Accident Towing Services Act
The Accident Towing Services Act 2007 is a law enacted by the Parliament of the State of Victoria, Australia. The Act is the prime statute regulating the vehicle towing industry which provides towing and recovery services for light and heavy road vehicles across Victoria. It is predominately founded on safety and consumer protection sentiments. The Act continued economic controls over the industry and contains occupational regulation characteristics. The style of the underlying regulatory scheme varies in parts and represents a blend which is prescriptive in some parts and performance and process-based in others.
The Accident Towing Services Act was the first dedicated statute regulating Victoria's towing industry and replaced provisions in the former Transport Act 1983. The Act generally strengthened the scheme of regulation for accident towing activity in Victoria and, at the same time, deregulated trade towing industry controls. In essence, towing vehicles damaged in a road accident and the individuals working in that sector are subject to tight controls while trade towing activities such as breakdown towing have few controls.
The Accident Towing Services Act was passed by the Victorian Parliament on 17 July 2007 and commenced on 1 January 2009. The Act was developed as part of the Transport Legislation Review conducted by the Department of Transport and is aimed at promoting the safe, efficient and timely provision of towing and related services particularly following road accidents.
The Act forms part of the transport policy and legislation framework in Victoria headed by the Transport Integration Act. As a result, the application of the Accident Towing Services is subject to the overarching transport system vision, transport system objectives and decision-making principles set out in the Transport Integration Act.
The responsible Victorian Government Minister for the Accident Towing Services Act is the Minister for Roads.
Objectives
The stated objective of the Accident Towing Services Act is twofold. First, the Act seeks to promote the safe, efficient and timely provision of accident towing and related services. Second, the Act seeks to ensure that the persons who provide accident towing services are of appropriate character.The Act is also aimed at ensuring that the persons in the industry are technically competent to provide accident towing services. The statute also requires that those persons act with integrity and in a manner that is safe, timely and efficient when providing the services. Emphasis is also placed on the need for regard to be had to vulnerable persons in recognition of the shock and trauma that typically afflicts persons involved in road accidents.
Outline
The scheme in the Accident Towing Services Act broadly sets economic, occupational and general consumer protection controls over the accident towing industry in Victoria.First, the statute enables maximum numbers of accident towing vehicles to be set across the State through licensing controls and also facilitates the orderly allocation of tow trucks to road accident sites. Second, the Act sets minimum standards on the character of industry participants and regulates the behaviour of the participants once they enter the industry.
The framework of offences in the Act broadly seeks to give practical effect to the "chain of responsibility" concept in the accident towing sector. The concept seeks to identify the industry parties who are in a sufficient position of control over risks, in this case potentially unsafe and unethical conduct following road accidents, and to allocate responsibility through law accordingly in order to deter and punish those behaviours in the interest of a safe, clean and efficient industry.
The behavioural controls in the Act cover a wide range of activities and practices including the systematic allocation of tow trucks to accident sites in "controlled areas" and conduct at road accident sites and during post accident repair work.
The scheme was broadly prompted by consumer protection sentiment, in particular, the recognition of the vulnerability of road accident victims. Care was evident during the development of the scheme to maintain and enhance existing character standards in the accident towing sector due to behavioural issues in Victoria in the past including the infiltration of criminal elements into some areas of the industry and resultant "predatory towing" activities.
Summary
In broad terms, the regulates the accident towing industry in Victoria by -- establishing a licensing scheme for tow trucks which provide accident towing services
- requiring the accreditation of operators of accident towing service businesses and managers of the depots from which accident tow trucks operate
- requiring the accreditation of accident tow truck drivers
- establishing requirements and protections relating to the storage and repair of motor vehicles following road accidents.
