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ROAD TRANSPORT LEGISLATION (HIRE CARS) AMENDMENT REGULATION 2005 (NO 1) (NO 4 OF 2005)

2005



THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL TERRITORY










ROAD TRANSPORT LEGISLATION (HIRE CARS) AMENDMENT REGULATION 2005 (No 1)









EXPLANATORY STATEMENT

SUBORDINATE LAW No SL2005-4




Circulated by authority of



John Hargreaves
Minister for Urban Services

ROAD TRANSPORT LEGISLATION (HIRE CARS) AMENDMENT REGULATION 2005 (No 1)





EXPLANATORY STATEMENT

The Road Transport Legislation (Hire Cars) Amendment Regulation 2005 (No 1) (the Amendment Regulation) amends:

• the Road Transport (Public Passenger Services) Regulation 2002;
• the Road Transport (Driver Licensing) Regulation 2000;
• the Road Transport (General) Regulation 2000;
• the Road Transport (Offences) Regulation 2001;
• the Road Transport (Safety and Traffic Management Regulation 2000;
• the Road Transport (Third Party Insurance) Regulation 2000; and
• the Road Transport (Vehicle Registration) Regulation 2000.

1. the introduction of accreditation for hire car operators;
2. the introduction of leased hire car licences;
3. the introduction of authorised vehicles for special events;
4. changes to the provisions for service standards including introducing the concept of minimum service standards;
5. a requirement for hire car operators to report hiring statistics and;
6. the introduction of a minimum wheel-base requirement for hire cars (apart from restricted hire cars).

A number of offences have been identified as strict liability offences. They include offences associated with new hire car provisions and existing offences in the Road Transport (Public Passenger Services) Regulation 2002. The identification of these offences as strict liability offences is consistent with other offences in the Road Transport legislation.

Strict liability offences under section 23 of the Criminal Code 2002 means that there are no fault elements for any of the physical elements of the offence. That means that conduct alone is sufficient to make the defendant culpable. However, under the Criminal Code, all strict liability offences will have a specific defence of mistake of fact. Clause 23(3) of the Criminal Code provides that other defences may still be available for use in strict liability offences. Strict liability offences do not have a mental element. However, the physical actions do have a mental element of their own, for example, voluntariness. For that reason, the general common law defences of insanity and automatism still apply as they go towards whether a person has done something voluntarily, as well as whether they intended to do the act.

Section 3 – Legislation amended
This regulation amends the Road Transport (Public Passenger Services) Regulation 2002.

This is a new section that allows the Road Transport Authority (the Authority) to accredit people to operate a hire car service and a restricted hire car service.

Section 6 – moves the definition of mandatory disqualifying offence from the Dictionary to this part and includes a new definition, that for executive officer (provided to clarify the reference in new 6B).

Section 6A – provides a new definition for proposed service standards. The definition provides that the proposed service standards must comply with the minimum service standards or, if there are no minimum service standards, the matters mentioned in schedule 1. More detail regarding the minimum service standards is contained in new section 18B.

Section 8 – allows the Authority to refuse an application for accreditation if (among other things) compliance with the service standards proposed by the applicant would not ensure a safe, reliable and efficient regulated service. The ‘service standards proposed’ are now the ‘proposed service standards’. The financial capacity of applicants for hire car service accreditation is not a matter to be considered by the Authority due to the generally less complex nature of, and the lower level of financial commitment associated with these services, compared with other public passenger services.

Section 6 – Section 9(b)
This amendment provides that the Authority may consider a contravention of an accepted service standard or an approved minimum service standard in deciding an application for accreditation. Accepted services standards relate specifically to a particular operator or network provider whereas minimum service standards relate to all operators or network providers (depending on the type of accreditation).

Section 7 - Section 12 (1) (b)
This amendment clarifies that the Authority must give a copy of the accepted service standards to the applicant.

Section 8 – Section 12 (4) (c)
This amendment substitutes a new paragraph to specify the accreditation period for a hire car service.

