EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (South Australia) (Exemption – Passenger Transport Accreditation) Declaration 2022
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (South Australia) (Exemption – Passenger Transport Accreditation) Declaration 2022 (the Declaration). The specific provisions in the Declaration are outlined in Attachment A. The information in the explanatory statement is an aid to understanding the Declaration and should not be substituted for the Declaration.
Context and purpose
Part 3A of the Mutual Recognition Act 1992 of the Commonwealth (MRA) provides for the automatic mutual recognition of occupational registrations (AMR). AMR will provide an entitlement for an individual to carry on an activity in a second State, under the registration covering the activity in their home State through Automatic Deemed Registration (ADR).
Part 3A of the MRA provides for the making of declarations that exclude certain registrations from ADR where a Minister of a State is satisfied that the declaration is necessary because of a significant risk arising from circumstances or conditions in the declaration state, to consumer protection, the environment, animal welfare or the health or safety of workers or the public. The Legislation Act 2003 of the Commonwealth provides for the making of legislative instruments.
Summary
Through this Declaration, the Treasurer of South Australia has excluded a registration issued under the Passenger Transport Act 1994 (South Australia) from ADR for the period 1 July 2022 to 1 October 2027. By virtue of the making of the Declaration, the minister is satisfied that the exclusion is necessary because of a significant risk to the health or safety of the public. The Declaration provides an explanation of the specific risks arising from the registration in the context of the circumstances and conditions in South Australia. The information relied on to support the decision is provided in Attachment B.
Consultation
South Australia did not conduct public consultation as the Treasurer and state considers it inappropriate / impractical in the circumstances. In preparing the declaration, the Treasurer had regard to the expert information available and the positions of persons likely affected. The Treasurer acted on the advice of the Department for Infrastructure and Transport and in recognition of the risk assessment undertaken and summarised in Attachment B.
Attachment A
Automatic Mutual Recognition (South Australia) (Exemption – Passenger Transport Accreditation) Declaration 2022
Part 1 – Preliminary
Section 1 – Name
This section provides that this Declaration is to be cited as the Automatic Mutual Recognition (South Australia) (Exemption – Passenger Transport Accreditation) Declaration 2022 (the Declaration).
Section 2 – Commencement
This section provides the date on which the Declaration comes into operation. The Declaration comes into operation on 1 July 2022.
Section 3 – Authority
This section outlines the authority through which the Declaration is made. The Declaration is made under section 42S of the Mutual Recognition Act 1992 (Commonwealth).
Section 4 – Simplified outline of the instrument
This section explains that the purpose of this instrument is to exempt a specified registration from the Automatic Deemed Registration (ADR) provisions of the Mutual Recognition Act 1992 (MRA), the application of the exclusion and the period of the exclusion.
Section 5 – Definitions
This section provides, for the purposes of this Declaration, self-explanatory definitions of the following terms:
- The Act is defined in this section as meaning the Mutual Recognition Act 1992.
Section 6 – Exemptions
The Declaration is made in accordance with paragraph 42S(1)(a) of the MRA, the Passenger Transport Accreditation issued under the Passenger Transport Act 1994 (South Australia) (shown in column 1) is excluded from ADR because the Minister making the Declaration is satisfied that there is a significant risk to the health or safety of the public (as outlined in column 2).
This means that an individual cannot carry on the activities authorised under this registration in South Australia without a Passenger Transport Accreditation issued under the Passenger Transport Act 1994 (South Australia). An individual may obtain Passenger Transport Accreditation under Part 3 of the MRA.
In accordance with subsection 42S(2) of the MRA, this provision in the Declaration also provides a statement of the risk to the health or safety of the public (as shown in column 2).
The following table replicates the provisions in the Declaration.
Exemptions for the purposes of paragraph 42S(1)(a) | ||
Item | Column 1 Registration | Column 2 Statement of risk |
1 | Passenger Transport Accreditation (under the Passenger Transport Act 1994 (South Australia)) | Risk to the health or safety of the public The health or safety of passengers will be compromised if public passenger drivers who have not been assessed to South Australia’s high standards and requirements for a Driver Accreditation are authorised to provide these services in South Australia.
|
Subsection 4 provides a self-repeal date for section 6.
The Hon Stephen Mullighan MP
Treasurer (South Australia)
Attachment B - Information relied on to support the minister
Background information on Passenger Transport Accreditation in South Australia
In South Australia, any form of passenger transport for hire, fare or reward requires the driver of the vehicle to hold a driver accreditation issued under the Passenger Transport Act 1994(South Australia) (PTA).
The forms of passenger transport which require a driver to hold a driver accreditation include services such as:
- Taxis.
- Rideshare (such as Uber).
- Chauffeured vehicles.
- Tours.
- Buses.
Eligibility criteria
Drivers are accredited under section 28 of the PTA. To be eligible for accreditation, applicants must meet certain criteria prescribed under the PTA and associated regulations, which includes (but is not limited to):
- Being of good repute.
- Being a fit and proper person.
- Having sufficient responsibility, skills and aptitude to drive public passenger vehicles.
- Being the holder of a full driver’s licence.
- Being the holder of a full driver’s licence for at least six months (if applying to drive taxis, rideshare or chauffeured vehicles within Metropolitan Adelaide).
- Being competent in English.
- Being deemed medically fit to drive public passenger vehicles.