Parts
- Preliminary
- Requirements as to tow trucks
- Industry accreditation
- Driver accreditation
- General accident towing and related operations
- Enforcement
- Codes of Practice
- Miscellaneous
Coverage
Licensing
Operators
Part 4 of the Accident Towing Services Act establishes a licensing scheme for accident tow trucks. The Act makes it an offence for a person to operate a tow truck for accident towing purposes unless the person who provides the service has a "regular tow truck licence". In addition, the person must operate the truck from a depot specified in the licence and must hold a towing operator accreditation. The tow truck must be registered and be capable of being used for towing services activity.Drivers
It is an offence under the Act for a person to drive an unlicensed accident tow truck or a tow truck that is incapable of being used in accident towing work.Licensing offences - accident scenes
Prohibitions exist in the Act against tow trucks attending accident scenes unless the vehicle is licensed. The offence does not apply if the vehicle attends for the purposes of salvage work only and will not therefore be involved in the act of towing the vehicle from the road accident scene.Issue of licences
Decision to issue
The Act positions VicRoads as the prime agency able to issue both regular and heavy accident towing licences. However, authorisation to issue licences must be obtained first from the Minister who is conferred with power by the Act to authorise the issuing of regular tow truck licences for particular areas of the State. The Minister can only make such an authorisation if she or she considers it to be in the public interest having regard to any increase in the need for tow trucks in the relevant area. Alternatively, the authorisation can be made if the licences are to replace existing licences or exceptional circumstances justify the issue of new licences. Similar tests apply to the Minister's decision about the numbers of heavy tow truck licences which are to be made available.Special rules apply to the issue of regular and heavy tow truck licences used for the provision of accident towing services on the CityLink and EastLink toll roads. Ministerial authorisations for the issue of licences must be published in the Government Gazette and must specify the number of licences to be issued.
Issuing process
Management of the tow truck licensing process under the is the responsibility of VicRoads, Victoria's prime road management and safety agency. VicRoads is required to issue a public notice advising of the towing licences to be issued, list the procedures to be followed, and state whether the price is to be determined by fixed price or tender and provide other details. Designated procedures apply during the issuing process.Tow truck operation offences
Part 2 of the Act provides a number of criminal offences relating to the operation of accident tow trucks. The offences include -- failure to take care in driving or operating a tow truck including losing or damaging a motor vehicle or its contents
- leaving a tow truck standing at a road accident site in a manner or for a time which obstructs the road for an unnecessary period
- permitting or allowing a person other than a tow truck driver from travelling in a damaged motor vehicle which is being towed by a tow truck from a road accident scene.
Other relevant provisions
is empowered under the to attach conditions to the tow truck licences it issues. Breach of a condition is an offence. A tow truck licence is specified to be the property of the holder of the licence. Despite this, licence holders are prohibited from assigning or renting the licence to another person. Licences are, however, able to be transferred to other persons whereupon special procedural requirements apply.The Act provides capacity for VicRoads to cancel or suspend tow truck licences if operators fail to comply with licence conditions or do not comply with a provision of the Act or other relevant Acts such as the Road Safety Act 1986.
Accreditation
Industry management
Part 3 of the Accident Towing Services Act makes provision for an accreditation scheme for management participants in the accident towing industry. A person must not conduct an accident towing service business or be the manager of an accident towing depot unless the person holds an accreditation issued by VicRoads. Part 3 contains provisions relating to the mechanics of these schemes including VicRoads' powers to issue accreditation. The Part also contains a scheme which seeks to regulate character requirements as part of the accreditation process particularly through the specification of a range of criminal offences which, if they form part of an applicant's background, can result in mandatory or discretionary refusal of accreditation by VicRoads. The Part also enables VicRoads to attach conditions to an accreditation. In addition, the Part confers power on the Minister to set service standards to be met by holders of accreditation. The standards may cover matters such as complaints handling and the provision of information to VicRoads relating to complaints.The Part also contains power for VicRoads to take disciplinary action against an accredited person if VicRoads is satisfied that the person has contravened the Act, committed a listed offence, contravened a condition of a tow truck licence or an accreditation or if the action is appropriate having regard to the objective of accreditation. The disciplinary action that may be taken by VicRoads includes suspension or cancellation of accreditation, a direction that the person must undergo training or at the giving of a warning.
The Victorian Civil and Administrative Tribunal is given power by the Act to review decisions made by VicRoads under Part 3 including in relation to refusal of accreditation and cancellation.
