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COMMERCIAL PASSENGER VEHICLE INDUSTRY AMENDMENT (FURTHER REFORMS) ACT 2017 (NO. 63 OF 2017) - SECT 7

Definitions

    (1)     In section 3(1) of the Principal Act insert the following definitions—

""accredited driver" means a person who holds a driver accreditation;

"authorised officer" means a person appointed under section 125;

"booking service provider" means a person who provides a booking service;

"business day" means a day other than—

        (a)     a Saturday or Sunday; or

        (b)     a day appointed under the Public Holidays Act 1993 as a public holiday or public half-holiday throughout the whole of Victoria;

category 1 offence means an offence listed in Part 1 of Schedule 1;

category 2 offence means an offence listed in Part 2 of Schedule 1;

category 3 offence means an offence listed in Part 3 of Schedule 1;

"certificate of accreditation" means a certificate issued under section 78;

"charitable passenger service" means the carriage of one or more passengers on a journey to which each of the following applies—

        (a)     the main purpose of the journey is to carry the passengers;

        (b)     the journey is made for or on behalf of—

              (i)     a Council; or

              (ii)     a prescribed body, as part of its charitable or benevolent work or its work for the relief or welfare of members of the public;

        (c)     the driver receives no remuneration for the journey, except as provided by paragraph (d);

        (d)     the consideration for the carriage is merely the payment by a passenger, or the Council or prescribed body, of all or part of the costs incurred in making the journey with neither the driver nor any other person making a profit from the carriage;

"commercial passenger vehicle safety" means safety associated with the provision of commercial passenger vehicle services;

company has the meaning given by section 9 of the Corporations Act;

"compliance and investigative purposes" means purposes related to ascertaining whether an industry law has been or is being complied with;

"co-operative" has the same meaning as in the Co-operatives National Law (Victoria);

"costs incurred in making the journey" includes—

        (a)     fuel costs; and

        (b)     maintenance costs; and

        (c)     parking costs; and

        (d)     insurance costs; and

        (e)     vehicle depreciation;

Council has the meaning given by section 3(1) of the Local Government Act 1989 ;

"Department" means the Department of Economic Development, Jobs, Transport and Resources;

director has the meaning given by section 9 of the Corporations Act;

"disciplinary action"—see section 215;

"disciplinary notice"—see section 216(2);

"disqualifying offence" means a category 1 offence, a category 2 offence or a category 3 offence;

"drive", in relation to a motor vehicle, includes being in control of the vehicle;

"driver accreditation" means an accreditation under Part 5;

"driver agreement" means an agreement made between the owner of a commercial passenger vehicle and another person (the  driver ) under which the driver is permitted to have possession of the commercial passenger vehicle for the purpose of driving it but does not include an agreement for the purchase of the vehicle or a contract of employment or of service;

"FOI exempt document "means a document that—

        (a)     is given to the regulator by an agency (as defined in the Freedom of Information Act 1982 ) or a Minister; and

        (b)     is an exempt document under the Freedom of Information Act 1982 in the hands of the agency or Minister;

"exclusion order" means an order of a court under section 209;

highway has the meaning given by section 3(1) of the Road Safety Act 1986 ;

"hiring", in relation to a commercial passenger vehicle, includes hiring the vehicle through the use of a booking service;

"improvement notice" means a notice served under section 171;

incorporated association has the meaning given by section 3 of the Associations Incorporation Reform Act 2012 ;

"industry law" means—

        (a)     this Act; or

        (b)     the regulations; or

        (c)     section 81, 82, 83 or 83A of the Crimes Act 1958 but only in respect of conduct that constitutes or could constitute a contravention of any of those sections that arises out of—

              (i)     arranging, procuring or providing a commercial passenger vehicle service; or

              (ii)     processing or failing to process a payment for a commercial passenger vehicle service; or

              (iii)     making or failing to make a payment under a driver agreement; or

              (iv)     imposing a non-cash payment surcharge; or

        (d)     section 324 of the Crimes Act 1958 to the extent that it relates to—

              (i)     an offence against this Act or the regulations; or

              (ii)     an offence against a provision referred to in paragraph (c) constituted by conduct referred to in that paragraph; or

        (e)     the rules made under section 95D of the Road Safety Act 1986 as applying in relation to commercial passenger vehicle services; or

        (f)     regulations made under the Road Safety Act 1986 for the purposes of item 34 of Schedule 2 to that Act as those regulations apply in relation to commercial passenger vehicle services;

"industry premises"—see section 3B;

information has the meaning given by section 3(1) of the Electronic Transactions (Victoria) Act 2000 ;

"legal practitioner" means an Australian legal practitioner;

"manager", in relation to an applicant for registration under Part 4 or a registered booking service provider, means a person who is concerned, or takes part, in the management of the activities to which the application or the registration relates, whether as an employee of the applicant or provider or otherwise;

"monitoring, compliance and enforcement policy" means the policy referred to in section 275;

"non-cash payment processing device" means a device—

        (a)     used, or intended to be used, to process a non-cash payment transaction; or

        (b)     that enables a non-cash payment transaction to be processed;

Examples

EFTPOS machine, smartphone, computer tablet.

