Transport Legislation Amendment (Driver and Industry Standards) Act 2008

i Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 2 PART 2—AMENDMENTS TO TRANSPORT ACT 1983 3 3 Definitions—commercial passenger vehicle drivers 3 4 Definitions—taxi-cab industry participants 4 5 Mandatory refusal of accreditation 5 6 Presumption in favour of refusal of accreditation 6 7 Disciplinary actions in respect of accreditation 7 8 Jurisdiction of VCAT 7 9 Driver accreditation—interpretation 7 10 Qualifications for accreditation 8 11 Matters to be considered by Director 9 12 Conditions on accreditation 10 13 Cancellation of accreditation 10 14 Actions the Director may take 11 15 Jurisdiction of VCAT as to category 1 offenders 11 16 New Division 7 inserted in Part VIII 12 Division 7—Transitional Provisions—Transport Legislation Amendment (Driver and Industry Standards) Act 2008 12 274 Accreditations 12 PART 3—AMENDMENT TO WORKING WITH CHILDREN ACT 2005 14 17 New section 32A inserted 14 32A Accredited drivers 14 -- 1 of 19 -- Section Page ii PART 4—REPEAL OF AMENDING ACT 16 18 Repeal of amending Act 16 ═══════════════ ENDNOTES 17 -- 2 of 19 -- 1 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 † No. 85 of 2008 [Assented to 11 December 2008] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purposes The main purposes of this Act are— (a) to amend the Transport Act 1983 in relation to accreditations; and Victoria -- 3 of 19 -- Part 1—Preliminary Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 2 (b) to amend the Working with Children Act 2005 in relation to exemptions for accredited drivers of public passenger vehicles. 2 Commencement This Act comes into operation on the day after the day on which it receives the Royal Assent. __________________ s. 2 -- 4 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 3 PART 2—AMENDMENTS TO TRANSPORT ACT 1983 3 Definitions—commercial passenger vehicle drivers (1) In section 86(1) of the Transport Act 1983, in the definition of category 1 offence, after paragraph (c) insert— "(ca) an offence against section 5A of the Crimes Act 1958; or (cb) an offence against section 318 of the Crimes Act 1958; or". (2) In section 86(1) of the Transport Act 1983, in the definition of category 2 offence— (a) in paragraph (a), for "or (c)" insert ", (c), (cd) or (ce)"; (b) after paragraph (c) insert— "(ca) an offence against section 24 of the Crimes Act 1958 arising out of the driving of a motor vehicle by the offender; or (cb) an offence against section 21A of the Crimes Act 1958; or (cc) an offence against section 60B of the Crimes Act 1958; or (cd) an offence against section 319(1) of the Crimes Act 1958; or (ce) an offence against section 319(1A) of the Crimes Act 1958; or (cf) an offence against section 61 of the Road Safety Act 1986 resulting in a person being killed or suffering serious injury; or s. 3 See: Act No. 9921. Reprint No. 13 as at 2 January 2008 and amending Act Nos 95/2005, 9/2006, 71/2006, 30/2007, 59/2007, 69/2007, 4/2008 and 44/2008. LawToday: www. legislation. vic.gov.au -- 5 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 4 (cg) an offence against section 71AB or 71B of the Drugs, Poisons and Controlled Substances Act 1981; or (ch) an offence against section 46 or 47 or Part 5 of the Sex Offenders Registration Act 2004 (other than section 70); or (ci) an offence against the Serious Sex Offenders Monitoring Act 2005 (other than section 42(3)); or (cj) an offence against section 271.4 (trafficking in children) or section 271.7 (domestic trafficking in children) of the Criminal Code of the Commonwealth other than in circumstances where the purpose of the exploitation is to provide sexual services within the meaning of that section; or". 4 Definitions—taxi-cab industry participants (1) In section 130A(1) of the Transport Act 1983, in the definition of tier 1 offence, after paragraph (c) insert— "(ca) an offence against section 5A of the Crimes Act 1958; or (cb) an offence against section 318 of the Crimes Act 1958; or". (2) In section 130A(1) of the Transport Act 1983, in the definition of tier 2 offence— (a) in paragraph (a), after "(c)" insert ", (ca), (cb)"; s. 4 -- 6 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 5 (b) after paragraph (b) insert— "(ba) an offence against section 24 of the Crimes Act 1958 arising out of the driving of a motor vehicle by the offender; or (bb) an offence against section 319(1) of the Crimes Act 1958; or (bc) an offence against section 319(1A) of the Crimes Act 1958; or (bd) an offence against section 61 of the Road Safety Act 1986 resulting in a person being killed or suffering serious injury; or". (3) In section 130A(2) of the Transport Act 1983— (a) in paragraph (d)(ii)— (i) omit "under"; and (ii) for "offence—" substitute "offence or an offence available as an alternative; or"; (b) after paragraph (d)(ii) insert— "(iii) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 of not guilty because of mental impairment—". 