TRANSPORT LEGISLATION AMENDMENT (TAXI SERVICES REFORM AND OTHER MATTERS) ACT 2011 (NO. 34 OF 2011) - SECT 101 New Division 9 inserted in Part VIII

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TRANSPORT LEGISLATION AMENDMENT (TAXI SERVICES REFORM AND OTHER MATTERS) ACT 2011 (NO. 34 OF 2011) - SECT 101

New Division 9 inserted in Part VIII

After section 276 of the Transport (Compliance and Miscellaneous) Act 1983 insert —

" Division 9—Transitional provisions—Part 2 of the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Act 2011
Subdivision 1—Preliminary

277 Definitions

In this Division—

"commencement day" means the day on which section 101 of the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Act 2011 comes into operation;

"former DPT property" means property, and related rights or related liabilities, of the Director that, under Subdivision 2, have vested in, or become liabilities of, the Secretary;

former DPT property instrument means an instrument relating to former DPT property subsisting immediately before the relevant date—

(a) to which the Director was a party; or

(b) that was given to, or in favour of, the Director; or

(d) under which—

(i) money is, or may become, payable to the Director; or

(ii) other property is to be, or may become liable to be, transferred to or by the Director;

"former relevant DPT agreement" means an agreement subsisting immediately before the relevant date—

(a) to which the Director was a party; and

(b) that was entered into by the Director for the purposes of performing a function or exercising a power under Part VI or in relation to or for the purposes of the provision of commercial passenger vehicle services by the Director or another person;

"liabilities" means all liabilities, duties and obligations, whether actual, contingent or prospective;

property means any legal or equitable estate or interest (whether present or future and whether vested or contingent) in real or personal property of any description;

"relevant agreement liabilities" means liabilities of the Director under an agreement subsisting immediately before the relevant date—

(a) to which the Director was a party; and

"relevant agreement rights" means rights of the Director under an agreement subsisting immediately before the relevant date—

(a) to which the Director was a party; and

(b) that was entered into by the Director for the purposes of performing a function or exercising a power under Part VI or in relation to or for the purposes of the provision commercial passenger vehicle services by the Director or another person;

"relevant date", in relation to an allocation statement under section 278 or property, rights or liabilities allocated under such a statement, means the date fixed by the Minister under section 278(7) for the purposes of that statement;

"rights" means all rights, powers, privileges and immunities, whether actual, contingent or prospective.

Subdivision 2—Property transfers

278 Minister may direct transfer of DPT property etc. to Secretary

(1) The Minister may give a direction in writing to the Director directing the Director to transfer to the Secretary, in accordance with the direction—

(a) property and related rights and related liabilities of the Director of a specified kind;

(b) relevant agreement rights and relevant agreement liabilities of a specified kind.

(2) The Director must give to the Minister a statement containing the information required by the Minister relating to the property and related rights and related liabilities of the Director, and relevant agreement rights and relevant agreement liabilities to which the direction relates, as at the date specified by the Minister for the purposes of this section.

(3) A statement under this section—

(a) must allocate the property and related rights and related liabilities of the Director, relevant agreement rights and relevant agreement liabilities shown in the statement in accordance with the directions of the Minister; and

(b) must be signed by the Director.

(4) If a statement under this section is approved by the Minister—

(a) the Minister must sign the statement; and

(b) the statement is an allocation statement for the purposes of this Division.

(5) The Minister may at any time direct the Director to amend a statement given to him or her under this section as specified in the direction.
s. 101

(6) An allocation statement under this section may be amended by writing signed by the Minister.

(7) The Minister, by notice published in the Government Gazette, may fix a relevant date for the purposes of an allocation statement under this section.

(8) In this section, statement and allocation statement include a statement or allocation statement amended in accordance with this section.

