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