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COMMERCIAL PASSENGER VEHICLE INDUSTRY AMENDMENT (FURTHER REFORMS) ACT 2017 (NO. 63 OF 2017) - SECT 18

New Parts 2 to 10 inserted

After Part 1 of the Principal Act insert

" Part 2—Safety principles and duties

Division 1—Principles of commercial passenger vehicle safety

        16     Principle of shared responsibility

    (1)     Commercial passenger vehicle safety is the shared responsibility of—

        (a)     owners of motor vehicles used to provide commercial passenger vehicle services; and

        (b)     drivers of motor vehicles used to provide commercial passenger vehicle services ; and

        (c)     booking service providers; and

        (d)     persons who have control over the provision of commercial passenger vehicle services; and

        (e)     suppliers of services and equipment to the commercial passenger vehicle industry; and

        (f)     the regulator; and

        (g)     members of the public.

    (2)     The level and nature of responsibility that a person referred to in subsection (1), or a person within a class of persons referred to in subsection (1), has for commercial passenger vehicle safety is dependent on—

        (a)     the nature of the risk to commercial passenger vehicle safety that the person creates from the carrying out of an activity or the making of a decision; and

        (b)     the capacity that that person has to control, eliminate or mitigate that risk or any other risk to commercial passenger vehicle safety.

        17     Principle of accountability for managing safety risks

Managing risks associated with the provision of commercial passenger vehicle services is the responsibility of the person best able to control the risk.

        18     Principle of enforcement

Enforcement of this Act and the regulations should be undertaken for the purpose of—

        (a)     protecting public safety; and

        (b)     promoting improvement in commercial passenger vehicle safety; and

        (c)     removing any incentive for unfair commercial advantage that might be derived from contravening the safety requirements under this Act or the regulations; and

        (d)     influencing the attitude and behaviour of persons whose actions may have adverse impacts on commercial passenger vehicle safety.

        19     Principle of timeliness and transparency

Regulatory decision-making processes for the commercial passenger vehicle industry should be timely and transparent.

        20     Principle of participation, consultation and involvement of all affected persons

The persons and classes of persons referred to in section 16(1) should—

        (a)     participate in or be able to participate in; and

        (b)     be consulted on; and

        (c)     be involved in—

the formulation and implementation of measures to manage risks to commercial passenger vehicle safety.

        21     Effect of principles under this Division

The Parliament does not intend by this Division to create in any person any legal right or give rise to any civil cause of action.

Division 2—The concept of ensuring safety

        22     The concept of ensuring safety

    (1)     To avoid doubt, a duty imposed on a person under this Act or the regulations to ensure, so far as is reasonably practicable, safety, requires the person to—

        (a)     eliminate risks to safety so far as is reasonably practicable; and

        (b)     if it is not reasonably practicable to eliminate risks to safety, to reduce those risks so far as is reasonably practicable.

    (2)     To avoid doubt, for the purposes of this Part or regulations made for the purposes of this Part regard must be had to the following matters in determining what is (or was at a particular time) reasonably practicable in relation to ensuring safety—

        (a)     the likelihood of the hazard or risk concerned eventuating;

        (b)     the degree of harm that would result if the hazard or risk eventuated;

        (c)     what the person concerned knows, or ought reasonably to know, about the hazard or risk and any ways of eliminating or reducing the hazard or risk;

        (d)     the availability and suitability of ways to eliminate or reduce the hazard or risk;

        (e)     the cost of eliminating or reducing the hazard or risk.

Division 3—Safety duties

        23     Duties of owners of motor vehicles used to provide commercial passenger vehicle services

    (1)     An owner of a motor vehicle who knows, or ought reasonably to know, that the vehicle is being used, or is to be used, to provide commercial passenger vehicle services must, so far as is reasonably practicable, ensure those services are provided safely.

Penalty:     In the case of an individual, 1800 penalty units;

In the case of a body corporate, 9000 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     Without limiting subsection (1), an owner contravenes that subsection if the owner fails to do any of the following—

        (a)     maintain the vehicle in a fit, serviceable and safe condition;

        (b)     provide or maintain any equipment or systems used in the vehicle in accordance with the regulations;

        (c)     provide sufficient information or instruction to the driver of the vehicle who is using it to provide commercial passenger vehicle services to enable that driver to provide those services safely.

    (3)     An offence against subsection (1) is an indictable offence.

        24     Duties of booking service providers

    (1)     A booking service provider must, so far as is reasonably practicable, ensure commercial passenger vehicle services provided by an associated driver are provided safely.

Penalty:     In the case of an individual, 1800 penalty units;

In the case of a body corporate, 9000 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     Without limiting subsection (1), a booking service provider contravenes that subsection if the booking service provider fails to do any of the following—

        (a)     identify and manage risks to safety associated with commercial passenger vehicle services provided by an associated driver;

        (b)     acquire and maintain a database of the hazards or risks relating to the provision of commercial passenger vehicle services by associated drivers and the measures taken to eliminate or reduce the hazards or risks;

        (c)     provide information, instruction, training or supervision to associated drivers to enable those drivers to provide commercial passenger vehicle services safely, including implementing systems or processes for—

              (i)     the management of driver fatigue; and

              (ii)     drug and alcohol testing of drivers; and

              (iii)     the maintenance of commercial passenger vehicles; and

              (iv)     emergency management; and

              (v)     driver behaviour, competency and medical fitness.

    (3)     An offence against subsection (1) is an indictable offence.

    (4)     In this section—

"associated driver", in relation to a booking service provider, means a driver of a motor vehicle who provides commercial passenger vehicle services through booking services provided by the provider.

        25     Duties of persons who have control over the provision of commercial passenger vehicle services

    (1)     A person who has control over the provision of commercial passenger vehicle services, must, so far as is reasonably practicable, ensure those services are provided safely.

Penalty:     In the case of an individual, 1800 penalty units;

In the case of a body corporate, 9000 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     An offence against subsection (1) is an indictable offence.

    (3)     For the purposes of this section—

        (a)     a reference to a person who has control over the provision of commercial passenger vehicle services includes a person who would have control if not for any agreement purporting to limit or remove that control; and

        (b)     a passenger of a motor vehicle who is being provided commercial passenger vehicle services does not have control over the provision of those services.

        26     Duties of suppliers of services or equipment

    (1)     A person who supplies, installs, maintains, repairs or modifies any thing and knows, or ought reasonably to know, that the thing is used, or is to be used, in the provision of commercial passenger vehicle services must—

        (a)     ensure, so far as is reasonably practicable, that the thing is safe when used for a purpose for which it was supplied, installed, maintained, repaired or modified; and

        (b)     carry out, or arrange the carrying out, of such testing and examination as may be necessary for compliance with this section; and

        (c)     in the case of a thing to which paragraph (a) applies, take such action as is necessary to ensure that there will be available in connection with the use of the thing adequate information about—

              (i)     the use for which the thing was supplied, installed, maintained, repaired or modified; and

              (ii)     the results of any testing or examination referred to in paragraph (b); and

              (iii)     any conditions necessary to ensure the thing is safe when used for a purpose for which it was supplied, installed, maintained, repaired or modified.

Penalty:     In the case of an individual, 1800 penalty units;

In the case of a body corporate, 9000 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     An offence against subsection (1) is an indictable offence.

    (3)     For the purposes of subsection (1), if the person who supplies the thing—

        (a)     carries on the business of financing the acquisition of the thing by customers; and

        (b)     has, in the course of that business, acquired an interest in the thing solely for the purpose of financing its acquisition by a customer from a third person or its provision to a customer by a third person; and

        (c)     has not taken possession of the thing or has taken possession of it solely for the purpose of passing possession to that customer—

the reference in that subsection to the person who supplies that thing is instead taken to be a reference to the third person.

    (4)     This section does not apply to a person who designs, commissions, constructs or manufactures a motor vehicle.

    (5)     In this section—

"supplies" includes designs, commissions, constructs or manufactures.

        27     Duties of drivers providing commercial passenger vehicle services

    (1)     A driver of a motor vehicle who provides or will be providing commercial passenger vehicle services by means of the vehicle must—

        (a)     take reasonable care for the driver's own health and safety; and

        (b)     take reasonable care for the health and safety of persons who may be affected by the driver's acts or omissions; and

        (c)     co-operate with a booking service provider with respect to any action taken by the booking service provider to comply with a requirement imposed by or under this Act or the regulations.

Penalty:     1800 penalty units.

    (2)     An offence against subsection (1) is an indictable offence.

Division 4—Codes of practice

        28     Codes of practice

    (1)     For the purposes of providing practical guidance to persons who may be placed under a duty by or under Division 3, the Minister may, subject to section 32, approve one or more codes of practice.

    (2)     A code of practice—

        (a)     may consist of any code, standard, rule, specification or provision relating to any aspect of commercial passenger vehicle service safety; and

        (b)     may apply, incorporate or adopt any document formulated or published by any body or authority as in force at the time the code of practice is approved, or as amended, formulated or published from time to time.

    (3)     The approval of a code of practice takes effect on the day on which notice of the approval is published in the Government Gazette, or any later day specified in the notice.

Note

A code of practice approved under this section is disallowable by either House of Parliament (see section 35).

        29     Revisions to approved codes of practice

    (1)     Subject to section 32, the Minister may—

        (a)     approve any revision of the whole, or any part, of an approved code of practice; or

        (b)     revoke the approval of a code of practice.

    (2)     The approval of a revision to an approved code of practice takes effect on the day on which notice of the approval of the revision is published in the Government Gazette, or on any later day specified in the notice.

        30     Revocation of approvals of codes of practice

The approval of a code of practice ceases to have effect at the end of the day on which notice of the revocation of the approval is published in the Government Gazette, or on any later day specified in the notice.

        31     Availability of approved codes of practice

    (1)     The Minister must give to the regulator—

        (a)     a current copy of every approved code of practice; and

        (b)     a copy of every document applied, incorporated or adopted by an approved code of practice (in the form in which that document has effect in the approved code of practice).

    (2)     On receiving the documents under subsection (1), the regulator must—

        (a)     make them available for inspection by members of the public without charge at the regulator's office during normal office hours; and

        (b)     publish them on the regulator's internet site.

        32     Minister must consult before approving code of practice or revision to code of practice

Before the Minister approves a code of practice or any revision of the whole, or any part, of an approved code of practice under section 28 or 29, the Minister must consult with persons or bodies that the Minister considers may be affected by the code of practice, or revision of an approved code of practice, to be approved.

        33     Effect of approved code of practice

A person is not civilly or criminally liable by reason only that the person has failed to observe any provision of an approved code of practice.

Note

A person who complies with an approved code of practice may however be taken to have complied with this Act (see section 34).

        34     Effect of compliance with regulations or approved codes of practice

    (1)     This section applies if—

        (a)     the regulations or an approved code of practice make provision for or with respect to a duty or obligation imposed by this Act or the regulations; and

        (b)     a person complies with the regulations or the approved code of practice to the extent that it makes that provision.

    (2)     The person is, for the purposes of this Act and the regulations, taken to have complied with this Act or the regulations in relation to that duty or obligation.

        35     Tabling and disallowance of approved codes of practice

    (1)     On or before the 6th sitting day after an approved code of practice is published in the Government Gazette, the Minister must ensure that a copy of that code is laid before each House of the Parliament.

    (2)     A failure to comply with subsection (1) does not affect the operation or effect of the code of practice but the Scrutiny of Acts and Regulations Committee of the Parliament may report the failure to each House of the Parliament.

    (3)     A code of practice may be disallowed in whole or in part by either House of Parliament.

    (4)     Part 5 of the Subordinate Legislation Act 1994 applies to a code of practice as if—

        (a)     a reference in that Part to statutory rule were a reference to a code of practice; and

        (b)     a reference in section 23(1)(c) of that Act to section 15(1) were a reference to subsection (1).

    (5)     A reference to a code of practice in this section includes a reference to any amendment to, or revision of the whole or any part of, a code of practice.

Part 3—Registration of commercial passenger vehicles

Division 1—Preliminary

        36     Purpose of registration

The purpose of registering motor vehicles as commercial passenger vehicles is to provide a method of establishing the identity of those vehicles and of who is using them to provide commercial passenger vehicle services.

Division 2—Commercial passenger vehicle registration offences

        37     Offence to drive unregistered vehicle for commercial passenger vehicle service

    (1)     A person must not drive a motor vehicle for the purpose of providing a commercial passenger vehicle service if the vehicle is not registered under this Part.

Penalty:     60 penalty units.

    (2)     Subsection (1) does not apply if the person driving the motor vehicle is an employee of the owner of the vehicle.

Note

Section 38 provides that in those circumstances it is the owner who commits the offence.

        38     Offence to drive unregistered vehicle for commercial passenger vehicle service as employee

    (1)     The owner of a motor vehicle commits an offence if—

        (a)     a person drives the motor vehicle for the purpose of providing a commercial passenger vehicle service; and

        (b)     that person is an employee of the owner; and

        (c)     the vehicle is not registered under this Part.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 60 penalty units for an individual or 300 penalty units for a body corporate.

        39     Offence to provide booking service involving unregistered vehicle

    (1)     A person who provides a booking service commits an offence if—

        (a)     a commercial passenger vehicle service is provided as a result of the provision of the booking service; and

        (b)     the motor vehicle used for the purpose of providing the commercial passenger vehicle service is not registered under this Part.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 60 penalty units for an individual or 300 penalty units for a body corporate.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this section.

Division 3—Commercial passenger vehicle registration

        40     Application for registration

    (1)     The owner of a motor vehicle or a person who has the owner's permission may apply to the regulator for the registration of the vehicle under this Part.

    (2)     An application under subsection (1) must—

        (a)     be made in the manner and form approved by the regulator; and

        (b)     be accompanied by—

              (i)     any information or thing required by the regulator; and

              (ii)     the fee (if any) for the application determined by the regulator under section 282.

    (3)     If the applicant is not the owner of the motor vehicle, an application under subsection (1) must also include the name of the owner of the vehicle.

        41     Regulator may require further things or information

    (1)     The regulator may require any one or more of the following in relation to an application under section 40—

        (a)     the applicant do a thing specified by the regulator that the regulator reasonably requires in order to assess the application;

        (b)     verification, by a statutory declaration, of any statement made or information given for the purposes of the application;

        (c)     the applicant give further information for the purposes of the application.

    (2)     Any further information given by the applicant under subsection (1)(c) must be—

        (a)     if the regulations so provide, signed in accordance with the regulations; and

        (b)     declared by each signatory to be true and correct.

        42     Decision on application for registration

The regulator must register a motor vehicle under this Part if the regulator is satisfied that all requirements in relation to the application and applicant under this Part have been complied with.

        43     Conditions on registration

    (1)     In registering a motor vehicle under this Part, the regulator may impose any conditions on the registration that the regulator considers appropriate.

    (2)     If the regulator decides to impose conditions on the registration, the regulator must give the person in whose name the vehicle is registered under this Part written notice of the decision.

    (3)     A notice under subsection (2) must inform the person that they have a right to seek review of the decision under Part 12.

    (4)     A registration is also subject to any prescribed condition.

        44     Registration as a commercial passenger vehicle lasts until cancelled or surrendered

Registration as a commercial passenger vehicle remains in effect until it is cancelled or surrendered.

        45     Annual registration fees

    (1)     A person in whose name a motor vehicle is registered under this Part must pay to the regulator the appropriate annual registration fee by the date specified by written notice given to the person by the regulator.

Note

For the annual registration fee, see section 282.

    (2)     The date specified in a notice under subsection (1) must not be less than 10 business days after the date the notice is given to the person.

    (3)     The regulator may suspend or cancel the registration of a motor vehicle under this Part if the person in whose name the motor vehicle is registered fails to pay a registration fee by the date specified by the regulator.

        46     Regulator may vary or revoke conditions or impose new conditions

    (1)     The regulator may at any time (on the regulator's own initiative or on the written application of the person in whose name a motor vehicle is registered under this Part)—

        (a)     vary or revoke a condition imposed by the regulator on a registration; or

        (b)     impose a new condition on a registration.

    (2)     Before taking action under subsection (1), the regulator must—

        (a)     give the person written notice of the action that the regulator proposes to take and of the reasons for taking it; and

        (b)     allow the person to make written representations about the proposed action within 10 business days after being notified of it (or any other period that the regulator and the person agree).

    (3)     Subsection (2) does not apply if the regulator considers it necessary to take immediate action in the interests of public safety.

    (4)     The regulator must give the person written notice of the action taken under subsection (1) as soon as practicable after taking the action.

    (5)     A notice under subsection (4) must—

        (a)     include a statement of reasons for the action taken; and

        (b)     inform the person that they have a right to seek review of the regulator's decision to take the action under Part 12.

        47     Offence to fail to comply with conditions of registration

A person in whose name a motor vehicle is registered under this Part must comply with—

        (a)     any condition imposed on the registration of that vehicle; and

        (b)     any prescribed condition to which that registration is subject.

Penalty:     In the case of an individual, 120 penalty units;

In the case of a body corporate, 600 penalty units.

        48     Cancellation of registration

    (1)     The regulator, by written notice given to the person in whose name a motor vehicle is registered under this Part, may cancel the registration of that vehicle—

        (a)     if the regulator believes, on reasonable grounds, that the vehicle is no longer being used to provide commercial passenger vehicle services; or

        (b)     for any prescribed reason.

    (2)     A notice under subsection (1) must—

        (a)     include a statement of reasons for the cancellation; and

        (b)     inform the person that they have a right to seek review of the regulator's decision under Part 12.

    (3)     A cancellation of registration has effect from the date specified for the purpose by the regulator in the notice of cancellation.

Note

Registration of a motor vehicle may also be cancelled under Part 9.

        49     Surrender of registration

    (1)     The person in whose name a commercial passenger vehicle is registered under this Part may apply in writing to the regulator for consent to surrender the registration of that vehicle.

    (2)     Subject to subsection (3), on receiving an application under subsection (1), the regulator must consent to the surrender.

    (3)     The regulator may impose any condition on the grant of the consent that the regulator considers necessary to protect the interests of a third party.

    (4)     A person commits an offence if—

        (a)     the regulator imposes a condition on a consent to surrender the registration of a commercial passenger vehicle; and

        (b)     the condition applies to the person; and

        (c)     the person does not comply with the condition.

    (5)     A person who commits an offence against subsection (3) is liable to a penalty not exceeding 20 penalty units.

