Despite the widespread use of ridesharing services across the country, some governments are dragging their feet to legalise and regulate. One only needs to look at the growing number of court proceedings involving Uber to see that the uncertainty surrounding the status of platforms is continuing to cause problems for users, drivers and taxi operators. 

Not only are these proceedings tying up judicial resources in an attempt to stop the inevitable, but the uncertainty also means that members of the taxi industry are not yet receiving adequate support or compensation. Cumbersome statutory requirements further compound this loss as taxi operators are unable, in some respects, to adapt their business model.

Western Australia

Western Australia has yet to legalise and regulate Uber leaving taxi drivers with high-level expenses mandated by statute, while their currently illegal and unregulated competition is not subject to similar scrutiny.

Over 20 Uber drivers are currently facing prosecution for operating vehicles as a taxi without taxi plates or fitting appropriate cameras required under law. The Department of Transport has indicated that they’ll not be prosecuting any other Uber drivers until after the current matters have all been resolved. 

A perceived lax approach to enforcing current regulations prompted the taxi industry to take action. Approximately 400 taxi plate owners commenced court proceedings against the WA Department of Transport for failing to respond properly to the widespread use of Uber in WA.  

Unfortunately, for the taxi industry, Justice Tottle of the Supreme Court of Western Australia dismissed their case. Justice Tottle determined that the response of the Department of Transport was more a political question than a legal one. This decision reverted the matter to the legislature (government) and the executive (the Department of Transport) branches. Due to the separation of powers in Australia, the judiciary’s role is to interpret the laws. It does not extend to determining whether a response by the executive branch was adequate or whether the laws created by the legislature are appropriate and relevant to a market experiencing significant disruption.

What Does This Mean for Western Australia?

Justice Tottle’s decision means that rideshare drivers and taxi drivers will be left in limbo until the WA government and Department of Transport finalise an approach. The current Transport Minister, Dean Nalder, has indicated that changes soon made public will reduce the financial burden on taxi drivers and increase the regulatory requirements of ride-share drivers. The move will aim to improve safety for rideshare users and provide financial support to members of the taxi industry. However, Mr Nalder has indicated that these changes will likely only come into effect in early-mid 2017.

Victoria

While Western Australia is taking steps toward legalising and regulating ride sharing, Victoria seems to be lagging well behind other states. Despite enjoying the status of being one of the most progressive Premiers in the country, Daniel Andrews has surprisingly little time for such a big issue with several reports suggested that the Premier has stated he is “too busy” to meet with Uber representatives. 

In earlier efforts to halt the rideshare service, the Victorian government took to prosecuting Uber drivers. One driver, Nathan Brenner, was required to pay a $900 fine and the prosecution’s costs after he was found guilty of a number of offences. Mr Brenner then appealed the decision to the County Court where he succeeded in his application to have the fine set aside. This has not, however, cleared up any ambiguity surrounding Uber’s legal status in Victoria and it remains exempt from regulation that would improve safety for passengers and fairness for taxi operators. 

Why Can the Court Make a Decision in Victoria and Not Western Australia?

There is a significant difference between the two cases – in Western Australia, the Supreme Court would have been required to decide whether the government and Department of Transport were doing enough to enforce the laws. In short, it wasn’t a question of law but one of policy.

By contrast, the County Court of Victoria’s decision hinged on a legal question requiring the Court to determine whether the operation of one section of the Act applied to the present case – it was then a question of legal interpretation. 

Victorian County Court Judge Chettle best summarised the role of the Court when he said, “it is no part of my function to amend or repeal sections of the legislation. It is my task to give meaning to legislation.” 

That is, Judge Chettle was required to interpret whether the law, heavily based on an Act from 1929, required a driver to provide transport to passengers for reward on the basis of “separate and distinct fares for each passenger”. As an Uber fare covers all passengers in the car, whether there be 1 or 4 passengers, Mr Brenner had not actually committed an offence. The result? Until the law in Victoria is amended, the fare structure of the Uber platform means its drivers will likely have a defence to the current requirement that you must have a taxi plate to transport passengers for a fee (although the Victorian Government is likely to close this loophole in the near future). 

Key Takeaways 

Western Australia and Victoria still lag behind the ACT and NSW in legalising Uber. It is becoming increasingly evident that existing laws are ill-suited to regulating a business model and service that does not fit the traditional definitions our laws were designed to address. The result of this outdated legislation and inaction by governments means that not only are consumers denied access to a legal, regulated and more competitive market, the cumbersome legal requirements for taxi drivers are also preventing them from adapting their existing model. 

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Thomas Richman

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