Hansard debates
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Moonee Valley Festival
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13 March 2014
Members Statements
CARROLL
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Moonee Valley Festival
Mr CARROLL -- On Sunday, 23 February, thousands of people converged on Queens
Park to enjoy the 37th annual Moonee Valley Festival, Moonee Valley's largest
free community celebration. A fun summer day full of excitement was had by all,
with market and food stalls, roving performers, entertainment stages, business
expo sites, community activities and displays. I take this opportunity to thank
everyone involved in supporting the 2014 Moonee Valley Festival, especially City
of Moonee Valley staff, the volunteers, the generous sponsors and of course the
local community.
TRANSPORT LEGISLATION AMENDMENT (FURTHER TAXI REFORM AND OTHER MATTERS) BILL 2014 Mr MULDER (Minister for Public Transport) tabled following statement in accordance with Charter of Human Rights and Responsibilities Act 2006: In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (charter act), I make this statement of compatibility with respect to the Transport Legislation Amendment (Further Taxi Reform and Other Matters) Bill 2014. In my opinion, the Transport Legislation Amendment (Further Taxi Reform and Other Matters) Bill 2014, as introduced to the Legislative Assembly, is compatible with the human rights protected by the charter act. I base my opinion on the reasons outlined in this statement. Overview of bill The bill provides for a taxi fare notification and publication scheme for taxicabs operating in the regional and country zones. The Taxi Services Commission (TSC) will publish the notices provided to it by taxi operators on its internet site. The bill provides that the TSC must establish a public register of taxi industry participants and post the register on its website. The bill also contains provisions which support the TSC's compliance and enforcement functions. These include a requirement that the TSC put in place a policy dealing with how it will support and maintain compliance with, and enforce, commercial passenger vehicle laws. The bill deals with the appointment of taxi compliance officers. The bill provides officers with certain powers, including power to enter and inspect vehicles and commercial passenger vehicle premises in certain circumstances, and to undertake associated compliance and enforcement activities. Human rights issues Entry, search and seizure powers Part 2 of the bill includes a range of entry, search and seizure powers which are inserted into part VII of the Transport (Compliance and Miscellaneous) Act 1983 (new provisions relating to the requirement for the TSC to have a compliance and enforcement policy are inserted into part VI of that act). These powers have the potential to impact upon the privacy right in section 13 of the charter act, which provides that a person has the right not to have his or her privacy, family, home or correspondence unlawfully or arbitrarily interfered with. Entry, search and seizure powers properly exercised are essential to ensuring compliance with laws regulating taxis, hire cars and other commercial passenger vehicles, and detecting non-compliance. This is important not only to protect and promote the rights and interests of consumers, but also the interests of the taxi and hire car industry generally. The powers are exercisable in constrained circumstances, are directed at important regulatory purposes and are subject to a range of safeguards. Most significantly, new section 228RI(1)(a) authorises entry, without warrant or consent, into commercial passenger vehicles when the vehicle's operator or driver is present, as well as onto certain commercial passenger vehicle premises during operational hours. However, the power is limited to premises and times in which individuals have a limited expectation of privacy, and concerns premises and vehicles operated by persons who have elected to participate in the taxi industry. Importantly, the definition of commercial passenger vehicle premises expressly excludes residential premises. Further, the purpose for which warrantless and non-consensual entry to premises may be made is limited to those set out in section 228RI(3) -- that is, ascertaining whether a commercial passenger vehicle law has or is being complied with, including whether an offence has been committed against such a law and whether a civil penalty provision has been breached, but only in relation to: commercial passenger vehicles and equipment ordinarily on or in a commercial passenger vehicle; and payments made or due under driver agreements, or payments and charges for hiring a taxicab, but only where the officer believes it is necessary to do so to prevent concealment, loss or destruction of evidence. New section 228RM gives the officer the powers necessary to search and inspect premises, vehicles or non-cash payment processing devices. I acknowledge that the powers are able to be exercised without any suspicion of an offence or of non-compliance. However, in my view these powers are necessary to ensure compliance with the regulatory scheme and to detect non-compliance. The powers are only exercisable for the purpose for which entry is effected. The ability to enter and search any other premises, including residential premises, or conduct broader searches can only occur with the consent of the occupier or pursuant to a warrant. The procedure for entry with consent to premises is prescribed. The bill also authorises the seizure of certain items and documents. Seizure may occur in accordance with a search warrant. New section 228RO extends that power of seizure to other things that are discovered during the course of a search that will afford evidence of an offence or breach of a civil penalty provision (that is, which could have been included in the warrant) and it is considered that it is necessary to seize the item to prevent its concealment, loss or destruction, or its use in the commission of further offences or breaches. New sections 228RR and 228RS empower officers to seize, copy and examine various items, equipment and documents, which potentially contain personal information. However, the powers are directed at obtaining and preserving evidence of a relevant breach and are necessary for the detection and prosecution of breaches of the regulatory scheme. Also, seizure of an applicable device may only occur if it is not practicable to put information in documentary form nor to copy the information onto another disk, tape or storage device. Again, these provisions are limited to ensuring compliance with the regulatory scheme and to detect non-compliance.