Division 4—Miscellaneous

        50     False representation in relation to registration

A person must not falsely represent that a motor vehicle is registered under this Part.

Penalty:     In the case of an individual, 30 penalty units;

In the case of a body corporate, 150 penalty units.

        51     Indication that a vehicle is a commercial passenger vehicle

    (1)     A person commits an offence if the person drives a commercial passenger vehicle for the purpose of providing a commercial passenger vehicle service and—

        (a)     there is not prominently displayed on the vehicle, and clearly visible to persons approaching it, any thing that the regulations require to be so displayed to visually indicate that the vehicle is being used to provide a commercial passenger vehicle service; or

        (b)     a thing that the regulations require to be installed and operating in or on the vehicle to indicate that the vehicle is being used to provide a commercial passenger vehicle service is not installed and operating in accordance with the regulations.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 60 penalty units.

Part 4—Registration of booking service providers

Division 1—Preliminary

        52     Purpose of registration

The purpose of registration under this Part is to—

        (a)     provide a method of establishing the identity of—

              (i)     the providers of booking services; and

              (ii)     the persons responsible for managing activities relating to the provision by those providers of those services; and

        (b)     enable booking service providers to be regulated for reasons of public safety; and

        (c)     ensure that booking service providers meet prescribed safety standards.

Division 2—Booking service offences

        53     Offence if provider of booking service is not registered

A person must not provide a booking service unless the person—

        (a)     is registered under this Part to provide that service; or

        (b)     is exempted under the regulations from the requirement to be registered under this Part to provide that service.

Penalty:     In the case of an individual, 240 penalty units;

In the case of a body corporate, 1200 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this section.

        54     Offence to advertise booking services unless registered

A person must not advertise or in any way hold themselves out as able or willing to provide a booking service unless the person—

        (a)     is registered under this Part to provide that service; or

        (b)     is exempted under the regulations from the requirement to be registered under this Part to provide that service.

Penalty:     In the case of an individual, 240 penalty units;

In the case of a body corporate, 1200 penalty units.

        55     Offence to accept request from unregistered booking service provider

    (1)     A person commits an offence if—

        (a)     the person accepts a request from a booking service provider for a person to be provided with a commercial passenger vehicle service; and

        (b)     the person knows, or ought reasonably to know, that the provider—

              (i)     is not registered under this Part; and

              (ii)     is not exempted under the regulations from the requirement to be registered under this Part.

    (2)     A person who commits an offence against subsection (1) is liable to—

        (a)     for a person who is a booking service provider, a penalty not exceeding 240 penalty units for an individual or 1200 penalty units for a body corporate; and

        (b)     for a person who is an accredited driver, a penalty not exceeding 60 penalty units; and

        (c)     in any other case, a penalty not exceeding 50 penalty units.

        56     False representation in relation to registration

A person must not falsely represent that the person—

        (a)     is registered under this Part; or

        (b)     is exempted under the regulations from the requirement to be registered under this Part.

Penalty:     In the case of an individual, 30 penalty units;

In the case of a body corporate, 150 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this section.

Division 3—Booking service provider registration

        57     Application for registration

    (1)     A person may apply to the regulator for registration under this Part as a booking service provider.

    (2)     An application must—

        (a)     be made in the manner and form determined by the regulator; and

        (b)     be accompanied by—

              (i)     the fee (if any) for the application determined by the regulator under section 282; and

              (ii)     evidence, as required by the regulations, that each relevant person in relation to the applicant satisfies the requirements for registration; and

              (iii)     any other thing that is required by the regulations; and

        (c)     in the case of an application by a person that is not an individual, nominate a relevant person as the responsible person in relation to the applicant.

    (3)     The regulator may require any one or more of the following in relation to an application—

        (a)     the applicant do a thing specified by the regulator that the regulator reasonably requires in order to assess the application;

        (b)     verification, by a statutory declaration, of any statement made or information given for the purposes of the application;

        (c)     the applicant give further information for the purposes of the application.

    (4)     Any further information given by the applicant under subsection (3)(c) must be—

        (a)     if the regulations so provide, signed in accordance with the regulations; and

        (b)     declared by each signatory to be true and correct.

    (5)     In the case of an application by a person that is not an individual, the regulator is entitled to communicate with the relevant person nominated by the applicant under subsection (2)(c).

        58     Decision on application for registration

    (1)     The regulator must register an applicant under this Part if satisfied that—

        (a)     the applicant is a fit and proper person to be registered; and

        (b)     all requirements in relation to the application and applicant under this Part have been complied with.

    (2)     The regulator must refuse to register an applicant under this Part if the regulator is not satisfied about the matters set out in subsection (1)(a) and (b).

        59     Notification and reasons to be given if application refused

    (1)     If the regulator decides to refuse to register an applicant, the regulator must give the applicant written notice of the decision as soon as practicable after making the decision.

    (2)     A notice under subsection (2) must—

        (a)     include a statement of reasons for the decision; and

        (b)     inform the applicant that they have a right to seek review of the regulator's decision under Part 12.

        60     Conditions on registration

    (1)     In registering an applicant, the regulator may impose any conditions on the registration that the regulator considers appropriate.

    (2)     If the regulator decides to impose conditions on the registration, the regulator must give the registered booking service provider written notice of the decision.

    (3)     A notice under subsection (2) must inform the registered booking service provider that they have a right to seek review of the decision under Part 12.

    (4)     A registration is also subject to any prescribed condition.

        61     Registration lasts until cancelled or surrendered

A registration remains in effect until it is cancelled or surrendered.

        62     Annual registration fees

    (1)     A registered booking service provider must pay to the regulator the appropriate annual registration fee by the date specified by written notice given to the provider by the regulator.

Note

For the annual registration fee, see section 282.

    (2)     The date specified in a notice under subsection (1) must not be less than 10 business days after the date the notice is given to the registered booking service provider.

    (3)     The regulator may suspend or cancel the registration of a registered booking service provider if the provider fails to pay a registration fee by the date specified by the regulator.

        63     Regulator may vary or revoke conditions or impose new conditions

    (1)     The regulator may at any time (on the regulator's own initiative or on the written application of a registered booking service provider)—

        (a)     vary or revoke a condition imposed by the regulator on a registration; or

        (b)     impose a new condition on a registration.

    (2)     Before taking action under subsection (1), the regulator must—

        (a)     give the registered booking service provider written notice of the action that the regulator proposes to take and of the reasons for taking it; and

        (b)     allow the registered booking service provider to make written representations about the proposed action within 10 business days after being notified of it (or any other period that the regulator and the provider agree).

    (3)     Subsection (2) does not apply if the regulator considers it necessary to take immediate action in the interests of public safety.

    (4)     The regulator must give the registered booking service provider written notice of the action taken under subsection (1) as soon as practicable after taking the action.

    (5)     A notice under subsection (4) must—

        (a)     include a statement of reasons for the action taken; and

        (b)     inform the registered booking service provider that they have a right to seek review of the regulator's decision to take the action under Part 12.

        64     Offence to fail to comply with conditions of registration

A registered booking service provider must comply with—

        (a)     any condition imposed on the registration; and

        (b)     any prescribed condition to which that registration is subject.

Penalty:     In the case of an individual, 120 penalty units;

In the case of a body corporate, 600 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this section.

        65     Registered booking service provider must notify change to information

    (1)     A registered booking service provider commits an offence if—

        (a)     a change occurs to information relating to that provider's registration that is prescribed; and

        (b)     the provider does not notify the regulator of the change in writing within 10 business days after becoming aware of it.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        66     Surrender of registration

    (1)     A registered booking service provider may apply in writing to the regulator for consent to surrender the registration.

    (2)     Subject to subsection (3), on receiving an application under subsection (1), the regulator must consent to the surrender.

    (3)     The regulator may impose any condition on the grant of the consent that the regulator considers necessary to protect the interests of a third party.

    (4)     A person commits an offence if—

        (a)     the regulator imposes a condition on a consent to surrender the registration of a booking service provider; and

        (b)     the condition applies to the person; and

        (c)     the person does not comply with the condition.

    (5)     A person who commits an offence against subsection (3) is liable to a penalty not exceeding 20 penalty units.

Division 4—Miscellaneous

        67     Offence to provide booking service that results in commercial passenger vehicle service being provided by non-accredited drivers

    (1)     A person who provides a booking service commits an offence if—

        (a)     a commercial passenger vehicle service is provided as a result of the provision of the booking service; and

        (b)     the commercial passenger vehicle service is being provided by a driver of the commercial passenger vehicle service who is not an accredited driver.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 60 penalty units for an individual or 300 penalty units for a body corporate.

Part 5—Commercial passenger vehicle driver accreditation

Division 1—Preliminary

        68     References in this Part to persons found guilty of an offence

In this Part, a reference to a person who has been found guilty of an offence is a reference to a person—

        (a)     against whom a court has made a formal finding that the person is guilty of the offence that has not been subsequently quashed or set aside by a court; or

        (b)     from whom a court has accepted a plea that the person is guilty of the offence that has not been subsequently quashed or set aside by a court; or

        (c)     from whom a court has accepted an admission under section 100 of the Sentencing Act 1991 that the person has committed the offence, or from whom a similar admission has been accepted under a provision of a law of a jurisdiction other than Victoria that substantially corresponds to that section, that has not been subsequently quashed or set aside by a court; or

        (d)     in relation to whom any of the following infringement notices has taken effect as a conviction for the offence specified in the notice

              (i)     a safety work infringement notice to which section 95(1) of the Transport (Safety Schemes Compliance and Enforcement) Act 2014 applies;

              (ii)     an infringement notice to which section 61A(2) of the Marine (Drug, Alcohol and Pollution Control) Act 1988 applies;

              (iii)     a traffic infringement notice to which section 89A(2) of the Road Safety Act 1986 applies; or

        (e)     against whom a finding has been made under—

              (i)     section 17(1)(b) or 38X(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the person was not guilty of the offence because of mental impairment; or

              (ii)     section 17(1)(c) or 38X(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 that the person committed the offence or an offence available as an alternative; or

              (iii)     the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 of not guilty because of mental impairment; or

        (f)     against whom a finding similar to a finding referred to in paragraph (e) has been made under a provision of a law of a jurisdiction other than Victoria that substantially corresponds to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or to a provision of that Act referred to in paragraph (e).

        69     Public care objective

The public care objective is the objective that the services provided by drivers of commercial passenger vehicles—

        (a)     be provided to persons using those services and to other persons, particularly children and other vulnerable persons—

              (i)     with safety; and

              (ii)     with comfort, amenity and convenience; and

        (b)     be provided in a manner that is not fraudulent or dishonest.

Division 2—Non-accreditation offence

        70     Offence for driver to provide services without accreditation

A person must not, as the driver of a commercial passenger vehicle, provide a commercial passenger vehicle service if the person is not accredited under this Part.

Penalty:     60 penalty units.

Division 3—Driver accreditations

        71     Application for driver accreditation

    (1)     A person may apply to the regulator for the issue of a driver accreditation.

    (2)     An application under subsection (1) must—

        (a)     be made in the manner and form approved by the regulator; and

        (b)     be accompanied by—

              (i)     the information and things required by the regulator (if any); and

              (ii)     the fee (if any) for the application determined by the regulator under section 282.

    (3)     The regulator may require any one or more of the following in relation to an application—

        (a)     an applicant do a thing specified by the regulator that the regulator reasonably requires in order to assess the application;

        (b)     verification, by a statutory declaration, of any statement made or information given for the purposes of the application;

        (c)     an applicant give further information for the purposes of the application.

    (4)     Any further information given by the applicant under subsection (3)(c) must be—

        (a)     if the regulations so provide, signed in accordance with the regulations; and

        (b)     declared by each signatory to be true and correct.

    (5)     The regulator may require an applicant to—

        (a)     be photographed at a place and in a manner specified by the regulator; and

        (b)     give the regulator a specimen signature at a place and in a manner specified by the regulator.

        72     Tests, qualifications and other requirements

    (1)     The regulator may require an applicant for driver accreditation to do all or any of the following—

        (a)     undertake a specified prescribed course of training;

        (b)     obtain a specified prescribed qualification;

        (c)     pass specified prescribed tests including tests relating to—

              (i)     the applicant's fitness to drive a vehicle; and

              (ii)     the applicant's medical condition.

    (2)     The regulator 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.

    (3)     In specifying a course of training, the regulator must—

        (a)     be satisfied about—

              (i)     its content and nature; and

              (ii)     the materials, resources and equipment required to provide it; and

        (b)     have regard to the public care objective.

    (4)     The regulator must publish the name and provider of any course of training specified under this section on the regulator's internet site.

        73     Matters to which regulator may have regard in considering application

    (1)     In considering an application for the issue of a driver accreditation, the regulator may have regard to any of the following—

        (a)     whether the applicant has at any time (whether before, on or after the commencement of this section) been subject to a finding referred to in section 14(1)(a) of the Working with Children Act 2005 ;

        (b)     any infringement notice served on the applicant for a transport offence

              (i)     that has not been withdrawn or cancelled; and

              (ii)     in relation to which information lodged under section 40(1)(a) of the Infringements Act 2006 is not deemed to be a charge-sheet charging the offence by operation of section 40(1)(b) of that Act;

        (c)     any infringement notice served on the applicant for a transport offence in relation to which information lodged under section 71(1)(a) of the Infringements Act 2006 is not deemed to be a charge-sheet charging the offence by operation of section 71(1)(b) of that Act.

    (2)     In relation to an infringement notice referred to in subsection (1)(b) or (c), the regulator may have regard to the following—

        (a)     the nature and gravity of the transport offence and its relevance to the purpose for which the applicant seeks to be accredited;

        (b)     when the transport offence is alleged to have been committed;

        (c)     whether the transport offence still exists;

        (d)     the age of the applicant at the time of the alleged commission of the transport offence;

        (e)     the applicant's behaviour since the alleged commission of the transport offence;

        (f)     the likelihood of the applicant committing another transport offence of the same kind;

        (g)     whether the transport offence has been expiated;

        (h)     whether the decision to serve the infringement notice has been subject to internal review under Division 3 of Part 2 of the Infringements Act 2006 ;

              (i)     if the infringement notice was served for a traffic infringement for which demerit points were incurred under Part 4 of the Road Safety Act 1986 , the effect on the applicant of the operation of that Part including the incurring of the demerit points;

        (j)     if the infringement notice was served for a traffic infringement, whether the applicant made any of the following statements under Part 6AA of the Road Safety Act 1986 in relation to the traffic infringement—

              (i)     an illegal user statement;

              (ii)     a known user statement;

              (iii)     a sold vehicle statement;

              (iv)     an unknown user statement;

        (k)     if the infringement notice was served for a traffic infringement and the applicant made a statement mentioned in paragraph (j)(ii) or (iii) in relation to the traffic infringement, whether a person made a nomination rejection statement under Part 6AA of the Road Safety Act 1986 in response to that statement;

        (l)     any information that the applicant has given the regulator in relation to the infringement notice, including reasons why the infringement penalty stated in it was paid.

    (3)     In this section—

"transport offence" means—

        (a)     an offence under this Act or the regulations; or

        (b)     an offence under Part VI of the Transport (Compliance and Miscellaneous) Act 1983 or regulations made for the purposes of that Part; or

        (c)     a traffic infringement.

        74     Time within which regulator must deal with application

    (1)     Subject to this Division, the regulator must decide whether to approve or refuse an application for accreditation within 20 business days after receiving the application.

    (2)     The regulator, before the expiry of the period specified in subsection (1) or that period as extended under this subsection, may decide to extend the period within which it may decide whether to approve or refuse an application.

    (3)     If the regulator decides to extend the period, the regulator must give the applicant written notice of—

        (a)     that decision; and

        (b)     the new period within which the regulator intends to make the decision whether to approve or refuse an application.

        75     Decision on application for driver accreditation

    (1)     The regulator, having considered the matters referred to in section 73, may issue a driver accreditation if satisfied—

        (a)     that it is appropriate to do so having regard to the public care objective; and

        (b)     that the applicant—

              (i)     is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing commercial passenger vehicle services; and

              (ii)     is a fit and proper person to provide a commercial passenger vehicle service; and

        (c)     that the applicant has complied with the requirements under this Part in relation to the application, including paying the application fee (if any) determined by the regulator under section 282.

    (2)     However, the regulator must refuse to issue a driver accreditation if aware that the applicant—

        (a)     does not hold a driver licence, or probationary driver licence, under the Road Safety Act 1986 ; or

        (b)     has been found guilty of a category 1 offence; or

        (c)     is a person who is subject to—

              (i)     reporting obligations imposed under Part 3 of the Sex Offenders Registration Act 2004 ; or

              (ii)     an extended supervision order or interim extended supervision order made under the Serious Sex Offenders Monitoring Act 2005 ; or

              (iii)     a supervision order or interim supervision order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 .

    (3)     Unless satisfied that the applicant has shown that the issue of a driver accreditation is appropriate in the circumstances, the regulator must also refuse to issue a driver accreditation if aware that the applicant—

        (a)     has been found guilty of a category 2 offence; or

        (b)     is the subject of a charge for a category 1 offence that has not been finally disposed of at the time of considering the application.

    (4)     Without limiting the discretion of the regulator, the regulator may refuse to issue a driver accreditation if aware that the applicant—

        (a)     has been found guilty of a category 3 offence; or

        (b)     is subject to a charge for a category 2 offence or category 3 offence that has not been finally disposed of at the time of considering the application.

    (5)     The regulator must not refuse to issue a driver accreditation on a ground referred to in subsection (2) if a decision to refuse to issue an accreditation or cancel an accreditation in respect of the person on that ground has previously been set aside (without being remitted) by VCAT.

    (6)     In making a decision under subsection (3) or (4), the regulator may have regard to the following matters in relation to the category 2 offence or category 3 offence—

        (a)     the nature and gravity of the offence and its relevance to the commercial passenger vehicle service to be provided by the applicant;

        (b)     the period of time since the applicant committed the offence;

        (c)     whether a finding of guilt or conviction was recorded;

        (d)     the sentence imposed for the offence;

        (e)     the age of the applicant when the offence was committed;

        (f)     in relation to any sexual offence, the age of any victim;

        (g)     whether or not the conduct that constituted the offence has been decriminalised since the offence was committed;

        (h)     the applicant's behaviour since committing the offence;

              (i)     the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person;

        (j)     any information given by the applicant.

