Safety for industry

The Transport (Road Passenger Services) Act 2018 (the Act) applies a safety framework for the passenger transport industry in Western Australia. At the core of the legislation is a chain of accountability for industry, which is based on the concept of duty of care.

The Act defines roles for those involved in each level of the industry and sets out their obligations and responsibilities, particularly in relation to the health and safety of passengers, drivers and the public. 

These people are “safety duty holders” and defining their roles allows the Department of Transport (DoT) to clearly identify who is responsible for compliance and enforcement purposes.

There are differing levels of safety duties for everyone depending on their role in the industry and individual circumstances. Safety duty holders include:

• providers of on-demand booking services (ODBSs); 
• providers of passenger transport services; 
• providers of passenger transport vehicles (PTVs); 
• officers of providers of an ODBS or PTVs; and
• drivers of vehicles used to transport passengers for hire or reward (PTDs). 

Under the Act, safety duties assigned to one person cannot be transferred to another person. 

It is possible for a person to fall into more than one class of duty holder at any given time. For example, an individual may be an officer for an ODBS and a driver – they will be responsible for carrying out both sets of safety duties. 

Who is an officer?

The term “officer” refers to an individual who has the capacity to make decisions related to operation of an ODBS or other passenger transport service, or provision of PTVs.

Their role is to ensure that the duty holder (i.e. the provider of the ODBS or PTV) complies with their safety duty. 

All parties involved in providing passenger transport services are responsible for ensuring the health and safety of their passengers, drivers and vehicles while providing a passenger transport service.

For example, an ODBS provider is responsible for the health and safety of the passengers and drivers in connection with their services. 

Providers of PTVs, whether they own one vehicle, or an entire fleet, are responsible for ensuring the vehicles are safe and will not cause injury or harm to anyone.

When driving for hire or reward, a passenger transport driver must:

• ensure their own health and safety; 
• ensure that their acts or omissions do not adversely affect the health and safety of others; 
• comply with any reasonable instruction given by an ODBS or PTV provider, to allow them to comply with the Act; and
• cooperate with any reasonable health and safety policy or procedure of the ODBS or PTV provider.

There are three categories of safety duty offences, which can attract serious penalties.

Category 1

A Category 1 safety duty offence occurs if the person that has a safety duty knowingly engages in conduct that breaches that duty and exposes an individual to whom that duty is owed to a risk of death, serious injury or illness. A Category 1 offence is considered a crime.

Penalty: Imprisonment of 2 years and a fine of $300,000 for an individual, or $3 million for a body corporate.

Category 2

A Category 2 safety duty offence occurs if the person that has a safety duty (fails to comply with that duty and that failure exposes an individual to whom the duty is owed to a risk of death, serious injury or illness. A Category 2 offence is considered a crime.

Penalty: Fine of $150,000 for an individual, or $1.5 million for a body corporate.

Category 3

A Category 3 safety duty offence occurs if the person that has a safety duty fails to comply with that safety duty.

Penalty: Fine of $50,000 for an individual, or $500,000 for a body corporate.

For further information on DoT’s compliance approach, visit the Education and Compliance webpage.

The legislation provides for a reasonable steps defence. This means that if charged with a Category 1, Category 2 or Category 3 offence, demonstrating the following can be used as a defence:

• that the person did not know and could not reasonably be expected to have known that an offence was committed; and either 
• they had taken all reasonable steps to prevent a breach of the safety duty; or
• there were no steps they could reasonably have taken to prevent the breach of the safety duty. 

With the passenger transport industry operating under a chain of accountability framework, there are some key principles that DoT works under:

• Customer service issues are a matter for individual businesses to address at a customer level.  
• Processes for handling complaints, fare evasions and lost property need to be established and maintained by the ODBS.  
• The Regulations require that customers are provided with a written or electronic record of their journey that include the ODBS name or authorisation number.
• DoT’s role is to assist operators to understand their obligations under the legislation, to encourage compliance. If operators are wilfully and repeatedly non-compliant, DoT can apply a range of sanctions to maintain a culture of safety across the industry, including:
  • improvement notices;
  • infringements; and
  • prosections.
• DoT uses a range of information and communication technologies to monitor and address non-compliance with safety duties by industry. The Act allows information to be exchanged between DoT and an ODBS regarding driver and vehicle authorisation status. This supports the ODBS to identify and manage risks.
• The Enforcement and Prosecution Policy outlines how DoT assesses and enforces compliance, by detecting breaches, alerting offenders and applying penalties.

A range of tools and processes are in place at each level of the chain of accountability framework to contribute to a safe passenger transport industry:

• All ODBS responsible officers and PTD authorisation holders are required to submit a recent National Police Certificate during the application process.
• Sharing of data between DoT, WA Police and the Department of Justice to monitor convictions and charges against PTD authorisation holders.
• All ODBSs are required to develop and use a safety management system – a set of policies, procedures and plans that systematically manage health and safety by identifying safety risks and putting mitigation strategies in place.
• ODBSs can access the Driver and Vehicle Industry Dashboard (DVID). The DVID shares data between DoT and the ODBS to check the authorisation status of drivers and vehicles, allowing the ODBS to check they are only dispatching work to authorised drivers and vehicles.
• ODBSs and drivers are required to report all notifiable occurrences they become aware of to DoT.
• ODBS are required to report any allegations that a driver was engaged in conduct that would affect their suitability to drive in the industry.
• All passenger transport vehicles must be inspected at an Authorised Inspection Station before applying for authorisation, and are subject to annual inspections once authorised.