279 Property etc. transferred in accordance with direction

On the relevant date—

(a) all property and related rights of the Director wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 278, vest in the Secretary in accordance with the statement;

(b) all liabilities of the Director related to property, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 278, become liabilities of the Secretary in accordance with the statement;

(c) all relevant agreement rights, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 278, vest in the Secretary in accordance with the statement;

(d) all relevant agreement liabilities, wherever located, that are allocated under an allocation statement in accordance with a direction of the Minister under section 278, become liabilities of the Secretary in accordance with the statement.

280 Allocation of property etc. subject to encumbrances

Unless an allocation statement under this Subdivision otherwise provides, if, under this Subdivision—

(a) property and related rights and relevant agreement rights vest in; or

(b) liabilities related to property and relevant agreement liabilities become liabilities of—

the Secretary in accordance with a direction under section 278—

(c) the property and related rights and relevant agreement rights so vested are subject to the encumbrances (if any) to which they were subject immediately before so vesting; and

(d) the rights to which the Director was entitled in respect of those liabilities immediately before they ceased to be liabilities of the Director vest in the Secretary.

281 Substitution of party to agreement

If, under an allocation statement, rights and liabilities related to property of the Director under an agreement and relevant agreement rights and relevant agreement liabilities are allocated to the Secretary in accordance with a direction under section 278—

(a) the Secretary becomes, on the relevant date, a party to the agreement in place of the Director; and

(b) on and after the relevant date, the agreement has effect as if the Secretary had always been a party to the agreement.

282 Former DPT instruments and agreements

(1) Each former DPT instrument relating to former DPT property continues to have effect according to its tenor on and after the relevant date in relation to that property as if a reference in the instrument to the Director were a reference to the Secretary.

(2) Each former relevant DPT agreement continues to have effect according to its tenor on and after the relevant date as if a reference in the agreement to the Director were a reference to the Secretary.

283 Proceedings

Unless an allocation statement otherwise provides, if, immediately before the relevant date, proceedings relating to former DPT property or a former relevant DPT agreement (including arbitration proceedings) to which the Director was a party were pending or existing in any court or tribunal, then, on and after that date, the Secretary is substituted for the Director as a party to the proceedings and has the same rights in the proceedings as the Director had.

284 Interests in land

Without prejudice to the generality of this Subdivision and despite anything to the contrary in any other Act (other than the Charter of Human Rights and Responsibilities Act 2006 ) or law if, immediately before the relevant date, the Director is, in relation to former DPT property, the registered proprietor of an interest in land under the Transfer of Land Act 1958 , then on and after that date—

(a) the Secretary, on behalf of the Crown, is to be taken to be the registered proprietor of that interest in land; and

(b) the Secretary, on behalf of the Crown, has the same rights and remedies in respect of that interest as the Director had.

285 Action by Registrar of Titles

The Registrar of Titles, on being requested to do so and on delivery of any relevant certificate of title or other instrument, must make any amendments in the Register that are necessary because of the operation of this Subdivision.

286 Taxes

No stamp duty or other tax is chargeable under any Act in respect of anything effected by or done under this Subdivision or in respect of any act or transaction connected with or necessary to be done by reason of this Subdivision, including a transaction entered into or an instrument made, executed, lodged or given, for the purpose of, or connected with the transfer of property, rights or liabilities of the Director.

287 Evidence

Documentary or other evidence that would have been admissible for or against the interests of the Director in relation to former DPT property or a former relevant DPT agreement if this Subdivision had not been enacted is admissible for or against the interests of the Secretary.

288 Validity of things done under this Subdivision

Nothing effected or to be effected by this Subdivision or done or suffered under this Subdivision—

(a) is to be regarded as placing any person in breach of contract or confidence or as otherwise making any person guilty of a civil wrong; or

(b) is to be regarded as placing any person in breach of, or as constituting a default under, any Act (other than the Charter of Human Rights and Responsibilities Act 2006 ) or other law or obligation or any provision in any agreement, arrangement or understanding including, but not limited to, any provision or obligation prohibiting, restricting or regulating the assignment, transfer, sale or disposal of any property or the disclosure of any information; or

(c) is to be regarded as fulfilling any condition that allows a person to exercise a power, right or remedy in respect of or to terminate any agreement or obligation; or

(d) is to be regarded as giving rise to any remedy for a party to a contract or an instrument or as causing or permitting the termination of any contract or instrument because of a change in the beneficial or legal ownership of any relevant property; or

(e) is to be regarded as causing any contract or instrument to be void or otherwise unenforceable; or

(f) is to be regarded as frustrating any contract; or

(g) releases any surety or other obligor wholly or in part from any obligation.

