Regulator in bind as Uber driver wins 'loophole' case in Vic

By Stephen Easton

May 19, 2016

A surprising judgment in the County Court of Victoria yesterday has called into question the Victorian Taxi Services Commission’s undercover operations it runs against Uber drivers in the belief they are breaking the law.

The commission’s CEO Aaron de Rozario blames an “obscure technical argument” for judge Geoffrey Chettle’s decision to overturn the conviction of Nathan Brenner for illegally operating a commercial passenger vehicle, which was handed down in the Melbourne Magistrates Court last December.

In a statement, de Rozario said:

“The TSC is considering its options, including an appeal, and will work with the government and Department of Economic Development to further assess the impacts of this decision and our next steps.”

A disappointed TSC chair Graeme Samuel said the case revealed “a loophole or deficiency in the law that will have to be dealt with by government” while Minister for Public Transport Jacinta Allan said it would take time to consider the regulatory implications.

In the original decision, Brenner was fined $900 and ordered to pay the commission’s prosecution costs, after two of its officers took a $9 ride with him in an undercover operation. The TSC is pursuing similar charges in 11 other cases that are still before the courts and may now be affected by the strange ruling.

Judge Chettle heard Brenner’s entire case a second time and found him not guilty even though he agreed that Brenner had carried the passengers “for hire or reward”.

He quashed the conviction on the basis of a section in the relevant law that dates back to the 1930s and which might only remain in the current legislation due to a drafting error, reversing the $900 fine, and ordered the commission to pay the costs of Brenner’s appeal.

But Chettle also commented that the section of the act he relied on “may be an unintended anachronism” in the legislation.

The Victorian Taxi Association has published a detailed explanation of the decision, which relied on section 159 of the Transport (Compliance and Miscellaneous) Act 1983, based on advice from its lawyers, along with a statement:

“This case has been a comedy of errors from the very beginning.

“The onus now lies with Taxi Services Commissioner Graeme Samuel to explain how several amendment bills and [a] two year state-wide industry inquiry failed to identify the potential implications of this clause, and remove it.

“Clearly the relevant clause in the Act (159) was not intended to offer a loophole for providers of illegal services to avoid prosecution and enforcement. … This outcome fundamentally undermines the integrity of the framework of rules and laws regulating the commercial passenger vehicle industry in Victoria.”

The strange argument that got Brenner off the charge revolved around whether he had received “reward at separate and distinct fares for each passenger” and the prosecution was unable to establish that he had. Now, according to the taxi association’s lawyers:

“It follows that the section 159 defence can be argued by UberX who are carrying two or more passengers, and may also still be arguable even where an UberX driver carries only one passenger.”

The frustrated representative body says section 159 was imported into the 1983 legislation from a previous law that was first enacted in 1933, and was not even intended to remain in that older act, after an amendment in 1941.

It claims the defence lawyers even “noted that this was apparently a drafting error by parliament” but persuaded the judge that it applied nonetheless, based on various High Court decisions:

“Essentially, the Defendant argued that, should Judge Chettle accept their antiquated, 83-year-old interpretation of section 159, then that section operates as a defence for Brenner, in that as he did not charge two separate and distinct fares…

“The absurd outcome that results from this argument is that if a driver carries two or more passengers, they do not commit an offence. However, we note that it is possible that an interpretation of the section may mean that a driver carrying only one passenger may rely upon this defence.

“This was acknowledged by the Defendant, who, despite the farcical nature of such an interpretation, contended he should still be entitled to rely upon the section.”

According to the association, the prosecution argued the section was “an anomaly of history, erroneously included as the legislation has developed” and the only effect it should have was “to shift the evidentiary burden of proof to the defendant”.

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