Bills

Passenger Transport (Point to Point Transport Services) Amendment Bill

Committee Stage

Debate resumed.

Clause 13 passed.

Clause 14.

The Hon. D.G. PISONI: This refers to automatic cancellation of accreditation. Rideshare has raised the introduction of automatic accreditation cancellation for certain offences without any right of notice, appeal or redress outside of SACAT. Unlike other jurisdictions, where point-to-point operators receive a notification first and are provided the opportunity to plead the case and can continue to operate during the appeals, with no appeal mechanism before automatic accreditation cancellation does the minister accept that this could unfairly treat point-to-point operators, and what does he have in place in order to prevent that being unfair, if you disagree with that statement? Why was what rideshare describe as an extreme approach chosen over what they believe to be a fairer notice and review process?

The Hon. A. KOUTSANTONIS: First and foremost, Uber is wrong—this will apply to taxis and rideshare equally—and, second, it is for those non-discretionary infractions, like loss of driver's licence. You can appeal that in a court, but while you are appealing, you have no driver's licence. We cannot allow somebody to be accredited to drive without a driver's licence. That is the type of offence we are looking at here.

If you are a rideshare driver and you have lost your driver's licence, there cannot be an ability for you to continue your work without a driver's licence. From the moment the driver's licence is cancelled, your accreditation is cancelled: it is automatic. That is what this speaks of, and that will apply to taxi drivers as well.

The Hon. D.G. PISONI: Just for clarity: an allegation will not be enough for automatic disqualification or cancellation?

The Hon. A. KOUTSANTONIS: Yes, it will for allegations as well. For working with children checks, if that is removed, yes, the accreditation will be revoked immediately, as it should be.

The Hon. D.G. PISONI: That is not an allegation. That is if they do not have working with children—

The Hon. A. KOUTSANTONIS: An allegation could be made against someone—

The Hon. D.G. PISONI: If a passenger makes an allegation, for example, against a driver for whatever reason, is that a situation where automatic cancellation of accreditation would happen, or would there be a process which determined whether that was a real allegation or whether it was one of a vexatious nature?

The Hon. A. KOUTSANTONIS: A good question so that we can sort of clear this up a bit. I jump in the back of David Pisoni's taxi or rideshare, and I make an accusation against him. Of course, you have the presumption of innocence, and I would have to prove that. You can defend yourself in the process.

However, if the driver has had their accreditation for working with children revoked by an authority, then, yes, their accreditation is suspended immediately. The process for having that revoked is separate from us, but if it is revoked, you lose your accreditation immediately. That is what the scenario is that we are looking at here. If there is an accusation made against someone through your conduct as a driver, there are remedies and a procedure in place, but if you have part of your foundational accreditation documents revoked then, yes, you lose your accreditation instantaneously.

The ACTING CHAIR (Ms Stinson): Count this as your second question, member for Unley.

The Hon. D.G. PISONI: Thank you. Allegations can be of a minor issue that might lead to a loss of accreditation if found to be true. It may be a very serious allegation, with just as much proof as the minor allegation, so what happens in that instance? Does the driver continue on a very serious allegation, or is the driver suspended subject to an investigation?

The Hon. A. KOUTSANTONIS: Let's be clear: if someone is charged with an offence, we will take away their accreditation because police have sufficient evidence and they believe they can have a successful prosecution.

The Hon. D.G. PISONI: So that is the trigger?

The Hon. A. KOUTSANTONIS: It is the trigger. If it is a minor offence, it will be assessed by the agency on what they think the risk to public safety is. You cannot be too prescriptive here—things change. In my mind, if you are charged with rape, you should not drive a taxi or a rideshare. If you are charged with murder, you should not drive a taxi or a rideshare. If you have been charged with drive dangerous, you should not be driving a taxi or a rideshare.

Mr Telfer: There is a line somewhere—that is the challenge.

The Hon. A. KOUTSANTONIS: There is a line somewhere and this is difficult to prescribe, because there would be an argument about that line, so it is best to leave it to the discretion, I think, of the bureaucracy on a case-by-case basis to have a look at this and to make recommendations. But as I said, if the foundational accreditations are revoked at any stage, you lose your accreditation, as you should.

In terms of allegations and charges, if there is an allegation of someone taking a longer way to get from point A to B because the customer accuses them of attempting to extract more money, that would be something for which we would not revoke accreditation immediately. There would be an investigation, if we have justified it. If the driver has been charged by the police or the DPP with rape, then yes, we will remove the accreditation. I think that is the type of common sense that people are looking for here. We do not want to attack drivers, but we do want to protect the public.