Subdivision 3—Administrative and regulatory function transfers

289 General transitional provisions

(1) This Subdivision does not affect or take away from the Interpretation of Legislation Act 1984 .

(2) This Subdivision applies despite anything to the contrary in any other provision of this Act.

290 Regulatory instruments

(1) On the commencement day, every regulatory instrument in force immediately before that day is taken to be a regulatory instrument made, given, granted or issued (as the case may be) by the Secretary.

(2) In this section—

"regulatory instrument" means—

(a) a certificate of accreditation under Division 4 of Part VI;

(b) a licence in respect of a public commercial passenger vehicle (within the meaning of section 86(1));

(d) a restricted hire vehicle licence (within the meaning of section 86(1));

(e) a special purpose vehicle licence (within the meaning of section 86(1));

(f) a taxi-cab licence (within the meaning of section 86(1));

(g) a notice published in the Government Gazette under section 142(1A) specifying an area for the purposes of section 142(1)(b);

(h) a temporary permit under section 154;

(i) a notice published in the Government Gazette under section 158A(5) specifying a place for the purposes of section 158A;

(j) a specification under section 167(1A);

(k) a driver accreditation issued under section 169D;

(l) an accreditation under Division 4A of Part VII;

(m) a temporary accreditation under section 228F;

(n) a request under section 228H(2) or (5);

(o) an authorisation under section 134A, 149, 150, 151, 152, 154, 158B, 216, 217, 221A, 221AB or 228HA;

(p) a notice published in the Government Gazette under regulation 5 or 7 of the Transport (Taxi-Cab Licences—Market and Trading) Regulations 2005.

291 Pending applications for accreditation

(1) This section applies to an application for accreditation made under section 132 before the commencement day in respect of which the Director has not made a decision whether to approve or refuse to approve the application before that day.

(2) On and after the commencement day, the Secretary may make the decision, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

292 Variations, revocations, or imposition of new conditions, restrictions or other limitations on accreditations

(1) This section applies if the Director has—

(a) before the commencement day begun the process under section 133A to—

(i) vary or revoke a condition, restriction or other limitation imposed by the Director on an accreditation; or

(ii) impose a new condition, restriction or other limitation on an accreditation; and

(b) not completed that process before that day.

(2) On and after the commencement day, the Secretary may complete that process and for that purpose, anything done before that day by the Director for the purpose of making a decision to—

(a) vary or revoke a condition, restriction or other limitation imposed by the Director on an accreditation; or

(b) impose a new condition, restriction or other limitation on an accreditation—

is taken to have been done by the Secretary.

293 Disciplinary action taken against accredited persons

(1) This section applies if the Director—

(a) has, before the commencement day, served a notice on an accredited person under section 135B; and

(b) has not decided whether to exercise a power under Subdivision 6 of Division 4 of Part VI in respect of that person before that day.

(2) On and after the commencement day, the Secretary may make that decision and for that purpose, anything done under Subdivision 6 of Division 4 of Part VI before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

294 Surrender of accreditations

(1) This section applies to an application made under section 137B before the commencement day in respect of which the Director has not made a decision as to whether to consent to the surrender before that day.

(2) On and after the commencement day, the Secretary may make the decision, and for that purpose, anything done before that day by the Director for the purpose of deciding whether to consent to the surrender is taken to have been done by the Secretary.