        76     Regulator must notify applicant of decision

    (1)     As soon as practicable after making a decision to approve or refuse an application for the issue of a driver accreditation, the regulator must give to the applicant written notice of the decision.

    (2)     If the decision is to refuse the application, the notice must—

        (a)     include a statement of reasons for the decision; and

        (b)     inform the person that they have a right to seek review of the regulator's decision under Part 12.

        77     Conditions on driver accreditation

    (1)     The regulator may impose conditions on a driver accreditation on issuing the accreditation.

    (2)     In considering whether or not to impose conditions on a driver accreditation, the regulator must have regard to the public care objective.

    (3)     Without limiting subsection (1), the regulator may impose on a driver accreditation a condition requiring the accredited driver to undertake a course of training or to pass a test specified under section 72.

    (4)     If the regulator decides to impose conditions on a driver accreditation, the regulator must give the accredited driver

        (a)     written notice of the decision; and

        (b)     a written copy of the conditions to which the accreditation is subject.

    (5)     A notice under subsection (4)(a) must inform the accredited driver that they have a right to seek review of the decision under Part 12.

    (6)     A driver accreditation is also subject to any prescribed condition.

        78     Certificate of accreditation

On issuing a driver accreditation the regulator must issue a certificate of accreditation that—

        (a)     is in the form approved by the regulator; and

        (b)     sets out the name of the accredited driver.

        79     Driver accreditation lasts until cancelled or surrendered

A driver accreditation remains in effect until it is cancelled or surrendered.

        80     Annual accreditation fees

    (1)     An accredited driver must pay to the regulator the appropriate annual accreditation fee by the date specified by written notice given to the driver by the regulator.

Note

For the annual accreditation fee, see section 282.

    (2)     The date specified in a notice under subsection (1) must not be less than 10 business days after the date the notice is given to the accredited driver.

    (3)     The regulator may suspend or cancel an accredited driver's driver accreditation if the driver fails to pay an annual accreditation fee by the date specified by the regulator.

        81     Regulator may vary or revoke conditions or impose new conditions

    (1)     The regulator may at any time (on the regulator's own initiative or on the written application of an accredited driver)—

        (a)     vary or revoke a condition imposed by the regulator on a driver accreditation; or

        (b)     impose a new condition on a driver accreditation.

    (2)     In considering whether or not to vary or revoke a condition, or impose a new condition, on a driver accreditation, the regulator must have regard to the public care objective.

    (3)     Without limiting subsection (1)(b), the regulator may impose on a driver accreditation a condition requiring the accredited driver to undertake a course of training or to pass a test specified under section 72.

    (4)     The regulator must give the accredited driver written notice of the action taken under subsection (1) as soon as practicable after taking the action.

    (5)     A notice under subsection (4) must—

        (a)     include a statement of reasons for the action taken; and

        (b)     inform the accredited driver that they have a right to seek review of the regulator's decision to take the action under Part 12.

        82     Offence to fail to comply with conditions of driver accreditation

An accredited driver must comply with—

        (a)     any condition imposed on the driver accreditation; and

        (b)     any prescribed condition to which that accreditation is subject.

Penalty:     30 penalty units.

        83     Driver accreditation cannot be transferred

    (1)     A driver accreditation—

        (a)     is personal to the person who holds it; and

        (b)     is not capable of being transferred or assigned to any other person or of being otherwise dealt with by the person who holds it; and

        (c)     does not vest by operation of law in any other person.

    (2)     A purported transfer, assignment or lease of a driver accreditation and any other purported dealing with a driver accreditation by the person who holds it is of no effect.

    (3)     An accredited driver must not purport to transfer or assign their driver accreditation to any other person or otherwise purport to deal with it.

Penalty:     60 penalty units.

    (4)     This section does not apply to the surrender of an accreditation in accordance with this Part.

        84     Surrender of driver accreditation

    (1)     An accredited driver may apply in writing to the regulator for consent to surrender their driver accreditation.

    (2)     An application under subsection (1) must be accompanied by the certificate of accreditation unless—

        (a)     the certificate has already been returned to the regulator; or

        (b)     the certificate has been lost, stolen or destroyed.

    (3)     If subsection (2)(b) applies, the application must be accompanied by a statement, verified by a statutory declaration signed by or on behalf of the accredited driver, that the certificate has been lost, stolen or destroyed.

    (4)     Subject to subsection (5), on receiving an application under subsection (1), the regulator must consent to the surrender.

    (5)     The regulator may impose any condition on the consent to surrender that the regulator considers necessary to protect the interests of a third party.

    (6)     A person commits an offence if—

        (a)     the regulator imposes a condition on a consent to surrender a driver accreditation; and

        (b)     the condition applies to the person; and

        (c)     the person does not comply with the condition.

    (7)     A person who commits an offence against subsection (6) is liable to a penalty not exceeding 20 penalty units.

Division 4—Disqualification from holding driver accreditation

        85     Disqualification from applying for driver accreditation

    (1)     If the regulator refuses an application for the issue of a driver accreditation under this Part, the regulator may determine that the applicant is disqualified from applying for the issue of a driver accreditation for a period determined by the regulator.

    (2)     A period determined by the regulator under subsection (1) must not exceed 5 years.

    (3)     In making a determination under subsection (1), the regulator must have regard to—

        (a)     the public care objective; and

        (b)     if the person has been found guilty of a category 2 offence or category 3 offence, the matters set out in section 75(6).

    (4)     The regulator must give the applicant written notice of the disqualification as soon as practicable after the determination to disqualify the applicant.

    (5)     A notice under subsection (4) must—

        (a)     specify the period of disqualification; and

        (b)     include a statement of reasons for the action taken; and

        (c)     inform the applicant that they have a right to seek review of the regulator's determination to take the action under Part 12.

        86     Disqualification ceases if there has been a relevant change of circumstances

    (1)     A person who has been disqualified under section 85 is not entitled to make a further application for the issue of a driver accreditation under this Part—

        (a)     until the period determined by the regulator has elapsed; or

        (b)     unless the regulator declares that the disqualification ceases to have effect.

    (2)     The person may apply in writing to the regulator for a declaration that the disqualification ceases to have effect.

    (3)     On receiving an application under subsection (2), the regulator must declare that the disqualification ceases to have effect if satisfied that there has been a relevant change in circumstances in relation to the person.

    (4)     In this section—

"relevant change in circumstances", in relation to a person, includes where—

        (a)     a charge that the person was subject to, that was pending at the date of the disqualification, is finally dealt with, without the person being found guilty of the offence; or

        (b)     a finding of guilt of the person is quashed or set aside by a court after the date of the disqualification; or

        (c)     a finding on which the decision to disqualify the person under section 85 was based is quashed or set aside after the date of the disqualification.

Division 5—Driver accreditation offences

        87     Offence not to sign certificate of accreditation on receipt

    (1)     A person commits an offence if—

        (a)     the regulator issues a driver accreditation to the person; and

        (b)     the person receives a certificate of accreditation in paper form; and

        (c)     the person fails to sign the certificate on receiving it.

    (2)     A person who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        88     Offence not to notify change of address and return certificate of accreditation

    (1)     An accredited driver commits an offence if the driver

        (a)     changes their residential address; and

        (b)     does not within 5 business days after that change occurring—

              (i)     notify the regulator of it; and

              (ii)     return the certificate of accreditation to the regulator.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        89     Offence not to notify of suspension or cancellation of driver accreditation

    (1)     An accredited driver commits an offence if the driver

        (a)     is employed or engaged by—

              (i)     the owner of a commercial passenger vehicle; or

              (ii)     the person in whose name a commercial passenger vehicle is registered under Part 3; or

              (iii)     a booking service provider; and

        (b)     receives notice of the suspension or cancellation of their driver accreditation; and

        (c)     does not notify the owner or provider of the suspension or cancellation within 5 business days after receiving that notice.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        90     Offence not to notify of being charged with, or found guilty of, a disqualifying offence

    (1)     An accredited driver commits an offence if the driver

        (a)     is charged with, or found guilty of, a disqualifying offence; and

        (b)     does not notify the regulator of the charge or the finding of guilt within 20 business days after being so charged or found guilty.

    (2)     An accredited driver commits an offence if the driver

        (a)     becomes subject to reporting obligations or an order of a kind referred to in section 75(2)(c); and

        (b)     does not notify the regulator of the obligations or order within 20 business days after becoming subject to them.

    (3)     An accredited driver who commits an offence against subsection (1) or (2) is liable to a penalty not exceeding 5 penalty units.

        91     Offence to retain illegible certificate of accreditation

    (1)     An accredited driver commits an offence if—

        (a)     the driver's certificate of accreditation becomes illegible or is altered or defaced; and

        (b)     the driver does not return the certificate to the regulator and apply for the issue of a replacement certificate within 5 business days after becoming aware that the certificate has become illegible or is altered or defaced.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        92     Offence to retain certificate if accreditation suspended or cancelled

    (1)     An accredited driver commits an offence if the driver

        (a)     receives notice of the suspension or cancellation of their driver accreditation; and

        (b)     does not return their certificate of accreditation to the regulator within 20 business days after receiving notice of the suspension or cancellation.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        93     Offence not to carry certificate of accreditation when driving

    (1)     An accredited driver commits an offence if the driver does not carry their certificate of accreditation while driving a commercial passenger vehicle for the purpose of providing a commercial passenger vehicle service.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

        94     Offence not to produce certificate of accreditation when asked

    (1)     An accredited driver commits an offence if the driver

        (a)     drives a commercial passenger vehicle for the purpose of providing a commercial passenger vehicle service; and

        (b)     is asked by an authorised officer or a police officer to produce their certificate of accreditation; and

        (c)     refuses or fails to do so.

    (2)     An accredited driver who commits an offence against subsection (1) is liable to a penalty not exceeding 5 penalty units.

Part 6—Consumer and driver protections

Division 1—Driver agreements
Subdivision 1—Preliminary

        95     Definition

In this Division—

"Small Business Commission" means the Small Business Commission established under section 4 of the Small Business Commission Act 2017 .

        96     Application of Division

This Division applies to a driver agreement whether made before or after the commencement of section 18 of the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 .

Subdivision 2—Implied conditions

        97     Implied conditions of driver agreement

    (1)     The regulator, by notice published in the Government Gazette, may specify conditions to be implied in every driver agreement.

    (2)     Without limiting subsection (1), it is an implied condition of every driver agreement that at least the specified percentage of the gross fares that accrue when a commercial passenger vehicle is in the possession of a driver under the agreement are to be retained by, or paid to, the driver.

    (3)     An implied condition specified under section 162L(1) of the Transport (Compliance and Miscellaneous) Act 1983 and in force immediately before the commencement of this section is to be taken to have been specified by the regulator under subsection (1).

    (4)     In subsection (2)—

"specified percentage" means—

        (a)     the percentage specified for the purpose of subsection (2) in a notice published under subsection (1); or

        (b)     55%, if a percentage is not so specified.

        98     Offence if implied condition breached

A party to a driver agreement must not breach a condition of the agreement implied under section 97.

Penalty:     In the case of an individual, 120 penalty units;

In the case of a body corporate, 600 penalty units.

Subdivision 3—Preliminary assistance in dispute resolution

        99     Referral of disputes to the regulator

    (1)     Either party, or both parties, to a driver agreement, or a person proposing to enter into a driver agreement, may refer to the regulator a dispute concerning a condition of the agreement or proposed agreement.

    (2)     As soon as practicable after a dispute is referred to the regulator under subsection (1), the regulator must make an assessment of the nature of the dispute.

    (3)     After having made an assessment, the regulator must decide whether—

        (a)     to provide preliminary assistance in resolving the dispute; or

        (b)     for a dispute concerning a condition of an agreement, to take action to enforce compliance with the agreement; or

        (c)     if there are different aspects to the dispute, to act under both paragraphs (a) and (b).

    (4)     The regulator must notify the Minister in writing about the dispute if the regulator—

        (a)     considers that the dispute may raise an issue of important public policy; and

        (b)     has decided not to take action to enforce compliance with the agreement under subsection (3).

    (5)     Preliminary assistance that may be provided by the regulator includes the giving of advice to ensure that—

        (a)     the parties are fully aware of their rights and obligations; and

        (b)     there is full and open communication between the parties concerning the matter.

    (6)     A statement or admission made in the course of the provision by the regulator of preliminary assistance is not admissible in proceedings before VCAT under Subdivision 5 or in any other legal proceedings.

        100     Minister may refer dispute directly to VCAT

    (1)     Subsection (2) applies if the Minister considers that the subject matter of a dispute notified under section 99(4) raises an issue of important public policy.

    (2)     The Minister may refer the dispute directly to VCAT for hearing under Subdivision 5, even if the regulator is in the process of providing preliminary assistance.

        101     Unresolved disputes may be referred to Small Business Commission or VCAT

    (1)     The regulator may certify in writing that—

        (a)     preliminary assistance under this Subdivision has failed to resolve the dispute; or

        (b)     preliminary assistance under this Subdivision has failed to resolve the dispute and, in the regulator's opinion, the dispute is unlikely to be resolved with the assistance of the Small Business Commission.

    (2)     A certificate issued under subsection (1) must state that a party or both parties may refer the dispute—

        (a)     to the Small Business Commission if the certificate certifies a failure described in subsection (1)(a); or

        (b)     to VCAT if the certificate certifies a failure described in subsection (1)(b).

    (3)     As soon as practicable after issuing a certificate under subsection (1), the regulator must provide a copy of it to the parties to the dispute.

    (4)     Within 30 days after receiving a copy of a certificate under subsection (1), a party or both parties to the dispute may refer the dispute to the Small Business Commission or VCAT, as the case requires.

    (5)     This section does not apply, or ceases to apply, if the Minister refers the dispute directly to VCAT under section 100(2).

Subdivision 4—Alternative dispute resolution

        102     Function of Small Business Commission

    (1)     This section applies if a dispute is referred to the Small Business Commission under Subdivision 3.

    (2)     The Commission must make arrangements to facilitate the resolution of the dispute by—

        (a)     mediation by a mediator; or

        (b)     another appropriate form of alternative dispute resolution by a suitably qualified person.

    (3)     The Commission may join any person that it considers appropriate to join as a party to the dispute.

    (4)     The Commission is not subject to the Minister's control or direction in exercising functions under this Subdivision.

        103     Mediation or other alternative dispute resolution

    (1)     A party to a mediation or other form of alternative dispute resolution may be represented by a legal practitioner.

    (2)     However, the mediator or person conducting the other form of alternative dispute resolution (the ADR official ) may meet with a party (alone or together with any other party) without the party's legal representative being present.

    (3)     The mediator or ADR official may act under subsection (2) only if they consider it appropriate to do so.

    (4)     The mediator or ADR official must determine the costs of, and associated with, the mediation or other form of alternative dispute resolution (including their own fees and expenses).

    (5)     The parties must pay the costs determined under subsection (4) in the proportions that they agree or, if they cannot agree, in equal shares.

    (6)     The Small Business Commissioner appointed under section 18 of the Small Business Commission Act 2017 may personally act as a mediator or ADR official and is entitled to be paid their fees and expenses for doing so.

    (7)     The Small Business Commissioner's fees and expenses referred to in subsection (6) must not exceed the maximum amount (if any) that is prescribed.

    (8)     A mediator or ADR official (including the Small Business Commissioner) is not civilly or criminally liable in respect of the performance, in good faith, of their functions under this section.

        104     Small Business Commission may issue certificates

    (1)     The Small Business Commission may certify in writing that alternative dispute resolution under this Subdivision has failed, or is unlikely, to resolve a dispute referred under Subdivision 3.

    (2)     A certificate under subsection (1) must include details of the parties to the dispute.

    (3)     The Commission may certify that a party to the dispute has unreasonably refused to participate in alternative dispute resolution under this Subdivision.

    (4)     A certificate issued under subsection (1) may be admitted in evidence in proceedings before VCAT or a court.

    (5)     The Commission is not required to give a party to the dispute an opportunity to be heard by, or make submissions to, the Commission before issuing a certificate under subsection (1).

        105     Parties may apply to VCAT

If the Small Business Commission issues a certificate under section 104(1), a party or both parties to the dispute may apply to VCAT for one or more orders under section 108.

Subdivision 5—VCAT proceedings

        106     Jurisdiction of VCAT

    (1)     VCAT has jurisdiction to hear and determine—

        (a)     the matter of a dispute referred to it—

              (i)     by the Minister under section 100(2); or

              (ii)     by a party or both parties to the dispute in accordance with this Division; or

        (b)     an application by a party, or both parties, to a dispute under section 105.

    (2)     The Minister or the regulator is not a party to a proceeding in respect of a dispute referred by the Minister under section 100(2), unless joined by VCAT under section 60 of the Victorian Civil and Administrative Tribunal Act 1998 .

        107     Time limits for certain complaints

    (1)     VCAT must commence hearing a dispute referred by the Minister under section 100(2) within 30 days after its referral.

    (2)     VCAT, constituted by a presidential member within the meaning of the Victorian Civil and Administrative Tribunal Act 1998 , may extend the period of 30 days under subsection (1) by one further period of not more than 30 days.

        108     Orders VCAT can make

    (1)     VCAT, in a proceeding under this Subdivision, may by order do one or more of the following—

        (a)     determine the terms of any condition of a driver agreement;

        (b)     require a party to pay money, by way of restitution or compensation or otherwise, to a specified person;

        (c)     vary any condition of a driver agreement, other than one implied under section 97;

        (d)     declare that a condition of a driver agreement (other than one implied under section 97) is of effect or is of no effect;

        (e)     require the refund of any money paid under a driver agreement or under a driver agreement condition that is of no effect;

              (i)     require anything else to be done that it is empowered to require to be done under this Subdivision or the Victorian Civil and Administrative Tribunal Act 1998 .

    (2)     In addition, VCAT may—

        (a)     make an order in the nature of an order for specific performance of a driver agreement; or

        (b)     order rescission of a driver agreement; or

        (c)     order rectification of a driver agreement.

    (3)     In ordering the payment of a sum of money by a party, VCAT may order the payment of interest on that sum by the party—

        (a)     at the rate fixed from time to time under section 2 of the Penalty Interest Rates Act 1983 ; or

        (b)     at any lesser rate it thinks appropriate.

        109     Each party to pay own costs

    (1)     This section applies despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998 .

    (2)     Each party to a proceeding before VCAT under this Subdivision is to pay their own costs in the proceeding.