The Hon. D.G. PISONI: Just to get some more clarity on that, minister, I do not like to use this example, but you have raised it: if somebody reported to the authoritative body for rideshare that they had been raped but had not gone to the police, how would the authoritative body manage that?

The Hon. A. KOUTSANTONIS: If there is a claim of sexual assault against the driver, that is why we want cameras in vehicles. We also want to have better protections for passengers. That would be assessed by the agency and they would make a recommendation to me. Suppose we go down the path of what if the assault is not proven and no-one is ultimately charged, and someone has had their accreditation revoked for six months and they have lost their house and whatever it might be—these are the difficult public policy questions that we have to grapple with all the time.

The Hon. D.G. PISONI: Would your advice be to go to the police?

The Hon. A. KOUTSANTONIS: Absolutely. People should go to the police, and if the police feel that the evidence warrants charging, that would obviously revoke accreditation. Again, I do not think it is the right of politicians to make these judgements; we would want an independent assessment by the bureaucracy, who would make a recommendation. That gives us the democratic oversight, where necessary, to go in and say they have been too overly burdensome or have not been tough enough. This is the difficult part about these judgement calls.

I have to say, if we are too prescriptive here there will be gaps, and if there are gaps we will fall between the gaps. I think it is better to be less prescriptive and allow the agencies the discretion to look at this. I think the guiding principle will be: if you are charged by police with a serious offence and you have lost your accreditation, you lose any of the foundational accreditations that are in place to get your licence to start with. You are out. However, an accusation of poor behaviour by a driver—maybe being on the telephone and swearing or something, whatever it might be—should be investigated.

Again, we are regulating for safety here. We want cameras in rideshare vehicles. I think that is long overdue. At the same time, I do not want to be too prescriptive on that. This can be very expensive, so we have to make sure that there is a way in which we have the ability to monitor what is occurring in rideshare vehicles without it being an overly high infrastructure burden on the driver, because it can be quite expensive. Then there is the burden of how long do we keep this information.

There are a lot of things we have to work through here, but I think, as a guiding principle, we all agree that rideshare should have cameras. Taxis do. All public transport has cameras, except for rideshare; they are the only ones. Taxis have them, buses have them, trains have them and trams have them. Rideshare is a form of public transport, so they should have cameras. I think even Uber would accept that that is an appropriate public safety measure. The question is: how do we do it in a cost-effective way?

The Hon. D.G. PISONI: Just a supplementary: you might want to confirm if it is the case that the industry will be part of the consultation process in implementing the safeguards that you are referring to, minister.

The Hon. A. KOUTSANTONIS: For example, there is an opportunity here, I think, with Uber in the way that they use their app while the app is engaged. Most mobile phones have a camera, and it could be as simple as we make a regulation that the camera must be in the middle of the vehicle, mounted, and that Uber are able to activate the cameras in the vehicles while the app is being used. While there is a passenger on board, we have a camera and a record.

People have their apps and the drivers have their app, and there is an interface there. Uber are looking at all these sorts of things. I am not saying that I want cameras tomorrow, but what I am saying is that we need to have cameras in rideshare vehicles, and I am up for innovative, entrepreneurial ways of doing this in a way that is cheaper, rather than us being too prescriptive.

Yes, we will consult with industry. We will consult with them to try to make sure we get a good outcome here, because the truth is we do not have the answers and technology is changing quickly, as are smart devices, as are apps, as is the platform that rideshare is using. They are improving each and every day. There are always going to be improvements, so we will absolutely consult, because I think we can get good outcomes.

To be honest, it is probably in rideshare's interest to be able to say, 'Hey, the South Australian government has a law that says your mobile phone, if you are a driver, must be placed in the middle of the vehicle and capture a panoramic view of the entire vehicle with the sound on,' which means that when the app is on and you are in the car it is being filmed and you are safe.

Or you can have another device that allows the camera or the microphone to be on while your app is on and you are in an Uber vehicle. I am not quite sure how we will work this, but I would like to see a safety measure in place for people who rideshare, rather than fixed cameras controlled by the South Australian government. There has to be another way of us doing this where we get a good outcome.

