Uber and paid ride-sharing services - are they legal in your state?

Paid ride-sharing services such as Uber are not legal in all Australian jurisdictions. As the law is different in every Australian state, I have compiled this guide which explains the current legal status of Uber in each state. In most jurisdictions where Uber and other ride-sharing services are illegal, a passenger is not committing an offence by using Uber. It is the driver and/or Uber as a company that is committing the offence.

STATES THAT HAVE NOT LEGALISED PAID RIDE-SHARING

Queensland

Paid ride sharing is illegal in Queensland as providing taxi services without a licence is an offence under the Transport Operations (Passenger Transport) Act 1994. Recently fines that can be issued to Uber drivers have been increased to $2,356 (almost double the previous maximum fine of $1,413) while administrators (Uber and its Directors) can be fined up to $23,560. The increased fines are the product of the Transport Legislation (Taxi Services) Amendment Act 2015 which was passed by Queensland’s parliament on 21 April 2016 after being introduced by Bob Katter and receiving opposition support. As well as increasing the size of fines that can be issued to Uber drivers, the amendments inserted a new s.70A into the Transport Operations (Passenger Transport) Act 1994 to enable the recording of demerit points issued to persons providing taxi services without a licence.  

Practically, while the Queensland government has been issuing fines to Uber drivers, most drivers have not paid the fines, allowing the matter to proceed to court, where the Queensland government ordinarily decides not to proceed with the prosecution or lets the fine lapse.

Ride sharing services such as Uber are illegal in Queensland under the Transport Operations (Passenger Transport) Act 1994.

STATES THAT HAVE LEGALISED PAID RIDE-SHARING

New South Wales

Uber and other paid ride-sharing services have been able to operate legally in NSW since 19 December 2015 so long as the driver pays the $45 registration fee and registers the vehicle for business purposes (approx. $200). Taxi plate owners will be compensated $20,000 and some will be eligible for $40,000 total compensation for loss of business caused by the opening up of the market. Prior to these changes, NSW Roads and Maritime Services was issuing Uber drivers with $2,500 fines, and the Department of Transport had taken several Uber drivers who failed to pay the fines to court.

Uber and other paid ride-share services can operate legally in NSW.

South Australia

Uber and other ride-sharing companies will be permitted to operate legally in South Australia from July 1 2016. Under the new legislative regime, all passengers will be charged a $1 levy which will be used to compensate taxi licence plate owners and drivers for the loss of business given the market will now be open (officially) to new entrants.

From July 1 2016 Uber and other ride-sharing companies can operate legally in South Australia.

STATES WHERE THE LEGALITY OF PAID RIDE SHARING IS UNCERTAIN OR ABOUT TO CHANGE

Victoria

In Victoria, it is an offence under s.158(1) of the Transport (Commercial and Miscellaneous) Act 1983 for an owner or driver or a commercial passenger vehicle to operate without a licence, permit or other authority. It is also an offence under s.165(1)(a) to drive a commercial passenger vehicle without a driver accreditation.

The Victorian government has been cracking down on Uber drivers since May 2014, issuing drivers with $1,700 fines. Most Uber drivers simply pay the fine and continue operating.  In late 2015 Victoria’s Taxi Services Commission (TSC) took an Uber test case to the Magistrates Court, by using the Uber app to order and ride in an Uber vehicle. Two Taxi Compliance Officers rode in Mr Brennan’s Uber vehicle and at the end of the trip identified themselves to Mr Brennan. Mr Brennan was not licensed or authorised to operate a commercial passenger vehicle. The case turned on whether the Uber vehicle could be considered a “commercial passenger vehicle”.

“Commercial passenger vehicle” is defined in s.86 as any motor vehicle that is “used or intended to be used for carrying passengers for hire or reward”. Section 87 states that “a motor vehicle shall be deemed to operate as a commercial passenger vehicle if passengers are carried therein for hire or reward”.

The TSC was successful at first instance in arguing the Uber driver had breached both s.158 and s.165. The Uber driver (Mr Brenner), appealed to the County Court (see Brenner v Taxi Services Commissioner https://www.countycourt.vic.gov.au/recent-decisions/brenner-v-taxi-services-commissioner). Counsel for Mr Brennan argued that there was not a sufficient nexus between the carriage of passengers and hire and reward in an Uber trip. Chettle J immediately dismissed this argument, as although there was no direct evidence of any financial arrangement between Uber and the passenger, a financial agreement can be inferred and it was clear the Uber driver received reward for driving the two TSC officers to South Yarra.