    (3)     However, at any time VCAT may make an order that a party pay all or a specified part of the costs of another party to the proceeding but only if VCAT is satisfied that it is fair to do so—

        (a)     because the party refused to take part in, or withdrew from, mediation or other form of alternative dispute resolution under Subdivision 4; or

        (b)     having regard to the matters referred to in paragraphs (a) to (e) of section 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 .

    (4)     In this section—

"costs" includes fees, charges and disbursements.

Subdivision 6—Miscellaneous

        110     Statements made during alternative dispute resolution not admissible

A statement or admission made in the course of a mediation or other form of alternative dispute resolution under Subdivision 4 is not admissible in proceedings before VCAT under Subdivision 5 or in any other legal proceedings.

Division 1A—Protections for unbooked commercial passenger vehicle services

        110A     Definitions

In this Division—

"applicable unbooked service" means an unbooked commercial passenger vehicle service in respect of carriage on a journey that begins in—

        (a)     the Melbourne Metropolitan Zone; or

        (b)     the Urban and Large Regional Zone;

"Melbourne Metropolitan Zone" means the Melbourne Metropolitan Zone established under section 143B(1)(a) of the Transport (Compliance and Miscellaneous) Act 1983 (as in force immediately before the commencement of item 10.7 of Schedule 1 to the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 ;

"Urban and Large Regional Zone" means the Urban and Large Regional Zone established under section 143B(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983 (as in force immediately before the commencement of item 10.7 of Schedule 1 to the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 .

        110B     Application of Essential Services Commission Act 2001

    (1)     For the purposes of the Essential Services Commission Act 2001

        (a)     this Division is relevant legislation; and

        (b)     the commercial passenger vehicle industry is a regulated industry in relation to applicable unbooked services.

    (2)     If there is any inconsistency between this Division and a provision of the Essential Services Commission Act 2001 , the provision of this Division prevails.

        110C     Objective of the ESC

The objective of the ESC in relation to the commercial passenger vehicle industry is to promote the efficient provision and use of applicable unbooked services.

        110D     Powers in relation to fares regulation

For the purposes of Part 3 of the Essential Services Commission Act 2001

        (a)     applicable unbooked services are prescribed services; and

        (b)     the maximum charges for the services covered by paragraph (a) are prescribed prices.

        110E     Price determinations

Without limiting section 33(5) of the Essential Services Commission Act 2001 , the manner in which the ESC may regulate prescribed prices includes determining different prices according to—

        (a)     the time of day at which, or day of the week or kind of day on which, an applicable unbooked service is provided;

        (b)     the speed at which the commercial passenger vehicle used in the provision of the applicable unbooked service is travelling;

        (c)     the distance travelled by the commercial passenger vehicle used in the provision of the applicable unbooked service;

        (d)     the type of commercial passenger vehicle used in the provision of the applicable unbooked service;

        (e)     the occupancy of the commercial passenger vehicle used in the provision of the applicable unbooked service, including where there is more than one passenger;

        (f)     where a journey in respect of which the applicable unbooked service is provided begins or ends;

        (g)     the prevailing economic conditions, including the price of fuel and the consumer price index;

        (h)     any other matter the ESC considers to be relevant.

        110F     Exercise of regulatory functions

    (1)     The ESC must make a determination under this Division of the maximum charges for applicable unbooked services before the first anniversary of the day on which this section comes into operation.

    (2)     The ESC must complete a review of a price determination no later than 2 years after it is made.

        110G     Offence to charge or ask for a fare for an unbooked service in excess of the maximum fare

A person who drives a commercial passenger vehicle for the purpose of providing an applicable unbooked service must not charge or ask for a fare for the service that is in excess of the fare or hiring rates permitted by a determination of the ESC under this Division.

Penalty:     60 penalty units.

Division 2—Fare monitoring

        111     Regulator to monitor fares for commercial passenger vehicle services

    (1)     This section applies during the 5 year period beginning on the commencement of item 10.6 of Schedule 1 to the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 .

    (2)     The regulator must monitor fares for commercial passenger vehicle services with a view to—

        (a)     keeping Victorian consumers and the Government informed about the economic performance of the commercial passenger vehicle industry; and

        (b)     supporting the efficient operation of the industry by—

              (i)     monitoring, describing and analysing trends in fares for commercial passenger vehicle services; and

              (ii)     identifying and highlighting potential areas of misuse of market power that warrant further investigation.

Note

The regulator has power under section 264 to require the provision of any information, or the production of any documents, that may assist it in performing its functions.

    (3)     The regulator must prepare an annual report on the conduct of its activities under this section.

    (4)     In addition, the regulator may at any time, on its own initiative, prepare a special report on the conduct of its activities under this section.

    (5)     In preparing a report, the regulator must have regard to the need to ensure that the report does not disclose information that is of a commercially sensitive nature.

    (6)     The regulator must submit a copy of any report prepared by the regulator under this section to the Minister administering this Division.

    (7)     The regulator must ensure that a copy of any report submitted under subsection (6) is published on the regulator's internet site.

Division 3—Non-cash payment surcharge

        112     Meaning of non-cash payment surcharge

    (1)     Subject to subsection (2), a non-cash payment surcharge is a fee or charge—

        (a)     added to the amount otherwise payable by the hirer in respect of the hiring of a commercial passenger vehicle because the payment of the amount otherwise payable is made wholly or partly by means of a non-cash payment transaction; or

        (b)     payable by the owner or driver of a commercial passenger vehicle or by all or any of them because the payment of an amount payable in respect of the hiring of the vehicle is made wholly or partly by means of a non-cash payment transaction.

    (2)     A "non-cash payment surcharge" does not include a fee or charge that is imposed in respect of the use of a credit card, charge card or debit card—

        (a)     by a participant in a designated payment system within the meaning of the Payment Systems (Regulation) Act 1998 of the Commonwealth and is of a kind covered by a standard in force under section 18 of that Act; or

        (b)     by a person consistently with a voluntary undertaking given by the person to, and accepted by, the Reserve Bank of Australia.

    (3)     A fee or charge may be a non-cash payment surcharge irrespective of whether it is—

        (a)     payable for accepting or processing, or both accepting and processing, payment made by means of a non-cash payment transaction or for any other reason; or

        (b)     set as a percentage of the amount otherwise payable in respect of the hiring of the commercial passenger vehicle or as a fixed amount or as an amount fixed on a sliding scale of any kind or on any other basis.

        113     Cap on non-cash payment surcharges

    (1)     This section applies to a non-cash payment surcharge that—

        (a)     exceeds the prescribed amount; or

        (b)     results in the prescribed amount being exceeded in the circumstances set out in subsection (2).

    (2)     The circumstances are that the surcharge is added to any other such surcharge charged or collected, or to be charged or collected, by the same or any other person in respect of the same hiring of a commercial passenger vehicle, irrespective of whether the surcharges are payable by the same person or by 2 or more persons.

    (3)     A person must not—

        (a)     impose, whether directly or indirectly, a non-cash payment surcharge to which this section applies; or

        (b)     directly initiate the collection in the commercial passenger vehicle of a non-cash payment surcharge to which this section applies or of an amount that includes such a surcharge.

Penalty:     In the case of an individual, 240 penalty units;

In the case of a body corporate, 1200 penalty units.

Notes

Section 285 (criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)) applies to an offence against this subsection.

    (4)     A person does not commit an offence against subsection (3) because of a non-cash payment surcharge charged or collected, or to be charged or collected, by another person in respect of the hiring of a commercial passenger vehicle if—

        (a)     the person presents or points to evidence that suggests a reasonable possibility that the person did not know, and could not reasonably be expected to have known, that the other person had charged or collected, or was to charge or collect, a non-cash payment surcharge in respect of that hiring; and

        (b)     the contrary is not proved (beyond reasonable doubt) by the prosecution.

    (5)     The reference in subsection (3) to a person includes—

        (a)     any person who provided or maintains any equipment (whether or not installed in the commercial passenger vehicle) or any application or software that enabled the non-cash payment transaction to be made; and

        (b)     any person who manages or administers the whole or any part of a system under which non-cash payment transactions may be made; and

        (c)     the owner and driver of the commercial passenger vehicle.

        114     Offence to enter into certain contracts etc.

    (1)     A person, including the owner or driver of the commercial passenger vehicle or a booking service provider, must not—

        (a)     enter into a contract, arrangement or understanding with any person that has the purpose or effect specified in subsection (2); or

        (b)     agree to give effect to a contract, arrangement or understanding entered into by any other persons that has that purpose or effect.

Penalty:     In the case of an individual, 60 penalty units;

In the case of a body corporate, 300 penalty units.

Note

Section 285 (criminal liability of officers of bodies corporate—failure to exercise due diligence (evidential burden of proof)) applies to an offence against this section.

    (2)     The purpose or effect is directly or indirectly causing a non-cash payment surcharge to which section 113 applies to be paid in respect of a hiring of a commercial passenger vehicle.

        115     Civil penalties

    (1)     The Supreme Court may order that a person pay, as a debt due to the State, a civil penalty of an amount not exceeding $1 000 000 for an individual or $5 000 000 for a body corporate.

    (2)     The Supreme Court may make an order under subsection (1) if satisfied, on an application made by the regulator, that the person has—

        (a)     contravened section 113(3); or

        (b)     attempted to contravene section 113(3); or

        (c)     aided, abetted, counselled or procured a person to contravene section 113(3); or

        (d)     induced, or attempted to induce, whether by threats, promises or otherwise, a person to contravene section 113(3); or

        (e)     been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of section 113(3); or

        (f)     conspired with others to contravene section 113(3).

    (3)     The regulator may make an application under this section at any time within 6 years after the contravention or other conduct covered by subsection (2).

    (4)     The Supreme Court may relieve a person, other than a body corporate, from liability to a civil penalty in a proceeding under this section if it appears to it that—

        (a)     the person has, or may have, engaged in conduct in contravention of section 113(3) or conduct referred to in subsection (2)(b), (c), (d), (e) or (f) that relates to a contravention of section 113(3); but

        (b)     the person acted honestly and reasonably and, having regard to all the circumstances of the case, ought fairly to be excused.

        116     Preference must be given to compensation

The Supreme Court must give preference to making an order for compensation if it considers that—

        (a)     it is appropriate to order a person (the  defendant ) to pay a civil penalty under section 115(1) in relation to—

              (i)     a contravention of section 113(3); or

              (ii)     conduct referred to in section 115(2)(b), (c), (d), (e) or (f) that relates to a contravention of section 113(3); and

        (b)     it is appropriate to order the defendant to pay compensation under section 120 to a person who has suffered loss or damage because of that contravention or conduct; and

        (c)     the defendant does not have sufficient financial resources to pay both the civil penalty and the compensation.

        117     Interplay between civil penalties and criminal proceedings

    (1)     An application cannot be made to the Supreme Court under section 115 in relation to a contravention of section 113(3) if the person has been convicted or acquitted of an offence constituted by conduct that is substantially the same as the conduct to which the application relates.

    (2)     The Supreme Court must stay a proceeding under section 115 against a person if a criminal proceeding is or has been commenced against the person for an offence constituted by conduct that is substantially the same as the conduct to which the application under that section relates.

    (3)     A proceeding stayed in accordance with subsection (2) must be dismissed by the Supreme Court if the person is convicted or acquitted of the offence but otherwise may be resumed by it.

    (4)     A criminal proceeding may be commenced against a person for conduct that is substantially the same as conduct to which an application under section 115 relates or in respect of which an order has been made under that section.

    (5)     Evidence of information given, or evidence of the production of documents, by a person is not admissible in a proceeding against the person for an offence if—

        (a)     the person previously gave the evidence or produced the documents in a proceeding against the person under section 115; and

        (b)     the conduct alleged to constitute the offence is substantially the same as the conduct to which the proceeding under that section related.

    (6)     Subsection (5) does not apply to a criminal proceeding in respect of the falsity of evidence given in a proceeding under section 115.

        118     Non-cash payment surcharge may be recovered as a debt

A person who has paid a non-cash payment surcharge to which section 113 applies may recover, as a debt in any court of competent jurisdiction, the amount of the excess over the prescribed amount from the person to whom the surcharge was payable.

        119     Proceeding for damages

    (1)     This section applies if a person suffers loss or damage because of—

        (a)     conduct engaged in by another person in contravention of section 113(3); or

        (b)     conduct referred to in section 115(2)(b), (c), (d), (e) or (f) engaged in by another person that relates to a contravention of section 113(3).

    (2)     The person may recover the amount of the loss or damage in a proceeding commenced against that other person in any court of competent jurisdiction.

    (3)     A proceeding under subsection (2) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

        120     Compensation orders

    (1)     This section applies if a person (the injured person ) suffers, or is likely to suffer, loss or damage because of—

        (a)     conduct engaged in by another person in contravention of section 113(3); or

        (b)     conduct referred to in section 115(2)(b), (c), (d), (e) or (f) engaged in by another person that relates to a contravention of section 113(3).

    (2)     The Supreme Court may make any other order or orders that it thinks appropriate against the person who engaged in the conduct on an application made by—

        (a)     the injured person; or

        (b)     the regulator on behalf of one or more injured persons.

    (3)     An order must be an order that the Supreme Court considers will—

        (a)     compensate the injured person, or any injured person, in whole or in part for the loss or damage; or

        (b)     prevent or reduce the loss or damage suffered, or likely to be suffered, by the injured person or any injured person.

    (4)     An application may be made under subsection (2) at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

    (5)     An application may be made under subsection (2) even if no other proceeding (whether criminal or civil) has been commenced under this Division in relation to the relevant conduct.

    (6)     The regulator must not make an application under subsection (2)(b) on behalf of an injured person who has not consented in writing to the making of the application on their behalf.

        121     Application of Essential Services Commission Act 2001

    (1)     For the purposes of the Essential Services Commission Act 2001

        (a)     this Division is relevant legislation; and

        (b)     the non-cash payment transaction industry is a regulated industry.

    (2)     If there is any inconsistency between a provision of this Division and a provision of the Essential Services Commission Act 2001 , the provision of this Division prevails.

        122     Objective of the ESC

    (1)     The objective of the ESC in relation to the non-cash payment transaction industry is to promote efficiency by regulating the amount that may be imposed by way of a non-cash payment surcharge.

    (2)     In seeking to achieve the objective specified in subsection (1), the ESC must ensure that persons facilitating the making of non-cash payment transactions are able to recover the reasonable cost of accepting and processing such transactions.

    (3)     In this section—

"reasonable cost" includes any fees payable for the acquisition of transactions involving the use of debit, credit or charge cards.

        123     Powers in relation to non-cash payment service regulation

For the purposes of Part 3 of the Essential Services Commission Act 2001

        (a)     non-cash payment transactions are prescribed services; and

        (b)     the maximum amounts of non-cash payment surcharges are prescribed prices.

        124     Exercise of regulatory functions

    (1)     The ESC may regulate prescribed prices by determining different prices according to circumstances specified in the determination if it considers it necessary to do so in order for it to comply with section 122(2).

    (2)     Subsection (1) does not limit section 33(5) of the Essential Services Commission Act 2001 .

    (3)     The ESC must make a price determination no later than 12 months after the day on which section 18 of the Commercial Passenger Vehicle Industry Amendment (Further Reforms) Act 2017 comes into operation.

    (4)     The ESC must complete a review of a price determination no later than 2 years after it is made.

Part 7—Investigation powers

Division 1—Authorised officers

        125     Appointment

    (1)     The regulator may appoint as an authorised officer any person who the regulator considers is suitably qualified or trained to exercise the powers of an authorised officer under this Act and the regulations.

    (2)     An appointment under this section is for a term, and subject to the conditions, specified in the instrument of appointment.

    (3)     Without limiting the conditions to which the appointment may be subject, a condition may specify—

        (a)     the functions and powers under this Act or the regulations that the authorised officer may not perform and exercise; or

        (b)     the only functions and powers under this Act or the regulations that the authorised officer may perform or exercise; or

        (c)     the circumstances or manner in which the authorised officer must perform or exercise a function or power under this Act or the regulations.

        126     Identity card

    (1)     The regulator must issue an identity card to an authorised officer.

    (2)     An identity card must—

        (a)     state the name of the person to whom the card is issued; and

        (b)     indicate that the person is an authorised officer; and

        (c)     include—

              (i)     a photograph of the person; and

              (ii)     the prescribed matters.

        127     Authorised officer must produce identity card

    (1)     An authorised officer must produce their identity card for inspection—

        (a)     before exercising a power under—

              (i)     an industry law; or

              (ii)     section 13 or 84ZY of the Road Safety Act 1986 ; or

        (b)     if asked to do so by any person at any time during the exercise of a power referred to in paragraph (a).

    (2)     However, an authorised officer is not required to produce their identity card when asked to do so if—

        (a)     the officer reasonably believes that this would—

              (i)     affect the safety or welfare of any person; or

              (ii)     frustrate the effective exercise of a power referred to in subsection (1)(a); or

        (b)     the request to produce the card is made by a person to whom the officer has already produced the card on the same day before exercising a power referred to in subsection (1)(a).

    (3)     A failure to produce an identity card does not invalidate anything done by an authorised officer.

        128     Regulator may direct authorised officer

    (1)     The regulator may give a direction to an authorised officer in relation to that officer's performance or exercise of a function or power under—

        (a)     an industry law; or

        (b)     section 13, 14(1), 84ZY, 77 and 88 of the Road Safety Act 1986 .

    (2)     The direction may be of a general nature or may relate to a specified matter or class of matter.

        129     Person must return identity card on ceasing to be an authorised officer

A person who ceases to be an authorised officer must return their identity card to the regulator as soon as practicable.

Penalty:     10 penalty units.

        130     Person must not impersonate authorised officer

A person who is not an authorised officer must not, in any way, hold themselves out to be an authorised officer.

Penalty:     60 penalty units.

Division 2—Power of entry without consent or search warrant

        131     Limited power for authorised officer to enter premises or vehicle without consent or search warrant

An authorised officer may enter industry premises or a commercial passenger vehicle without consent and without a search warrant—

        (a)     only for a purpose specified in section 132; and

        (b)     only in the circumstances specified in section 133.

