Taxi and Hire Vehicle Industries Act 2008 (Tas)

Taxi and Hire Vehicle Industries Act 2008 An Act to provide for the administration of the taxi, luxury hire car and restricted hire vehicle industries and for related purposes [Royal Assent 16 September 2008] 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 Taxi and Hire Vehicle Industries Act 2008 . 2. Commencement The provisions of this Act commence on a day or days to be proclaimed. 3. Interpretation In this Act, unless the contrary intention appears – accreditation means accreditation, under the Passenger Transport Services Act 2011 , in respect of a passenger transport service; accredited operator means a person holding accreditation; AS means a standard published by Standards Australia as amended or substituted from time to time; AS 3856 means AS 3856 Parts 1 and 2 "Hoists and Ramps for People with Disabilities – Vehicle Mounted" issued and published by Standards Australia as amended or substituted from time to time; AS/NZS 10542.1:2009 means AS/NZS 10542.1:2009 "Technical systems and aids for disabled or handicapped persons – Wheelchair tiedown and occupant-restraint systems" issued and published by Standards Australia and Standards New Zealand, as amended or substituted from time to time; 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 ; Commission means the Transport Commission incorporated under the Transport Act 1981 ; compliance plate means an identification plate approved to be placed, or taken to have been placed, on a vehicle under the MVSA; fund means the fund established under section 8 ; general rhv service – see section 84C(4) ; human rights legislation means the following Acts of the Commonwealth: (a) Racial Discrimination Act 1975; (b) Sex Discrimination Act 1984; (c) Disability Discrimination Act 1992; inactive, in relation to a taxi licence, means not being used to operate a taxi service; in advance, in relation to the hiring of a motor vehicle, means that the hiring and the terms of the hiring are agreed by the parties in advance of, not at or just before, the time at which the motor vehicle is actually used for the hiring; inspection report means a report issued in respect of a vehicle by – (a) an authorised officer; or (b) a person who has an agreement with the Crown to carry out inspections of vehicles; or (c) some other person approved by the Registrar – that certifies that the vehicle is roadworthy; investigation means an investigation conducted for the purposes of section 66E ; licence means a perpetual taxi licence, a wheelchair-accessible taxi licence, an owner-operator taxi licence, a temporary taxi licence, a luxury hire car licence or a restricted hire vehicle licence; licence number plate means a plate issued by the Commission in respect of a licence in force under this Act; luxury hire car means a motor vehicle that is – (a) approved under section 73 for use as a luxury hire car; and (b) operating under the authority of a luxury hire car licence; luxury hire car licence means a luxury hire car licence referred to in Part 4 ; luxury hire car service – see section 67A ; motor vehicle has the same meaning as in the Vehicle and Traffic Act 1999 ; MVSA means the Motor Vehicle Standards Act 1989 of the Commonwealth as in force immediately before its repeal; owner, in relation to a perpetual taxi licence, means the person recorded on the register of licences as the owner of that licence; owner-operator taxi licence means an owner-operator taxi licence referred to in Part 3 ; passenger transport service means a passenger transport service within the meaning of the Passenger Transport Services Act 2011 ; perpetual taxi licence means a perpetual taxi licence referred to in Part 3 ; public street has the same meaning as in the Traffic Act 1925 ; registered means registered under the Vehicle and Traffic Act 1999 ; registered operator means a registered operator within the meaning of the Vehicle and Traffic Act 1999 ; register of licences means the register required to be kept by the Commission under section 85 ; Register of Motor Vehicles means the register of motor vehicles and trailers kept by the Registrar in accordance with regulations made under the Vehicle and Traffic Act 1999 ; Registrar means the Registrar of Motor Vehicles appointed under section 5 of the Vehicle and Traffic Act 1999 ; regulations means regulations made and in force under this Act; Regulator means the Tasmanian Economic Regulator appointed under section 9 of the Economic Regulator Act 2009 ; relevant accreditation, in relation to a taxi service, luxury hire car service or restricted hire vehicle service, means accreditation in respect of a passenger transport service whose operations are in the nature of a taxi service, luxury hire car service or restricted hire vehicle service; remote area wheelchair-accessible taxi means a taxi that is approved for use as a remote area wheelchair-accessible taxi by the Commission in accordance with Schedule 