"non-cash payment processing service" means a service that facilitates the processing of a non-cash payment transaction but does not include a service relating to a fee or charge imposed in respect of the use of a credit card, charge card or debit card levied—

        (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 who acts consistently with a voluntary undertaking given by the person to, and accepted by, the Reserve Bank of Australia;

"non-cash payment surcharge"—see section 112;

"non-cash payment transaction" means the payment, other than by cash, of any amount due in respect of the hiring of a commercial passenger vehicle;

"officer", in relation to a body corporate other than a company, co-operative or incorporated association, means a member of the committee of management of the body corporate;

"officer", in relation to a company, means—

        (a)     a director or secretary of the company; or

        (b)     a person—

              (i)     who makes, or participates in making, decisions that affect the whole, or a substantial part, of the business of the company; or

              (ii)     who has the capacity to affect significantly the company's financial standing; or

              (iii)     in accordance with whose instructions or wishes the directors of the company are accustomed to act (excluding advice given by the person in the proper performance of functions attaching to the person's professional capacity or their business relationship with the directors of the company);

"officer", in relation to a co-operative, means—

        (a)     a director or secretary of the co-operative; or

        (b)     a person who is concerned, or takes part, in the management of the co-operative, whether or not as a director;

"officer", in relation to an incorporated association, means—

        (a)     the secretary (as defined by section 3 of the Associations Incorporation Reform Act 2012 ) of the incorporated association; or

        (b)     a member of the committee (as defined by section 3 of the Associations Incorporation Reform Act 2012 ) of the incorporated association; or

        (c)     a person who is concerned, or takes part, in the management of the incorporated association;

"owner" of a commercial passenger vehicle—

        (a)     includes—

              (i)     a joint owner of the vehicle; and

              (ii)     any person who has the use of the vehicle under a hiring or hire-purchase agreement; and

              (iii)     any person in whose name the vehicle is registered under the Road Safety Act 1986 or a corresponding law of another State or a Territory; but

        (b)     does not include an unpaid vendor of the vehicle under a hire-purchase agreement;

"permission" means—

        (a)     a commercial passenger vehicle registration under Part 3; or

        (b)     a booking service provider registration under Part 4; or

        (c)     a driver accreditation;

"permission holder "means—

        (a)     a person in whose name a motor vehicle is registered under Part 3; or

        (b)     a registered booking service provider; or

        (c)     an accredited driver;

"person" includes a body corporate, an unincorporated body or association and a partnership;

prescribed amount of a non-cash payment surcharge is—

        (a)     the maximum amount of the surcharge as determined by the ESC under Division 3 of Part 6; or

        (b)     until the first such determination, 5% of the amount that would be payable in respect of the hiring to which the surcharge relates if that amount were paid in cash;

"prohibition notice" means a notice served under section 180;

"provider", of an unbooked commercial passenger vehicle service, means—

        (a)     the owner of the commercial passenger vehicle used in the provision of the service ( relevant vehicle ) if the driver of the relevant vehicle is an employee of the owner; or

        (b)     in any other case, the driver of the relevant vehicle;

prescribed amount of a non-cash payment surcharge is—

        (a)     the maximum amount of the surcharge as determined by the ESC under Division 3 of Part 6; or

        (b)     until the first such determination, 5% of the amount that would be payable in respect of the hiring to which the surcharge relates if that amount were paid in cash;

"public care objective"—see section 69;

"register of permission holders" means the register kept by the regulator under section 227;

"registered booking service provider" means a person registered under Part 4;

"regulator" means the Commercial Passenger Vehicle Commission established by section 115B of the Transport Integration Act 2010 ;

"relevant person", in relation to an applicant for registration under Part 4 or a registered booking service provider, means—

        (a)     if the applicant or provider is an individual, each manager of the applicant or provider; or

        (b)     if the applicant or provider is a partnership, each partner and each manager of the applicant or provider; or

        (c)     if the applicant or provider is an unincorporated body or association other than a partnership, each member of the committee of management, and each manager, of the body or association; or

        (d)     if the applicant or provider is a company, a co-operative or an incorporated association, each officer and each manager of the company, co-operative or incorporated association; or

        (e)     if the applicant or provider is a body corporate other than a company, co-operative or incorporated association, each officer and each manager of the body corporate;

"responsible person", in relation to an applicant for registration under Part 4 or a registered booking service provider, means—

        (a)     if the applicant or provider is an individual, the applicant or provider; or

        (b)     in any other case, a relevant person nominated by the applicant or provider as the responsible person;

"retention" period , in relation to a thing seized under Part 7, means a period of 90 days after the seizure of the thing;

Roads Corporation has the meaning given by section 3 of the Transport Integration Act 2010 ;

"Secretary" means the Secretary to the Department;

"supervisory intervention order" means an order of a court under section 207;

traffic infringement has the meaning given by section 3(1) of the Road Safety Act 1986 ;

"vehicle pooling service" means the carriage of one or more passengers on a journey to which each of the following applies—

        (a)     the carriage of the passengers is incidental to the main purpose of the journey;

        (b)     the carriage is not the result of touting for passengers by the driver or any other person on any highway;

        (c)     no more than 7 passengers are being carried;

        (d)     the consideration for the carriage is merely—

              (i)     an undertaking by a passenger to carry the driver, or a family member of the driver, on a similar journey on the same basis; or

              (ii)     the payment by a passenger of a share of the costs incurred in making the journey with neither the driver nor any other person making a profit from the carriage.".

    (2)     In section 3(1) of the Principal Act—

        (a)     for the definition of commercial passenger vehicle substitute

""commercial passenger vehicle" means a motor vehicle registered under Part 3;";

        (b)     for the definition of commercial passenger vehicle service substitute

""commercial passenger vehicle service"—see section 3A;";

        (c)     in the definition of "motor vehicle", after "vehicle" (where last occurring) insert "but does not include a bus used to provide a bus service";

        (d)     the definition of TSC is repealed ;

        (e)     in the definition of unbooked commercial passenger vehicle service , for "service." substitute "service;".

    (3)     Section 3(2) of the Commercial Passenger Vehicle Industry Act 2017 is repealed .

    (4)     In section 5(2)(c) of the Commercial Passenger Vehicle Industry Act 2017 , for "reward or hiring fee" substitute "fare or other consideration".



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