Section 9 – New section 18A
This is a new section that deals with the recovery of a lost or stolen certificate of accreditation. It requires a person who has found an accreditation certificate, which they have informed the Authority was lost or stolen, to inform the Authority within 14 days of the recovery of the certificate of accreditation.

The new regulation makes it an offence for a person not to inform the Authority within 14 days of the recovery of an accreditation certificate which was previously reported stolen.

Section 10 – New section 18B
This is a new section that introduces the concept of approved minimum service standards for regulated services. The Authority must, within 12 months, approve minimum service standards for the matters in Schedule 1 for each regulated service. The approved minimum service standards will replace the existing administratively established service standards for bus and taxi operators and taxi networks, and will be Disallowable Instruments.

These sections deal with specific exemptions for vehicles with 10 or more seats to allow them to operate as taxis. The sections are relocated from existing sections 177 &178.

Chapter 5 Hire Cars inserts new sections that deal with the requirements for hire car licences, hire car services and hire car drivers.

Chapter 6 Disciplinary Action replaces existing Chapter 5, and Chapter 7 Enforcement replaces existing Chapter 6.

Details Chapter 5

Section 165 – deals with the type of hire car licences that may be issued: leased hire car licences, a new concept; and restricted hire car licences for weddings and school formals work. Perpetual hire car licences may no longer be issued.

Section 166 – is concerned with the application procedure for the issue of a hire car licence. The section establishes requirements similar to application requirements for other public vehicle licences.

Section 167 – deals with the issuing of hire car licences. Leased hire car licences may not be issued until a date declared by the Minister. This date will be the date of the hire car licence buy-back. The section sets out the maximum periods for leased and restricted licences and requires that an applicant has the appropriate accreditation to operate the relevant type of licence.

Section 168 – deals with the issuing of restricted hire car licences and licence labels. The label identifies the vehicle as a public passenger vehicle, consistent with existing arrangements for restricted hire car licences. The Authority must issue such labels from March 2006 and may issue labels until that time. This is to allow for a possible delay in the production of these labels.

Section 169 – is concerned with the issuing or amendment of hire car licences subject to conditions. This section is similar to existing sections that allow the Authority to issue or amend taxi licences and impose conditions on the licence or revoke current conditions on the licence.

Section 170 – deals with the procedure for imposition etc of conditions on the Authority’s initiative. This section sets out the steps that must be followed if the Authority proposes to take action to amend impose or revoke a condition of a hire car licence. The steps involve aspects such as sufficient time to inform the person who action is being taken against and the reason action is being taken. This is consistent with arrangements for taxi licences.

Section 171 – deals with a hire car licence subject to conditions. The section makes it explicit that the hire car licence is subject to the conditions that are stated in the licence or form part of the licence.

Section 172 – deals with the form that hire car licences will take. It sets out what a hire car licence must show, eg name and address of person, expiry date, etc. It also provides for the Authority to issue a duplicate restricted hire car licence to be held in the vehicle.

Section 173 – deals with the requirement that hire car licensees must notify the Authority if they change their name or residential address. The requirement is that information concerning the change must be provided to the Authority no later than 14 days from the change, and the licence must be returned to the Authority.

Section 174 – creates an offence for contravening a condition attached to a licence.

Sections 175, 176 and 177 – these are provisions about the processes for the replacement, production and surrender of licences, consistent with corresponding taxi licence provisions.

Section 178 – presents the meaning of hire car driver. Hire car driver means a person who is driving a hire car while it is operating as a hire car.

Section 179 – concerns the maintenance of hire cars. It provides that an accredited operator must not use a vehicle to operate a hire car service or allow someone else to operate the vehicle as a hire car service if it has not been serviced and maintained in accordance with the manufacturers instructions. This is consistent with requirements for buses and taxis.

The section does not apply if there are no manufacturer’s instructions in relation to maintenance, for example where veteran cars are used as restricted hire cars.

Sections 180 to 183 - replicate existing provisions for accredited operators of taxis and buses. They deal with:
• the condition of hire cars;
• drivers being required to hold the appropriate drivers licence or authority;
• the keeping of records concerning hire car drivers; and
• the keeping of records in relation to the hire car service for a period of four years.