1 ; remote taxi area means an area, displayed on a map that is generated under section 90A(3) , that is indicated on the map to be a remote taxi area and to be in effect; repealed Act means the Taxi and Luxury Hire Car Industries Act 1995 ; reserve price, for a licence for a year, means the reserve price, for the year, for an owner-operator taxi licence for the taxi area to which that licence relates, as specified in section 66C(1) ; responsible operator, in relation to a taxi licence, means the person recorded on the register of licences as the responsible operator of the taxi service authorised by that licence; restricted hire vehicle means a motor vehicle that is operating under the authority of a restricted hire vehicle licence; restricted hire vehicle licence means a restricted hire vehicle licence referred to in Part 4A ; restricted hire vehicle service – see section 84B ; small passenger vehicle has the same meaning as in the Passenger Transport Services Act 2011 ; specific rhv service – see section 84C(4) ; substitute wheelchair-accessible taxi means a vehicle that is approved for use as a substitute wheelchair-accessible taxi by the Commission in accordance with Schedule 1 ; taxi means a motor vehicle that is operating under the authority of a taxi licence; taxi area means an area, displayed on a map that is generated under section 90A(3) , that is indicated on the map to be a taxi area and to be in effect; taxi licence means a perpetual taxi licence, an owner-operator taxi licence, a wheelchair-accessible taxi licence or a temporary taxi licence; taxi service – see section 9A ; taxi zone means a length of road to which a taxi zone sign applies; taxi zone sign means a sign that identifies a length of road for use as a taxi zone for the purposes of the Road Rules; temporary taxi licence means a temporary taxi licence referred to in Division 5 of Part 3 ; tour – see section 3A ; wheelchair-accessible taxi means a taxi that is approved for use as a wheelchair-accessible taxi by the Commission in accordance with Schedule 1 ; wheelchair-accessible taxi licence means a wheelchair-accessible taxi licence referred to in Part 3 . 3A. Meaning of "tour" (1) For the purposes of this Act, a tour is a passenger transport service operated exclusively for tourists, not commuters, according to a publicly advertised route or itinerary. (2) Any question or dispute as to whether a particular passenger transport service is a tour is to be determined by the Commission, and the determination is binding. (3) In determining whether a particular passenger transport service is a tour, the Commission may have regard to – (a) whether tourism is a major and regular feature or focus of the service or merely a minor or incidental feature or focus of the service; and (b) whether the service stops at or diverts to points of relevant interest or provides essentially uninterrupted and direct transportation; and (c) whether points of relevant interest appear to be determinative of and integral to the route, or merely incidental points of passage en route; and (d) the passenger profile including, in particular, whether users of the service appear to be pursuing mainly tourism activities or merely seeking personal transportation; and (e) whether the passengers are taken on to or back to tourist accommodation or a tourism travel connection, or on to or back to a place of no tourism significance; and (f) the scale and nature of any associated promotional activities including, in particular, whether the service is advertised as a tour or merely as passenger transport; and (g) whether the service appears to be regarded as a tour by the tourism industry; and (h) such other factors as the Commission reasonably considers relevant. (4) In this section – passenger transport service includes – (a) any part of such a service; and (b) any group of such services; points of relevant interest means points of cultural, historic, professional, scenic, scientific or sporting interest; tourist includes sightseer. 4. Intent of Act (1) The intent of this Act in respect of taxi services is to promote a safe, demand-responsive, taxi transport system that adequately meets the needs of consumers and is appropriately licensed. (2) The intent of this Act in respect of luxury hire car services and restricted hire vehicle services is to ensure that such services are appropriately licensed. 4A. Act does not derogate from Passenger Transport Service Act 2011 Nothing in this Act derogates from the requirements of the Passenger Transport Services Act 2011 . 