        132     Purposes for which authorised officer may enter without consent or search warrant

    (1)     An authorised officer may enter premises or a vehicle under section 131 for a purpose relating to ascertaining whether an industry law has been or is being complied with in relation to—

        (a)     commercial passenger vehicle services; or

        (b)     a commercial passenger vehicle; or

        (c)     equipment in or on, or that is ordinarily in or on, a commercial passenger vehicle; or

Examples

A security camera, an emergency warning device, a driver protection screen or a taximeter.

        (d)     subject to subsection (2), payments made or due under a driver agreement; or

        (e)     subject to subsection (3), payments made or due in respect of the hiring of a commercial passenger vehicle.

    (2)     Entry is only permitted in relation to the matter set out in subsection (1)(d) if the authorised officer believes on reasonable grounds that the entry is necessary to prevent the concealment, loss or destruction of evidence of a breach of the conditions of a driver agreement.

    (3)     Entry is only permitted in relation to the matter set out in subsection (1)(e) if the authorised officer believes on reasonable grounds that the entry is necessary to prevent the concealment, loss or destruction of evidence of non-compliance with an industry law.

        133     Circumstances in which authorised officer may enter without consent or search warrant

    (1)     The circumstances in which an authorised officer may, under section 131, enter industry premises, or a commercial passenger vehicle at industry premises, are that the entry is at a time when the premises are being used, or are usually being used, in connection with the provision of—

        (a)     a commercial passenger vehicle service; or

        (b)     a booking service; or

        (c)     a non-cash payment processing service.

    (2)     The circumstances in which an authorised officer may, under section 131, enter a commercial passenger vehicle at a place that is not industry premises are that—

        (a)     the vehicle is not being used for private purposes; and

        (b)     the vehicle is not located on residential premises; and

        (c)     either of the following persons is present—

              (i)     the driver of the vehicle;

              (ii)     the person in whose name the vehicle is registered under Part 3.

    (3)     For the purposes of subsection (2)(a), a commercial passenger vehicle that is being driven for the purposes of providing a commercial passenger vehicle service is not being used for private purposes.

        134     Power to enter includes power to search and inspect

    (1)     An authorised officer who enters or proposes to enter industry premises or a commercial passenger vehicle under section 131 may search and inspect the premises or vehicle for compliance and investigative purposes.

    (2)     In searching and inspecting the premises or vehicle, the authorised officer may be assisted by any person.

Note

Division 5 confers further powers on the authorised officer.

        135     Notice of entry if prior notice not given—commercial passenger vehicle not on industry premises

    (1)     This section applies if an authorised officer, under section 131—

        (a)     enters a commercial passenger vehicle at a place that is not industry premises; and

        (b)     does so without giving prior notice to either—

              (i)     the driver of the vehicle; or

              (ii)     the person in whose name the vehicle is registered under Part 3.

    (2)     As soon as practicable after entering the vehicle, the authorised officer must take all reasonable steps to notify the following persons of the entry—

        (a)     the driver of the vehicle;

        (b)     if the vehicle is not registered under Part 3 in the driver's name, the person in whose name it is registered under that Part.

        136     Notice of entry to be left if certain persons not present

    (1)     This section applies if—

        (a)     an authorised officer enters industry premises, or a commercial passenger vehicle at industry premises, under section 131; and

        (b)     neither the person with control or management of the premises, nor the occupier of the premises, is present.

    (2)     On leaving the premises or vehicle, the authorised officer must leave a notice setting out—

        (a)     the time of the entry; and

        (b)     the purpose of the entry; and

        (c)     a description of things done while on the premises or in the vehicle; and

        (d)     the time of departure; and

        (e)     the procedure for contacting the regulator for further details of the entry.

        137     Notice of entry if prior notice not given—industry premises

    (1)     This section applies if an authorised officer, under section 131—

        (a)     enters industry premises or a commercial passenger vehicle at industry premises; and

        (b)     does so without giving prior notice to either—

              (i)     the person with control or management of the premises; or

              (ii)     the occupier of the premises.

    (2)     As soon as practicable after entering the premises, the authorised officer must take all reasonable steps to notify a person referred to in subsection (1)(b).

Division 3—Power of entry without warrant but with consent

        138     Authorised officer may enter premises or vehicle for compliance and investigative purposes with consent

An authorised officer may do either of the following things for compliance and investigative purposes—

        (a)     enter any industry premises at any time if the person with control or management of the premises, or the occupier of the premises, consents to the entry;

        (b)     enter any commercial passenger vehicle at any time if the driver of the vehicle, or the person in whose name the vehicle is registered under Part 3, consents to the entry.

        139     Procedure for entry with consent

    (1)     Before an authorised officer asks a person for consent to enter under section 138, the officer must inform the person—

        (a)     of the purpose of the entry; and

        (b)     that the person is not required to consent.

    (2)     If the consent is given, the authorised officer may ask the person to sign an acknowledgment of the consent.

    (3)     The acknowledgment must state—

        (a)     that the person has been informed—

              (i)     of the purpose of the entry; and

              (ii)     that the person is not required to consent; and

        (b)     the purpose of the entry; and

        (c)     that the person gives the authorised officer consent to enter the premises or vehicle and exercise powers under this Part; and

        (d)     the time and date the consent was given.

    (4)     If the person signs the acknowledgment, the authorised officer must immediately give a copy to the person.

    (5)     If, in any proceeding, an acknowledgment of consent is not produced to the court, it must be presumed, unless the contrary is proved, that no person consented to the entry by an authorised officer and the exercise of powers by that officer under this Part.

        140     Power to enter includes power to search and inspect

    (1)     An authorised officer who enters or proposes to enter industry premises or a commercial passenger vehicle under section 138 may search and inspect the premises or vehicle for compliance and investigative purposes.

    (2)     In searching and inspecting the premises or vehicle, the authorised officer may be assisted by any person.

Note

Division 5 confers further powers on the authorised officer.

Division 4—Search warrants

        141     Issue of search warrant

    (1)     An authorised officer may apply to a magistrate for the issue of a search warrant for a place, a motor vehicle or a non-cash payment processing device if the officer believes on reasonable grounds that there is, or may be within the next 72 hours, in the place or in or on the vehicle or device, evidence of the commission of an offence against an industry law.

    (2)     If a magistrate is satisfied that there are reasonable grounds for the belief referred to in subsection (1), the magistrate may issue a search warrant authorising an authorised officer named in the warrant, and any assistants the officer considers necessary—

        (a)     to enter the place named or described in the warrant (if any); or

        (b)     to enter a motor vehicle—

              (i)     named or described in the warrant; or

              (ii)     at the place named or described in the warrant (if any); or

        (c)     to inspect a motor vehicle or non-cash payment processing device—

              (i)     named or described in the warrant; or

              (ii)     at the place named or described in the warrant (if any); or

        (d)     to search a place or vehicle referred to in this subsection for any thing named or described in the warrant and to seize any such thing.

Notes

1     Division 5 confers further powers on the authorised officer.

2     A thing would include a document which is defined in section 38 of the Interpretation of Legislation Act 1984 .

    (3)     In addition to any other requirement, a search warrant issued under this section must—

        (a)     state the offence suspected; and

        (b)     state the name of, or describe—

              (i)     the place or motor vehicle to be searched; or

              (ii)     the motor vehicle or non-cash payment processing device to be inspected; and

        (c)     include a description of the thing or information for which the search is to be made; and

        (d)     state the conditions to which the warrant is subject (if any); and

        (e)     state whether entry is authorised to be made at any time or during stated hours; and

        (f)     state a day, not later than 7 days after the issue of the warrant, on which the warrant ceases to have effect.

    (4)     A search warrant must be issued in accordance with the Magistrates' Court Act 1989 and in the form set out in the regulations under that Act.

    (5)     Despite section 78 of the Magistrates' Court Act 1989 , a search warrant must not authorise an authorised officer to arrest a person.

    (6)     Subject to any provision to the contrary in this Part, the rules to be observed with respect to search warrants mentioned in the Magistrates' Court Act 1989 extend and apply to warrants under this section.

        142     Seizure of things not mentioned in search warrant

A search warrant also authorises the authorised officer executing the warrant, in addition to the seizure of any thing of the kind described in the warrant, to seize any thing which is not of the kind described in the warrant if the authorised officer believes on reasonable grounds that—

        (a)     the thing will afford evidence about the commission of an offence against an industry law; and

        (b)     it is necessary to seize that thing to prevent—

              (i)     its concealment, loss or destruction; or

              (ii)     its use in the commission of an offence against an industry law.

        143     Announcement before entry under search warrant

    (1)     Before executing a search warrant, the authorised officer named in the warrant or a person assisting the officer must—

        (a)     announce that the officer or other person is authorised by the warrant to enter the place or motor vehicle named or described in the warrant; and

        (b)     give any person at the place or in control of the vehicle an opportunity to allow entry to the place or into the vehicle.

    (2)     The authorised officer or person assisting the officer is not required to comply with subsection (1) if the officer or other person believes on reasonable grounds that immediate entry to the place or into the vehicle is required to ensure—

        (a)     the safety of any person; or

        (b)     that the effective execution of the search warrant is not frustrated.

        144     Copy of search warrant to be given

    (1)     This section applies if any of the following persons is present at the execution of a search warrant—

        (a)     if the warrant is for the search of a place—

              (i)     the occupier of that place; or

              (ii)     a person who appears to represent the occupier;

        (b)     if the warrant is for the search of a motor vehicle—

              (i)     the driver of the vehicle; or

              (ii)     if the vehicle is a commercial passenger vehicle, the person in whose name it is registered under Part 3.

    (2)     The authorised officer must—

        (a)     identify themselves to that person by producing their identity card for inspection by that person; and

        (b)     give that person a copy of the execution copy of the warrant.

        145     Use of evidence obtained under search warrant in civil penalty proceedings

A thing obtained under a search warrant is not inadmissible as evidence in a proceeding for a civil penalty under section 115 by reason only of the fact that the search warrant was issued in respect of the commission of an offence.

Division 5—Additional powers relating to search and entry

        146     Definitions

    (1)     In this Division—

"assistant" means a person assisting an authorised officer in relation to the entry of the location being investigated as described in section 134(2), 140(2), 141(2), 148(3) or 149(3);

"location being investigated" means the industry premises, motor vehicle, or other place that the authorised officer enters;

"purpose of the investigation" means—

        (a)     in the case of entry effected under a search warrant, the purpose of obtaining evidence about the commission of an offence against an industry law; and

        (b)     in the case of entry effected under section 131 or 138, compliance and investigative purposes.

    (2)     In this Division, a reference to something at a location being investigated means, if that location is a motor vehicle, something in or on the vehicle.

        147     Application of Division

This Division applies in relation to an authorised officer who—

        (a)     enters industry premises under section 131 or 138 or under a search warrant; or

        (b)     enters a commercial passenger vehicle under section 131 or 138; or

        (c)     enters a motor vehicle under a search warrant; or

        (d)     enters any other place under a search warrant.

        148     General investigation powers relating to entry of industry premises or other place

    (1)     This section applies if the location being investigated is industry premises or any other place.

    (2)     The authorised officer may do any of the following things for the purpose of the investigation

        (a)     inspect a non-cash payment processing device at the premises or place;

        (b)     make a sketch of the premises or place or of a thing found there;

        (c)     perform tests;

        (d)     record images or sound;

Note

See section 153 in relation to the admissibility of these recordings.

        (e)     search for, inspect or copy relevant documents that are at the premises or place;

        (f)     direct a person at the premises or place to give the officer reasonable help to—

              (i)     search or inspect the premises or place; or

              (ii)     exercise the officer's powers under this subsection;

        (g)     exercise any other power conferred on the officer by or under this Act.

    (3)     In doing anything referred to in subsection (2), the authorised officer may be assisted by any person.

    (4)     In this section—

"reasonable help" includes helping the authorised officer to find and gain access to a thing at the premises or place (including electronically stored material and information).

        149     General investigation powers relating to entry of motor vehicle

    (1)     This section applies if the location being investigated is a motor vehicle.

    (2)     The authorised officer may search and inspect the motor vehicle and do any of the following things for the purpose of the investigation

        (a)     inspect a non-cash payment processing device in or on the vehicle;

        (b)     make a sketch of the vehicle or anything in or on it;

        (c)     perform tests;

        (d)     record images or sound;

Note

See section 153 in relation to the admissibility of these recordings.

        (e)     search for, inspect or copy relevant documents that are in or on the vehicle;

        (f)     extract or copy any information that is held in any engine management system or related system of the vehicle;

        (g)     direct any of the following persons to give the officer reasonable help to search or inspect the vehicle or exercise the officer's powers under this subsection—

              (i)     the driver of the vehicle;

              (ii)     if the vehicle is a commercial passenger vehicle, the person in whose name the vehicle is registered under Part 3;

              (iii)     if the vehicle is at industry premises, a person at those premises;

        (h)     exercise any other power conferred on the officer by or under this Act.

    (3)     In doing anything referred to in subsection (2), the authorised officer may be assisted by any person.

    (4)     In this section—

"reasonable help" includes—

        (a)     helping the authorised officer to find and gain access to a thing in or on the motor vehicle (including electronically stored material and information); and

        (b)     running the engine of a motor vehicle; and

        (c)     operating equipment in or on a motor vehicle; and

        (d)     operating a non-cash payment processing device.

        150     Use or seizure of electronic equipment

    (1)     This section applies if—

        (a)     the authorised officer or an assistant finds at the location being investigated a device—

              (i)     that is a non-cash payment processing device; or

              (ii)     that is or includes a disk, tape or other device for the storage, receipt, generation, transmission or retrieval of information; and

        (b)     the authorised officer believes on reasonable grounds that the device sent, transmitted or generated information that is relevant to—

              (i)     the purpose of the investigation; or

              (ii)     if the entry is effected under section 131 or 138, whether a condition of a driver accreditation has been or is being breached; and

        (c)     the authorised officer believes on reasonable grounds that the information is accessible from the device.

    (2)     The authorised officer or assistant may—

        (a)     access the information by—

              (i)     operating the device; or

              (ii)     using equipment that is at the location being investigated; or

        (b)     direct a person who is referred to in subsection (5), and who is present at the location being investigated, to do a thing referred to in paragraph (a).

    (3)     If the authorised officer or assistant accesses information of a kind referred to in subsection (1)(b), the officer or assistant may—

        (a)     put the information in documentary form and seize those documents; or

        (b)     copy the information to a disk, tape or storage device and remove that disk, tape or storage device from the location being investigated; or

        (c)     subject to subsection (4), seize either or both of the following—

              (i)     the device;

              (ii)     the equipment (if any) that enables that access; or

        (d)     direct a person who is referred to in subsection (5), and who is present at the location being investigated, to do a thing referred to in paragraph (a) or (b).

    (4)     An authorised officer or assistant must not seize a device, or equipment that enables access to information on the device, under subsection (3)(c) unless—

        (a)     it is not practicable to retrieve the information from the device as described in subsection (3)(a) or (b); and

        (b)     if the device is a mobile phone—

              (i)     the phone is found during the execution of a search warrant; and

              (ii)     the phone is named or described in the warrant as a thing that may be seized.

    (5)     The authorised officer or assistant may give a direction under subsection (2)(b) or (3)(d) to—

        (a)     if the location being searched is a motor vehicle—

              (i)     the driver of the vehicle; or

              (ii)     the person in whose name the vehicle is registered under Part 3; and

        (b)     otherwise—

              (i)     the occupier of that place; or

              (ii)     a person who appears to represent the occupier.

    (6)     An authorised officer or assistant must not operate or seize equipment for a purpose referred to in this section unless the officer or assistant believes on reasonable grounds that the operation or seizure can be carried out without damage to the equipment.

        151     Equipment for examining or processing

The authorised officer or an assistant may bring to the location being investigated any equipment that is reasonably necessary for the examination or processing of a thing found at the location to determine whether the thing may be seized.

        152     Use of equipment already at premises, place or vehicle

    (1)     Subject to subsection (2), the authorised officer or an assistant may operate any equipment that is already at the location being investigated for the purpose of carrying out an examination or processing of a thing found at the location to determine whether the thing may be seized.

    (2)     The authorised officer or assistant must not operate the equipment unless the officer or assistant believes on reasonable grounds that—

        (a)     the equipment is suitable for the examination or the processing; and

        (b)     the examination or processing can be carried out without damage to the equipment.

        153     Admissibility of recording

    (1)     This section applies if—

        (a)     under section 148(2)(d) or 149(2)(d), the authorised officer or assistant records—

              (i)     images of any part of a motor vehicle; or

              (ii)     sound audible from or in a motor vehicle; and

        (b)     the recording includes the image or voice of a passenger of the motor vehicle.

    (2)     The recording is not inadmissible as evidence by reason only of the fact that it includes the image or voice of the passenger if capturing that image or voice does not appear to have been the main reason for making the recording.

Division 6—Additional power to remove material from motor vehicle

        154     Removal of material from motor vehicle

    (1)     If an authorised officer believes on reasonable grounds that a motor vehicle is being used for the purpose of providing a commercial passenger vehicle service but is not registered under Part 3, the officer may remove from the vehicle and seize any of the following material in or on the vehicle—

        (a)     a thing referred to in section 51(1)(b) or (c);

        (b)     any other thing that indicates that the vehicle is being used to provide a commercial passenger vehicle service;

        (c)     prescribed material.

    (2)     Subsection (1) applies whether the authorised officer—

        (a)     has entered the motor vehicle under section 131 or 138 or under a search warrant; or

        (b)     is inspecting the motor vehicle in accordance with Division 8.

Division 7—Seized things

        155     Receipt for seized thing

    (1)     An authorised officer who seizes a thing under a search warrant, or under section 150 or 154, must give a receipt for the thing to—

        (a)     if the thing was seized at industry premises or any other place, either of the following persons who is present at the premises or place—

              (i)     the occupier of the premises or place;

              (ii)     a person who appears to represent the occupier; or

        (b)     if the thing was seized from a motor vehicle, either—

              (i)     the driver of the vehicle; or

              (ii)     if the vehicle is a commercial passenger vehicle, the person in whose name the vehicle is registered under Part 3.

    (2)     The receipt must—

        (a)     identify the thing seized; and

        (b)     state the name of the authorised officer who seized the thing; and

        (c)     state the reason why the thing was seized.

    (3)     If for any reason it is not practicable for an authorised officer to comply with subsection (1), the officer may—

        (a)     send the receipt, by post, to a person referred to in subsection (1)(a) or (b) (as the case requires); or

        (b)     if the thing was seized at industry premises or any other place, leave the receipt at the premises or place in a conspicuous position and in a reasonably secure way; or

        (c)     if the thing was seized from a motor vehicle, affix the receipt to the vehicle in a conspicuous position and in a reasonably secure way.

