MARTIN -v- NALDER [2016] WASC 138 (3 May 2016)

2 The first respondent is the Minister to whom the administration of the Taxi Act and the TCA has been committed. The second respondent is the Chief Executive Officer of the Department of Transport of Western Australia and, by virtue of that position, holds the office of Director General within the meaning of both the Taxi Act and the TCA.

3 The applicants contend that the respondents have adopted a policy not to prosecute the companies involved in the provision of the UberX service and the natural persons involved in the management of those companies. The policy is said to be a 'constructive' policy, that is, its existence is to be inferred from the fact no prosecutions have been commenced in circumstances in which the applicants say they should have been commenced.

4 In addition to the issue of a writ of mandamus the applicants seek two declarations. First, a declaration that the respondents have adopted the policy I have described, and secondly, a declaration that the respondents have failed or neglected to commence prosecutions or to direct others to commence prosecutions.

5 The applicants identify three companies and a number of natural persons as those against whom, they say, prosecutions should be commenced. The companies are: Uber International Holdings BV (Uber BV) and two of its wholly owned subsidiaries, Rasier Operations BV and Uber Australia Pty Ltd (Uber Australia) (collectively, the Uber companies). The natural persons are involved in various ways in the management of the Uber companies.

6 UberX is a service which utilises two smartphone applications (apps), one used by passengers (the UberX Rider App) and one used by drivers (the UberX Driver App), to connect members of the public requiring transport by car to drivers willing to provide such transport for a fee.

7 Uber BV is the licensee outside of the United States of the software in the smartphone apps. It sells the UberX Rider App to members of the public and keeps a record of their credit card or payment service details. Whenever a passenger takes a ride, the fare is debited to his or her account and credited to an account held by Uber BV. It then deducts a fee and remits the balance of the fare to the driver.

8 Rasier Operations is the sub-licensee of the software in the apps. It is the entity that contracts with drivers.

10 Although the UberX service has features that distinguish it from a conventional taxi service, for example, the use of the apps and cashless payment, it is the functional equivalent of a taxi service - UberX drivers use their vehicles to carry passengers for reward (I note that Uber Australia's financial statements for the year ended 30 June 2013 record its principal activity as the provision of taxi cab services).

11 UberX drivers do not, however, have taxi plates or taxi-car licences and do not comply with the requirements of the Taxi Act and the TCA.

12 Further, the applicants contend that the Uber companies operate a taxi dispatch service in breach of the provisions of the Taxi Act.

13 The applicants complain their incomes have been reduced by up to 30% because of what they contend is unlawful conduct on the part of the Uber companies and UberX drivers. The second applicant, Mr Jankulovski, is concerned that the significant investment he made in acquiring taxi plates has been devalued as a result of the Uber companies' conduct.

14 The Uber companies also operate a service, distinct from UberX, known as UberBlack. This is a limousine service and the present proceedings do not concern it.

15 Save for the issue of whether the respondents have adopted a 'no prosecution' policy in relation to the Uber companies and their management, the application does not involve any contested factual issues.

16 The essence of the applicants' case is that the regulatory response to the introduction of the UberX service has been inadequate. They maintain prosecutions should have been commenced against the companies and individuals who run Uber (the generals) and not merely against a small group of UberX drivers (the foot soldiers). For the reasons I develop in this judgment, the issue is not one this Court can resolve. The issue raised must be resolved by debate in the political arena and not in the courts.

(i) the legislative regime regulating the taxi industry in Western Australia;

(ii) the introduction of the UberX service into Western Australia;

(iii) the general principles applicable to the remedy of mandamus;

(iv) the availability of the remedy of mandamus in the context of prosecutions for criminal offences;

(v) the principles to be distilled from the decisions on which the applicants rely;

(viii) whether the respondents have adopted a 'no prosecution' policy; and

18 The Taxi Act regulates the taxi industry within the Perth metropolitan area. The long title is as follows: 'An Act to provide for the effective administration of the taxi industry, to repeal the Taxi-car Control Act 1985, to amend certain other Acts and for related purposes'.

