EXPLANATORY STATEMENT
Mutual Recognition Act 1992
Automatic Mutual Recognition (South Australia) (Exemption – Tow Truck Drivers) Declaration 2022
This explanatory statement provides notes on the operation of the Automatic Mutual Recognition (South Australia) (Exemption – Tow Truck Drivers) 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 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 safety of workers and the public and consumer protection. The Declaration provides an explanation of the specific risks arising from the licence 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 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 of Infrastructure and Transport and in recognition of the risk assessment undertaken and summarised in Attachment B.
Attachment A
Automatic Mutual Recognition (South Australia) (Exemption – Tow Truck Drivers) 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 – Tow Truck Drivers) 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 licence from the ADR provisions of the 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 Tow Truck Certificate issued under the Motor Vehicles Act 1959 (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 safety of workers and the public and consumer protection (as outlined in column 2).
This means that an individual cannot carry on the activities authorised under this licence in South Australia without a Tow Truck Certificate issued under the Motor Vehicles Act 1959 (South Australia). An individual may obtain a Tow Truck Certificate 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 safety of workers or the public and consumer protection (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 Licence | Column 2 Statement of risk |
1 | Tow Truck Drivers
(under the Motor Vehicles Act 1959 (South Australia)) | Safety of workers or the public South Australia’s comprehensive regulation of the tow truck industry and strong entry requirements to be issued a Tow Truck Certificate ensures that vehicle towing is performed to agreed safety standards, which mitigates risks to workers and the public. The safety of workers and the public will be at risk if inadequately trained and unlicensed tow truck drivers are able to operate in South Australia without meeting South Australia’s high entry standards. Risk to consumer protection South Australia’s regulated Tow Truck Scheme, coupled with its nationally high entry requirements to become a tow truck driver, provide safeguards to consumer protection, including standardised procedures and towing practices that meet industry standards and expectations. These safeguards provide consumers with confidence when engaging this industry that their vehicle will be handled safely and appropriately. These safeguards cannot be ensured if tow truck drivers have not been assessed to South Australia’s high standards.
|
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 decision
Background information on Tow Truck Drivers in South Australia
Tow Truck Industry
The tow truck industry in South Australia is governed by Part 3C of the Motor Vehicles Act 1959 (South Australia) (the Act) and the Motor Vehicles (Accident Towing Roster Scheme) Regulations 2015 (the Regulations), which provides an orderly approach to the removal of vehicles damaged in accidents.
The motor vehicle towing industry provides an important service to the motoring public. The Accident Towing Roster Scheme (the Scheme) aims to reduce safety incidents by providing for an accident towing roster of qualified tow truck operators to attend accidents in sequence as supervised by the South Australia Police (SAPOL), and to give greater consumer protection to the public.
A feature of the Scheme is that light and heavy vehicle towing is regulated within the ‘declared area’, as defined in Schedule 1 of the Regulations which covers the greater Metropolitan Adelaide area. All accident towing jobs within the declared area are allocated by SAPOL with allocations made from a roster of approved operators for the particular zone.
The Scheme applies to accidents occurring on public roads or private property inside the declared area and ensures the safe and orderly removal of damaged vehicles by restricting persons present at accident sites.
Tow Truck Certificates
The Act prohibits a person from driving or operating the equipment of a tow truck in the declared area unless the person holds a Tow Truck Certificate (TTC). This is regardless of whether the person undertaking towing is affiliated with a Scheme rostered operator (accident towing), or non-accident/‘trade’ tows (for example, related to the vehicle trade and repair industry).
Where a person is operating the equipment of a tow truck outside the ‘declared area’, there is no regulatory requirement for the operator to undertake the practical and proficiency assessment, or hold a TTC.
Eligibility and application requirements for a Tow Truck Certificate
A person is entitled to be granted a TTC if they:
- Are 18 years of age or older.
- Hold a current South Australian driver’s licence.
- Are deemed a fit and proper person to be granted a TTC.
- Have an adequate knowledge of laws relevant to towing and driving and operating the equipment of a tow truck.
- Is proficient in driving and operating the equipment of a tow truck.
A person is required to lodge the following documents with the Department for Infrastructure and Transport (the Department) when applying for a TTC:
- An application form.
- A National Police Check that is not more than three months old.
- Five passport size photographs.
- Their current South Australian driver’s licence.
If the person is deemed suitable to be issued a TTC, an initial three‑month certificate is issued to the person to enable them to gain experience and receive training prior to undertaking a practical and proficiency assessment with the Department.
Practical and Proficiency Assessment
Prior to a person being issued with a full TTC, they are required to undertake a practical and proficiency assessment demonstrating their ability to operate the equipment of a tow truck prior to being issued the TTC.