        156     Copies of certain seized things to be given

    (1)     This section applies if an authorised officer seizes under this Part—

        (a)     a document; or

        (b)     a thing that can be readily copied; or

        (c)     a storage device containing information that can be readily copied.

    (2)     The authorised officer must give a copy of the document, thing or information to the owner or custodian of the document, thing or device as soon as practicable after the seizure.

    (3)     Subsection (2) does not apply if the authorised officer is unable to identify the owner or custodian of the document, thing or device.

        157     Return of seized things

    (1)     If an authorised officer seizes a thing under this Part, the officer must take reasonable steps to return the thing to the person from whom it was seized if the reason for its seizure no long exists.

    (2)     If the thing has not been returned before the end of the retention period, the authorised officer must take reasonable steps to return it unless—

        (a)     proceedings have commenced within the retention period and those proceedings (including any appeal) have not been completed; or

        (b)     the Magistrates' Court makes an order under section 158 extending the retention period; or

        (c)     the thing has been forfeited to the State under section 159.

        158     Magistrates' Court may extend retention period

    (1)     An authorised officer may apply to the Magistrates' Court for an extension of the retention period in respect of a thing seized under this Part.

    (2)     The application must be made within—

        (a)     the retention period; or

        (b)     if the Magistrates' Court extends the period within which the application must be made, that extended period.

    (3)     On an application under subsection (1), the Magistrates' Court may order the extension applied for if satisfied that the extension is necessary—

        (a)     for the purposes of an investigation into whether an offence has been committed against an industry law; or

        (b)     to enable evidence of an offence against an industry law to be obtained for the purposes of a prosecution; or

        (c)     to enable evidence of a contravention of section 113(3) to be obtained for the purposes of an application for an order under section 115(2).

    (4)     The Magistrates' Court may adjourn an application under subsection (1) to enable notice of the application to be given to any person.

        159     Forfeiture of seized thing

    (1)     The regulator may declare by instrument that a thing that has been seized and retained under this Part is forfeited to the State if the regulator—

        (a)     cannot find the thing's owner despite making reasonable enquiries; or

        (b)     cannot return the thing to the owner despite making reasonable efforts; or

        (c)     considers it necessary to retain the thing to prevent the commission of an offence against an industry law.

    (2)     If a thing is forfeited to the State under subsection (1)(c), the regulator must give the previous owner written notice of the forfeiture as soon as practicable after making the declaration unless the regulator cannot find the previous owner despite making reasonable enquiries.

    (3)     A notice under subsection (2) must—

        (a)     include a statement of reasons for the action taken; and

        (b)     inform the previous owner that they have a right to seek review of the regulator's decision to make the declaration under Part 12.

    (4)     Material seized under section 154 may, on the owner or driver of the vehicle being found guilty of an offence against section 37(1) or 38(1), be forfeited by order of the court.

Division 8—Directions, defect notices, removal of material

        160     Direction to require production of information, documents and related items

    (1)     The regulator or an authorised officer may, for compliance and investigative purposes, direct a person specified in subsection (2) to provide—

        (a)     information or a document that is required to be kept under an industry law; or

        (b)     information or a document or device or other thing in the person's possession or control relating to—

              (i)     commercial passenger vehicle operations; or

              (ii)     the provision of booking services; or

              (iii)     the provision of a non-cash payment processing service; or

              (iv)     a non-cash payment surcharge.

    (2)     The direction may be given to—

        (a)     a booking service provider; or

        (b)     an accredited driver; or

        (c)     the owner of a commercial passenger vehicle; or

        (d)     the person in whose name a motor vehicle is registered under Part 3; or

        (e)     a person who the regulator or authorised officer believes on reasonable grounds may be able to provide information, a document, device (including a non-cash payment processing device) or other thing to the regulator or officer.

    (3)     A person who is given a direction under subsection (1) must comply with the direction unless the person has a reasonable excuse.

Penalty:     In the case of an individual, 60 penalty units;

In the case of a body corporate, 300 penalty units.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (4)     The regulator or authorised officer may—

        (a)     inspect any document, device or other thing that is produced; or

        (b)     copy or print any document that is produced; or

        (c)     copy any device or other thing that is produced; or

        (d)     seize and remove any document, device or other thing that is produced that the regulator or officer believes on reasonable grounds provides, or may on further inspection provide, evidence of a contravention of an industry law.

        161     Manner of giving direction under section 160

    (1)     The regulator must give a direction under section 160 in writing.

    (2)     An authorised officer may give a direction under section 160 orally or in writing.

    (3)     Whether given orally or in writing, the direction must state where, to whom and how the information, document, device or other thing is to be produced.

    (4)     If giving the direction orally, the authorised officer must—

        (a)     state whether the direction is to be complied with immediately or within a specified period; and

        (b)     warn the person to whom the direction is given that it is an offence under section 160(3) to not comply with the direction.

    (5)     If giving the direction in writing, the regulator or authorised officer must ensure that the direction—

        (a)     states the period within which it is to be complied with; and

        (b)     states that it is an offence under section 160(3) to not comply with the direction.

    (6)     The direction may—

        (a)     require that a document produced is a copy of the original; or

        (b)     require that a document that is produced in electronic form is accompanied by sufficient information to enable the regulator or authorised officer to access the document.

    (7)     The direction may specify—

        (a)     the particular information, or a particular document, device or other thing, that is to be produced; or

        (b)     the particular class of information, document, device or other thing that is to be produced.

        162     Directions to driver of commercial passenger vehicle

    (1)     An authorised officer may, for compliance and investigative purposes, direct the driver of a motor vehicle—

        (a)     to produce for inspection any licence, permit or document which is required to be carried in, or by the driver of, a commercial passenger vehicle; or

        (b)     to state their name and address; or

        (c)     to stop the vehicle; or

        (d)     to keep the vehicle stationary for a sufficient period of time for the vehicle to be inspected; or

        (e)     to move the vehicle to the nearest convenient and safe place for the vehicle to be inspected; or

        (f)     to present a commercial passenger vehicle at a reasonable time and place for inspection by—

              (i)     an authorised officer; or

              (ii)     a police officer; or

              (iii)     a prescribed person.

    (2)     Subject to subsection (5), a driver who is given a direction under subsection (1) must comply with the direction unless the person has a reasonable excuse.

Penalty:     10 penalty units.

    (3)     A direction under subsection (1)(c) or (d) may be given by calling or signalling to the driver.

    (4)     It is a defence to a charge for an offence against subsection (2) relating to a direction under subsection (1)(c) or (d) that the accused was obeying a provision of the rules made under section 95D of the Road Safety Act 1986 .

    (5)     If a direction under subsection (1)(f) is given to a driver who is not the person in whose name the vehicle is registered under Part 3, the driver must, as soon as practicable, notify the person in whose name the vehicle is registered under Part 3 of—

        (a)     the direction; and

        (b)     if the driver has not been, or is not, reasonably able to comply with the direction, that fact.

Penalty:     5 penalty units.

    (6)     A person who, under subsection (5), is notified of a direction must comply with the direction unless the person has a reasonable excuse.

Penalty:     20 penalty units.

    (7)     In this section—

"driver" means a person who is in charge of the vehicle within the meaning of section 3AA of the Road Safety Act 1986 .

        163     Regulator may direct that vehicle be inspected

    (1)     The regulator may, for compliance and investigative purposes, direct the person in whose name a motor vehicle is registered under Part 3 to present the vehicle at a reasonable time and place for inspection by—

        (a)     an authorised officer; or

        (b)     a police officer; or

        (c)     a prescribed person.

    (2)     A person who is given a direction under subsection (1) must comply with the direction unless the person has a reasonable excuse.

Penalty:     20 penalty units.

        164     Authorised officer or police officer may issue defect notice

    (1)     This section applies in relation to an inspection undertaken in accordance with any provision of this Act.

    (2)     An authorised officer or police officer who inspects a commercial passenger vehicle may issue a defect notice for the vehicle if the authorised officer or police officer is satisfied that the vehicle—

        (a)     is unsafe, unsuitable or unfit for use; or

        (b)     does not comply with—

              (i)     this Act or the regulations; or

              (ii)     a condition of the registration for that vehicle under Part 3.

    (3)     A defect notice is issued by serving the notice on the person in whose name the vehicle is registered under Part 3.

    (4)     A defect notice

        (a)     must identify the vehicle and the defect in respect of which the notice is issued; and

        (b)     must state that the person to whom the notice is issued must fix that defect; and

        (c)     must state a time and date after which the vehicle must not be driven unless the defect is fixed; and

        (d)     may direct the person to whom the notice is issued to present the vehicle for further inspection at a specified location and at a specified time and date.

    (5)     The person in whose name the vehicle is registered under Part 3 must not drive the vehicle, or permit the vehicle to be driven, after the time and date referred to in subsection (4)(c) unless the defect has been fixed.

Penalty:     20 penalty units.

    (6)     If a defect notice includes a direction under subsection (4)(d), the person to whom the notice is issued must comply with that direction unless the person has a reasonable excuse.

Penalty:     20 penalty units.

        165     Direction to provide evidence of an inspection

    (1)     This section applies if a direction under this Part requiring that a commercial passenger vehicle be inspected is given to the person in whose name the vehicle is registered under Part 3.

    (2)     The person who gave the direction may direct the person in whose name the vehicle is registered under Part 3 to provide evidence of the inspection.

    (3)     A direction under subsection (2) may specify the kind of evidence that is to be provided.

    (4)     A person who is given a direction under subsection (2) must comply with the direction unless the person has a reasonable excuse.

Penalty:     10 penalty units.

Division 9—Miscellaneous

        166     Use of force

    (1)     This section applies in relation to a power—

        (a)     that is conferred on an authorised officer under this Part; and

        (b)     under which the officer may—

              (i)     enter a place or a motor vehicle; or

              (ii)     do anything at any place or in any motor vehicle.

    (2)     In exercising a power to which this section applies, the authorised officer may use only so much force as is reasonably necessary to effect the entry or to do the thing.

        167     Authorised officer or assistant must cause as little inconvenience as possible

In exercising a power conferred on an authorised officer or an assistant under this Part, the officer or assistant must—

        (a)     cause as little inconvenience as possible; and

        (b)     not remain at any place or in any motor vehicle longer than is reasonably necessary.

        168     Compensation for damage caused during exercise of powers under this Part

    (1)     The regulator must pay compensation for any damage caused by an authorised officer, or a person assisting an authorised officer, in exercising (or purporting to exercise) any power conferred under this Part.

    (2)     However, the regulator is not liable to pay compensation to a person for any damage caused during any inspection or search conducted in accordance with a search warrant under Division 4 or in accordance with Division 5 or 6 if—

        (a)     the thing that was the object of the inspection or search is found; and

        (b)     that thing provides evidence of a contravention of an industry law; and

        (c)     the damage caused was no more than reasonably necessary in inspecting, or searching for, the thing.

    (3)     In determining the amount of compensation payable in relation to any damage caused to electronic equipment, regard must be had to—

        (a)     whether any of the following persons were available at the time to provide a warning or guidance as to the operation of the equipment—

              (i)     the occupier of the place at which the inspection or search occurred (or an employee or agent of the operator);

              (ii)     the driver of the motor vehicle that was searched or inspected;

              (iii)     the person in whose name that vehicle is registered under Part 3; and

        (b)     whether any warning or guidance was given by a person referred to in paragraph (a); and

        (c)     whether the warning or guidance was appropriate in the circumstances.

        169     Abrogation of privilege against self-incrimination

    (1)     A person is not excused from complying with a direction given under this Part on the ground that complying with the direction may result in information being provided that—

        (a)     might incriminate the person; or

        (b)     may make the person liable to a penalty.

    (2)     The material specified in subsection (3)—

        (a)     is not admissible in evidence against the person referred to in that subsection in a criminal proceeding, or a proceeding for the imposition of a civil penalty, other than a proceeding in respect of the provision of false information; and

        (b)     must not be used in any action, proceeding or process that may make the person liable to a penalty, other than a proceeding in respect of the provision of false information.

    (3)     The specified material is—

        (a)     information obtained from an individual under a direction given under this Part (other than information contained in any document or item that the person is required to keep under an industry law); and

        (b)     information, or a document or thing, obtained as a direct result or indirect consequence of information referred to in paragraph (a).

        170     Client legal privilege not abrogated

Nothing in this Part requires a person to produce a document that would disclose or otherwise provide information that is the subject of client legal privilege.

Part 8—Enforcement measures

Division 1—Improvement notices

        171     Service of improvement notices

    (1)     This section applies if the regulator or an authorised officer reasonably believes that a person—

        (a)     is contravening a provision of this Act or the regulations; or

        (b)     has contravened a provision of this Act or the regulations in circumstances that make it likely that the contravention will continue or be repeated; or

        (c)     is providing commercial passenger vehicle services that threaten safety.

    (2)     Subject to this section, the regulator or the authorised officer may serve an improvement notice requiring the person—

        (a)     to remedy the contravention; or

        (b)     to prevent a likely contravention from occurring; or

        (c)     to remedy the things or operations causing the contravention or likely contravention; or

        (d)     to provide commercial passenger vehicle services in a manner that is not likely to threaten safety.

    (3)     Before serving an improvement notice under this section, an authorised officer must inform the regulator of the authorised officer's intention to do so.

        172     Contents of improvement notices

    (1)     An improvement notice must—

        (a)     if the notice relates to a contravention or likely contravention of this Act or the regulations—

              (i)     state that the regulator or the authorised officer believes the person—

    (A)     is contravening a provision of this Act or the regulations; or

    (B)     has contravened a provision of this Act or the regulations in circumstances that make it likely that the contravention will continue or be repeated; and

              (ii)     state the provision the regulator or the officer believes is being, or has been, contravened; and

              (iii)     briefly state how the provision is being, or has been, contravened; and

              (iv)     state the day before which the person is required to remedy the contravention or likely contravention; and

        (b)     in any other case—

              (i)     state that the regulator or the officer believes the person     is providing, or has provided, commercial passenger vehicle services that threaten safety; and

              (ii)     briefly state how the commercial passenger vehicle services are threatening, or have threatened, safety; and

              (iii)     state the day before which the person is required to provide commercial passenger vehicle services so that safety is not threatened or likely to be threatened; and

        (c)     set out the penalty for non-compliance with the notice; and

        (d)     inform the person that they have a right to seek review of the regulator's decision to serve the notice under Part 12; and

        (e)     state that the notice is served under section 171.

    (2)     An improvement notice served on a person on a ground stated in section 171(1)(a) or (b) may include directions concerning the action to be taken to remedy the contravention or prevent the likely contravention, to which the notice relates.

    (3)     An improvement notice served on a person on the ground stated in section 171(1)(c) may include directions concerning the action to be taken so that commercial passenger vehicle safety is not threatened or likely to be threatened.

    (4)     An improvement notice may include recommendations.

    (5)     The day stated for compliance with the improvement notice must be reasonable in all the circumstances.

        173     Directions in improvement notices

A direction included in an improvement notice may—

        (a)     refer to an approved code of practice; and

        (b)     offer the person on whom it is served a choice of ways in which to remedy the contravention or likely contravention.

        174     Compliance with improvement notice

    (1)     A person on whom an improvement notice is served must comply with the notice within the period specified in the notice unless the person has a reasonable excuse.

Penalty:     In the case of an individual, $50 000;

In the case of a body corporate, $500 000.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     It is not an offence to fail to comply with recommendations in an improvement notice.

        175     Amendment of improvement notice

    (1)     An improvement notice that has been served may be amended by the regulator or any authorised officer.

    (2)     An amendment of an improvement notice is effected by serving on the person affected a notice stating the terms of the amendment.

    (3)     An amendment of an improvement notice is ineffective if it purports to deal with a contravention of a different provision of this Act or the regulations from that dealt with in the improvement notice as first served.

    (4)     A notice of an amendment of an improvement notice must—

        (a)     state the reasons for the amendment; and

        (b)     inform the person affected that they have a right to seek review of the regulator's decision to amend the notice under Part 12; and

        (c)     state that it is served under this section.

        176     Cancellation of improvement notices

    (1)     An improvement notice served on a person may only be cancelled by the regulator.

    (2)     Notice of cancellation of an improvement notice is required to be served on the person affected.

        177     Clearance certificates for improvement notices

    (1)     This section applies if the regulator or an authorised officer is satisfied that a person on whom an improvement notice has been served has complied with all the requirements of, or a specific requirement of, that notice.

    (2)     The regulator or an authorised officer must serve a clearance certificate on the person to the effect that (as the case requires)—

        (a)     all of the requirements of the improvement notice have been complied with; or

        (b)     the specific requirement of the improvement notice has been complied with.

    (3)     The clearance certificate must be served as soon as practicable after the regulator or an authorised officer is so satisfied.

    (4)     A requirement of the improvement notice to which the clearance certificate relates ceases to operate when the person receives the certificate.

        178     Proceedings for offences not affected by improvement notices or clearance certificates

    (1)     The service, amendment or cancellation of an improvement notice does not affect any proceeding for an offence against this Act or the regulations in connection with any matter in respect of which the improvement notice was served.

    (2)     The service of a clearance certificate under section 177 in respect of an improvement notice does not affect any proceeding for an offence against this Act or the regulations in connection with any matter in respect of which the improvement notice was served.

        179     Extension of time for compliance with improvement notices

    (1)     This section applies if a person has been served with an improvement notice.

    (2)     The regulator or an authorised officer may, by written notice given to the person, extend the compliance period for the improvement notice.

    (3)     However, the regulator or the authorised officer may only extend the compliance period if the period has not ended.

    (4)     In this section—

"compliance period "means the period stated in the improvement notice served under section 171, and includes that period as extended under this section.

Division 2—Prohibition notices

        180     Service of prohibition notice

    (1)     This section applies if the regulator or an authorised officer reasonably believes that—

        (a)     an activity is occurring in relation to commercial passenger vehicle services that involves or will involve an immediate risk to safety; or

        (b)     an activity may occur in relation to commercial passenger vehicle services that, if it occurs, will involve an immediate risk to safety.

    (2)     The regulator or an authorised officer may serve a prohibition notice on a person who has, or appears to have, control over the activity prohibiting the carrying on of the activity, or the carrying on of the activity in a specified way.