Section 159 provides that in a “prosecution against the owner or driver of any commercial passenger vehicle the onus shall lie upon the accused of proving that the passengers carried upon such vehicle were not carried for reward at separate and distinct fares for each passenger but the accused shall not be under any obligation to discharge such onus until the informant first discharges the onus of proving that the passengers carried upon such vehicle were carried for reward”. Demonstrating that the reward or hire was for separate or distinct fares for each passenger used to be an element of the offence, which was repealed, but which continues to be part of the evidentiary onus contained in s.159. Chettle J held that the two passengers were not carried for reward at separate and distinct fares for each passenger, and that Mr Brenner has a defence to both s.158 and s.165.

The County Court decision will no doubt be appealed), so in the meantime the legal status of Uber in Victoria remains uncertain, especially as the County Court decision is reliant on the obscure evidentiary onus in s.159 and Chettle J appears to jump to conclusions on this point without much legal analysis.

Tasmania

Uber may soon be legal in Tasmania, as the Tasmanian government has moved to amend the Taxi and Hire Vehicle Industries Act 2008 to allow Uber drivers and other drivers of paid ride-sharing services to operate subject to similar rules that currently apply in Tasmania to luxury hire-car licences including that all drivers must hold an ancillary certificate requiring medical, police and working with vulnerable people checks. To appease the local taxi industry, the Tasmanian government has agreed not to issue any new taxi licences in the next two years. The Taxi Hire Vehicle Industries Amendment Bill 2016 (THVIA Bill) was introduced to the Tasmanian House of Assembly in March 2016 and is currently at the third reading stage. Do not hold your breath, as the changes will only provide the initial framework required and be part of a broader 2 year review of the taxi and hire car services industry in Tasmania and the legislation.

Ride sharing services such as Uber are currently illegal under the Taxi and Hire Vehicle Industries Act 2008. The Tasmanian government is currently moving to make Uber and other ride-sharing services legal in and the THVIA Bill is currently before the House of Assembly.

Western Australia

It is currently an offence under the Taxi Drivers Licensing Act 2014 to drive a vehicle for the plying or hire or otherwise for the purpose of carrying passengers for reward without a licence. Uber commenced operating in the Western Australian market in 2014 and the Department of Transport has issued fines to a number of individual Uber drivers. In early 2016, 400 taxi drivers commenced legal action in the Supreme Court against Western Australia’s Minister for Transport for failing to take action against Uber or Uber’s directors. Justice Tottle dismissed the application as it was a matter of policy whether the Department pursued prosecutions, not a legal issue.

In late 2015 the Western Australian government announced it would take steps to legalise Uber and other paid ride sharing services. It has been a slow process, but on 19 May 2016 the Western Australian government finally introduced the Taxi Amendment Bill 2016 into the lower house. The Bill is currently at the Second Reading speech stage. When passed, the legislation will allow for Uber drivers to operate with an “Omnibus licence” (cost $272). Each taxi plate licence owner will receive $20,000 in compensation for loss of business.

While it is currently illegal for Uber and other ride sharing services to operate in Western Australia, the Taxi Amendment Bill 2016 currently before the WA lower house will legalise Uber once passed, so long as Uber drivers have purchased an “Omnibus licence”.

Boxing Day sales and restrictive trading – The law behind whether or not you can sales shop on the 26 December 2015

Did you go Boxing Day sales shopping on 26 December or did you have to wait until 27 December? Growing up in Adelaide, I found it very frustrating that the Boxing Day sales started on 26 December in other states, but Adelaide had to wait until the 27 December because of restrictive retail trading hours. South Australia, Western Australia and Queensland have traditionally had more restrictions on retail trade than New South Wales, Victoria and Tasmania. In fact, Tasmania has the most simple and deregulated retail trading system out of all the states. In this blog post I look at the state legislation, including restrictive trading legislation, behind Boxing Day sales.

