It’s safe to assume that the Victorian Government (‘VG’) must have read our earlier article entitled, Is Uber Legal In Victoria? On June 7, 2016, it announced that it would introduce urgent legislation to “remove Section 159 of the Transport (Compliance and Miscellaneous) Act 1983 (‘the Act’)”. Following the recent County Court decision, section 159 brought into question the power of the Taxi Services Commission (TSC) to enforce taxi and hire car regulations.

You may recall that Judge Chettle of the County Court of Victoria held in Brenner v Taxi Services Commission that section 159 provided a defence to the charges of operating and/or driving a commercial vehicle without the relevant accreditation, where each passenger wasn’t charged a separate fare for the ride.

However, the VG’s announcement makes it clear that the “legislative amendment is not relevant to considerations concerning ride-sharing”. So if the VG didn’t intend to take a stand on the Uber v Taxi debate, then what is the point of the new legislation?

According to the VG, “The most serious implication of this potential loophole [created by section 159] is that the regulator may not have the power to prevent drivers convicted of serious criminal offences, including sexual offences, from driving a taxi or hire car.”

It’s at this point that one is entitled to ask – is that right? The short answer is, no, not really – that hardly makes any sense.

What Does Section 159 Say?  

Section 159 starts off with the words, “In any prosecution…”, which quite clearly means that it relates to a situation in which a person is being prosecuted for an offence under the Act. “Prevention” relates to stopping an act before its has occurred, the prosecution is what happens afterwards.

Fit and Proper Person 

Moreover, other sections of the Act address the question of how to prevent unsuitable people from becoming a taxi or hire car drivers. For example, under section 166 of the Act, applicants for driver accreditation by the Taxi Services Commission (TSC) must be ‘fit and proper people’. Applicants are required to consent to the TSC conducting a National Police History Check to determine eligibility to become a taxi driver. Separately, Uber requires all “ridesharing partners” to “pass a rigorous criminal history police check, as well as undergoing a driving history check”.

Section 159 does not then permit a person convicted of a serious criminal offence to drive a taxi or hire car. In practice, its only purpose is to provide a defence to a charge under the Act.

What is the Practical Effect of the New Legislation?

One major outcome of the new legislation is to enable the TSC to prosecute Uber drivers effectively because not every passenger needs to be responsible for the fare for the prosecution to succeed. Interestingly, taxi drivers will also no longer be able to rely on the defence used by Brenner and this takes us back to the VG’s statement discussed earlier.

It appears that the VG may have been concerned that those taxi drivers who made false declarations (or rather no declaration) as to their criminal record, or who otherwise fell foul of the Act would be able to defend many prosecutions successfully on the back of Brenner’s case. This much would seem to be correct.

However, it is a long bow to say that the recent legislative change ‘prevents’ convicted criminals from driving a taxi or hire car – it merely removes a defence under the Act, one which an Uber driver coincidentally happened to rely on in a very recent case. 

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Noam Greenberger

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