Keeping cyclists safe – do minimum passing distance laws go far enough?

I never used to pay much attention to bicycle laws until I started commuting to work on my bike. In South Australia, cars must leave at least one metre of space when passing a bicycle (if the car is traveling at 60km/hr or less). It quickly became clear to me that this does not always happen. Some states in Australia do not even have minimum passing distance laws. About 17% of Australians ride a bike each week, with about 5.1% using their bike for commuting and 14.1% using their bike for recreation or exercise. The overlap in figures is caused by Australians who use cycling for both commuting and leisure/exercise. The average Australian household has 1.5 functioning bicycles. This is a significant amount of the population that our road laws should be keeping safe.

As road laws fall within the jurisdiction of states and territories, laws are not uniform, though the model Australian Road Rules attempt to unify road rules as much as possible. There are currently two different categories of overtaking laws in Australia, the “safe overtaking distance” (SOD) and the “minimum passing distance” (MPD). The SOD is a general law applying to all vehicles overtaking other vehicles and provides there needs to be a safe overtaking distance with the other vehicle such as to avoid collision and avoid obstructing the path of that vehicle. The SOD also applies to the overtaking of bicycles where there is no more specific law such as the MPD in that jurisdiction. Generally cars overtaking bicycles in jurisdictions with the SOD underestimate the SOD and pass dangerously close to the bicycle rider. I know this from personal experience. Campaigners and lobbyists (such as the Amy Gillett Foundation with the “A Metre Matters” campaign) have pushed for safer passing laws for a number of years and their hard work is starting to pay off as a number of jurisdictions have adopted or are trialing the MPD. The MPD gives an exact minimum distance that must be given when passing a bicycle. Giving an exact figure gives drivers more specific guidance than the vague “safe overtaking distance”.

Some jurisdictions have adopted the following MPD laws:

1.       Where the speed limit is 60km/h or less, vehicles must provide at least 1m of space when passing a bicycle.

2.       Where the speed limit is more than 60km/h, vehicles must provide at least 1.5m of space when passing a bicycle.

3.       The distance is measured from the rightmost part of the bicycle/rider (which could be a panier, arm or bicycle trailer) and the leftmost part of the car passing (which could be a rear vision mirror or trailer).

4.       Where two bicycle riders are riding two abreast (which they are legally able to do as long as they are riding in one lane within 1.5m of each other – see r.151 of the Australian Road Rules), the safe passing distance is measured from the right most part of the rider on the right.

5.       Cars/vehicles are exempt from certain other road rules to ensure they comply with the MPD when passing a bicycle. For example, in South Australia, cars can drive over center lines including center double lines, straddle or cross a lane line, or drive on a painted island to safely overtake a bicycle using the MPD. However drivers should remember they can only overtake or pass a bicycle if the MPD can be given and if it is otherwise safe to do so.

The MPD across Australia

Jurisdiction	MPD?	Source of law	Section	Maximum Penalty
South Australia	Yes, permanent MPD since October 2015	Road Traffic (Road Rules--Ancillary and Miscellaneous Provisions) Regulations 2014	11A and 11B	$2,500
Queensland	Yes, permanent MPD since April 2016 following 12 month trial	Transport Operations (Road Use Management—Road Rules) Regulation 2009	144A and 139A	40 penalty units ($4,876 as 1 penalty unit is currently $121.90)
New South Wales	Trial of MPD 03/2016 – 03/2018	Road Rules 2014	144-1 and 144-2	20 penalty units (1 penalty unit is $110)
Victoria	No, though attempts have been made in 2016 to introduce legislation into the upper house	-	-	-
Australian Capital territory	Trial of MPD 11/2015 – 11/2017	Road Transport (Safety and Traffic Management) Regulation 2000	38A, 38B	20 penalty units (1 penalty unit is $150)
Tasmania	No. But 1m is recommended and laws allowing exceptions to road laws when overtaking have been enacted.	Road Rules 2009	139A	-
Northern Territory	No	-	-	-

While the maximum penalties appear relatively small, it should be kept in mind that this is only for the offence of failing to keep the minimum safe distance. There are other road traffic offences that have much larger penalties in the case of reckless driving, or causing harm or death to a person.

Passing versus overtaking

In the South Australian regulations, the MPD must be given when “passing” a bicycle. “Passing” is a different and broader concept than overtaking. “Passing” is not defined in the regulations, but the meaning can be discerned from the wording of reg 11A that a driver will “pass” a bicycle when passing to the right of the rider travelling in the same direction as the driver. This covers a broad range of situations including overtaking a bicycle, passing a bicycle riding in a bike lane, and passing a bicycle travelling in the same direction in an adjacent lane. Essentially, any time a vehicle travelling in the same direction goes past a bicycle, the MPD must be applied.

Although the concept of “passing” is preferable to “overtaking” there are still some issues with the definition in the South Australian laws and in other jurisdictions. Passing does not include situations where a vehicle is travelling in the opposite direction to the bicycle. This is a significant weakness in the legislation as head on collisions are possible where appropriate distance is not maintained, especially on narrow roads and unmarked roads. Other jurisdictions such as Queensland have also chosen to use the concept of “passing” in the MPD regulations.

Summary

Some jurisdictions have recently taken positive steps to increase the safety of bicycle riders by introducing MPD laws or trials of MPD laws. This is a great first step and other jurisdictions will hopefully follow. The use of the concept “passing” instead of “overtaking” in regulations is also a positive step but arguably does not go far enough, as the concept does not include passing in opposite directions. It is also positive that the MPD increases to 1.5m when speed of the overtaking vehicle increases, however there appears to be minimal knowledge of this law among the general public. 

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”.