 . 20. Refusal of application for accreditation (1) This section applies if the Commission refuses to approve an application for accreditation. (2) The Commission is to notify the applicant of – (a) the refusal; and (b) the reasons for the refusal; and (c) the applicant's rights of review. 21. Approval of application for accreditation (1) This section applies if the Commission approves an application for accreditation. (2) The Commission may place such conditions on the accreditation as it considers necessary or expedient to uphold the purpose of accreditation in respect of the relevant service. (3) Without limiting the generality of subsection (2) , the Commission may place on the accreditation conditions requiring any or all of the following: (a) that the accredited operator develop and maintain an approved safety and security management plan for the service; (b) that the service undergo approved safety, security and related audits at approved times or intervals; (c) that the vehicles used for the service undergo approved safety, mechanical or other inspections at approved times or intervals; (d) record-keeping and the provision of approved returns or reports on any matter relevant to the safety, security and related performance of the service; (e) that the accredited operator develop and maintain a system for managing risks to safety and security relating to the performance of the service. (4) The Commission is to – (a) notify the applicant of the approval; and (b) if applicable, notify the applicant of the conditions of the accreditation and the applicant's rights of review in respect of those conditions; and (c) issue the applicant with an accreditation certificate. 22. Accreditation certificate (1) An accreditation certificate is to be in an approved form and specify – (a) particulars of the accredited operator and, if applicable, the relevant responsible person; and (b) particulars of the relevant service; and (c) the conditions, if any, of the accreditation; and (d) any other matters the Commission considers necessary or expedient. (2) The Commission is to issue an accredited operator with a revised accreditation certificate if there is a change in – (a) the conditions, if any, of the accreditation; or (b) the name or business address of, or some other significant particular concerning, the accredited operator; or (c) if applicable, the relevant responsible person. (3) The revised certificate may be issued on the Commission's own initiative or at the request of the accredited operator. 23. Accreditation Register (1) The Commission is to keep a register ("Accreditation Register") for the purposes of this Part. (2) The Accreditation Register is to be in an approved form and contain – (a) such particulars in respect of each accredited operator as the regulations may prescribe; and