Refusal provisions

The Tow Truck Industry Act 1998 (the Act) and the Tow Truck Industry Regulation 2008 (the regulation) provide for applications to be refused on certain grounds.

Introduction

There are mandatory grounds where an application for an operators licence MUST be refused, and discretionary grounds, where Roads and Maritime Services has to make a decision, on a case-by-case basis, whether or not to approve an application.

If you are not sure if you can meet the eligibility criteria please contact Roads and Maritime on 1300 131 134 prior to submitting your application.

Mandatory grounds

Under section 18(2) of the Act, the mandatory grounds for refusing to grant an application for an operators licence include that the applicant has, within the period of 10 years before the application for the operators licence was made:

  1. Been convicted, or
  2. Been found guilty (but with no conviction being recorded)

By a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law.

Under clause 7 of the regulation, for the purposes of section 18(2) and 18(3) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales):

  1. Any offence involving an assault of any kind against a person
  2. Any offence relating to the possession or use of a firearm or other weapon
  3. Any offence involving the supply or possession of a prohibited drug or the cultivation (for a commercial purpose), supply or possession of a prohibited plant, within the meaning of the Drug Misuse and Trafficking Act 1985
  4. Any offence involving fraud, dishonesty or stealing
  5. Any offence involving robbery (whether armed or otherwise)
  6. Any offence involving the recruitment of another person to carry out or assist in carrying out a criminal activity within the meaning of section 351A of the Crimes Act 1900
  7. Any offence involving participation in a criminal group or participation in any criminal activity of a criminal group within the meaning of Division 5 or Part 3A of the Crimes Act 1900

Being an offence where the penalty imposed was imprisonment for any period, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of those penalties.

Imprisonment includes penal servitude, home detention, periodic detention or a suspended sentence of imprisonment.

Discretionary grounds

Under section 18(3) of the Act, the discretionary grounds for refusing to grant an application for a licence includes that:

  1. The applicant is not, in the opinion of Roads and Maritime, a fit and proper person to hold a licence or is otherwise not competent to carry on the kind of towing work that the proposed licence relates
  2. The applicant has not specified a place of business
    1. The applicant’s place of business is not, in the opinion of Roads and Maritime, suitable for keeping the records and documents required to be made or kept under the Act
      1. The applicant has not specified a place to be used as a holding yard for the applicant’s business or the place specified is more than 10 kilometres from the licensee’s place of business (unless Roads and Maritime approves of it being a greater distance from that place)
  3. Any place specified by the applicant intended to be used as a holding yard for the applicant’s business is not, in the opinion of Roads and Maritime, suitable to be used as a holding yard
  4. The applicant is not the registered owner, or registered operator, of each tow truck specified in the application as a tow truck intended to be used in the applicant’s business
  5. Each specified tow truck does not, in the opinion of Roads and Maritime, comply with the relevant requirements of the Act and the regulations or with any other relevant law relating to tow trucks
  6. The applicant does not hold the qualifications and experience prescribed by the regulations for the class of licence sought by the applicant
  7. The applicant has not satisfactorily completed such training courses that may be approved
  8. Any close associate of the applicant has, within the period of 10 years before the application for the licence was made:
    1. Been convicted, or
    2. Been found guilty (but with no conviction being recorded), by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law
  9. The granting of the licence would, in the opinion of Roads and Maritime, be contrary to the public interest.

A reference in (a), (g) or (h) above to an applicant includes a reference to each close associate of the applicant.

Additional grounds for refusing licence application

Under section 18(4) of the Act, an application for a licence may be refused if:

  1. Any close associate of the applicant has, within the period of 10 years before the application for the licence was made:
    1. Been refused a licence, or
    2. Had his or her licence permanently revoked, or
    3. Been the subject of disciplinary action under Division 4 of Part 3 of the Act that resulted in the close associate being disqualified from holding a licence or having his or her licence suspended or permanently revoked, or
  2. Roads and Maritime reasonably believes that information given in the licence application is false or misleading.

Roads and Maritime must therefore consider your application, including any criminal matters which may appear on your record or the record of any close associate to your application and any other matters about which Roads and Maritime is aware which are relevant to your application and determine that it is not contrary to public interest for you to be granted a operators licence and that you are a fit and proper person to be the holder of a tow truck operators licence.

If you are unsure how these provisions may affect your application please discuss your application with a licensing officer on 1300 131 134 before lodging your application.

If you lodge an application which is subsequently refused you may be able to obtain a part refund of the application fee. The operators licence administration fee is not refundable under any circumstances. Refunds are not considered until all avenues for appeal have been finalised.

Appeal provisions

If your application is refused on either mandatory or discretionary grounds you have the right to appeal this decision.

Firstly you may apply for an internal review of the decision. An application form for an internal review is included with the letter advising you that your application has been refused along with a statement of reasons for that decision.

An application for an internal review must be lodged with Roads and Maritime within 28 days of the receipt of the letter of refusal.

An internal review is conducted by another person in Roads and Maritime who was not involved in the original decision. Roads and Maritime must conduct the internal review within 21 days of its receipt.

If you are still unhappy with the outcome of the internal review you can contact the New South Wales Civil and Administrative Tribunal (NCAT). This is a completely separate body which reviews administrative decisions made by government agencies.

Contact details for the NCAT are provided with the outcome of the internal review.

Roads and Maritime is unable to provide legal advice about your application. You should consult your own legal adviser for this information.

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