5 Mandatory refusal of accreditation (1) In section 132D(1)(a) of the Transport Act 1983 omit "or as a provider of taxi-cab network services". s. 5 -- 7 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 6 (2) After section 132D(1)(a) of the Transport Act 1983 insert— "(ab) in the case of accreditation as a provider of taxi-cab network services, the applicant or a relevant person in relation to the applicant— (i) has been found guilty of a tier 1 offence other than an offence under section 318 of the Crimes Act 1958; or (ii) is a person who is subject to— (A) reporting obligations referred to in section 12(1)(a) of the Working with Children Act 2005; or (B) an order referred to in section 12(1)(b) of the Working with Children Act 2005; and". (3) After section 132D(3) of the Transport Act 1983 insert— "(4) The licensing authority must not refuse to issue an accreditation to a person on a ground referred to in subsection (1)(a)(i) if a decision to refuse to issue an accreditation or a decision to cancel an accreditation in respect of that person on that ground has previously been overturned by VCAT.". 6 Presumption in favour of refusal of accreditation In section 132E of the Transport Act 1983— (a) in paragraph (b)— (i) omit "or as a provider of taxi-cab network services"; (ii) for "offence—" substitute "offence; or"; s. 6 -- 8 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 7 (b) after paragraph (b) insert— "(c) as a provider of taxi-cab network services if the licensing authority is aware that the applicant, or a relevant person in relation to the applicant, has been found guilty of a tier 2 offence or an offence under section 318 of the Crimes Act 1958—". 7 Disciplinary actions in respect of accreditation In section 135A(3) of the Transport Act 1983, after "132D(1)(a)" insert "or (ab)". 8 Jurisdiction of VCAT In section 136(1)(a) and 136(2)(b) of the Transport Act 1983, after "132D(1)(a)" insert "or (ab)". 9 Driver accreditation—interpretation In section 163(1) of the Transport Act 1983— (a) in paragraph (d)(ii)— (i) omit "under"; and (ii) for "offence—" substitute "offence or an offence available as an alternative; or"; (b) after paragraph (d)(ii) insert— "(iii) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 of not guilty because of mental impairment—". s. 7 -- 9 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 8 10 Qualifications for accreditation For section 167(1) of the Transport Act 1983 substitute— "(1) The Director may require an applicant for driver accreditation to do all or any of the following— (a) to undertake a specified course of training; (b) to hold a specified qualification; (c) to pass tests specified by the Director including tests relating to— (i) the applicant's fitness to drive a vehicle; or (ii) the applicant's medical condition. (1A) The Director may specify courses of training by reference to either or both of the following— (a) the name of the course; (b) the provider of the course. (1B) In specifying a course of training, the Director must be satisfied as to— (a) the content or nature of the course; and (b) the materials, resources and equipment required to provide the course. (1C) In specifying a course of training under this section, the Director must have regard to— (a) the public care objective; and (b) the objective of ensuring that applicants are technically competent to operate a commercial passenger vehicle. s. 10 -- 10 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 9 (1D) Without limiting subsection (1) or (1A), the courses of training, qualifications and tests specified by the Director may include those relating to— (a) the driving of vehicles of a specified class or classes; (b) the knowledge of the names and location of significant streets and places in Melbourne or any other area relevant to the specified class of vehicle; (c) the knowledge and use of the English language; (d) customer service in the field of commercial passenger transport and private bus services. (1E) The Director must publish the name and provider of any course of training specified under this section on the Department's Internet site.". 11 Matters to be considered by Director (1) After section 169(1) of the Transport Act 1983 insert— "(1A) For the purposes of subsection (1), the Director must have regard to whether the applicant has at any time been subject to a finding of a prescribed kind made by, or on behalf of a prescribed body, referred to in section 14(1)(a) of the Working with Children Act 2005.". (2) In section 169(3) of the Transport Act 1983, after "the applicant" insert "is the subject of a charge for a category 1 offence or". (3) In section 169(4)(b) of the Transport Act 1983 for "a disqualifying offence" substitute "a category 2 offence or category 3 offence". s. 11 -- 11 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 10 (4) After section 169(6) of the Transport Act 1983 insert— "(7) The Director must not refuse to issue or renew an accreditation to a person on a ground referred to in subsection (2) if a decision to refuse to issue an accreditation or renew an accreditation or a decision to cancel an accreditation in respect of that person on that ground has previously been overturned by VCAT.". 12 Conditions on accreditation After section 169A(2) of the Transport Act 1983 insert— "(2A) Without limiting subsection (1), the Director may impose on a driver accreditation a condition requiring the holder of the accreditation to undertake a course of training or to pass a test specified under section 167.". 