19 Subject to some presently irrelevant exceptions, the Taxi Act provides that a vehicle is operated as a taxi if it is used for carrying passengers for reward (s 3). A vehicle may not be operated as a taxi within a control area (by reason of reg 4 of the Taxi Regulations 1995 (WA) this effectively covers the Perth metropolitan area) unless it uses taxi plates and is operated in accordance with the Taxi Act (s 15(1)). If a vehicle is operated as a taxi contrary to s 15(1), an offence (punishable by a fine of $5,000) is committed by the owner, driver and operator of the vehicle and by the provider of any dispatch service involved (s 15(2) and (3)). A taxi dispatch service is a service that provides radio based, computer or telephone services for taxis, or makes arrangements for taxis to be provided with such services, and provides controlling, co-ordinating, administrative and other services to the taxi industry, for the purposes of arranging for a person who requests a taxi to be provided with one (s 3). It is an offence (punishable by a fine of $5,000) to provide a taxi dispatch service or cooperate with another to provide such a service within a control area unless the provider is registered (s 26).

20 There is a regime established for the sale or lease of taxi plates and for tenders and applications for taxi plates (s 16 - s 18). Plate owners and lessees of plates must pay fees for taxi plates (s 19 and s 19A). Conditions on the operation of taxis using specified plates may be imposed by the Director General (s 20). Such conditions may relate to geographical areas in which, and the hours during which, the taxi may be operated, fare schedules, driver qualifications and standards, vehicle standards and inspection requirements, insurance requirements, record keeping, complaint resolution and the transfer of taxi plates.

21 The Taxi Act specifies a process by which a person or organisation may apply to the Director General to be registered as a taxi dispatch service (s 27).

22 The Director General may designate any officer of the department as an authorised officer (s 31). Members of the Police Force are authorised officers (s 3(1)). Authorised officers have wide powers to investigate potential breaches of the Taxi Act (s 32). These include the power to stop and inspect vehicles, the power to give notice prohibiting vehicles from being operated otherwise than in accordance with relevant conditions, and the power to require persons to answer questions and produce information, books and records if an authorised officer has reason to believe a vehicle is being operated as a taxi otherwise than in accordance with the Act (s 32(2) - (4) and (7)).

23 Under s 32(8) it is an offence for a person to disobey or fail to comply with a lawful direction or requirement of an authorised officer, or to furnish false information, to use improper or abusive language to, or wilfully hinder or obstruct, mislead, intimidate or threaten, an authorised officer exercising the powers conferred by the Taxi Act.

24 The Taxi Act provides for the establishment of the Taxi Industry Development Account into which moneys received from the sale, lease or issue of taxi plates under the Act are credited together with moneys appropriated by Parliament (s 41(1) and (2)). With the approval, and at the direction of the Minister, grants may be made from the Taxi Industry Development Account to fund promotional, research and development projects intended and designed to benefit the taxi industry (s 41(4)). Expenditure incurred in administering the Act is also to be met out of the Taxi Industry Development Account (s 41(5)).

An Act to provide for the co-ordination, planning and advancement of all forms of transport in this State, to provide for the review, control and licensing of transport services and for incidental and other purposes.

26 Part IIIB of the TCA regulates the taxi industry in country districts.

27 The TCA uses terminology that differs from that used in the Taxi Act ('taxi-car' rather than 'taxi' and 'taxi licence' rather than 'taxi plates') but the basic licensing regime is very similar to that established by the Taxi Act. A taxi-car shall not be operated within a district unless the owner is the holder of a taxi-car licence issued under the TCA (s 47ZD(1)). The Minister may attach such conditions as he thinks fit to any taxi-car licence (s 47ZD(3)). It is an offence to operate a taxi-car in a district unless the taxi-car is licensed (s 47ZD(5) and (6), and s 50).

28 Persons authorised by the Director General have wide powers to investigate potential breaches of the TCA (s 49) and the Director General may direct, either generally or in any particular case, proceedings to be taken for the recovery of penalties in respect of offences committed against the provisions of the TCA (s 58).

29 Authorised officers under the Taxi Act and authorised persons under the TCA are each persons who may commence a prosecution for an offence against the Taxi Act or the TCA respectively (s 20(1) and (3) of the Criminal Procedure Act 2004 (WA)).

The introduction of the UberX service into Western Australia

30 The Uber companies launched the UberX Rider App and the UberX Driver App in Western Australia in October 2014. In the preceding 12 months Uber's representatives had communicated with the Minister and staff of the Department of Transport with the intention of bringing about legislative change enabling UberX to operate lawfully in Western Australia (described more pithily by Uber management as 'flipping regs to our favour').

31 As an interim measure, Uber wanted the Department of Transport to adopt an 'interim operating agreement' for 'ride sharing'. In the event, no such agreement was adopted.

32 Shortly before the launch of UberX in October 2014 the Minister's Chief of Staff sent an email to Uber's representative stating that the Minister could not 'endorse the UberX service to be operated in WA because it is not a legal service'.