Section 184 – this is a new requirement. An operator of a hire car must provide the Authority with a statement on the number of times the hire car was hired in the previous financial year. This will provide information about the hire car industry that will assist in public transport planning and also prospective industry entrants.

Section 185 – requires that an accredited operator of a restricted hire car keep a duplicate of the licence in the vehicle at all times when it is operating as a hire car.

Section 186 – requires that the operator of a restricted hire car must attach the restricted hire car licence label issued to the person. The label must be visible from the outside of the hire car.

There is a lead-in period for this requirement to allow appropriate administrative arrangements to be put in place by the Authority.

Section 187 – deals with the replacement of a licence label. The Authority may issue a replacement licence label to a restricted licence holder if satisfied the label has been lost, stolen or destroyed. This is a standard provision.

Section 188 – requires that all advertisements for hire car services must display the accreditation number of the operator providing the service. This is consistent with requirements for accredited bus service operators. The commencement of this provision is deferred to allow operators to have new advertisements and telephone directory entries made.

Section 189 – requires that where a security camera if fitted in a hire car the operator must ensure that there are signs conspicuously placed alerting people to the presence of a camera and the fact that they may be under video surveillance. This is consistent with requirements for accredited bus and taxi operators.

Section 190 – applies to the air-conditioning of hire cars. If the vehicle is fitted with air-conditioning the operator must ensure that it is in good condition and operational.

Section 191 – provides that an accredited operator must not display an advertisement for anything other than the hire car service in the hire car. This is a new provision that has been agreed with industry.

Section 192 – deals with offensive material in or on hire cars. The accredited operator of a hire car must ensure that an advertisement or other document that a reasonable adult would consider indecent or offensive is not displayed in the hire car. This is consistent with current provisions for other public passenger vehicles.

Section 193 – requires that the accredited operator of a hire car must ensure drivers comply with any dress code of practice approved under section 218. This reflects current provisions for hire car operators.

Section 194 – deals with the hire car operator’s responsibilities for security camera recordings. This section applies if the hire car is fitted with a security camera. The provisions are similar to those for security cameras in taxis.

Section 195 – requires that hire car operators must comply with the service standard for lost property, and replicates the corresponding provisions for taxi service operators.

Section 196- deals with the effect of non-compliance notices on hire car operators. It is consistent with current provisions for taxis and buses, however it clarifies that the provision also applies if an accredited operator allows someone else to use a vehicle to which a non-compliance notice has been attached.

Section 197 to 203 – these provisions deal with hire car drivers’ responsibilities for the condition of hire cars, security cameras, the carriage of goods and animals, lost property, behaviour and dress. The provisions reflect similar provisions for taxi and bus drivers.

Section 204 – requires a hire car driver of a restricted hire car to produce a duplicate licence. This is consistent with current provisions for restricted hire vehicles.

Section 205 – deals with the effect of non-compliance notices for hire car drivers. This section is consistent with requirements for hire car operators in section 196.

Section 206 – deals with soliciting for hire car hiring. A person must not solicit for passengers for, or for a hiring of, a hire car. This section is consistent with current provisions for private hire cars.

Section 207 – provides details of where hire car drivers must stop. This is consistent with current provisions.

Sections 208 and 209 – deal with drivers’ responsibilities regarding extra passengers and fares. The provisions are similar to existing requirements.

Sections 210 to 217 – deal with passengers’ responsibilities regarding behaviour, eating and drinking, the carriage of animals, getting out of hire cars when directed, and lost property. These provisions are consistent with existing provisions.

Section 218 – allows the Authority to approve a code of practice for the dress of hire car drivers, consistent with existing provisions.

Section 219 – enables the Authority to approve standards about security cameras in hire cars. This provision is consistent with current requirements for security cameras in taxis and buses.

Section 220– creates offences for interfering with security cameras in hire cars. These provisions are consistent with current provisions for security cameras in taxis and buses.

Section 221 – enables the Authority to declare, in writing, that the accredited operator of a hire car may use an authorised vehicle as a hire car to transport passengers along a road or road related area.