    (3)     Despite section 192, a prohibition notice may be given orally, but must be confirmed by written notice served on the person as soon as practicable after it is given.

        181     Contents of prohibition notice

    (1)     A prohibition notice must—

        (a)     state that the regulator or the authorised officer believes that grounds for the service of the prohibition notice exist and the basis for that belief; and

        (b)     briefly state the activity that the regulator or the officer believes involves or will involve the risk and the matters that give or will give rise to the risk; and

        (c)     state the provision (if any) of this Act or the regulations that the regulator or the officer believes is being, or is likely to be, contravened by that activity; and

        (d)     set out the penalty for contravening the notice; and

        (d)     inform the person that they have a right to seek review of the regulator's decision to serve the notice under Part 12; and

        (f)     state that the notice is served under section 180.

    (2)     A prohibition notice may include directions.

    (3)     A prohibition notice may include recommendations.

        182     Directions in prohibition notices

A direction included in a prohibition notice may do any one or more of the following—

        (a)     refer to an approved code of practice;

        (b)     specify measures to be taken to remedy the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in section 181(1)(c);

        (c)     offer the person on whom it is served a choice of ways in which to remedy—

              (i)         the risk, activities or matters to which the notice relates, or the contravention or likely contravention referred to in section 181(1)(c);

              (ii)     the matter or matters that involve, or will involve, an immediate risk to safety.

        183     Compliance with prohibition notice

    (1)     A person on whom a prohibition notice is served must comply with the notice unless the person has a reasonable excuse.

Penalty:     In the case of an individual, $150 000;

In the case of a body corporate, $1 500 000.

Note

Section 284 (criminal liability of officers of bodies corporate—failure to exercise due diligence) applies to an offence against this subsection.

    (2)     It is not an offence to fail to comply with recommendations in a prohibition notice.

        184     Amendment of prohibition notice

    (1)     A prohibition notice that has been served may be amended by the regulator or any authorised officer.

    (2)     An amendment of a prohibition notice is effected by serving on the person affected a notice stating the terms of the amendment.

    (3)     An amendment of a prohibition notice is ineffective if it purports to prohibit the carrying out of an activity that is different from the activity prohibited by the prohibition notice as first served.

    (4)     A notice of an amendment of a prohibition notice must—

        (a)     state the reasons for the amendment; and

        (b)     inform the person affected that they have a right to seek review of the regulator's decision to amend the notice under Part 12; and

        (c)     state that it is served under this section.

        185     Withdrawal of prohibition notices

    (1)     A prohibition notice served on a person may only be withdrawn by the regulator.

    (2)     Notice of the withdrawal of a prohibition notice is required to be served on the person affected.

        186     Certificates that matters that give rise to immediate risks to safety remedied

    (1)     This section applies if the regulator or an authorised officer is satisfied that a person served with a prohibition notice has remedied all of the matters or the matter that—

        (a)     gave, or will give, rise to an immediate risk to safety; and

        (b)     is specified in the prohibition notice.

    (2)     The regulator or an authorised officer must serve a certificate on the person to the effect that (as the case requires)—

        (a)     all of the matters or the matter that gave rise to an immediate risk to safety because of the activity specified in the prohibition notice have been remedied; or

        (b)     all of the matters or the matter that could have given rise to an immediate risk to safety because of the activity specified in the prohibition notice have been remedied.

    (3)     The certificate must be served as soon as practicable after the regulator or authorised officer is so satisfied.

    (4)     A matter stated in the prohibition notice that has been remedied to the satisfaction of the regulator or authorised officer, and to which the certificate relates, ceases to operate when the person receives the certificate.

        187     Proceedings for offences not affected by prohibition notices or certificates

    (1)     The service, amendment or withdrawal of a prohibition notice does not affect any proceeding for an offence against this Act or the regulations in connection with any matter in respect of which the prohibition notice was served.

    (2)     The service of a certificate under section 186 in respect of a prohibition notice does not affect any proceeding for an offence against this Act or the regulations in connection with any matter in respect of which the prohibition notice was served.

        188     When regulator may carry out action

    (1)     This section applies if a person on whom a prohibition notice is served fails to take reasonable steps to comply with the notice.

    (2)     The regulator may take any remedial action the regulator believes reasonable to make the situation safe after giving written notice to the person on whom the prohibition notice was served of—

        (a)     the regulator's intention to take that action; and

        (b)     the person's liability for the costs of that action.

        189     Power of regulator to take other remedial action

    (1)     This section applies if—

        (a)     the regulator reasonably believes that circumstances in which a prohibition notice can be served exist; and

        (b)     after taking reasonable steps, the regulator cannot find the person with control or management of the premises or vehicle in relation to which the notice would be served.

    (2)     The regulator may take any remedial action necessary to make the situation safe.

        190     Costs of remedial or other action

The regulator may recover, as a debt due to the regulator in a court of competent jurisdiction, the reasonable costs of any remedial action taken under—

        (a)     section 188 from the person on whom the prohibition notice is served; or

        (b)     section 189 from any person on whom the prohibition notice could have been served in respect of the matter.

Division 3—General requirements applying to notices

        191     Definition

In this Division—

"notice" means an improvement notice or a prohibition notice.

        192     Notice must be in writing

A notice must be in writing.

        193     Minor variations of notices

The regulator or an authorised officer may make minor changes to a notice

        (a)     for clarification; or

        (b)     to correct errors or references; or

        (c)     to reflect changes of address or other circumstances.

        194     Formal irregularities or defects in notice

A notice is not invalid merely because of—

        (a)     a formal defect or irregularity in the notice unless the defect or irregularity causes or is likely to cause substantial injustice; or

        (b)     a failure to use the correct name of the person on whom the notice is served if the notice sufficiently identifies the person and is served or given to the person in accordance with section 195.

        195     Serving notices

    (1)     A notice may be served on a person—

        (a)     in accordance with section 288; or

        (b)     if the notice relates to industry premises, by leaving it—

              (i)     at the premises to which the notice relates; or

              (ii)     with a person who is or appears to be the person with control or management of those premises; or

        (c)     if the notice relates to a motor vehicle, by leaving it—

              (i)     on the vehicle to which the notice relates; or

              (ii)     with a person who is or appears to be in control of that vehicle.

Division 4—Injunctions

        196     Injunctions for contravention of specified provisions

    (1)     This section applies to the following provisions (the specified provisions )—

        (a)     section 53;

        (b)     section 54;

        (c)     section 55;

        (d)     section 113(3).

    (2)     The Supreme Court may grant an injunction, in any terms that it considers appropriate, if satisfied that a person has engaged, or is proposing to engage, in conduct that constitutes or would constitute—

        (a)     a contravention of a specified provision; or

        (b)     attempting to contravene a specified provision; or

        (c)     aiding, abetting, counselling or procuring a person to contravene a specified provision; or

        (d)     inducing, or attempting to induce, whether by threats, promises or otherwise, a person to contravene a specified provision; or

        (e)     being in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of a specified provision; or

        (f)     conspiring with others to contravene a specified provision.

    (3)     Without limiting subsection (2), the Supreme Court may grant an injunction under that subsection restraining a person from doing any thing specified in subsection (4)—

        (a)     for a specified period; or

        (b)     except on specified terms and conditions.

    (4)     The things are—

        (a)     receiving or accepting requests for a person to be provided with a commercial passenger vehicle service (whether or not as part of, or incidental to, the carrying on of another business); and

        (b)     facilitating the receiving or acceptance of requests referred to in paragraph (a); and

        (c)     carrying on a business or supplying goods or services (whether or not as part of, or incidental to, the carrying on of another business).

    (5)     The Supreme Court may only grant an injunction under subsection (2) on an application made by the regulator.

    (6)     The power of the Supreme Court to grant an injunction under subsection (2) restraining a person from engaging in conduct may be exercised—

        (a)     whether or not it appears to the Court that the person intends to engage again, or to continue to engage, in conduct of a kind referred to in that subsection; and

        (b)     whether or not the person has previously engaged in conduct of that kind; and

        (c)     whether or not there is an imminent danger of substantial damage to any other person if the person engages in conduct of that kind.

    (7)     The power of the Supreme Court to grant an injunction under subsection (2) requiring a person to do an act or thing may be exercised—

        (a)     whether or not it appears to the Court that the person intends to refuse or fail again, or to continue to refuse or fail, to do that act or thing; and

        (b)     whether or not the person has previously refused or failed to do that act or thing; and

        (c)     whether or not there is an imminent danger of substantial damage to any other person if the person refuses or fails to do that act or thing.

    (8)     On an application under subsection (2) the Supreme Court may grant an injunction by consent of all the parties to the proceeding, whether or not the Court is satisfied as required by that subsection.

    (9)     If in the opinion of the Supreme Court it is desirable to do so, the Court may grant an interim injunction pending the determination of an application under subsection (2).

    (10)     In granting an interim injunction, the Supreme Court must not require the applicant or any other person to give any undertakings as to damages as a condition of doing so.

        197     Injunctions for non-compliance with improvement notice or prohibition notice

    (1)     The regulator may apply to the Magistrates' Court for an injunction—

        (a)     compelling a person to comply with an improvement notice or a prohibition notice; or

        (b)     restraining a person from contravening an improvement notice or a prohibition notice.

    (2)     The regulator may do so—

        (a)     whether or not a proceeding has been commenced for an offence against this Act or the regulations in connection with any matter in respect of which the notice was served; and

        (b)     whether or not any period for compliance with the notice has expired.

Division 5—Enforceable voluntary undertakings

        198     Enforceable voluntary undertaking by registered booking service providers

    (1)     The regulator may accept a written undertaking given by a registered booking service provider in connection with a matter relating to a contravention or alleged contravention by the provider of this Act or the regulations.

    (2)     The regulator must not accept an undertaking under subsection (1) if—

        (a)     the undertaking is in connection with a matter relating to a contravention or alleged contravention of an indictable offence under this Act; and

        (b)     the regulator considers that it would be appropriate for the regulator to prosecute that offence.

    (3)     The giving of an undertaking does not constitute an admission of guilt by the provider in respect of the contravention or alleged contravention to which the undertaking relates.

        199     Notice of decisions and reasons for decision

The regulator must give the registered booking service provider seeking to give an undertaking written notice of—

        (a)     the regulator's decision to accept or reject the undertaking; and

        (b)     the reasons for the decision.

        200     When an undertaking is enforceable

An undertaking takes effect and becomes enforceable—

        (a)     when the regulator's decision to accept the undertaking is given to the registered booking service provider who gave the undertaking; or

        (b)     at any later date specified by the regulator.

        201     Compliance with undertaking

A registered booking service provider who has given an undertaking that is in effect must not contravene the undertaking.

Penalty:     In the case of an individual, 60 penalty units;

In the case of a body corporate, 300 penalty units.

        202     Contravention of undertaking

    (1)     This section applies if the regulator considers that a registered booking service provider has contravened an undertaking accepted by the regulator from that provider.

    (2)     The regulator may apply to the Magistrates' Court for enforcement of the undertaking.

    (3)     If the Magistrates' Court is satisfied that the provider has contravened the undertaking, the Court, in addition to imposing any penalty, may make any of the following orders—

        (a)     an order that the provider must comply with the undertaking or take specified action to comply with the undertaking;

        (b)     an order discharging the undertaking;

        (c)     an order directing the provider to pay to the regulator—

              (i)     the costs of the proceeding; and

              (ii)     the reasonable costs of the regulator in monitoring compliance with the undertaking in the future;

        (d)     any other order that it considers appropriate in the circumstances.

    (4)     A registered booking service provider must comply with an order under this section.

Penalty:     In the case of an individual, 60 penalty units;

In the case of a body corporate, 300 penalty units.

    (5)     Nothing in this section prevents a proceeding being commenced for the contravention or alleged contravention of this Act or the regulations to which the undertaking relates.

        203     Withdrawal or variation of undertaking

    (1)     A registered booking service provider who has given an undertaking may withdraw or vary the undertaking with the written agreement of the regulator.

    (2)     However, the provisions of the undertaking cannot be varied to provide for a different alleged contravention of this Act or the regulations.

        204     Proceedings for alleged contravention

    (1)     Subject to this section, no proceeding for a contravention or alleged contravention of this Act or the regulations may be commenced against a registered booking service provider if an undertaking is in effect in relation to that contravention.

    (2)     No proceeding may be commenced for a contravention or alleged contravention of this Act or the regulations against a registered booking service provider who has—

        (a)     given an undertaking in respect of that contravention; and

        (b)     completely discharged the undertaking.

    (3)     The regulator may accept an undertaking in respect of a contravention or alleged contravention before a proceeding in respect of that contravention has been finalised.

    (4)     If the regulator accepts an undertaking before a proceeding is finalised, the regulator must take all reasonable steps to have the proceeding discontinued as soon as possible.

Division 6—Infringement offences

        205     Infringement notices

    (1)     A police officer or an authorised officer who has reason to believe that a person has committed a prescribed infringement offence may serve an infringement notice on that person.

    (2)     An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006 .

    (3)     The penalty for the purposes of this section in respect of any infringement is the amount prescribed in respect of that infringement.

Division 7—Specific court orders

        206     Commercial benefits penalty order

    (1)     A court that finds a person guilty of an offence under this Act or the regulations may make an order under this section on application by—

        (a)     the prosecutor; or

        (b)     the regulator.

    (2)     The court may make an order under this section requiring the person to pay, as a fine, an amount not exceeding 3 times the amount estimated by the court to be the gross commercial benefit that—

        (a)     was obtained or obtainable, by the person or by an associate of the person, from the commission of the offence; and

        (b)     in the case of a journey that was interrupted or not commenced because of action taken by an authorised officer in connection with the commission of the offence—would have been obtained or obtainable, by the person or by an associate of the person, from the commission of the offence had the journey been completed uninterrupted.

    (3)     In estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court may take into account—

        (a)     benefits of any kind, whether monetary or otherwise; and

        (b)     monetary savings or a reduction in any operating or capital expenditure of any kind achieved or achievable because of the commission of the offence; and

        (c)     any other matter that it considers relevant.

    (4)     However, in estimating the gross commercial benefit that was or would have been obtained or obtainable from the commission of the offence, the court is required to disregard any costs, expenses or liabilities incurred by the person or by an associate of the person.

    (5)     Nothing in this section prevents the court from ordering payment of an amount that is—

        (a)     less than 3 times the estimated gross commercial benefit; or

        (b)     less than the estimated gross commercial benefit.

    (6)     For the purposes of this section, a person is an "associate" of another if—

        (a)     one is a spouse, de facto partner, parent, brother, sister or child of the other; or

        (b)     they are members of the same household; or

        (c)     they are partners; or

        (d)     they are both trustees or beneficiaries of the same trust, or one is a trustee and the other is a beneficiary of the same trust; or

        (e)     one is a body corporate and the other is a director or member of the governing body of the body corporate; or

        (f)     one is a body corporate (other than a public company whose shares are listed on a stock exchange) and the other is a shareholder in the body corporate; or

        (g)     they are related bodies corporate within the meaning of the Corporations Act; or

        (h)     a chain of relationships can be traced between them under any one or more of the above paragraphs.

    (7)     For the purposes of subsection (6), a beneficiary of a trust includes an object of a trust.

        207     Supervisory intervention order

    (1)     A court that finds a person guilty of an offence under this Act or the regulations may make an order under this section on application by—

        (a)     the prosecutor; or

        (b)     the regulator.

    (2)     The court may make an order under this section requiring the person (at the person's own expense and for a specified period not exceeding one year) to do all or any of the following—

        (a)     to do specified things that the court considers will improve the person's compliance with this Act or the regulations, including (for example) the following—

              (i)     appointing or removing staff to or from particular activities or positions;

              (ii)     training and supervising staff;

              (iii)     obtaining expert advice as to maintaining appropriate compliance;

              (iv)     installing monitoring, compliance, managerial or operational equipment;

              (v)     implementing monitoring, compliance, managerial or operational practices, systems or procedures;

        (b)     implement specified monitoring, compliance, managerial or operational practices, systems or procedures subject to the direction of one or more of the following as specified in the order—

              (i)     the regulator;

              (ii)     a person nominated by the regulator;

        (c)     to furnish compliance reports to the regulator or the court, or both, as specified in the order;

        (d)     to appoint a person to have responsibilities—

              (i)     to assist the person in improving compliance with this Act or the regulations, or specified provisions of this Act or the regulations; and

              (ii)     to monitor the person's performance in complying with this Act or the regulations, or specified provisions of this Act or the regulations and in complying with the requirements of the order; and

              (iii)     to furnish compliance reports to the regulator the court, or both, as specified in the order.

    (3)     The court may specify matters that are to be dealt with in compliance reports and the form and manner in which, and the frequency with which, compliance reports are to be prepared and furnished.

    (4)     The court may require that compliance reports or parts of compliance reports be made public, and may specify the form and manner in which, and the frequency with which, they are to be made public.

    (5)     A court may only make an order under this section against a person if it considers the person to be a systematic or persistent offender against this Act or the regulations.

    (6)     The court may only make an order under this section if it is satisfied that the order is capable of improving the person's ability or willingness to comply with this Act or the regulations, having regard to—

        (a)     the offences against this Act or the regulations of which the person has been previously found guilty; and

        (b)     the offences against this Act or the regulations for which the person has been proceeded against by way of unwithdrawn infringement notices; and

        (c)     any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with—

              (i)     the provision of commercial passenger vehicle services; or

              (ii)     the provision of booking services.

    (7)     An order under this section may direct that any other penalty or sanction imposed for the offence by the court is suspended until the court determines that there has been a substantial failure to comply with the order.

    (8)     The court may revoke or amend an order made under this section on the application of—

        (a)     the regulator; or

        (b)     the person in respect of whom the order was made, but only if the court is satisfied that there has been a change of circumstances warranting the revocation or amendment.

    (9)     In this section—

"compliance report", in relation to a person in respect of whom an order is made under this section, means a report relating to—

        (a)     the performance of the person in complying with—

              (i)     this Act or the regulations, or provisions of this Act or the regulations specified in the order; and

              (ii)     the requirements of the order; and

        (b)     without limiting paragraph (a)—

              (i)     things done by the person to ensure that any failure by the person to comply with this Act or the regulations, or the specified provisions of this Act or the regulations, does not continue; and

              (ii)     the results of those things having been done.