Tow truck drivers and trainees
Drivers
Part 4 of the Accident Towing Services Act contains provision for a tow truck driver accreditation scheme. The scheme is similar to the scheme set out in Part 3 for management participants in the accident towing industry. For example, it is an offence for a person to drive an accident tow truck or to accompany the driver of an accident tow truck unless the person holds an accreditation issued by VicRoads. Power exists in the Part for VicRoads to suspend a tow truck driver accreditation without a show cause process if VicRoads believes on reasonable grounds that the action is in the public interest.Trainees
Provision is also made under Part 4 of the Act for VicRoads to issue a tow truck driver trainee permit, a permission which enables a person to accompany a tow truck driver for the purposes of being trained as a driver or to gain knowledge of the towing industry.Other key provisions
Part 5 of the Act contains a range of provisions which are integral to the accident towing regulation scheme.Authority to tow
A tow truck driver is prohibited from towing a vehicle from a road accident scene unless the driver has obtained an authorisation to tow that vehicle. Strict conditions apply to the issue and carriage of an authority to tow. The driver is obliged to tow the vehicle to the place specified in the authority.Offences at accident scenes
Conduct at accident scenes is tightly regulated by the Act. For example, any person at an accident scene or at any time between the time the vehicle is towed from an accident scene and the time when the vehicle is first stored must not tout or solicit for the business of repairing the vehicle or offer or seek to reach an agreement about a quotation or the repair of the vehicle. Persons are also prohibited from touting or soliciting for the towing or storage of a damaged vehicle at an accident site or attempting to reach an agreement in respect of such matters.Storage and repair of damaged vehicles
The storage and repair of vehicles damaged in road accidents is tightly controlled by the Act.Storage
The vehicle must be towed to the place specified in the authority to tow and be stored in a secure area. Tow truck licence holders are required to provide a written notice stating the charges which apply to the storage of the vehicle. Persons are prohibited by the Act from receiving payment to obtain repair work or as payment for hand over of an accident damaged motor vehicle to another person for that purpose.Repair
The Act also contains a number of obligations on vehicle repairers. A person must not commence or carry our repair work on an accident damaged motor vehicle without approval in writing. If work commences without authority the person conducting the work is unable to take legal action to commence any sum or charge relating to the work or any quote prepared in relation to the work.The Act also gives owners of damaged motor vehicles the benefit of a cooling off period in recognition that they may have made an arrangement for repair of the vehicle following an accident without the opportunity to think clearly about the matter due to trauma or shock. The owner of the vehicle is therefore given three working days after signing an agreement to repair an accident damaged motor vehicle to terminate that agreement and without the owner being liable for costs.
The Act also makes it clear that the owner of an accident damaged motor vehicle is not liable for repairs to the vehicle which are conducted at a place other than that nominated in the authority to tow. Finally, it is an offence for a person in control of the place where an accident damaged motor vehicle was towed to refuse to release a vehicle or to frustrate or obstruct its release. It is, however, a defence if the vehicle owner authorised work on the vehicle and towing or storage charges are outstanding.
Special requirements apply to repairers in relation to accident towing services in a controlled area. A repairier cannot begin a quote for repairs without confirming details with the allocation body. Other paperwork requirements are also set out in the Act in relation to repairs relating to tows in the controlled area.
Controlled and self-management areas
Controlled areas
The strictest controls in the Accident Towing Services Act affect the capacity of accident tow trucks to operate in particular areas apply in relation to "controlled areas", basically most of the areas of the cities of Melbourne and Geelong where behavioural problems in the industry have been greatest in the past.VicRoads is given power under the Act to declare controlled areas for the purposes of the Act and to appoint a person or body to act as the allocation body for those areas. A licence holder and driver commits an offence if the persons attend an accident scene in a controlled area or tow or attempt to tow a damaged vehicle unless the allocation body has authorised attendance at the accident scene and the towing activity. Each accident tow truck licence entitles the holder of the licence to one place on the roster if a specified depot is attached to the licence. A roster entitlement is not able to be transferred to another operator.