Statement of compatibility
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It is also important to note that division 4 of part 2 of the bill provides that the TSC is required under the bill to develop, maintain and review a monitoring, compliance and enforcement policy and to publish that policy. The TSC must consult with Victoria Police, the privacy commissioner, VicRoads and representatives of taxi industry participants when developing and reviewing the policy and persons involved in compliance, monitoring and enforcement activities must have regard to the policy when performing duties and exercising functions, so far as is reasonably practicable. I consider that any interference with privacy occasioned by the entry, search and seizure provisions of the bill is neither arbitrary nor unlawful and, accordingly the provisions are compatible with the right to privacy in the charter act. Information-gathering powers Section 25(2) of the charter act provides for minimum guarantees in criminal proceedings. The right is engaged where the privilege against self-incrimination is abrogated. Section 25(2)(k) protects the right to be free from self-incrimination. This means that a person charged with a criminal offence may not be compelled to testify against himself or herself or to confess to guilt. This is also an important element of the right to a fair hearing. At the investigation and pre-trial stage, this includes the right to remain silent. Evidence obtained compulsorily may offend this right. A number of provisions of the bill require individuals to provide information and documents. Most significantly, new section 228RY empowers a TSC commissioner or taxi compliance officers to direct persons to provide a range of information or documents, for compliance and investigatory purposes. New section 228RZD expressly abrogates the privilege against self-incrimination in respect of a direction under new section 228RY, as well as any other directions under new division 4ABA. However, the privilege against self-incrimination is protected by providing both a direct and indirect use immunity which ensures that neither the person's answer, nor evidence obtained as a consequence of that answer, can be used against that person in a criminal proceeding or in proceedings which might make a person liable to a penalty (such as civil penalty proceedings), other than a proceeding in respect of the provision of false information. An exception to this is where the information or document that is obtained directly or indirectly as a consequence of the answer is information or a document that is required to be kept under the regulatory scheme, or is contained in such a document -- that is, information or documents required to be kept and which, as a result, are discoverable in any event. To the extent that the exceptions in section 228RZD limit the privilege against self-incrimination, I consider they are reasonable and justified. Pre-existing documents (as opposed to oral testimony) and information required to be kept under a regulatory scheme are generally accorded less protection under the privilege against self-incrimination. They are documents that a person is required to produce and keep as a consequence of their election to participate in the regulatory scheme. Ensuring that they are made available for investigatory and regulatory purposes, and ensuring they are able to be used in criminal proceedings and proceedings for a civil penalty, including against those required to keep them, is essential to achieving compliance with the regulatory scheme. Maintenance and publication of register Clause 35 of the bill inserts new subdivision 6A into part VI of the Transport (Compliance and Miscellaneous) Act 1983. The clause provides for a register of taxi industry participants. This authorises the inclusion and publication of personal information including name and business contact details. While this potentially interferes with an individual's privacy, there is the ability for a person to apply to the TSC to restrict public access to personal information (new section 169ZF), and to review decisions of the TSC (new section 169ZI). Price notification Part 3 of the bill contains provisions about the notification, publication and monitoring of taxi fares and hiring rates in regional and country zones. The provisions require notification and publication of fares and hiring rates. These provisions may interfere with an individual's ability to carry on his or her business and related commercial enterprises, which could potentially limit an individual's freedom of expression (freedom of expression not solely applying to certain types of information or ideas or forms of expression). However, commercial expression is treated as of less importance than political or artistic expression, with restrictions on commercial expression generally subject to less scrutiny as commercial expression serves private, rather than public, interests. I consider that the provisions are compatible with the charter act rights. Presumption of innocence Section 24 of the charter act guarantees the right to a fair hearing in both criminal and civil proceedings. In addition, specific minimum guarantees in criminal proceedings are provided in section 25 of the charter act, including the right to be presumed innocent. This right can be affected where an accused, rather than the prosecution, bears a burden of proof in relation to a criminal offence. New section 228RM(4) of the Transport (Compliance and Miscellaneous) Act 1983 provides for an offence of refusing or failing to comply with a direction under new section 228RM(1), namely to provide certain information, documents or things, unless the person has a reasonable excuse. The accused will bear the burden of adducing or pointing to evidence to establish a reasonable excuse. Once sufficient evidence is presented, the prosecution bears the burden of proving the absence of the reasonable excuse beyond reasonable doubt. Similarly, new section 228RY(6) provides for an offence of refusing or failing to comply with a direction to provide certain information, documents or devices, unless the person has a reasonable excuse. Again, the accused will bear the burden of adducing or pointing to evidence to establish a reasonable excuse and, once presented, the prosecution bears the burden of proving the absence of such an excuse beyond reasonable doubt. I consider that the imposition of an evidential burden on the accused with respect to establishing a reasonable excuse in each case is reasonable and justified, and is therefore compatible with the right to be presumed innocent.