13 Cancellation of accreditation At the end of section 169E of the Transport Act 1983 insert— "(2) The Director must not cancel an accreditation of a person on a ground referred to in subsection (1) if a decision to refuse to issue an accreditation or renew an accreditation or a decision to cancel an accreditation in respect of that person on that ground has previously been overturned by VCAT.". s. 12 -- 12 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 11 14 Actions the Director may take After section 169I(1)(b) of the Transport Act 1983 insert— "(ba) require the holder of the accreditation to undertake a course of training or to pass a test specified under section 167;". 15 Jurisdiction of VCAT as to category 1 offenders (1) In section 169N(3) of the Transport Act 1983 for "objective." substitute "objective; and". (2) After section 169N(3)(b) of the Transport Act 1983 insert— "(c) VCAT is satisfied that— (i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to— (A) the matters set out in section 169C(3)(b)(i) to (x); and (B) any other matter that VCAT considers relevant to the application; and (ii) in all the circumstances, it is in the public interest to make the order.". (3) Section 169N(4) of the Transport Act 1983 is repealed. s. 14 -- 13 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 12 16 New Division 7 inserted in Part VIII After Division 6 of Part VIII of the Transport Act 1983 insert— "Division 7—Transitional Provisions— Transport Legislation Amendment (Driver and Industry Standards) Act 2008 274 Accreditations (1) The amendments made to this Act by sections 4, 5, 6, 7, 8, 9, 11 and 15 of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008 apply to any application for accreditation or renewal of accreditation under Division 4 of Part VI that was made but not finally decided or withdrawn immediately before the commencement of section 16 of that Act. (2) The Director must— (a) immediately after the commencement of section 16 of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008, notify each person who has made an application for accreditation that was not finally decided or withdrawn immediately before that commencement that his or her application will be assessed in accordance with this Act as amended by that 2008 Act; and s. 16 -- 14 of 19 -- Part 2—Amendments to Transport Act 1983 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 13 (b) give each person so notified 28 days to— (i) withdraw his or her application if the person wishes to do so; or (ii) provide the Director with relevant information. (3) The amendments made to this Act by sections 4, 5, 6, 7, 8, 9, 11 and 15 of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008 apply to any accreditation that was held or deemed to be held by a person immediately before the commencement of section 16 of that Act.". __________________ s. 16 -- 15 of 19 -- Part 3—Amendment to Working with Children Act 2005 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 14 PART 3—AMENDMENT TO WORKING WITH CHILDREN ACT 2005 17 New section 32A inserted After section 32 of the Working with Children Act 2005 insert— "32A Accredited drivers (1) A person who engages in work of a kind that requires a current driver accreditation under Division 6 of Part VI of the Transport Act 1983 and, but for this section, would also require a working with children check, is exempt from a working with children check in relation to that work unless— (a) the accreditation has been issued as a result of a decision under section 169(3), 169(4), 169N or 169O of that Act; or (b) the person has been given a negative notice and has not subsequently been given an assessment notice under this Act. (2) The Director of Public Transport (within the meaning of the Transport Act 1983) may give written advice to the Secretary of any of the following findings under that Act— (a) a refusal or suspension or cancellation of a driver accreditation under Division 6 of Part VI of the Transport Act 1983; (b) a refusal to renew a driver accreditation under that Division; s. 17 See: Act No. 57/2005. Reprint No. 2 as at 22 May 2008 and amending Act Nos 21/2008 and 52/2008. LawToday: www. legislation. vic.gov.au -- 16 of 19 -- Part 3—Amendment to Working with Children Act 2005 Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 15 (c) a decision of the Director disqualifying a person applying for a driver accreditation under that Division; (d) the imposition of a condition on a driver accreditation under that Division. (3) Subsection (1) only applies to persons who applied for and were granted a driver accreditation or renewal of driver accreditation after the commencement of section 17 of the Transport Legislation Amendment (Driver and Industry Standards) Act 2008.". __________________ s. 17 -- 17 of 19 -- Part 4—Repeal of Amending Act Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 16 PART 4—REPEAL OF AMENDING ACT 18 Repeal of amending Act This Act is repealed on the first anniversary of the day on which it receives the Royal Assent. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ s. 18 -- 18 of 19 -- Transport Legislation Amendment (Driver and Industry Standards) Act 2008 No. 85 of 2008 17 ENDNOTES † Minister's second reading speech— Legislative Assembly: 3 December 2008 Legislative Council: 3 December 2008 The long title for the Bill for this Act was "A Bill for an Act to amend the Transport Act 1983 and for other purposes." Endnotes -- 19 of 19 --