This is a new provision required for rare situations, such as visits by overseas heads of state, or other dignitaries, when there are not sufficient ACT hire cars.

Details Chapter 6

This Chapter replaces existing Chapter 5 and deals with the taking of disciplinary action in relation to public passenger services.

Section 222 – provides the meaning of service authority. A sub section has been included to include a reference to a hire car licence.

Section 223 – describes when the authority may take action in relation to accreditations and licences. This section is consistent with the current provisions and adds a further ground on which the Authority may take action, i.e. the person has contravened an approved minimum service standard. This will require accredited operators to comply with the minimum service standards and any changes to the standards that may occur from time to time. Operators will be informed of any changes to the standards in advance.

Sections 224 to 227 - replicate existing sections 165 - 168.

Section 228 – provides for the return of a certificate of accreditation or a licence. This section has been altered to include a reference to a hire car licence.

Details Chapter 7

This Chapter replaces existing Chapter 6 and deals with the enforcement of the Road Transport (Public Passenger Services) Regulation 2002.

Section 229 – Purpose of powers under ch 7. The section has been amended to indicate that contraventions of conditions are examples only of situations in which the Authority, a police officer, or an authorised person may exercise powers.

Sections 230 to 235 – replicate existing sections 171 to 176, with each section amended to state that offences are strict liability offences. Also, section 235 is amended so that authorised persons are required to tell a person the reason for asking the person’s name and address, record the reason and, for authorised persons only, show the person his/her identity card.

Details Chapter 8

This Chapter contains the transitional arrangements for the legislation.

Section 236 – provides the definition of a small bus and exempts them from the definition of hire car. The section does not expire until July 2010 consistent with an amendment to section 32C of the Road Transport (Vehicle Registration) Regulation 2000 about a minimum wheelbase restriction that does not expire until that time. Small buses and hire cars currently registered will not have the wheelbase requirement applied to them until that time, provided they continue to be registered by the current registered operator.

Section 237– provides the definitions for the part.

Section 238 to 243 – provide that a range of transactions commenced before the commencement of the legislation, for example applications for the transfer of a hire car licence and applications for restricted hire car licences, are taken to be transactions under the new legislation.

Section 244 – deals with taxi network performance standards. It provides for the continuation of the existing taxi network performance standards until the standards are incorporated in the taxi network minimum service standards.

Section 245 – provides that the above transitional arrangements expire 12 months after commencement.

Section 246 & 247 – modify the Amendment Act to clarify that the holder of a hire car licence is the owner who continues to be the holder and owner of the licence after commencement of the Act.

Section 248 – provides that a small bus operator is taken to be the holder of a leased hire car licence for the period from the commencement of the legislation to the declared date for leased hire car licences. From the declared date, the operator will need to apply for a leased hire car licence.

Section 249 - provides for the issue of leased hire car licences to certain existing licence holders. This section applies to an owner of a perpetual hire car licence, the lessee of a perpetual hire car licence and the registered operator of a small bus. The Authority may issue a leased licence to the person, on application, before the declared date for leased hire car licences. This is to ensure continuity of existing services.

Section 250 – deals with short term leased hire car licences. This section allows existing arrangements for licence variations to continue until 30 days after leased licences become available.

Section 251 – deals with short term restricted hire car licences. The section allows existing arrangements for specific occasion licences to continue until 30 days after leased licences become available.

Section 252 – provides that section 248 to 252 expire 30 days after the declared date for leased hire car licences.

This part has been amended to now include standards about the systems used by the operator to ensure compliance with requirements about bus driver licences and public vehicle insurance.

This part has been amended to include a standard for the maximum waiting times for taxis (replacing deleted section 81 approved performance standards) and a standard for taxi networks to ensure all taxi operators affiliated with the network are accredited and all taxi drivers affiliated with the network are appropriately licensed.

The Standards have been amended to include a standard for taxi operators to ensure compliance with requirements about taxi driver licences. The standards on customer inquiries, complaints, and lost property are deleted as these matters are mainly dealt with by the taxi network rather than the operator.