Page 742
The reasonable excuse will be within the knowledge and control of the accused, and it will be relatively easy for the accused to present evidence of it. In contrast, the prosecution may not know what excuse the accused will assert, and given the array of potential excuses that could be advanced it would be difficult or even impossible for the prosecution to prove an accused had no reasonable excuse. Conclusion The bill provides essential monitoring, compliance and investigative powers for Victoria's taxi and hire car industry, and contains other essential matters in respect of the regulatory scheme. The reform of the industry and its regulation has been recognised as necessary, not only for the benefit of consumers, but also in the interests of
participants in the taxi industry generally. For the reasons set out in this statement, I consider that the bill is compatible with the charter act. I consider that, to the extent that some provisions may limit charter act rights, the limitations are reasonable and demonstrably justified in a free and democratic society. Hon. Terry Mulder, MP Minister for Public Transport
TRANSPORT LEGISLATION AMENDMENT (FURTHER TAXI REFORM AND OTHER MATTERS) BILL 2014 Mr MULDER (Minister for Public Transport) -- I move: That this bill be now read a second time. Speech as follows incorporated into Hansard in accordance with resolution of house: It is no secret that taxi services were not up to scratch in Victoria and that the industry has had significant problems. The user satisfaction rate for taxis when the coalition government came to power was very low at 56 per cent and problems were evident throughout the industry. This government wants the best taxi industry and the best taxi services in the country. This aim and the problems we inherited explain why we moved decisively to comprehensively reform the industry to reverse the serious decline in services that started and took hold under the previous government. This is a reform program that we are determined to complete in the interests of our local community and the interstate and overseas visitors who come here, no matter how tough things get. This bill is a key part of our reform program. It builds on the government's earlier initiatives and drives further important transformational improvements to taxi and hire car services across the state. The taxi industry inquiry The house will recall that the government established the taxi industry inquiry in 2011 under Professor Allan Fels to review Victoria's taxi and hire car industry. The inquiry conducted the most thorough review of the sector in the state's history and consulted widely with the community, industry and other stakeholders for 18 months. The inquiry released a draft report in May 2012 titled Customers First -- Service, Safety, Choice, which contained extensive recommendations for reform. I tabled the final Fels inquiry report in the Legislative Assembly on 12 December 2012 and the government allowed further public consultation. After thorough review of the inquiry findings and public feedback, we announced the government's response on 28 May 2013. The foundation reforms Members will recall that the government moved swiftly to commence the implementation of the reforms after that extensive consultation process. I introduced the first bill into the Legislative Assembly on the same day the government responded to the Fels inquiry. The Transport Legislation Amendment (Foundation Taxi and Hire Car Reforms) Act 2013 was passed by Parliament in late June 2013 after wide debate and is now on the statute books. As the name suggests, the statute set the platform for foundation reforms which are helping to restore world-class taxi and hire car services in Victoria. These include service and customer-focused reforms which transform the supply, quality and affordability of services across the state, including by making major improvements to: taxi and hire car licensing and zoning; taxi fare setting; taxidriver engagement and payment; taxi non-cash surcharges; the industry regulator. A number of these important reforms have already started or preparations for their commencement are well advanced. One of the more visible reforms in this initial package was the major reduction in taxi credit card surcharges which the government brought forward as a priority. The house will recall that the Foundation Reforms Act cut the previous 10 per cent surcharge set by industry by a full 5 per cent on 1 February this year. I note that the surcharge may fall even more after a future review by the Essential Services Commission. I am pleased with the industry's response to this important reform. The surcharge is now the lowest in Australia, and its reduction has led to substantial hip pocket savings for many taxi users. Like many of the government's reforms, the measure has attracted national attention and has set a lead that is likely to be followed soon by other states and territories in coming months.
