22 June 2016

2nd Reading Speech

The Hon. ADAM SEARLE ( 18:06 ): I will make a contribution on the Point to Point Transport (Taxis and Hire Vehicles) Bill 2016. It is a matter of record that the Labor Opposition set the standard in relation to engaging public policy with the emerging rideshare operation in New South Wales. It is not a question of whether one is for or against the so-called sharing economy; it is here, and customers are availing themselves of the services it affords. It is a matter of record that the existing regulatory framework did not properly engage with what was happening on the street. It is also a matter of record that Transport for NSW was not enforcing the laws that then applied.

The Hon. Daniel Mookhey: Bungling it.

The Hon. ADAM SEARLE: I acknowledge that interjection: bungling the application of existing regulatory standards. It was the Labor Opposition that said that public policy had to change to recognise, embrace and regulate the activities of those providing services in the sharing economy. The Labor leader in the other place, Mr Luke Foley, set three key principles that would guide Labor in the way in which we developed policy in this space. One was raising the standard of services provided to the wider public. The second was reinforcing and enhancing public safety standards. The third was reinforcing—or indeed creating—the framework to properly underpin minimum driver remuneration standards. Labor believes that these three key principles should apply to all service providers in what is termed the point to point transport industry for the purposes of the bill now before the House. 

Applying those three principles to the bill before us we do not oppose the terms of the bill. There are many things in the bill that are good and worthwhile. We recognise, for example, the creation of safety duties and standards for providers of both taxi services and booking services and for the provision generally of passenger services, including the mechanisms for the enforcement of these standards, are both new developments in this space and are good.

Although we have voiced criticisms about the work health and safety standards adopted by this Government—which we think are inferior in substance and in the way in which they are enforced compared to the former occupational health and safety regime—we welcome the fact that the provisions embedded in this legislation are at least consistent with the general health and safety standards in workplaces in this State, and it does not create differential standards. The Opposition thinks that is a good thing, but it would like to raise those standards. 

I will not canvass all of the aspects of the legislation that members have already addressed. However, I will address a couple of issues that we will debate in detail in the Committee of the Whole. The Opposition believes there are significant concerns in respect of driver remuneration. We understand that chapter 6 of the Industrial Relations Act deals with the taxi industry. However, it is matter of record that no minimum driver remuneration standard applies to Uber or to any other entity that may provide services in this space. If I were a member of the Taxi Council, a taxi plate owner, or a network operator, I would be concerned that the taxi industry continued to be required to meet minimum labour standards when, under this Government’s regime, Uber and other service providers get, as it were, a free ride. All service providers in the point to point transport space should be required to meet the same standards, and that should be an accepted and cross-partisan position. 

I note that the Minister with carriage of this legislation in the other place referred to the relevant parliamentary standing committee inquiring into industrial relations issues. Frankly, some of its terms of reference are deficient and misconceived. A number of Acts have been referred to the committee. The way in which these various legislative enactments are said to apply to this emerging industry is misconceived in the sense that they simply do not apply. Chapter 6 of the Industrial Relations Act has no application to Uber or like service providers. The Independent Contractors Act may have application, but not in the sense of creating a regime to provide for the enforcement of minimum labour standards. The committee understands the shortcomings of the Minister’s reference and will fill in the gaps under “any other associated matter”. 

This legislation is marred by the fact that there is not even a cursory effort to create a level playing field for all operators in the industry for what the Opposition believes are core minimum labour standards for everyone working in this space. Regardless of whether one is a taxi driver, a Uber driver, or a driver for any other passenger service, a relevant minimum labour standard should apply. There should be a mechanism that a driver can access to ensure they get a fair day’s pay for a fair day’s work. I would not have thought that in the early twenty-first century that would be a radical or exceptional proposition. I know that some service providers in this space have embraced the notion of freedom of contract—that is, people should be free to agree to any standard of remuneration, no matter how low. Such an Ayn Rand theory of the world is naive because it fails to—

The Hon. Dr Peter Phelps: Horrible freedom. You wouldn’t want too much of that. 