Public holidays and restrictive trading laws are state based

In the division of powers between Commonwealth and state governments, state governments have the residual power to legislate for public holidays. State governments also have the power to regulate retail trading hours. Some public holidays are known as “national public holidays”, as each state has legislated for those days to be public holidays. A list of national public holidays can be found in s.115(1) of the Fair Work Act 2009. State specific public holidays are located in state statute. Public holidays are fantastic for those who work full time, as the Fair Work Act 2009 gives certain employees the right to be paid their base rate of pay on the public holiday (s.116) and an entitlement to be absent from work for the public holiday, though an employer can require an employee to work if the request is reasonable (s.114).

Boxing Day is a national public holiday, as each state has legislated to make 26 December a public holiday:

1. New South Wales - s.4(k) of the Public Holidays Act 2010 (NSW);

2. Victoria – s.6 of the Public Holidays Act 1993 (Vic);

3. South Australia – s.3(2) Holidays Act 2010 (SA);

4. Western Australia – s.5 and Second Schedule Public and Bank Holidays Act 1972 (WA);

5. Queensland – s.2 and Schedule Holidays Act 1983 (Qld); and

6. Tasmania – s.4 Statutory Holidays Act 2000 (Tas).

Whether retailers can trade on a public holiday is determined by restrictive trading laws on a state by state basis.

Restrictive trading on Boxing Day by state:

New South Wales

Restrictive trading days in NSW are Good Friday, Easter Sunday, Anzac Day (but only before 1pm), Christmas Day and Boxing Day (s.3 Retail Trading Act 2008 (NSW) (NSW RT Act). All shops predominantly selling retail goods are required to be closed on the restrictive trading days unless an exemption in Part 3 of the NSW RT Act applies (s.4 NSW RT Act). The general exemptions from trading on a restrictive trading day including exempt shops such as book shops, chemists, and florists (s.7 and Schedule 1); small shops where not more than two people are in the shop, one is the owner of the business, and neither of the persons in the shop are employees (s.8); and premises solely selling liquor or meals that have a hotel or small bar licence (s.9).

Significant changes were made to the NSW RT Act in 2015 by the Retail Trading Amendment Act 2015 (NSW)(Amendment Act). Schedule 1 of the Amendment Act inserted s.8A, an exemption to restrictive trading on Boxing Day only:

8A Shop not required to be closed on Boxing Day if staff freely elect to work

(1) A shop is not required to be kept closed on Boxing Day if the shop is staffed only by persons who have freely elected to work on that day.

(2) This section has effect despite any other provision of this Act and any other Act or law.

“Freely elected to work” is defined in s.3A in the negative. A person has not made a free election if they were coerced, harassed, threatened or intimidated or because the person is merely rostered or required by an Award or Enterprise Agreement to work on that day.

Prior to the introduction of s.8A, not all shops in NSW were able to open on Boxing Day. Now any retail shop may open on Boxing Day, as long as the staff have “freely elected to work on that day”.

In 2015, Boxing Day sales throughout NSW started on 26 December.

Victoria

Victorian retailers have been able to trade on Boxing Day for years, as under the Shop Trading Reform Act 1996 (Vic) shops to which the Act applies must remain closed during “ordinary shop closing times” (s.5(1)), and Boxing Day is not an ordinary shop closing time. Retail shops in Victoria are only required to be closed on Good Friday, Christmas Day and until 1pm on ANZAC Day (see definition of “ordinary shop closing times” in s.3). Not all shops are prohibited from trading on these days. Exempt shops in s.4 include chemists, petrol stations, and restaurants.

In 2015, Boxing Day sales throughout Victoria started on 26 December.

South Australia

South Australia retains restrictive trading laws on 26 December in non-CBD locations. Rundle Mall (CBD) is the only retail precinct permitted to be open on Boxing Day, and even then is only permitted to open from 11am-5pm which is a very limited 6 hour trading period compared to other states. Regional shopping centres cannot commence Boxing Day sales until 27 December. While small retail shops have no restrictions on trading hours (s.12C), general retail shops are restricted in their trading hours.

Shops outside the CBD district must be closed on 1 January, Easter Sunday, Christmas Day and Boxing Day (s.13 Shop Trading Hours Act 1977 (SA)), unless the Minister has granted an exemption (s.5). Anyone in doubt over the high levels of retail trading regulation in South Australia, should have a look at s.13 of the Shop Trading Hours Act 1977 which details the restricted hours retail shops can open throughout the year.

