Australian Capital Territory
Road Transport (Public Passenger Services) Taxi Licence Waiting List Exemption 2018
Disallowable instrument DI2018–216
made under the  
Road Transport (Public Passenger Services) Act 2001, section 127 (Minister may exempt vehicles and people from Act)
EXPLANATORY STATEMENT

Overview
Section 127 (1) of the Road Transport (Public Passenger Services) Act 2001 (the Act) provides that the Minister may exempt a vehicle or person from the Act or a stated provision of the Act.
Section 126 of the Act provides for regulations to be made under the Act.
Section 88 of the Road Transport (Public Passenger Services) Regulation 2002 (the Regulation) provides that a pre-approval for a taxi licence expires two years after the date it is issued. Persons that are pre-approved (pre-approval holders) are placed on a taxi licence waiting list (‘waiting list’) managed by Access Canberra on behalf of the road transport authority. When a person’s pre-approval term ends while they are still on the waiting list they must make a fresh application for pre-approval. 
Under section 84 of the Regulation the road transport authority must remove a pre‑approval holder from the waiting list if the pre-approval term expires. 
Background 
In 2015 the ACT Government undertook a review of the ACT taxi industry to examine the possible use of new technologies and how to reduce unnecessary regulation in the local taxi industry. The resulting reforms acknowledged the evolving nature of the ACT taxi industry and new business models providing on-demand transport. The ACT Government committed to evaluating the 2015 reforms two years after implementation. This evaluation commenced in 2017 and is in the process of being finalised and recommendations put to the Government. 
The 2015 reforms saw the introduction of the waiting list process for issuing taxi licences. Prior to this an ad hoc ballot system existed. The intention was that the waiting list would increase certainty for applicants by enabling the supply of taxis to be consistent and lower the wait-time. 

The current waiting list process commenced on 1 August 2016 and operates so that once an eligible applicant is pre-approved for a taxi licence they are placed on the waiting list in the order that pre-approval is granted. Pre-approvals come into force on the date of issue and expire two years after that date. When a single licence is issued to a person with pre-approval for multiple licences, the pre-approval holder moves to the bottom of the waiting list for further licences. This is to permit opportunities for different parties to obtain licences. When a licence becomes available the road transport authority must offer it to the next person on the waiting list. The person then has 14 days to apply for the available licence. If they apply for a licence and are only approved for one licence, their pre‑approval expires. If they are pre-approved for multiple licences, the number of licences for which they are pre-approved is reduced by one and they are moved to the bottom of the waiting list. If they do not apply and are only approved for one licence, their pre-approval expires. If the person does not apply and they are pre-approved for multiple licences then they are moved to the bottom of the waiting list. 
Clause notes 
Clause 1 and 2 are formal provisions that deal with the name and commencement of the new instrument.
Clause 3 states that the instrument will expire on 7 August 2019.
Clause 4 exempts existing pre‑approval holders from the requirement to apply for pre‑approval on expiry of the term of their current pre-approval for the term of this exemption. It also exempts the road transport authority from the requirement to remove a pre‑approval holder from the waiting list if the pre-approval term expires. This means that a pre-approval holder who is currently on the waiting list will maintain their position on the waiting list until this instrument expires. That is any existing pre‑approval holders whose approval term expires during the term of this instrument will not lose their position on the waiting list. The term of all existing pre‑approvals are being extended for the duration of this instrument.
Clause 5 sets out definitions used in the instrument.
Human rights implications
Section 28 of the HRA provides that human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society. Section 28 (2) of the HRA provides that in deciding whether a limit on a human right is reasonable, all relevant factors must be considered, including:
(a)	the nature of the right affected
(b)	the importance of the purpose of the limitation
(c)	the nature and extent of the limitation
(d)	the relationship between the limitation and its purpose
(e)	any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve
An assessment of this instrument against section 28 of the HRA is provided below. 

Recognition and equality before the law
This instrument could be seen to be limiting a person’s right to recognition and equality before the law under section 8 of the Human Rights Act 2004 (HRA). 
Section 8 of the HRA provides that everyone is entitled to equal and effective protection against discrimination, and to enjoy their human rights without discrimination. This means that laws, policies and programs should not be discriminatory and also that public authorities should not apply or enforce laws, policies and programs in a discriminatory way.
Section 8 can be engaged by activities that provide for the delivery of an entitlement or service to some groups but not others or where steps are taken to diminish or eliminate conditions that could have resulted in the specific groups within society being disadvantaged (positive discrimination).
Nature of the right affected
The regulatory settings for taxi licences in the ACT consist of a process where people can apply to be pre-approved for a licence and be placed on the waiting list waiting. When taxi licences become available they are offered in order to people on the waiting list. 
This instrument could be seen to engage this right through taking active steps to ensure that persons currently on the taxi licence waiting list are not disadvantaged by the existing waiting list process should a decision be made in the next 12 months to release more taxi licences.
The importance of the purpose of the limitation
In February 2017, the ACT Government lifted its freeze on the release of taxi licences. Twenty taxi licences have been made available to the market since the freeze was lifted. The release comprised 10 standard-taxi licences in March 2017, five wheelchair-accessible taxi licences in June 2017 and five standard taxi licences in September 2017. There has been no release since September 2017. There are currently 297 standard licences available to the market and 31 WAT licences. All available licences have been issued. 
To ensure that those persons currently on the waiting list are not disadvantaged during finalisation of the current evaluation of the reforms, the ACT Government has decided to retain the existing waiting list order should additional licences be released in the near future. More than 95% of the current pre-approval terms are due to expire throughout August.
The nature and extent of the limitation
This instrument has been prepared to ensure that those people currently on the waiting list are not disproportionately impacted by decisions of the Government about availability of taxi licences.
The relationship between the limitation and its purpose
There is no limit on the number of people that can be pre-approved and placed on the waiting list and therefore retaining the current list order does not put people who apply for pre-approval now or in the future at a disadvantage.

Less restrictive means reasonably available to achieve this purpose 
It is not considered that there are any less restrictive means to achieve the purpose of maintaining the status of the existing waiting list. To allow the existing pre-approvals to expire and require these people to re-apply for approval and reset their position on the waiting list would impose additional administrative burden on these people, be unequitable and would not achieve the objectives of the waiting list process.
Climate change implications
There are no climate change implications arising from this instrument.