Mr TELFER: I would like some further clarification, minister, because you have been talking a bit about the discretion of the agency and a bit about regulation. This clause does refer a couple of times to 'an offence of a kind prescribed by the regulations' and also 'engaged in conduct of a kind prescribed by the regulations'. You have aerated potential high-level offences, and as we have sort of said there is going to be a line somewhere around that area. To what degree do you envision offences or conduct being specified within the regulations, and how much do you envision it being the responsibility of the agency? Obviously, within the legislation it refers to prescription within regulation. This is the line between legislation, regulation and guideline and/or discretion of the agency.

The Hon. A. KOUTSANTONIS: There will be some foundational disqualifications.

Mr TELFER: That's in (a).

The Hon. A. KOUTSANTONIS: Yes. Then the greyer areas will be through the consultation of regulations and the work that we do post legislation passing. Again, I do not want to be too prescriptive, because I think it is appropriate that we have a level of discretion here, to make sure that we can balance the right of the presumption of innocence and the safety of passengers. We do this now with bus drivers. We do this now with train drivers. We do this now with public servants, so it is not necessarily new. It is just a matter of making sure we get the balance right.

Mr TELFER: Obviously, you have spoken through the consultation process about not just the definition of offences or conduct, as you just have, but also safeguard mechanisms which will need to be in place to make sure that there is not a wrongful cancellation. Will the consultation process on the regulations also include discussion about whether there should or would be a notice period to allow businesses to respond before losing accreditation, so that it is not a hard and fast decision but there is actually notice of whatever it might be—seven days or 14 days, etc.—for there to be an initial response? At this point, it would be the agency coming to a business or an individual. Are you open to something like that being in place? If so, is that through the consultation process?

The Hon. A. KOUTSANTONIS: For people who are not losing their accreditation for foundational issues like I have talked about, which will be instantaneous, yes, absolutely, procedural fairness will be in place. Of course they should be notified, and of course there will be a process where they are asked to answer questions, so yes. But in terms of the foundational accreditations, we cannot offer people notice. We cannot have someone's driver's licence be cancelled but then another act saying, 'Until you get a notice from the department, you can still operate a rideshare vehicle even though your licence has been cancelled,' so no. The act will say, 'For those foundational aspects, accreditation ceases when these things happen, automatically,' but if there is an accusation, of course there will be procedural fairness in place. We would have to offer that; otherwise a court could overturn it for us.

Mr TELFER: I agree absolutely with the prescribed requirements of accreditation. I think there is no wriggle room with that. It is around some of the other aspects, obviously in (b) and (c) within this clause. For further clarification, if there is a notice period in place, do you envisage it being a hard and fast set—like I was saying before, a day, a week or a fortnight—or will there be within the regulations a specified process that must be followed before that cancellation happens? Basically, there are obviously going to be technicalities with each of these cases. There could be a risk, if it is a designated time period, that it could be exceeded, but you also do not want to be in a situation where a judgement is extended for that long a period that there will be safety concerns potentially for the public with a driver who is facing these sorts of scenarios.

The Hon. A. KOUTSANTONIS: To reassure the member, we do this now with the standards committee. It is just that we have to convene a meeting before we can take away someone's accreditation. We are just streamlining this process to make sure it is faster. If there is someone we know who needs to have their accreditation taken away, we do not have to wait seven days to get an accreditation removed because the standing committee has not met yet.

Yes, there will be procedural fairness. Whether we will put in statutory timeframes, I suspect not. I think there are working guidelines that we have been using with the standards committee that will continue to operate, and they are appropriate. But I caution members in this place about being too prescriptive and not giving agencies the ability to be agile. There are some people who should not be driving passenger transport vehicles. We should retain that discretion to remove accreditation. Yes, some of them are businesses, and there are obviously protections that should be in place for small businesses. I understand that, but we are also talking about moving members of the community around who are vulnerable.

Again, for foundational accreditation, it will be instantaneous if it is revoked. There will not be statutory timeframes in place for notification, but procedural fairness will apply. Procedural fairness is a well-established concept of giving people notice—fair notice—that there is an accusation against them and they need to answer these accusations. I think, without being too prescriptive, we can get it right.

The Hon. D.G. PISONI: Will SACAT have the appropriate resources for these issues to be dealt with in a timely manner? For small businesses, their incomes rely on it. Have you spoken to the Attorney-General about how that might be managed? If so, could you advise the house?

The Hon. A. KOUTSANTONIS: I am assured by my friend the Attorney-General that, yes, justice in South Australia is speedy and fast.