5. Administration and enforcement This Act is to be administered by the same persons and in the same manner as section 9 of the Traffic Act 1925 provides for that Act to be administered, and that section applies to the administration of this Act in all respects as if a reference in that section to the Traffic Act 1925 were a reference to this Act. 6. Act to bind 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 - Administration 7. Commission subject to control of Minister (1) In the exercise of the powers conferred, and the performance of functions imposed, on the Commission by or under this Act, the Commission is subject to the control of the Minister. (2) The Minister may, in order to exercise the control referred to in subsection (1) , from time to time give a direction to the Commission and the Commission must, subject to this section, exercise the powers conferred, and perform the functions imposed, on it by or under this Act in accordance with any such direction. (3) The Commission is not bound by a direction given under subsection (2) unless the direction is in writing and signed by the Minister. (4) The power conferred on the Minister by subsection (2) is not to be exercised so as – (a) to require the Commission to do anything that it is not empowered to do by this Act; or (b) to prevent the Commission from performing any function that it is expressly required by this Act to perform, whether conditionally or unconditionally; or (c) to interfere with the formation by the Commission of any opinion or belief in relation to any matter that has to be determined as a prerequisite to the performance or exercise by the Commission of any of its functions or powers under this Act. (5) Where the Minister gives a direction under subsection (2) and the direction is not complied with, the Minister may cause a copy of the direction to be laid on the table of each House of Parliament within the first 15 sitting-days of the House after the direction is given. (6) Subsection (2) does not authorise the Minister to give a direction with respect to the issue, transfer, suspension, cancellation or lapsing of a taxi licence, luxury hire car licence or restricted hire vehicle licence. 8. General administration fund (1) A fund is to be established consisting of the annual administration fees payable for perpetual taxi licences, owner-operator taxi licences, wheelchair-accessible taxi licences and luxury hire car licences. (2) The fund is to be applied for the general administration of this Act. (3) The fund is to be established as an account in the Public Account. PART 3 - Taxi Licences Division 1 - Preliminary 9. Effect of taxi licence (1) A taxi licence authorises the responsible operator of the taxi licence to operate a taxi service under and in accordance with this Act. (2) There are 4 kinds of taxi licence as follows: (a) a perpetual taxi licence – see Division 2 ; (b) an owner-operator taxi licence – see Division 3 ; (c) a wheelchair-accessible taxi licence – see Division 4 ; (d) a temporary taxi licence – see Division 5 . 9A. What is a taxi service? For the purposes of this Act, a taxi service is a passenger transport service under which the motor vehicle used to operate the service is able to be hired on demand in each of the following ways: (a) from a taxi zone; (b) by being hailed; (c) by being booked or ordered. 9B. Motor vehicle presumed not to be operating as taxi unless licence number plate is affixed (1) For the purposes of this Act, a motor vehicle is not taken to be operating under the authority of a taxi licence in any circumstances unless the relevant licence number plate is affixed to the motor vehicle. (2) In this section – relevant licence number plate, of a motor vehicle, means the licence number plate issued under section 89 to the holder or, as the case may be, owner of the relevant taxi licence. Division 2 - Perpetual taxi licences 10. Effect of perpetual taxi licence (1) A perpetual taxi licence authorises the taxi to which the licence number plate issued in respect of that licence is affixed to be hired on demand within, to or from the taxi area to which the licence relates – (a) from a taxi zone; or (b) by being hailed; or (c) by being booked or ordered. (2) A perpetual taxi licence is the personal property of the owner of the licence and is capable of being leased. 11. Responsible operator of leased perpetual taxi licence (1) Subject to this section, the responsible operator of a perpetual taxi licence is – (a) the owner of the licence; or (b) if the owner of the licence has leased it, the person who is leasing the licence. (2) A person who is leasing a perpetual taxi licence is not capable of being recorded on the register of licences as the responsible operator of the licence unless the person holds relevant accreditation. (3) An entry purportedly made in the register of licences contrary to subsection (2) is null and void. (4) If the owner of a perpetual taxi licence leases it to a person who does not hold relevant accreditation, the owner of the licence is taken to remain the responsible operator of the licence. 12. Misrepresentation of person as owner of perpetual taxi licence A person who does not own a perpetual taxi licence must not hold himself or herself out to be the owner of a perpetual taxi licence. Penalty: Fine not exceeding 100 penalty units. 13. . . . . . . . . 