295 Application for commercial passenger vehicle licences

(1) This section applies to an application made under section 139(2) for the grant of a commercial passenger vehicle licence before the commencement day in respect of which the Director has not made a decision whether to approve or refuse to approve the application before that day.

(2) On and after the commencement day, the Secretary may make the decision under section 139(2) in respect of the application, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

296 Cancellation or alteration of licences

(1) This section applies to an application made under section 146 before the commencement day by a licence holder for—

(a) the cancellation of the licence; or

(b) the alteration to the conditions attached to the licence; or

and in respect of which the Director has not made a decision whether to approve or refuse to approve the application before that day.

297 Transfer of licences

(1) This section applies to an application made under section 149 for the transfer of a commercial passenger vehicle licence before the commencement day in respect of which the Director has not made a decision whether to authorise the transfer of the licence before that day.

(2) On and after the commencement day, the Secretary may make the decision to authorise or not authorise that transfer, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

298 Assignments

(1) This section applies to an application made under section 150 for authority to assign the right to operate a taxi-cab under a licence before the commencement day in respect of which the Director has not made a decision whether to grant or refuse to grant the application before that day.

299 Substitution of vehicle where licensed vehicle undergoing repair

(1) This section applies to an application made under section 151 by an owner of a licensed vehicle to use a substitute vehicle before the commencement day in respect of which the Director has not made a decision whether to authorise that use before that day.

300 Substitution of licensed vehicle

(1) This section applies to an application made under section 152 by an owner of a licensed vehicle to substitute a vehicle for the licensed vehicle before the commencement day in respect of which the Director has not made a decision whether to authorise that substitution before that day.

301 Cancellation of licence for vehicles

(1) This section applies if the Director has, before the commencement day, notified, under section 153, the owner of a licensed vehicle that the Director proposes to cancel the licence issued in respect of the vehicle but has not done so before that day.

(2) On and after the commencement day, the Secretary may cancel that licence in accordance with that notice, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

302 Revocation or suspension of licence, permit or certificate

(1) This section applies if the Director has, before the commencement day, notified, under section 157, the holder of a licence or permit granted under Division 5 of Part VI that the authority proposes to suspend or revoke the licence or permit but has not done so before that day.

(2) On and after the commencement day, the Secretary may suspend or revoke the licence or permit in accordance with section 157, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

303 Application for driver accreditation

(1) This section applies to an application made by a person under section 166 for the issue of a driver accreditation before the commencement day in respect of which the Director has not made a decision whether to accredit the person before that day.

304 Application for renewal of driver accreditation

(1) This section applies to an application made by a holder of a driver accreditation under section 168 for the renewal of the driver accreditation before the commencement day in respect of which the Director has not made a decision whether to renew the accreditation before that day.

305 Actions Director may take in relation to holders of driver accreditations

(1) This section applies if the Director—

(a) has, in accordance with section 169F, considered taking action in relation to a holder of a driver accreditation under section 169I(1) and given the holder a notice in accordance with section 169G before the commencement day; and

(b) has not taken action under section 169I in relation to the holder before that day.

(2) On and after the commencement day, the Secretary may take that action and complete the process specified in Division 6 of Part VI in respect of that action, and for that purpose, anything done before that day by the Director for the purpose of taking that action is taken to have been done by the Secretary.

306 Pending applications for authorisations

(1) This section applies to an application for authorisation made under section 221B before the commencement day in respect of which the Director has not made a decision whether to give the authorisation before that day.

(2) On and after the commencement day, the Secretary may make the decision under Division 4AA of Part VII, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

307 Pending applications for renewal of authorisations

(1) This section applies to an application for the renewal of an authorisation made under section 221G before the commencement day in respect of which the Director has not made a decision whether to renew the authorisation before that day.

308 Identity cards of authorised officers

On the commencement day, every identity card issued to an authorised officer under section 221I before that day and who is an authorised officer immediately before that day is taken to be an identity card issued by the Secretary.