- completing passenger transport driver training (taxis only).
Application process
To apply for Driver Accreditation a person must provide the following:
- A completed application form.
- A Working With Children Check (WWCC).
- A National Police Check (NPC).
- A medical Certificate of Fitness for Commercial Drivers.
The results of the person’s application and checks will determine whether they can be issued a Driver Accreditation.
If the person is applying for Driver Accreditation to operate taxis they must complete a taxi driver training course which is conducted by an approved taxi training provider. The training includes assessment on:
- Knowledge of Adelaide.
- Professional development training.
- Competency in speaking, reading and writing English.
- Hours of driving.
Subject to the person completing the training they are initially issued a 12 month trainee taxi Driver Accreditation. The person is required to hold the trainee taxi Driver Accreditation for a minimum period six months and must complete further training and a final assessment with the training provider before a permanent Driver Accreditation is issued.
In addition to the above, accredited drivers are bound by a Code of Practice.
There is no mandated training requirement for other point to point transport services, such as rideshare or chauffer vehicles.
Sanctions
Under the PTA, holders of a Driver Accreditation can be referred to the Passenger Transport Standards Committee (PTSC) if it is found that they have breached a condition of their Driver Accreditation, or they are no longer deemed suitable to hold a Driver Accreditation.
The PTSC may revoke a person’s Driver Accreditation upon assessment of the breach or circumstances.
Identified risks of Automatic Deemed Registration for Driver Accreditation in South Australia
Risk to health or public safety – Driver Accreditation standards
South Australia has strong Driver Accreditation requirements, particularly screening requirements to ensure applicants are ‘fit and proper’ to provide public passenger services. Driver Accreditation models vary between States and Territories in relation to the screening requirements and standards that applicants need to meet.
Allowing interstate public passenger drivers to operate in South Australia without holding a Driver Accreditation under the PTA will create a significant risk to the health or safety of passengers if the suitability of these drivers has not been determined in accordance with South Australia’s high standards.
Further, people who would ordinarily not meet South Australia’s high standards for a Driver Accreditation could seek to apply for an accreditation in a State or Territory with a lower standard or threshold, thereby creating a safety risk that the Department for Infrastructure and Transport is not able to mitigate through its application and screening process.
The noted variances for screening requirements between States and Territories is described further below.
a) National Police Check
The NPC for Driver Accreditation applicants varies between States and Territories.
In South Australia, a complete NPC is required (any criminal history beyond 10 years and any spent convictions) for a Driver Accreditation application. This is not a requirement in the Northern Territory, Western Australia and the Australian Capital Territory.
b) Working with children or vulnerable people
Drivers providing point to point public passenger services are trusted to work with a wide range of people, including vulnerable people, such as people with disabilities, or people under the age of 18 years. To ensure drivers are fit to provide passenger services to these groups, it is essential that an appropriate screening test has been performed, such as a WWCC, or a Working with Vulnerable People (WWVP) check.
Again, the above screening requirements vary between States and Territories. Only South Australia, Tasmania and the Australian Capital Territory mandates one or both of the above checks being performed as part of applying to operate as a public passenger driver.
c) Driving history check
It is essential that public passenger drivers are not considered an increased road safety risk due to any previous poor driving behaviour.
A driving history check is therefore an important screening tool for Driver Accreditation applications to ensure the applicant has not previously committed any driving offences that may deem them unfit to provide public passenger services.
There are variances between States and Territories in the level of driving history checked, particularly where an applicant may have only held a licence within the State or Territory for a short period of time.
For instance, South Australia will require any previous interstate driving history if a person has moved to South Australia from interstate. These additional checks are not conducted in other States and Territories.
It is noted that both Tasmania and Western Australia will allow a person who is required to drive with an alcohol interlock device fitted to their vehicle to hold a Driver Accreditation. Given alcohol interlock devices are often a mandated licence condition following a serious drink driving offence, concerns are held over any ability for a person with this condition on their licence to operate public passenger vehicles in South Australia.
Other relevant matters – compliance and enforcement/regulatory/administrative
Permitting interstate public passenger drivers to operate in South Australia will create complexities for on-road compliance and investigation of public passenger drivers, as it is unlikely that real-time information will be available on interstate drivers given there is no national system in place for the exchanging of Driver Accreditation information.
There is a risk that compliance officers will not have the ability to ensure interstate drivers are complying with any conditions that may be imposed on their accreditation by the interstate authority.
Further, there are likely to be complications in investigating and issuing sanctions to interstate drivers who do not hold a South Australian accreditation where a breach has been identified while providing passenger transport services in South Australia.
This also extends to issues with the person’s driver’s licence if they are licensed interstate. Holding a Driver Accreditation is reliant on the driver also holding a current driver’s licence. Not all jurisdictions require an accredited driver to notify them if their driver’s licence has been suspended or cancelled, or they have been disqualified from driving.
Compliance officers conducting on-road checks therefore may not be aware that an interstate driver operating in South Australia is not currently authorised to drive or provide public passenger services. While they may perform checks later to determine a licence status, this undermines the ability to immediately stop unlicensed drivers from performing these services.
The exchange of driving offences and demerit points between jurisdictions is a concern, given that an interstate driver who incurs demerit points in South Australia may not have those offences and demerit points exchanged with the home licensing jurisdiction, therefore avoiding potential sanctions on their interstate licence.