14. . . . . . . . . 15. Transfer of ownership of perpetual taxi licence (1) A notification of the transfer of a perpetual taxi licence is to be made to the Commission by the owner in a form approved by the Commission and is to be accompanied by the prescribed fee. (2) . . . . . . . . 16. Replacement licence The Commission may, on payment of the prescribed fee, issue the owner of a perpetual taxi licence with a replacement of the licence if the Commission is satisfied that it has been lost, destroyed or damaged. 17. Surrender of perpetual taxi licence The owner of a perpetual taxi licence may surrender the licence to the Commission by causing the licence and any licence number plate issued in respect of that licence to be delivered to the Commission during business hours. 18. New owner-operator taxi licence to be made available in place of surrendered perpetual taxi licence (1) If a perpetual taxi licence is surrendered to the Commission under section 17 , the Commission, as soon as practicable, is to make available for issue an owner-operator taxi licence, in the taxi area to which the surrendered licence relates, in place of the surrendered licence. (2) An owner-operator taxi licence made available under subsection (1) is to be offered for sale by tender. (3) The Commission must not accept a tender for an owner-operator taxi licence made available under subsection (1) that is less than the reserve price for that licence for the year in which the tender is accepted. 18A. Suspension of perpetual taxi licence (1) If the Commission suspends for a period under the Passenger Transport Services Act 2011 the accreditation of the responsible operator of a perpetual taxi licence, the licence is also suspended for the same period or until another person becomes the responsible operator of the perpetual taxi licence, whichever occurs first. (2) A perpetual taxi licence is of no effect during any period of its suspension. (3) If the Commission cancels under the Passenger Transport Services Act 2011 the accreditation of the responsible operator of a perpetual taxi licence, the licence is suspended until another person becomes the responsible operator of the perpetual taxi licence. (4) The owner of a perpetual taxi licence that is suspended under this section must not, during the period of that suspension, operate a taxi service under the purported authority of that licence or cause or permit another person to operate a taxi service under the purported authority of that licence. Penalty: Fine not exceeding 100 penalty units. 19. Requirement for evidence of operation of perpetual taxi licence If the Commission is of the opinion that – (a) a perpetual taxi licence is inactive; and (b) the result of the licence being inactive is a restriction of competition in the taxi area to which the licence relates – the Commission may, by notice in writing given to the owner of the licence, require the owner of the licence to provide to the Commission no later than the date specified in the notice such evidence as the Commission may require in order to be satisfied that a taxi service is being operated under the authority of that licence. 20. New owner-operator taxi licence to be made available in place of inactive perpetual taxi licence (1) If – (a) the owner of the perpetual taxi licence referred to in section 19 does not provide the evidence referred to in that section; or (b) the evidence provided does not satisfy the Commission that a taxi service is being operated under the authority of the licence – the Commission, by notice in writing given to the owner of the perpetual taxi licence, is to declare that the perpetual taxi licence is inactive. (2) If the Commission declares a perpetual taxi licence inactive, the Commission, as soon as practicable, is to make available for issue an owner-operator taxi licence, in the taxi area to which the inactive perpetual taxi licence relates, in place of the inactive licence. (3) An owner-operator taxi licence made available under subsection (2) is to be offered for sale by tender. (4) The Commission must not accept a tender for an owner-operator taxi licence made available under subsection (2) that is less than the reserve price for that licence for the year in which the tender is accepted. (5) The owner of an inactive perpetual taxi licence is not entitled to submit a tender for the owner-operator taxi licence made available under subsection (2) . Division 3 - Owner-operator taxi licences 21. Effect of owner-operator taxi licence An owner-operator taxi licence authorises the taxi to which the licence number plate issued in respect of that licence is affixed to be hired on demand within, to or from the taxi area to which the licence relates – (a) from a taxi zone; or (b) by being hailed; or (c) by being booked or ordered. 