Second reading
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The reforms in this bill The new bill before the house includes further significant reforms which continue our transformation of taxi and hire car services across Victoria. Price notification The taxi industry inquiry recommended replacing government regulation of taxi fares in regional and country zones with a price notification scheme. This measure is tied to another key reform which gives taxidrivers at least 55 per cent of the fare revenue they generate. Giving country and regional operators the freedom to set their own taxi fares means that these operators can ensure that their fares reflect the increase to driver payments and enable them to remain operating. The scheme also allows operators to compete more effectively with each other for local business. The price notification scheme allows operators in those areas to set their own fares by notifying the Taxi Services Commission which must then publish the fares. Taxi operators must inform customers about the fares in accordance with methods set in regulations. The regulations will be made soon after this bill is passed, after appropriate consultation with industry and the community. I note that the government has ensured that the bill gives the Essential Services Commission a watchdog role over the operation of this important reform. The ESC will monitor prices, costs and returns on assets in the taxi industry in the country and regional zones, particularly in the early stages of the reform. It will work closely and cooperatively with the TSC and keep consumers informed about the economic performance of the industry. As part of that role, the ESC will keep a close watch out for potential misuses of market power. It will also prepare an annual report on its activities and issue special reports if needed. Red-tape reduction The Fels inquiry made many observations about the significant problems with the current regulatory regime for taxis. It was particularly critical about the excessive red tape which holds the taxi industry back from improving its performance for the benefit of the community. For example, the final report observed that 'one of the core findings by the inquiry was that the existing regulatory regime governing taxis and hire cars in Victoria is overly complex and prescriptive'. The government agrees with that observation. Overregulation has held the industry back for years. We are determined to release the industry to compete, innovate and evolve by reducing as much unnecessary red tape and regulation as possible. Reducing the burden of taxi industry accreditation Accreditation is a key area where red tape must be reduced urgently. Accreditation requirements introduced by the previous government in the mid 2000s created heavy red-tape and cost burdens on the taxi industry. Paradoxically, these requirements did nothing to help improve taxi services as they are a largely unnecessary layer of regulation. It is clear that this type of red tape must be reduced if the taxi sector is to improve. Accordingly, the bill implements a number of key inquiry recommendations by: repealing taxi licence holder accreditation requirements while retaining the requirement for licence-holders to maintain up-to-date name and contact details; repealing unnecessary and onerous taxi operator accreditation requirements supported by complementary changes to subordinate instruments; enabling accreditation burdens on taxi network service providers to be reduced by adjusting subordinate instruments; and enabling taxi network affiliation requirements to be removed once details of subordinate instruments changes are resolved. The remaining recommendations of the inquiry will be implemented through the future Taxi and Hire Car Reform Bill I have signalled previously and which is being developed. This current bill introduces changes recommended by the inquiry for taxi operators and network service providers. The operators and networks will be subject in future to permit and authorisation processes which involve even less regulation and red tape and which will be far more effective than what applies currently. Abolition of mandatory affiliation A further reform connected with industry accreditation relates to statutory provisions put in place by the previous government which support so called mandatory affiliation. The removal of this requirement, both statutory and administrative, for taxi operators to affiliate with network service providers was a key taxi industry inquiry recommendation. Again, this step will free taxi operators from unnecessary regulation, promote greater industry competition and reduce costs for operators. The inquiry set out strong evidence that existing network service providers benefit greatly from the market power provided by the existing mandatory affiliation requirement. The providers have capitalised on the requirement by offering procurement, financing and vehicle services which bind taxi operators to particular networks and which impede competition and innovation. As a result, a large proportion of taxi operators are effectively tied to particular networks in the short to medium term. It will therefore take several years for the benefits of removing mandatory affiliation to become evident. For this reason, early action is essential to enable this reform to start taking effect as soon as possible. Improving the regulator's powers The TSC is conferred with a range of coercive powers under existing legislation. However, the taxi industry inquiry found that these powers are not sufficient. It called for an improved set to be developed so that the regulator was better equipped to monitor and compel industry compliance.