The assessment is conducted by an authorised officer from the Department with the applicant providing their own tow truck and vehicle to demonstrate the required towing procedures. The assessment covers a number of key competencies the applicant will need to demonstrate to ensure they can competently:
- Assess the vehicle and position of the tow truck.
- Operate the towing equipment.
- Lift and load the vehicle onto the tow truck.
- Secure the vehicle to be towed.
- Reverse and drive the tow truck while the towed vehicle is on, or connected to the tow truck.
Different key competencies apply to the different types of tow truck vehicles which are:
- Tray type trucks.
- Wheel lifter/cradle type trucks.
- Hook and crane type trucks.
The applicant will immediately fail the assessment if they:
- Display an unsafe work practice which could potentially cause danger or damage.
- They fail to demonstrate correct procedure for securing the vehicle.
- They fail to reverse and turn the tow truck with the vehicle loaded.
Upon passing the practical and proficiency assessment a full TTC is issued to the person and they can drive and operate tow trucks under the Scheme.
Identified risks of Automatic Deemed Registration for Tow Truck Certificates in South Australia
Safety of workers or the public
The Department considers that it is vital that Tow Truck drivers have the appropriate skills and knowledge to safely and efficiently operate and tow vehicles, particularly vehicles that have been damaged in an accident. This extends to ensuring towing equipment and procedures are correctly followed and in line with industry practices to avoid any damage to a vehicle or danger to any person who may be present.
The Department’s practical and proficiency assessment is one of South Australia’s safeguards to ensure that prospective tow truck drivers are fit and proficient to conduct towing services. An applicant is required to pass the assessment prior to being issued with a full TTC. The assessment evaluates an applicant’s competency and skills in driving a tow truck and operating the tow truck equipment. Importantly, it requires applicants to display safe and correct work practices and procedures.
The only other State which has a similar requirement is Queensland. The other jurisdictions who regulate tow truck drivers require an applicant to hold the appropriate class of licence and be ‘fit and proper’, in line with South Australia’s eligibility requirements, however, they do not require the applicant to undertake any type of practical assessment before being issued with a licensed.
The Department further notes that the Northern Territory, Western Australia and the Australian Capital Territory do not require tow truck drivers to be licenced or accredited in order to operate towing equipment. While this means that any person from those jurisdictions wishing to work in South Australia would require a TTC, as they do not hold an equivalent licence, it strengthens the fact that the regulation of tow truck drivers interstate does not meet the high standard of that evidenced in South Australia.
It is the Department’s position that higher entry level standards to authorise applicants to operate tow trucks results in towing practices that mitigate risks to the workers, other road users and any people present at a towing scene. This includes properly securing vehicles to ensure they do not come off or away from a tow truck while being towed and no damage is caused to the vehicle or road infrastructure.
Allowing interstate tow truck drivers to work in South Australia, without having met South Australia’s strong eligibility and assessment criteria, is of concern as it is likely to create a situation which involves unsafe work practices and procedures being applied when towing vehicles.
Consumer protection
A key intention of South Australia’s Scheme is to reduce illegal and unethical practices in the industry and to provide for orderly, standardised and safe removal of vehicles involved in accidents.
Furthermore, the Scheme’s intent is to provide the public with confidence in the often unaccustomed process of towing. To do so, the Scheme eliminated or mitigated the following occurrences:
- Accident chasing.
- Excessive number of tow trucks and drivers attending at the scene of an accident.
- Harassment of accident victims by drivers.
- Tow truck drivers disposing of damaged vehicles to a motor body repairer, without the owner’s knowledge.
- Accident spotting, which includes the payment of fees for passing information about the location of an accident.
The introduction of standardised procedures in the declared area for the retrieval of a vehicle involved in accident or a vehicle which is not (‘Trade’ tow), has provided consumers with confidence that they are receiving adequate service, fair prices and are not being taking advantage of.
By way of jurisdictional scan, South Australia’ Scheme is nationally the strongest regulatory framework of the industry in terms of towing allocation, with only the Australian Capital Territory having a comparable variant (an informal tow allocation process). It is of note that in March 2022 Western Australia commenced a review of its tow truck industry.
Importantly, in comparison to other jurisdictions who do regulate towing, South Australia’s Scheme requires Tow Truck drivers to be issued a TTC and pass an assessment conducted by the Department. This ensures that tow truck drivers are competent in safe towing practices which is a further safeguard to consumers’ vehicles, as they can be confident that they are receiving a safe and reliable service from any rostered operator under the Scheme.
This same protection to consumers and their vehicles cannot be guaranteed if tow truck drivers are permitted to work in South Australia under the Scheme without having to be assessed as competent by the Department in driving and operating the equipment of a tow truck.