The matters included in the Minimum Service Standards for hire car service operators are similar to those for bus and taxi service operators eg the cleaning, servicing, maintenance and repair of the hire cars, the training and disciplining of drivers, the keeping of records and the handling of complaints and lost property.

For a hire car service using motorbikes, passenger safety measures are also to be included in the Minimum Service Standards.

Part 1.5 Restricted Hire Car operator services

These standards focus on the cleaning, servicing, maintenance and repair of the hire cars, the keeping of records and, for motorbikes, the safety of passengers. The less complex requirements reflect the more limited nature of services for weddings and school formals only.

These new definitions are required consequentially.

Section 18
The Road Transport (Hire Vehicle Services) Regulation 2000 and the approved network standards 2003 are repealed.

Schedule 1 Road Transport (Public Passenger Services) Regulation 2002 – minor and consequential amendments

1.1 – Regulation 4A
The new items listed under Note 1 include offences from Chapter 5 and the offences in Chapter 7. Items have also been amended to reflect correct numbering.

1.2 – Section 9
The amendment is consequential upon amendments in section 7.

1.3 – Section 11(5)
This is a consequential amendment due to the renumbering of existing Chapter 5.

1.4 – Section 21
This section is amended to make it clear that a bus operator commits an offence if a bus does not comply with both the Road Transport (Vehicle Registration) Act 1999 and the vehicle standards.

1.5 – Section 23
The amendment is made to maintain consistent requirements as to the time allowed to respond to notices. People who are given notices under the Road Transport legislation are generally given 7 rather than 5 days to respond.

1.6 & 1.7 – Sections 34 & 45
The changes make the provisions for non-compliance notices consistent for all public passenger services.

1.8 – Section 81
The power for the Authority to approve taxi network performance standards is deleted. Under new section 244, the existing approved standards will remain in force until minimum service standards for taxi networks are notified.


1.9 – Section 82
New section 82(2) explains that a restricted licence may only be issued to operate a wheelchair accessible taxi or a taxicab based in Queanbeyan. Queanbeyan Cabs are similarly permitted to operate in the ACT under a cross border arrangement with the NSW Ministry of Transport.

1.10 – Sections 83 & 84
New section 83 (4) provides that if an applicant fails to comply with a requirement of the Authority, the Authority may refuse to consider the application further. This will prevent applications being pending indefinitely and is consistent with the process for hire car licence applications.

Section 84 has been amended to include an additional reason why the Authority must refuse to issue a taxi licence ie exceeding the determined number of taxi licences. The amendment also deletes ‘restricted taxi licence’ from section 84 (3) as it is only taxis and wheelchair accessible taxis that are bound by section 32B of the Road Transport (Vehicle Registration) Regulation 2000. Queanbeyan taxis may not be refused a restricted taxi licence due to vehicle age. These taxis must comply with NSW vehicle age requirements.

1.11 – Section 85 (3) (a)
‘The holder of a licence’ is replaced with ‘licensee’ consistent with the new definition of ‘holder’ in the Amendment Act.

1.12 – Sections 86 & 87
The changes to section 86 (1) are drafting refinements. Section 86 (5) is consequentially amended to refer to Chapter 6.

New section 86A makes it clear that a licence is subject to any conditions stated in the licence or in a document stated in the licence to form part of the licence.

The changes to section 87 clarify that this section is solely about the form of licences. Section 82 is concerned with the issue of taxi licences.

1.13 & 1.14 – Sections 88 (1) & 91(2)
The changes to sections 88(1) and 91(2) are drafting style refinements.





1.15 – Section 93
This section is amended to make it clear that a taxi operator commits an offence if a taxi does not comply with both the Road Transport (Vehicle Registration) Act 1999 and the vehicle standards.

1.16 – New Section 100 (4)
Recordings made by a security camera in a taxi are not to be kept in accordance with this section. Section 156 deals with standards about security cameras in taxis, including the period for which recordings must be kept.

1.17 – Section 108 (2)
The change to section 108(2) is a drafting refinement.