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This work is complex and detailed. The bill contains a new interim suite of powers which improves the TSC's entry, search and seizure powers. I note that these powers are largely drawn from powers which are available to other transport regulators. A final range of powers and sanctions is being developed and will be contained in the forthcoming Taxi and Hire Care Reform Bill along with the remaining reforms to be delivered from the inquiry process. These interim compliance and enforcement powers are important. They provide the tools to the TSC to help it improve its performance as an industry regulator which is effective enough to deal with all levels of the taxi and hire car industry, from the road to the boardroom, and help drive an improved industry and improved services. Other matters Finally, the bill makes other important changes arising from the recommendations of the inquiry to further improve taxi and hire car services and related matters. These include tightening probity checks for taxi and other commercial passenger vehicle drivers by introducing a more traditional and stringent fit and proper person test as a more fail-safe suitability test in response to reform calls from the inquiry. The new test will operate in conjunction with the existing disqualifying offences scheme. It will be administered in a way that better ensures that drivers are permitted to be accredited only if they meet proper community suitability standards. In addition, the bill includes amendments included as a result of industry feedback which will assist competition. The amendments give the TSC power in specific circumstances to allow taxis licensed to operate in particular zones to accept pre-booked work in other zones. Other matters in the bill include: providing for taxi zones to overlap at Avalon Airport to increase the availability of cabs at the airport and to minimise 'dead running' where taxis are forced to return empty to other zones; establishing a public register of taxi industry participants in the interests of transparency; procedural improvements which assist the resolution of disputes by the TSC, the small business commissioner and VCAT about matters concerning taxidriver remuneration and conditions; a mechanism to avoid potential inconsistencies in regulatory requirements including in respect of taxis and buses where vehicle types and related requirements may overlap; direct amendments to the Transport (Compliance and Miscellaneous) Act to provide a secure statutory foundation for reducing wheelchair-accessible taxi licence fees for greater Melbourne taxi licence release licences; some small technical adjustments to confirm and clarify the broad coverage and operation of taxi non-cash surcharge control provisions. The opportunity has also been taken in the bill to make some minor, miscellaneous and machinery changes to other areas of transport regulation, including in relation to the Public Transport Fund and the National Heavy Vehicle Regulator. The bill is complex in parts. Accordingly, detailed information about its provisions is set out in the explanatory memorandum for the benefit of members. Conclusion This bill is critical. It is another important and timely step in the process of restoring first-class taxi and hire car services in Victoria following the most thorough inquiry into the industry in the state's history. The bill builds on and continues the government's reform agenda, and it will increase competition and efficiency. Most importantly, it helps to significantly improve on-the-ground taxi and hire services in the interests of all Victorians and the tourists who visit our great state. For the good of the community, this bill deserves the support of every member of this Parliament. I commend the bill to the house. Debate adjourned on motion of Mr NOONAN (Williamstown). Debate adjourned until Thursday, 27 March.