        208     Contravention of supervisory intervention order

A person who is subject to a requirement of a supervisory intervention order must not engage in conduct that results in a contravention of the requirement.

Penalty:     In the case of an individual, 120 penalty units;

In the case of a body corporate, 600 penalty units.

        209     Exclusion orders

    (1)     A court that finds a person guilty of an offence against this Act or the regulations may make an order under this section on application by—

        (a)     the prosecutor; or

        (b)     the regulator.

    (2)     For the purpose of restricting opportunities for the person to commit or be involved in the commission of further offences against this Act or the regulations, the court may, if it considers it appropriate to do so, make an order under this section prohibiting the person, for a specified period, from—

        (a)     providing, or being otherwise involved in the providing of, commercial passenger vehicle services or booking services; or

        (b)     being a director, secretary or officer concerned in the management of a body corporate involved in providing commercial passenger vehicle services or booking services.

    (3)     The court may only make an order under this section if it considers the person to be a systematic or persistent offender against this Act or the regulations.

    (4)     The court may only make an order under this section if it is satisfied that the person should not continue the things that are the subject of the proposed order and that a supervisory intervention order is not appropriate, having regard to—

        (a)     the offences against this Act or the regulations of which the person has previously been found guilty; and

        (b)     any other offences or other matters that the court considers to be relevant to the conduct of the person in connection with the provision of commercial passenger vehicle services or booking services.

    (5)     The court may revoke or amend an order made under this section on the application of—

        (a)     the regulator; or

        (b)     the person in respect of whom the order was made, but only if the court is satisfied that there has been a change of circumstances warranting the revocation or amendment.

        210     Contravention of exclusion order

A person who is subject to an exclusion order must not engage in conduct that results in a contravention of the order.

Penalty:     In the case of an individual, 120 penalty units;

In the case of a body corporate, 600 penalty units.

        211     Release on the giving of a safety undertaking

    (1)     If a court convicts a person or finds a person guilty of an offence against this Act or the regulations, the court may (with or without recording a conviction) adjourn the proceeding for a period of up to 2 years and make an order for the release of the offender on the offender giving an undertaking with specified conditions.

    (2)     An undertaking must specify the following conditions—

        (a)     that the offender appears before the court if called on to do so during the period of the adjournment and, if the court so specifies, at the time to which the further hearing is adjourned;

        (b)     that the offender does not commit, during the period of the adjournment, any offence against this Act or the regulations;

        (c)     that the offender observes any special conditions imposed by the court.

    (3)     Without limiting subsection (2)(c), the court may impose on an offender special conditions that the offender—

        (a)     engage a consultant, who is approved in writing by the regulator, to advise on or assist with safety matters; or

        (b)     develop and implement a systematic approach to managing risks to safety that arise or may arise in the conduct of the offender's undertaking; or

        (c)     arrange for the carrying out of an audit of the offender's undertaking in relation to safety by an independent person who is approved in writing by the regulator.

    (4)     An offender who has given an undertaking under this section may be called on to appear before the court—

        (a)     by order of the court; or

        (b)     by notice issued by the proper officer (within the meaning of section 72(4) of the Sentencing Act 1991 ) of the court.

    (5)     An order or notice under subsection (4) must be served on the offender not less than 4 days before the time specified in it for the appearance.

    (6)     If the court is satisfied at the time to which a further hearing of a proceeding is adjourned that the offender has observed the conditions of the undertaking, it must discharge the offender without any further hearing of the proceeding.

    (7)     The court may make an order under this section in relation to an offender in addition to or instead of—

        (a)     imposing a penalty on the offender; or

        (b)     making any other order that the court may make in relation to the offence.

        212     Variation or contravention of orders under section 211

Section 78 and Divisions 1 and 2 of Part 3C of the Sentencing Act 1991 (and any definitions in that Act of terms used in that section or Divisions 1 and 2 of that Part) apply to an order under section 211 for the release of an offender as though they were incorporated into this Act and as though—

        (a)     a reference to Subdivision (2) or (3) were instead a reference to section 207; and

        (b)     a reference to section 72 or 75 were a reference to section 211; and

        (c)     a reference to a prescribed person, a member of a prescribed class of person, the informant or a police prosecutor were instead a reference to the regulator; and

        (d)     the reference in section 83AC of the Sentencing Act 1991 to a level 10 fine were instead a reference to a fine not exceeding 10 penalty units for an individual or 50 penalty units for a body corporate; and

        (e)     any other necessary modifications were made.

        213     Adverse publicity order

    (1)     A court that finds a person guilty of an offence against this Act or the regulations may make an order under this section on application by the prosecutor or the regulator.

    (2)     The court may make an order under this section requiring the offender to do all or any of the following within the period specified in the order—

        (a)     publicise, in the way specified in the order and within the period specified in the order, the offence, its consequences, the penalty imposed and any other related matter;

        (b)     notify a specified person or a person of a specified class, in the way specified in the order and within the period specified in the order, of the offence, its consequences, the penalty imposed and any other related matter;

        (c)     give the regulator, within 5 business days after the end of the period specified in the order, evidence that the action or actions were taken by the offender in accordance with the order.

    (3)     The court may make an order under this section in addition to—

        (a)     imposing a penalty on the offender; or

        (b)     making any other order that the court may make in relation to the offence.

    (4)     This section does not limit a court's powers under any other provision of this Act.

Part 9—Disciplinary action

        214     When the regulator may take disciplinary action

The regulator may take disciplinary action under this Part against a permission holder in respect of a permission held by the permission holder if satisfied of any of the following—

        (a)     that the permission holder has contravened or is contravening a condition imposed on the permission;

        (b)     that the permission was obtained because of false or misleading information given as part of, or in relation to, the application for the permission;

        (c)     that the permission holder has contravened a requirement applying to the permission holder under—

              (i)     Part 11 or any regulations made for the purposes of that Part; or

              (ii)     the Taxation Administration Act 1997 as it applies to Part 11 and any regulations made for the purposes of that Part;

        (d)     in the case of a registered booking service provider—

              (i)     the provider's registration, or a relevant person in relation to the registration, has contravened or is contravening this Act or regulations made under this Act; or

              (ii)     the provider would no longer satisfy any one or more of the matters that the regulator must consider when deciding whether to register or refuse to register the provider as a registered booking service provider;

        (e)     in the case of an accredited driver, that they—

              (i)     have been found guilty (within the meaning of Part 5) of a category 2 offence or a category 3 offence or are subject to a charge for a disqualifying offence that has not been finally disposed of; or

              (ii)     would no longer satisfy any one or more of the matters that the regulator must consider when deciding whether to approve or refuse to approve the application for the driver accreditation.

        215     Disciplinary actions that may be taken in relation to permissions

    (1)     Subject to this Part, the regulator may take one or more of the following actions ( disciplinary actions ) in relation to a permission holder—

        (a)     cancel the permission;

        (b)     if a permission is cancelled, disqualify the holder from applying for a permission of that kind for a specified period not exceeding 5 years;

        (c)     suspend the permission for a specified period or until a specified event occurs;

        (d)     if the permission is already suspended, do either of the following—

              (i)     cancel the permission and disqualify the holder from applying for a permission of that kind for a period not exceeding 5 years;

              (ii)     suspend the permission for an additional period;

        (e)     warn the permission holder that more serious action may be taken in the future if the holder repeats the behaviour;

        (f)     reprimand the permission holder;

        (g)     if the permission holder is an accredited driver

              (i)     require the accredited driver to undertake a course of training or to pass a test specified under section 72;

              (ii)     impose a new condition on, or vary a condition on, the driver accreditation.

    (2)     If a permission holder holds more than one kind of permission, the regulator may take action in relation to any one or more of the permissions.

        216     Procedure for taking disciplinary action

    (1)     This section applies if the regulator proposes to take disciplinary action against a permission holder under this Part.

    (2)     The regulator must serve on the permission holder a notice (a "disciplinary notice") that—

        (a)     specifies the proposed disciplinary action (including any proposed period of suspension or disqualification); and

        (b)     if the permission holder holds more than one permission, specifies the permission or permissions to which the proposed disciplinary action relates; and

        (c)     specifies the grounds for the proposed disciplinary action; and

        (d)     invites the permission holder to make a written submission within a specified period as to why the proposed disciplinary action should not be taken.

    (3)     For the purposes of subsection (2)(d), the period specified in the disciplinary notice may be—

        (a)     if an immediate suspension notice is also served under section 220, a period of at least 10 business days after the day on which the disciplinary notice is served on the permission holder; or

        (b)     in any other case, a period of at least 20 business days after the day on which the disciplinary notice is served on the permission holder.

        217     Regulator may extend time for making submissions in relation to disciplinary notices

    (1)     A permission holder served a disciplinary notice under section 216 may request the regulator to extend the time within which the holder must make a submission under a notice under that section.

    (2)     A request must be in writing and set out the reasons for the request.

    (3)     On receiving a request, the regulator, by written notice served on the permission holder, may extend the time within which the holder may make the submission.

    (4)     A notice under subsection (3) must state the new date by which the permission holder may make the submission.

        218     Decision on taking disciplinary action

    (1)     If the regulator is satisfied that grounds for taking disciplinary action against a permission holder have been established, the regulator may take—

        (a)     any disciplinary action specified in the disciplinary notice; or

        (b)     disciplinary action that is less severe.

    (2)     In deciding whether to take disciplinary action, the regulator must consider any submission made to the regulator by the permission holder in accordance with the disciplinary notice served on the holder.

    (3)     The regulator must, as soon as practicable, serve written notice on the permission holder of the decision with respect to taking, or not taking, disciplinary action.

    (4)     If the decision is to take disciplinary action, the written notice must set out—

        (a)     the disciplinary action being taken; and

        (b)     the reasons for the decision; and

        (c)     the date on which any cancellation, suspension, disqualification or new or varied condition takes effect.

    (5)     The date set out in a notice under subsection (4) must not be earlier than 5 business days after the day on which the notice under subsection (3) is served.

        219     Mandatory cancellation of driver accreditations in certain cases

    (1)     The regulator must cancel a driver accreditation if the accredited driver

        (a)     is found guilty (within the meaning of Part 5) of a category 1 offence; or

        (b)     becomes subject to—

              (i)     reporting obligations imposed under Part 3 of the Sex Offenders Registration Act 2004 ; or

              (ii)     a supervision order or interim supervision order within the meaning of the Serious Sex Offenders (Detention and Supervision) Act 2009 .

    (2)     The regulator must not cancel a driver accreditation of a person on a ground referred to in subsection (1) if any of the following decisions in respect of the person has been previously set aside (but not remitted) by VCAT on that ground—

        (a)     a decision to refuse to issue a driver accreditation;

        (b)     a decision to cancel an accreditation.

        220     Immediate suspension of permission at the discretion of the regulator

    (1)     This section applies if the regulator—

        (a)     has decided to serve, or has served, a disciplinary notice on a permission holder; and

        (b)     believes, on reasonable grounds, that it is in the public interest that the permission held by the person be suspended as soon as practicable before a decision is made to take action under section 218 in relation to that person.

    (2)     In forming the belief referred to in subsection (1)(b), the regulator must consider—

        (a)     the circumstances leading to the decision to serve the disciplinary notice; and

        (b)     the grounds specified, or proposed to be specified, in the disciplinary notice.

    (3)     The regulator may serve on the permission holder a notice (an immediate suspension notice ) suspending the permission.

    (4)     An immediate suspension notice served in relation to a permission ends—

        (a)     if the permission is cancelled or suspended under section 218, when the cancellation or suspension takes effect; or

        (b)     if a condition is imposed on the permission, or a condition on the permission is varied, when the condition or varied condition takes effect; or

        (c)     in any other case, when the permission holder is notified under section 218(3) of the decision made on the disciplinary notice.

        221     Mandatory immediate suspension of driver accreditation

    (1)     This section applies if an accredited driver is subject to a charge for a category 1 offence that has not been finally disposed of.

    (2)     The regulator must serve on the accredited driver a notice (an immediate suspension notice ) suspending the driver accreditation.

    (3)     An immediate suspension notice served in relation to a driver accreditation ends—

        (a)     if the accreditation is cancelled under section 219(1)(a), on the day of that cancellation; or

        (b)     if the person served the immediate suspension notice is found not guilty of the offence, on the day of that finding; or

        (c)     if the charge is dismissed by a court or is withdrawn, on the day of that dismissal or withdrawal; or

        (d)     if the proceeding for the hearing of the charge is discontinued by the prosecution, on the day of that discontinuance; or

        (e)     if the person served the immediate suspension notice is discharged by a court following a committal proceeding, on the day of that discharge.

        222     Mandatory suspension of driver accreditation if driver licence suspended or cancelled

    (1)     This section applies if an accredited driver has their driver licence or probationary licence under the Road Safety Act 1986 suspended or cancelled under that Act.

    (2)     The regulator must suspend the driver accreditation.

    (3)     A suspension under this section of a driver accreditation remains in effect until the regulator reinstates the accreditation of the person in accordance with section 223.

        223     Reinstatement of driver accreditation following reinstatement of driver licence

The regulator must reinstate a driver accreditation that is suspended in accordance with section 222 if—

        (a)     the person who holds the suspended accreditation gives evidence, to the satisfaction of the regulator, that—

              (i)     the suspension of the person's driver licence or probationary licence under the Road Safety Act 1986 has ceased; or

              (ii)     the person has been granted a driver licence or probationary licence under the Road Safety Act 1986 ; and

        (b)     there are no grounds for the regulator to consider taking disciplinary action under this Part.

        224     Person whose driver licence or probationary licence is suspended or cancelled must notify the regulator

An accredited driver whose driver licence or probationary licence under the Road Safety Act 1986 is suspended or cancelled under that Act must, within 5 business days after that suspension or cancellation—

        (a)     notify the regulator of that suspension or cancellation; and

        (b)     return to the regulator their certificate of accreditation.

Penalty:     5 penalty units.

        225     Effect of suspension of permission

    (1)     This section applies if a person's permission is suspended under this Part.

    (2)     During the period of the suspension of the permission—

        (a)     the permission is taken not to be in effect; and

        (b)     the person is taken not to be, as the case requires—

              (i)     a person in whose name a commercial passenger vehicle is registered; or

              (ii)     a registered booking service provider; or

              (iii)     an accredited driver; and

        (c)     the person is disqualified from applying for a permission of that kind.

        226     Re-instatement of driver accreditation

If the regulator has suspended the driver accreditation of a person under section 218 pending the hearing of a charge for a disqualifying offence, and the person is not found guilty of the offence (within the meaning of Part 5), the regulator must re-instate the accreditation.

Part 10—Register of permission holders

Division 1—Establishment of register

        227     Register of permission holders

    (1)     The regulator must keep a register of permission holders.

    (2)     The regulator must include on the register an entry for each permission holder that includes—

        (a)     the name of the permission holder; and

        (b)     the prescribed details.

    (3)     The regulator may include on the register the following details for each permission holder—

        (a)     business contact details (including a telephone number, fax number, postal address, email address and internet site);

        (b)     if the permission holder is a person in whose name a motor vehicle is registered under Part 3, details of the vehicle;

        (c)     if the permission holder is a registered booking service provider, details of the booking service;

        (d)     if the permission holder is an accredited driver, details of the issue of the certificate of accreditation.

        228     Public version of register

    (1)     The regulator must keep a public version of the register of permission holders.

    (2)     The public version of the register must not include any information to which public access is restricted under Division 2 or section 252.

    (3)     The regulator must make a copy of the public version of the register available at the regulator's office during office hours for any person to inspect free of charge.

    (4)     The regulator may publish a copy of the public version of the register on the regulator's internet site.

        229     Corrections of register

    (1)     The regulator may correct any error or omission in the register of permission holders (including the public version of that register).

    (2)     The regulator may make a correction by—

        (a)     inserting information; or

        (b)     amending information; or

        (c)     omitting information.

Division 2—Restriction of public access to information

        230     What happens when information is included on the register?

    (1)     On including information in the register of permission holders, the regulator must determine, for the purposes of section 228(2), whether public access to any of the information is to be restricted.

    (2)     The regulator may determine that public access is to be restricted—

        (a)     indefinitely; or

        (b)     for a specified period.

    (3)     The regulator must not determine that public access is to be restricted unless the regulator is satisfied that the restriction is justified in the circumstances.

Example

The regulator may be satisfied that a person's privacy needs to be protected.

        231     Notification that information to be made publicly available

    (1)     This section applies if the regulator determines under section 230 that public access to any information is not to be restricted.

    (2)     The regulator must give written notice to the person to whom that information relates.

    (3)     A notice under subsection (2) must specify the information to which public access is not to be restricted.

    (4)     For the purposes of section 228(2), public access is to be restricted until the earlier of—

        (a)     20 business days after the day on which the person is notified under subsection (2); or

        (b)     the day on which the person consents to the information being made publicly available.

        232     Application to restrict public access to information

    (1)     A person may apply to the regulator to restrict public access to information on the register of permission holders that relates to the person.

    (2)     An application under subsection (1) must—

        (a)     be in writing; and

        (b)     specify the information to which the person wants public access to be restricted.

    (3)     For the purposes of section 228(2), public access to the information is to be restricted until the application is determined.

    (4)     Subsection (3) does not apply to information in respect of which the person has previously made an application under subsection (1) or section 251(1)(b).

        233     Determination of application

    (1)     On receiving an application under section 232(1), the regulator must determine, for the purposes of section 228(2), whether public access to any of the information to which the application relates is to be restricted.

    (2)     The regulator must not determine that public access is to be restricted unless the regulator is satisfied that the restriction is justified in the circumstances.

    (3)     If the regulator determines that public access is to be restricted, the regulator must restrict public access—

        (a)     indefinitely; or

        (b)     for a specified period.

        234     Notification of determination

    (1)     Within 10 business days after making a determination under section 233, the regulator must give the person to whom the information relates written notice of the determination.

    (2)     A notice under subsection (1) must—

        (a)     specify—

              (i)     the information to which public access is to be restricted; and

              (ii)     the information to which public access is not to be restricted; and

        (b)     include a statement of reasons for the determination; and

        (c)     inform the person that they have a right to seek review of the regulator's determination under Part 12.

    (3)     For the purposes of section 228(2), public access to the information referred to in subsection (2)(a)(ii) is to be restricted until the earlier of—

        (a)     20 business days after the day on which the person is notified under subsection (1); or

        (b)     the day on which the person consents to the information being made publicly available.".



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