22. Issue of owner-operator taxi licences (1) The Commission must, in accordance with section 23 , issue owner-operator taxi licences for each taxi area. (2) The Commission may only issue an owner-operator taxi licence to a natural person. (3) On issuing an owner-operator taxi licence, the Commission may impose such conditions on the licence as it considers necessary or expedient. 23. Number of owner-operator taxi licences to be made available (1) Before 30 September in each year, the Commission must make available for issue in each taxi area an additional number of owner-operator taxi licences equivalent to – (a) 5% of the total number of perpetual taxi licences and owner-operator taxi licences in that area, rounded to the nearest whole number; or (b) one owner-operator taxi licence – whichever is the greater. (1A) Subsection (1) does not apply, and subsections (1B) and (1C) only apply, in relation to a taxi area in respect of the years 2020 to 2024 (inclusive). (1B) If the Commission is, having regard to – (a) guidelines, if any, issued under subsection (1C) ; and (b) other matters that it considers to be relevant – satisfied that there are insufficient taxis available to adequately meet the needs of consumers in a taxi area, the Commission may make available for issue in relation to the taxi area the number of owner-operator taxi licences that the Commission thinks are necessary to meet those needs. (1C) The Commission may issue guidelines in respect of the matters that the Commission is to take into account in determining whether there are sufficient taxis available to adequately meet the needs of consumers in a taxi area. (2) An owner-operator taxi licence made available under subsection (1) is to be offered for sale by tender. (3) The Commission must not accept a tender for an owner-operator taxi licence in a particular taxi area that is less than the reserve price for that licence for the year in which the tender is accepted. (4) If, in any taxi area – (a) the average tender price for those licences sold in accordance with subsection (1) exceeds the reserve price for that licence for the year in which the tender is accepted by more than 100%; and (b) all available licences for that taxi area are sold – the Commission must make available a further number of owner-operator taxi licences, calculated in accordance with subsection (1) , for sale by further tender as soon as practicable. (5) If a licence made available under subsection (1) is not sold by tender, the Commission is to make that licence available for sale at the reserve price for that licence for the year in which the licence is sold as soon as practicable after the conclusion of the tender. (6) If – (a) a licence in relation to a taxi area is, under subsection (5) , made available for sale in a year; and (b) the following year is a year after 2024; and (c) the licence is not sold before the date on which the Commission calls the following year's tender in respect of the taxi area – the Commission is, on that date, to withdraw the licence from sale. (7) If – (a) a licence in relation to a taxi area is, under subsection (5) , made available for sale in a year; and (b) the following year is a year after 2024; and (c) the licence is not sold before 30 September in the following year – the Commission is, on 30 September in that following year, to withdraw the licence from sale. 24. Application for owner-operator taxi licence (1) An application for an owner-operator taxi licence is to be made by an individual in a form approved by the Commission and is to be accompanied by the prescribed fee. (2) The Commission is not to issue an owner-operator taxi licence to a person unless it is satisfied that – (a) the person is a natural person; and (b) the person holds relevant accreditation; and (c) the person is the registered operator of a vehicle that is suitable for use as a taxi and is not being used to operate a taxi service under the authority of another taxi licence; and (d) the person has no outstanding fees due to the Commission. (3) The Commission is to refuse an application for an owner-operator taxi licence if the Commission is not satisfied that the applicant would be the sole operator of the taxi service to be operated under the authority of that licence. (4) For the purposes of subsection (2) , a vehicle is suitable for use as a taxi if the vehicle complies with the requirements prescribed in the regulations. 25. Responsible operator of owner-operator taxi licence The holder of an owner-operator taxi licence is the responsible operator of that licence. 26. Misrepresentation of person as holder of owner-operator taxi licence A person who does not hold an owner-operator taxi licence must not hold himself or herself out to be the holder of an owner-operator taxi licence. Penalty: Fine not exceeding 100 penalty units. 