The Hon. ADAM SEARLE: The problem with that notion is that it fails to refer to any reality. People who provide labour, whether it be an employee or an independent contractor, often do not have the same bargaining power as those offering work and who ultimately determine the circumstances in which people derive remuneration to support themselves and their family. From time to time even the Conservative parties of this State and this nation have paid lip service to the notion that we need an industrial regulatory framework to set minimum standards.

The Hon. Daniel Mookhey: A few election defeats remind them of that. 

The Hon. ADAM SEA RLE: I acknowledge that interjection. 

DEPUTY PRESIDENT ( The Hon. Paul Green ): I welcome to the public gallery tertiary students from the University of Sydney who are participating in a bridging course before they commence studying law. I hope they enjoy their time here. They are watching one of the best at work.

The Hon. ADAM SEARLE: Let us not get carried away. State or Federal award minimums do not provide workers with a lavish standard of living. They are the bare minimum, and they should be a bare minimum for everybody working in the point to point transport industry. The Opposition has lodged proposed amendments seeking to flesh out the commitment that we on this side of the House have to all working people. There should be a framework setting minimum standards wherever people work and whoever they are. Given that the legislation is seeking to iron out the inconsistencies in the point to point transport industry between service providers such as taxis companies and others who are now not fully regulated, an obvious point of difference would be to provide some labour market regulation.

The Opposition is seeking to fill the void in this legislation. We understand that our amendments may not gain support at this time, and we understand that there will be a parliamentary inquiry. However, we will keep pressing to ensure that minimum labour standards, and the appropriate enforcement mechanisms, apply across the board in and for this industry. The Opposition also has concerns about the adjustment assistance package or regime provided for in schedule 3. We understand that a panel will develop the criteria for how the funds that the Minister referred to in his second reading speech will be applied. We are also concerned about schedule 3, division 2, new section 4 (1), which gives the Minister discretion to determine additional assistance. As I construe the legislation, that ministerial discretion is not bound or restricted by the panel. The Minister may have regard to the panel’s guidelines and processes, but he will not be bound by them. As long as he or she says, “Okay, I have looked at what the panel has said, and at its process and principles of operation, but I will do something completely different.” 

Th e Hon. Dr Peter Phelps: It is not a reduction.

The Hon. ADAM SEARLE: No, it is not. However, we are giving a Minister of the Crown, a political operative, a discretion—dare I say, an “uber” discretion—over a significant body of funds without any published guidelines, or any ability to have them audited or scrutinised. This is not a reflection on the current officeholder, but the bill creates a significant corruption risk. A public official will have discretion with regard to the $142 million in this adjustment package, or indeed the $98 million providing up to $2,000 per plate holder that has been collected from the public—it will be collected from passengers. How will it be applied, and who will benefit? 

Will it only benefit taxi plate owners? Will it potentially only benefit taxi drivers for loss of income in some circumstances or will it go to other bodies and persons? The bill does away with the notion of accredited drivers. I note, for example, that at present there are a number of bodies, and one of them is in the line of business of providing driver accreditation. Will they suffer hardship as envisaged in this bill and will they be in line to receive some of this significant body of public money? If it is the latter category, I do not think people in this House or indeed in the other House who are considering this bill would understand that the money is going to those recipients.

Beyond a general notion that those in this industry suffering hardship will get access to this money according to some guideline and some principles, we have no further idea why, because although the framework for collecting the money and for applying the money is set out in the bill there is a large body of work not sketched out in the legislation that will have to be filled in by regulation, and by the panel and its deliberations. But none of that affects the Minister’s discretion. So long as he or she has regard to the panel, the Minister can do whatever he or she wants.

We do not know whether an amount of money will be allotted to the panel only, whether the Minister will abrogate to himself another amount of money, or whether the Minister and the panel will jointly disburse the two or three lots of money—the $10 million for hire cars, the $98 million for hardship for plate owners and the $142 million adjustment package. Will the panel and the Minister both be doling out the same amounts of money or will they be limited to different pots? These are all questions to which no Government Minister has provided an answer. I look to the Minister to provide those answers to the House in reply. We have significant concern about giving such discretion without guidelines or restriction to a member of the Executive Government.