Clause passed.

Clauses 15 and 16 passed.

Clause 17.

The Hon. D.G. PISONI: This clause refers to public passenger vehicle authorisations, particularly the requirement for prescribed vehicle markings. It allows the minister to impose new vehicle requirements. Will there be consultation with the industry about that process and also is there evidence that the current vehicle marking is insufficient or is not doing what it was expected to do?

The Hon. A. KOUTSANTONIS: Yes, there is evidence. My biggest concern is rideshare drivers and a zero blood alcohol requirement. Breath analysis on a taxi driver in a taxi must be zero at all times and you are in a car that is clearly marked that has livery all over it. You can have no passengers, driving home, and you are required to have zero blood alcohol in your system. You can be breathalysed at any time.

Uber vehicles do too, but they are very hard to identify. What I would like to see is a form of livery that allows police to know that this vehicle is an Uber or a DiDi or another form of rideshare and that the driver of this vehicle at any time must have zero blood alcohol. This is a difficult scenario for rideshare because, if the member for Unley is correct and these are part-time occupations and people are just turning the app on and off, at what point do they have to have zero blood alcohol?

Does that mean that an Uber driver can drop someone off at a pub, go inside and have a beer, get back in their vehicle and drive home? At what point do we say that you are operating an Uber and are available for hire? Is it when the app is on or off? This is very difficult for us to try to legislate, so I think livery is the best way of making it an easy scenario where, if there is livery on the vehicle, the driver of that vehicle must have a zero blood alcohol content while driving it.

It is an interesting dilemma that rideshare are facing here and I accept it is difficult for them, but public safety demands that anyone who is operating a rideshare vehicle must have zero blood alcohol. How do we test for that accurately? A taxi driver pulled over with no passengers in the vehicle has to have zero blood alcohol. If it is .001, they can be fined and lose their accreditation. A rideshare vehicle gets pulled over with no-one in the vehicle and they simply say, 'I'm not working.' That is not good enough, for my mind. They need to have zero blood alcohol while they are in their vehicle.

The difficult part, member for Unley, is that it could be a private vehicle. You could be right: there may be a small percentage of drivers who are driving mum and dad's vehicle around who are doing part-time work who are just going to uni and turning on the app and doing a body of work just to get to uni—doing one job and that is it. That would be rare, in my opinion, given the information I have that the overwhelming majority of Uber drivers are professional drivers who operate as taxis other than the ply for hire and rank work.

So I think livery is the way to solve this and it will unfortunately mean that people who are operating Uber vehicles must have a zero blood alcohol level while they are operating those vehicles. That it is a blunt tool is criticism I am prepared to accept, but it is the right one.

Mr TELFER: Minister, just for clarification, would that identification potentially include special lights on the vehicle?

The Hon. A. KOUTSANTONIS: I am thinking of some sort of identification on the driver's side door so that, if you get pulled over for a breathalyser in a breath test scenario, the officer administering the breath analysis can know it is an accredited Uber vehicle. You might have a much more prominent sticker on the back of the vehicle identifying that it is a rideshare vehicle.

Potentially, specified plates would be the ultimate: hire car vehicle plates, taxi plates or rideshare plates. That is difficult; stickers are much easier. You make the penalties from operating stickers, not having the livery on while you are operating rideshare. Plates would be the ultimate but that might be difficult to actually arrange because, if the member for Unley is right and you are an intermittent Uber driver, it would probably be unfair to turn your personal vehicle into a plated vehicle.

A sticker is not so cumbersome for a driver to have on the front of the vehicle or on the driver's side of the vehicle. You might put some identifying markings, like taxis have, identifying the number as you are getting in and out, to identify the vehicle. You might have some accreditation that must be displayed at all times on the vehicle so that people who are administering the breath test can know that this is a vehicle that plies for hire, that has passengers in it.

I will give you another example. The police have a discretion when it comes to issuing infringements on indicators not working or tyres that might need changing. Often police—often, not always—can say to a driver, 'I've noticed you've got three kids in the car and one of your brakelights isn't working; you might want to get that fixed in the next couple of days. I'll just make a note of it. On you go.' If it is an Uber or a DiDi or a taxi, that is unacceptable at any time. I think identification is very important here, but I am going to allow the discretion of my agency, in consultation with the operators, to come up with what is appropriate on how best to have livery to make sure we can deal with all these issues.