27. Prohibition on leasing owner-operator taxi licence (1) An owner-operator taxi licence is not capable of being leased and any agreement purporting to do so is, to that extent, void and unenforceable. (2) If the Commission is satisfied that the holder of an owner-operator taxi licence has entered into an agreement purporting to lease the licence to another person or an agreement purporting to permit another person to operate a taxi service under the authority of the licence, the Commission is to cancel the licence in accordance with section 36 . (3) A person who in any capacity enters into an agreement of a kind referred to in subsection (2) is guilty of an offence. Penalty: Fine not exceeding 100 penalty units. (4) In this section – agreement means an oral or written agreement. 28. Owner-operator taxi licence conditions (1) At any time after an owner-operator taxi licence is issued, the Commission may – (a) impose such conditions on the licence as it considers necessary or expedient; or (b) vary or revoke any conditions of the licence. (2) Before exercising its power under subsection (1) , the Commission is to – (a) give the holder of the owner-operator taxi licence notice in writing of its intention and a reasonable opportunity to make representations thereon; and (b) take any such representations into account. (3) On exercising its power under subsection (1) , the Commission may recall the licence and issue the holder of the licence with a free replacement. (4) The holder of an owner-operator taxi licence must not contravene the conditions of the licence. Penalty: Fine not exceeding 50 penalty units. 29. . . . . . . . . 30. . . . . . . . . 31. Transfer of owner-operator taxi licence to another person (1) The holder of an owner-operator taxi licence who wishes to transfer it to another person must, in a form approved by the Commission and on payment of the prescribed fee, apply to the Commission for approval for that transfer before transferring the licence. (2) The Commission may approve the transfer of an owner-operator taxi licence if it is satisfied that the person to whom the licence is proposed to be transferred – (a) is a natural person; and (b) holds relevant accreditation; and (c) is the registered operator of a vehicle that is suitable for use as a taxi and not being used to operate a taxi service under the authority of another taxi licence; and (d) has no outstanding fees due to the Commission. (3) The Commission is to refuse the transfer of an owner-operator taxi licence if the Commission reasonably believes that the person to whom the licence is proposed to be transferred would not be the sole operator of the taxi service to which that licence relates. (4) The Commission may refuse the transfer of an owner-operator taxi licence if – (a) the licence is suspended under section 35 ; or (b) the licence is subject to a notice of intention to suspend or cancel under section 36 ; or (c) a notice has been given, in accordance with section 31(2) of the Passenger Transport Services Act 2011 , to the person to whom the licence has been issued, of an intention to suspend or cancel the accreditation of the person and the Commission has not made a determination under section 31 of that Act to suspend or cancel, or not to suspend or cancel, the accreditation of the person. (5) The transfer of the owner-operator taxi licence is of no effect until the transfer has been approved by the Commission and has been recorded on the register of licences. 32. Replacement licence The Commission may, on payment of the prescribed fee, issue the holder of an owner-operator taxi licence with a replacement of the licence if the Commission is satisfied that it has been lost, destroyed or damaged. 33. Surrender of owner-operator taxi licence The holder of an owner-operator taxi licence may surrender the licence to the Commission by causing the licence and any licence number plate issued in respect of that licence to be delivered to the Commission during business hours. 34. Inactive owner-operator taxi licence (1) If the Commission is of the opinion that – (a) an owner-operator taxi licence is inactive; and (b) the result of the licence being inactive is a restriction on competition in the taxi area to which the licence relates – the Commission may, by notice in writing given to the holder of the licence, require the holder of the licence to provide to the Commission no later than the date specified in the notice such evidence as the Commission may require that a taxi service is being operated under the authority of that licence. (2) If – (a) the holder of the owner-operator taxi licence referred to in subsection (1) does not provide the evidence referred to in that subsection; or (b) the evidence provided does not satisfy the Commission that a taxi service is being operated under the authority of the licence – the Commission, by notice in writing given to the holder of the licence, is to declare that licence inactive. (3) If the Commission declares an owner-operator taxi licence inactive, the Commission, by notice in writing given to the holder of the licence, is to require the holder of the licence to either – (a) transfer the licence to a person who holds relevant accreditation; or (b) surrender