309 Inquiries into conduct of authorised officers

(1) This section applies if the Director has—

(a) before the commencement day commenced an inquiry under section 221J; and

(b) not taken completed that inquiry before that day.

(2) On and after the commencement day, the Secretary may continue with the inquiry and for that purpose, anything done under by the Director under section 221J before that day, is taken to have been done by the Secretary.

310 Pending applications for a certificate

(1) This section applies to an application for a certificate made under section 221S before the commencement day in respect of which the Director has not made a decision whether to give that certificate before that day.

(2) On and after the commencement day, the Secretary may make the decision under section 221S, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

311 Pending applications for accreditation

(1) This section applies to an application for accreditation made under section 228A before the commencement day in respect of which the Director has not made a decision whether to give the accreditation before that day.

(2) On and after the commencement day, the Secretary may make the decision under section 228C, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

312 Change of accreditation conditions on application of accredited company

(1) This section applies if an accredited company has made an application under section 228E before the commencement day for the Director to vary or revoke a condition of accreditation, or impose a new condition, and the Director has not made a decision on that application before that day.

313 Change of accreditation conditions on initiative of Director

(1) This section applies if—

(a) before the commencement day the Director forms an intention to vary or revoke a condition of accreditation, or impose a new condition, under section 228E; and

(b) the Director has not made that decision to do so before that day.

314 Pending applications for renewal of authorisations

(1) This section applies to an application for the renewal of an accreditation made under section 228I before the commencement day in respect of which the Director has not made a decision whether to renew or refuse to renew the accreditation before that day.

(2) On and after the commencement day, the Secretary may make the decision under section 228J, and for that purpose, anything done before that day by the Director for the purpose of making that decision is taken to have been done by the Secretary.

315 Supervision of accredited companies

(1) This section applies if—

(a) the Director has, before the commencement day, commenced an inquiry under section 228N for the purpose of determining whether proper cause exists for taking action against a passenger transport or bus company or the Bus Association of Victoria that is or has been an accredited company (the relevant entity ); and

(b) has not completed that inquiry before that day.
s. 101

(2) Despite anything to the contrary in this Act, on and after the commencement day, the Director may complete that inquiry and exercise the powers conferred on the Secretary—

(a) under section 228O for the purpose of that inquiry; and

(b) under section 228N(3) following the inquiry in relation to the relevant entity.

(3) For the purposes of subsection (2), every reference in sections 228N and 228O to the Secretary is to be read as a reference to the Director.

(4) Anything done by the Director under section 228N(3) is, on the day after it is done, taken to be done by the Secretary.

316 Proceedings

(1) On the commencement day, the Secretary is, by force of this section, substituted as a party to any proceeding pending in any court or tribunal in respect of a matter arising under Part VI or Division 4AA or 4A of Part VII to which the Director was a party immediately before that day.

(2) On the commencement day, every order made by a court or tribunal in a proceeding (whether pending or otherwise) in respect of a matter arising under Part VI or Division 4AA or 4A of Part VII before that day applying to the Director that has not been abided by or complied with by the Director before that day is taken to be an order applying to the Secretary.

317 References to the Director—certain statutory instruments

On and after the commencement day, every reference to the Director in any Ministerial Order, licence, permit, accreditation, authorisation, certificate, notice, direction or other document (however described) given, made, issued, granted, served or published under Part VI or Division 4AA or Division 4A of Part VII must be, unless the context otherwise requires, construed as a reference to the Secretary.

318 Transitional regulations

(1) The Governor in Council may make regulations in relation to matters of a savings or transitional nature consequent on the enactment of Part 2 of the Transport Legislation Amendment (Taxi Services Reform and Other Matters) Act 2011 .

(2) A provision of regulations under this section may be retrospective in operation to the commencement day or a day after the commencement day.

(3) Regulations under this clause have effect despite anything to the contrary in any Act other than this Act or in any subordinate instrument.".

See:
Act No.
108/2004.
Reprint No. 2
as at
20 August 2009
and amending
Act Nos
77/2008 and 69/2009.
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