The Hon. D.G. PISONI: Just on that, I put this scenario: if the vehicle is pulled over at a breath testing station and it is being used in a private capacity by the mother of the student you raised earlier, who is not registered as an Uber driver, what would be the situation? She is not operating as an Uber driver—she is not allowed to operate as an Uber driver as she is not accredited—what would be the situation there and have you thought of a way of dealing with that?

The Hon. A. KOUTSANTONIS: They will be able to tell whether she is accredited or not. If she is not accredited, there is no problem.

Mr TELFER: We do not want to get too deep into the weeds. You referenced a sticker or magnetics, potentially. Would this be something that would be permanent or temporary, because this is the challenge, the potential intermittent use, or private versus public service, as you spoke about before? Is this something where you would envision that sort of arrangement being in place?

The Hon. A. KOUTSANTONIS: I am envisaging some sort of sticker or magnetic application. I think the current PV stickers are too discreet and are not sufficient. Let's be honest, most rideshares do not have these stickers, they just do not, and we have to start enforcing this appropriately to make sure that people know the vehicle they are getting into.

The other scenario, of course, is the public safety aspect of this: knowing that the vehicle approaching you is a rideshare vehicle; knowing that you are getting into the right car. How many times have you driven around Adelaide, where people have seen you turn the corner, because it might be the same make of vehicle that they are expecting, and get close. This can be very dangerous.

The Hon. D.G. PISONI: It is even worse in Philadelphia; they do not have front numberplates.

The Hon. A. KOUTSANTONIS: There you go. Philadelphia: a tough city, home of Rocky Balboa. I want to see stickers. I do not want it to be too cumbersome on operators, I want it to be relatively easy to provide but also visible so people know. Ultimately, I think a plate would be the best way through this, but I accept that there are some problems with that. I think stickers might potentially be easier, and we could evolve down the track to having plates—I am open to all of this—but I think the best, easiest and fastest way is a more prominent form of livery. Uber might want to specify their own livery. They might require their drivers to put livery on. I know there is livery on Uber in the United States where they deliberately want people to know that these vehicles are Uber vehicles. So I have no problem with it. I just think it is a good safety measure to make sure these vehicles are well marked.

Clause passed.

Clause 18.

The Hon. D.G. PISONI: What mechanism will replace the passenger transport committee's role in proactively educating or warning participants rather than simply penalising them for minor offences?

The Hon. A. KOUTSANTONIS: That role is currently done by the department and I imagine that will continue.

Mr TELFER: Minister, an earlier question referred to the capacity within SACAT to be able to consider these, as in manage the workload. This question really is around the relevant expertise necessary. This is obviously something completely different that they will have to consider. Do you believe that, as the nominated appeals body, SACAT will have the relevant expertise in relation to the specifics and obvious nuances of the point-to-point passenger transport industry?

The Hon. A. KOUTSANTONIS: Yes, I do, because they will have the act as a guiding principle and an understanding of what we want from accredited drivers—so, yes, I think they will. They have a good administrative background so I am not concerned about it. We do this now in other forms, so I am not worried about SACAT having the requisite skills. In fact, I have to say, I think the reform is long overdue. Even if we were not doing this passenger transport review and changing legislation, the reform of the passenger standards board is something I would have done anyway because it was outdated and not working and not to the satisfaction of the agency and the motor registrar. So, as a discrete level of reform, that would have occurred regardless of these reforms.

Mr TELFER: You referred in the answer before to the capacity of the department to make these sorts of decisions. Is there a risk, even if it is a perspective, false or otherwise, that the department could potentially be the judge, jury and executioner when it comes to these things? If they set the standards, if they investigate the breaches, if they impose penalties, is that something which potentially the accusations could be held from within the industry?

The Hon. A. KOUTSANTONIS: I say to that: let them. I have no concern about that at all. Yes, the department will set the standards because it is a public transport, it is a public service. Of course we should set the standards, and of course we should enforce those standards. I have no concern with that whatsoever. In fact, I think that is what the public are crying out for: for someone to set these standards of amenity, safety and reliability. We have not got on to the access cabs part yet, which I am sure we will do in the afternoon after question time, but, yes, I think the public are calling out for the government to set a standard and then enforce it. So, absolutely, I have no problems with that whatsoever and I think it is long overdue.

Progress reported; committee to sit again.

Sitting suspended from 13:00 to 14:00.