Self-management areas
The areas of Victoria outside of the controlled areas are called self-management areas. Licence holders are unable to attend accidents in self-management areas and conduct tows in those areas unless authorised under the Act. VicRoads is given power under the Act to declare self-management areas for the purposes of the Act.Enforcement
Enforcement-related provisions supporting the Accident Towing Services Act scheme are set out in Part 6 of the Act. The Act can be enforced by officers of the Victoria Police and authorised officers appointed by VicRoads. The enforcement scheme centres on provisions enabling the appointment of authorised officers, the conferral of certain coercive powers and the availability of a range of administrative and court-based sanctions.Key elements
The key elements of the enforcement scheme are -- power for VicRoads to appoint authorised officers to enforce the Act
- a demerits points scheme applying to industry participants including accredited persons such as licence holders and drivers
- power for officers to service infringement notices
- powers for officers to serve improvement notices
- coercive powers such as powers to require name and address details, the capacity to enter and search tow trucks, power to require production of identification, entry or search of premises including without warrant, power to obtain search and power to seize of things including documents, equipment and goods
- powers to initiate prosecutions for breaches of the Act
Codes of practice
Miscellaneous
Part 8 of the Act contains a number of miscellaneous provisions relating to the accident towing services scheme. Subjects dealt with in the part include -- power for the Minister to set fees and charges relating to accident towing services and storage of damaged motor vehicles
- power for VicRoads to set application fees
- powers of delegation by VicRoads for the purposes of the Act
- evidentiary, corporate liability and other supporting provisions including offences and powers to make regulations.
Responsible regulator
Development
The development of the proposal for the Accident Towing Services was managed by the former Department of Infrastructure in Victoria. The successor to the Department of Infrastructure in transport matters was the Department of Transport. The Department managed the project as part of its broader Transport Legislation Review.The Department held a series of workshops with Victoria's towing industry and issued discussion papers outlining the broad policy features of a proposed new regulatory scheme. The papers raised a series of concerns about the former towing industry framework and aspects of the industry's performance including concerns about under regulation and over regulation in particular areas. Comments were requested from industry parties and other interested stakeholders. Comments received from industry, government and other stakeholders resulted in the refinement of the proposal prior to its approval by the Victorian Government and presentation to Parliament as proposed legislation.
Ultimately, the proposals for a new regulatory scheme were introduced to the Victorian Parliament as proposed legislation in mid April 2007.
Parliamentary approval
Introduction
The Accident Towing Services Bill was introduced into the lower house of the Victorian Parliament, the Legislative Assembly, as the Accident Towing Services Bill. The responsible Minister for the proposal was the then Minister for Roads and Ports, the Hon Tim Pallas MP.Context
The Minister moved the second reading of the Accident Towing Services on 19 April 2007. The Minister set the context for the Bill in his speech in support as follows -Main changes
The speech also contained an observation on the main change brought about by the new regulatory scheme -Strengthening of existing regulation
The Minister also made observations about the strengthening of existing regulatory requirements provided for in the Bill -Responsibilities of industry participants
Reflections were contained in the speech about the responsibilities owed by industry participants to vulnerable road accident victims -Deregulation of the trade towing sector
The Minister also commented in the following terms about the deregulation of the trade towing sector provided in the Bill -Connection to policy objectives
The Minister commented that -Conclusion
The Minister concluded his speech in support of the Accident Towing Services Bill by observing that -Passage, assent and commencement
The Bill was considered and passed by the lower house of the Victorian Parliament, the Legislative Assembly, on 19 June 2007. The Bill was introduced into the upper house, the Legislative Council, on the same day. Second reading was moved in the upper house the next day, 20 June, and the proposal ultimately debated and passed on 17 July 2007. 2 March 2006.The Accident Towing Services Bill received the Royal Assent on 24 July 2007 to become the Accident Towing Services Act 2007. The Act commenced on its default commencement day, 1 January 2010.
The Accident Towing Services Regulations 2007 which were required to support the operation of the Act also operated from the same date thereby formally commencing the scheme.