On an aside, South Australia has two part day public holidays on Christmas Eve and New Year’s Eve from 7pm to midnight (s.3B Holidays Act 2010), meaning that retail employers have to pay applicable public holiday penalty rates to employees for these periods.

Boxing Day sales in the Adelaide CBD commenced on 26 December 2015. Sales commenced in shopping precincts outside the CBD on 27 December 2015.

Western Australia

Western Australia is another highly regulated jurisdiction for retail trading. While the legislation remains restrictive, the Minister has made a number of orders enabling retail trade for general retail shops on most public holidays.

The Retail Trading Hours Act 1987 (WA) categorises shops into “general retail shops”, “small retail shops”, “special retail shops” and “filling stations” (s.10(1)). Large retailers like Myer and David Jones who engage in Boxing Day sales fall within the category of “general retail shops” (s.10(2)). General retail shops must be closed on public holidays (s.12(3)(d)) unless an order has been made by the Minister (of Commerce) to vary trading hours (s.12E). The Minister cannot authorise general retail shops to be open on ANZAC Day, Christmas Day or Good Friday (s.12E(3A)). The Minister has authorised trading on most public holidays aside from those specified in s.12E(3A). The Minister for Commerce authorised retail trading on Boxing Day from 8am to 6pm, as well as the Boxing Day public holiday on 28 December from 8am to 6pm.

Restaurants, cafes and take away food shops are not regulated by the Retail Trading Hours Act 1987.

Western Australian legislation is “special” in that it often splits the state into two by dividing the state into north of the 26^th parallel and south of the 26^th parallel. The Retail Trading Hours Act 1987 (WA) only applies to locations south of the 26^th parallel, which includes Perth where most of the retail trading in Western Australia occurs.

The Public and Bank Holidays Act 1972 (WA) gives the Minister the power to proclaim a half-holiday, such as those in South Australia – to my knowledge this has not occured.

In 2015, Boxing Day sales in Western Australia commenced on 26 December.

Queensland

The Trading (Allowable Hours) Act 1990 (Qld) categorises retail shops into “exempt shops”, “independent retail shops” and “non-exempt shops” (see ss.4 to 6). “Exempt shops” include antique shops, arts galleries and ice cream parlours (s.5). The definition of “independent retail shop” in s.6 is complex, but the definition excludes shops engaging over 20 persons at any one time. “Independent retail shops” have unrestricted trading hours except on Christmas Day, so can open on Boxing Day. Most large retail shops such as Myer and David Jones that participate in Boxing Day sales exceed 20 employees and will be “non-exempt shops”.

The trading hours of non-exempt shops are also regulated by orders made by the Queensland Industrial Relations Commission (QIRC). The Commission makes amendments to this Order on an ad hoc basis to regulate trading hours of non-exempt shops. Currently, non-exempt shops are required to close on Good Friday, Easter Sunday (South East Queensland area only), 25 April, Labour Day and Christmas Day.

In 2015, Boxing Day sales in Queensland commenced on 26 December.

Tasmania

The Tasmanian retail sector is relatively unregulated (probably because of the state’s small size). The Shop Trading Hours Act 1984 (Tas) only applies to retail businesses with 250 or more employees (includes all employees full time or otherwise) (s.4). Section 5 of the Shop Trading Hours Act 1984 (Tas), prohibits retail shops which fall in the definition of s.4 from opening on Christmas Day and Good Friday. Retail shops are not exempt from trading on Boxing Day.

In 2015, Boxing Day sales in Tasmania commenced on 26 December.

Conclusion

While most retail shops were able to open across Australia on 26 December in 2015, the reason retail shops were able to open in many jurisdictions was dependent on an order being made by a Minister or a tribunal. The right to trade on Boxing Day can easily be removed by order. Certain jurisdictions such as Tasmania and Victoria are not reliant on orders being made for the right to trade on Boxing Day. While NSW has removed impediments to Boxing Day trading, the “freely elect to work” test is bound to fail. NSW should either go the full way to deregulation or go back to their earlier restrictive trade, rather than sit in an in-between position that is not fooling anyone. While there have been moves towards deregulation of retail trading on public holidays, there is a long way to go for states such as South Australia. While progress is slow, many retailers have adapted by moving their Boxing Day sales online. David Jones and Myer started their sales before their in-store sale started, a very welcome move.