1.18 & 1.19 - Sections 112 & 126
The changes to the taxi provisions for non-compliance notices maintain consistency with similar provisions for bus and hire car operators.

1.20 to 1.35
The changes to dictionary definitions are consequential or changes in drafting style.

2.1 – Section 11(2), table of public vehicle licence codes
The table of public vehicle licence codes has been altered to reflect new terminology for hire cars and restricted hire cars.

2.2 – Section 62(3)(f)
A reference to a restricted hire vehicle is replaced with hire car, which includes a restricted hire car. Hire car and restricted hire car licences will be available for motorbikes and this is reflected in the driver licence code for anyone driving a motorbike licensed in this way.

2.3 – Section 87 (3) (b)
This provision effects a drafting change.

2.4 – 2.6

Changes to the dictionary definitions are consequential amendments.

2.7 – Section 3 Heading
The change to the heading is consistent with Dictionary headings in other Road Transport regulations.

2.8 – New section 14 (1) (k)
This amendment adds a reference to a hire car licence in relation to the Authority refunding part of a fee or charge in relation to the issue of or transfer of a taxi licence or hire car licence if the application for the transfer or licence is refused.

2.9 – New section 14 (3) (da)
This amendment adds a reference to a leased hire car licence in relation to the Authority refunding part of a fee or charge in relation to the issue of a restricted taxi licence, wheelchair accessible taxi licence or a leased hire car licence.

2.10 – Section 14 (3)
This is a drafter’s note.

2.11 – Section 16 (1) (h)
This amendment is consequential upon the transfer of the hire car licence provisions from the Road Transport (General) Act 1999 to the Road Transport (Public Passenger Services) Act 2001.

2.12 – Section 25 (3)

‘Motorcycle’ is changed to ‘motorbike’ consistent with terminology in the Road Transport (Driver Licensing) Regulation 2000.

2.13 to 2.15
A range of item numbers in the schedule of reviewable decisions are amended as a result of the transfer of the hire car provisions from the Road Transport (General) Act 1999 to the Road Transport (Public Passenger Services) Act 2001.

2.16 – Dictionary, new definition of service authority
The new definition is inserted for completeness.

Part 2.3 Road Transport (Offences) Regulation 2001

2.17 – Section 8 (1) (c) & (d)
These sections are omitted as a consequence of the deletion of the hire car provisions from the Road Transport (General) Act 1999.

2.18 – Section 8 (1)
This is a drafter’s note.

2.19 – Schedule 1, part 1.7, items 16 to 29
These items are omitted from the schedule of offence short titles as a consequence of the deletion of the hire car provisions from the Road Transport (General) Act 1999.

2.20 – 2.21
These are drafter’s notes.

2.22 - Schedule 1, part 1.8
This amendment is consequential upon the transfer of hire car offences to the Road Transport (Public Passenger Services) Regulation 2002.

2.23 to 2.37
These amendments arise consequentially on the introduction of new hire car offences in the Amendment Regulations and amendments to existing public passenger services offences in the Road Transport (Public Passenger Services) Regulation 2002.

Part 2.4 Road Transport (Safety and Traffic Management) Regulation 2000

Sections 2.38 to 2.44
These amendments arise consequentially on changes to hire car terminology.

Part 2.5 Road Transport (Third Party Insurance) Regulation 2000

Sections 2.45 to 2.50
These amendments arise consequentially on changes to hire car terminology.

Part 2.6 Road Transport (Vehicle Registration) Regulation 2000

2.51 to 2.53 – Section 32 (2), New section 32C and Section 68 (9) (b)
These amendments introduce a minimum wheelbase requirement for hire cars to ensure high quality vehicles are used for these types of services, consistent with arrangements in NSW. The requirement will not apply to currently registered hire cars and small buses until after July 1010.

2.54 – Schedule 1, section 1.60A
Previously under the Road Transport (General) Act 1999, all public vehicles were required to have a fire extinguisher. This section reinstates that provision.

2.55 – Dictionary, new definition of operator
This is a drafting refinement.