The Hon. Dr Peter Phelps: How many years have act of grace payments been in existence?

The Hon. ADAM SEARLE: What we will propose is that the ministerial discretion as envisaged in item 4 of the schedule—

The Hon. Shaoquett Moselmane: Point of order: The Hon. Dr Peter Phelps knows that he should not interject while the member has the call.

DEPUTY PRESIDENT ( The Hon. Paul Green ): Order! I uphold the point of order. It is at all times disorderly to interject. I ask that the member be heard in silence.

The Hon. ADAM SEARLE: Our answer to these concerns is twofold. We note that clause 159 provides that the Minister may—but does not have to—have a review of the whole of this Act in 12 months. But we certainly think that schedule 3, the adjustment regime, must be reviewed in 12 months because this is an industry in transition. To evaluate the ongoing efficacy of the different provisions there should be a review of that adjustment package and its mechanisms in 12 months of the operation of the legislation. That is Opposition amendment No. 4. We also think that the ministerial discretion should be removed from the Minister and folded into the panel that is created to determine these matters. The panel, of course, will be composed of representatives from the Taxi Council and from senior public servants from relevant agencies of government. It is an appropriate body to have this discretion folded into. We, of course, do not think the panel is adequately composed. We think that there should be a voice representing driver interests and we will have amendments that deal with that.

The Hon. Dr Peter Phelps: Let me guess: a Transport Workers Union [TWU] official perhaps.

The Hon. ADAM SEARLE: We think that the voices of drivers should be heard in this forum and we are not at all embarrassed about those propositions.

The Hon. Dr Peter Phelps: You appear to be too afraid to say it.

The Hon. ADAM SEARLE: No, I acknowledge it. It is in the amendments. Yes, we propose a nominee of the Transport Workers Union. There is no mystery about that because the Transport Workers Union, like the Taxi Council, is the only registered—

The Hon. Shaoquett Moselm ane: Point of order: The Leader of the Government and the member on the backbench will have the opportunity to speak. In the meantime I ask that you ask them not to be disorderly by constantly interjecting.

DEPUTY PRESIDENT ( The Hon. Paul Green ): Order! I ask members to be mindful of the rules on interjections and to refrain from interjecting. The next time members interject I may have to go further and call them to order.

The Hon. ADAM SEARLE: The fact is the Transport Workers Union, like the Taxi Council, is a registered industrial organisation under the Industrial Relations Act. Like the Taxi Council, it is a respondent to various awards and determinations made by the Industrial Relations Commission of New South Wales and as far as I am aware it is the only legally recognised and registered voice of drivers in this industry. That is why we nominate the TWU as the body to nominate a driver representative to the panel. We have no issue with the Taxi Council being on the panel. We just think that the relevant voice for working drivers should also be heard.

In conclusion, we welcome the sharing economy. We do not shy away from that and we recognise that organisations such as Uber can play a positive role in providing a wider array of services to the travelling public. But any transition should be done in a sensible and balanced fashion. Hitherto it has not been adequately regulated or, indeed, regulated at all. We recognise this legislation is a significant and good step towards creating a proper regulatory framework for all those in the point to point industry. But there are many outstanding issues, of which driver minimum remuneration standards is but one.

Previous speakers mentioned compulsory third party insurance. It is a matter of record that in regional areas taxis have to pay $3,000 or more and in cities $8,000 or more to insure their vehicles, whereas Uber and like drivers apparently pay only a few hundred dollars, often telling their insurers that their vehicle is a private vehicle. I would have concerns about whether such an insurance policy would be responsive in the circumstances of any accident. I do not know what other policies Uber may have in place or whether other like providers have adequately addressed this. But I certainly notice that this is very much a work in progress and it is one of the many areas in which there needs to be a balancing out of rights and interests. We will join with the Government in taking a big step forward in providing a proper regulatory framework, but we are unembarrassed about proposing what we see as improvements to the bill before the House and we will prosecute those vigorously both in this debate and in the days, weeks and months to come if they are not successful.