33 Since the launch of UberX in Western Australia Uber has recruited drivers to use the UberX Driver App and private vehicles to carry passengers for reward in Perth and its surrounding areas.

34 Uber Australia rents premises and employs staff to recruit drivers, undertake background and police checks on prospective drivers, and undertake the duties required to operate the UberX service in Western Australia.

35 The UberX service is advertised and promoted widely.

36 Uber Australia directs drivers to 'top earning' locations. In anticipation of demand for taxis at a major sporting event, Uber Australia implemented a 'virtual queuing system' and gave directions to drivers as to how to comply with the requirements of the system.

37 According to its promotional material, by July 2015 Uber had 'provided over 700,000 trips since its launch in Western Australia'.

38 A writ of mandamus will issue to compel a public official to perform a public duty that remains unperformed: R v War Pensions Entitlements Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 242. If a writ of mandamus is sought to compel a public official to exercise a discretionary power, it may issue to compel the official to exercise the discretion according to law but it will not compel the official to exercise the discretion in a particular way: R v Arndel [1906] HCA 7; (1906) 3 CLR 557, 566 - 567; and R v Anderson; Ex parte Ipec-Air Pty Ltd [1965] HCA 27; (1965) 113 CLR 177, 189. An applicant must, however, always establish that the public official has a duty to consider whether to exercise the discretionary power or not: M Aronson and M Groves, Judicial Review of Administrative Action (5th ed, 2013) 13.100.

39 A person will not obtain the issue of a writ of mandamus unless he or she can demonstrate a 'special interest' in the subject matter of the application: WA Field & Game Association Inc v Pearce (1992) 8 WAR 64, 70 (Malcolm CJ); Australian Conservation Foundation Inc v Commonwealth of Australia (1980) 146 CLR 493.

40 An applicant for mandamus must establish that a duty has not been performed, or a discretion not exercised, according to law. Even if an applicant establishes the elements I have identified, the court retains a discretion to refuse to issue a writ of mandamus 'if good reason is shown for a discretionary refusal': R v Kelly; Ex parte The Victorian Chamber of Manufacturers [1953] HCA 30; (1953) 88 CLR 285, 309 (Fullagar J).

Mandamus and prosecutions for criminal offences

41 In Likiardopoulos v The Queen [2012] HCA 37; (2012) 247 CLR 265 [3] French CJ observed that prosecutorial decisions are for the most part insusceptible of judicial review, though his Honour left open the possibility that the exercise of a statutory discretion as to prosecution may not be wholly immune from judicial review. French CJ explained the restraint exercised by the courts in this area as follows:

The general unavailability of judicial review in respect of the exercise of prosecutorial discretions rests upon a number of important considerations. One of those considerations, adverted to in the joint judgment, is the importance of maintaining the reality and perception of the impartiality of the judicial process. A related consideration is the importance of maintaining the separation of the executive power in relation to prosecutorial decisions and the judicial power to hear and determine criminal proceedings. A further consideration is the width of prosecutorial discretions generally and, related to that width, the variety of factors which may legitimately inform the exercise of those discretions. Those factors include policy and public interest considerations which are not susceptible to judicial review, as it is neither within the constitutional function nor the practical competence of the courts to assess their merits [2]. (footnotes omitted)

42 The joint judgment to which his Honour referred was the judgment of Gummow, Hayne, Crennan, Keifel and Bell JJ in which their Honours observed:

As Gaudron and Gummow JJ explained in Maxwell v The Queen, the independence and impartiality of the judicial process would be compromised if courts were perceived to be in any way concerned with who is to be prosecuted and for what. For this reason, their Honours considered that certain decisions involved in the prosecution process are insusceptible of judicial review [37]. (footnotes omitted)

43 To overcome the obstacle presented by the constitutional principles referred to in Likiardopoulos, the applicants rely on a line of authority which commences with the decision of the Court of Appeal in R v Commissioner of Police of the Metropolis, Ex parte Blackburn [1968] 2 QB 118. In that case the Commissioner of Police had an explicit, though confidential, policy pursuant to which the police would not enforce a provision of the Betting, Gaming & Lotteries Act 1963 (UK) which prohibited games favouring the house in London gaming clubs unless there was cheating or reason to suppose the club had become the 'haunt of criminals'. Mr Blackburn, a private citizen, sought the remedy of mandamus directing the Commissioner to reverse the policy decision. It is important to note that the remedy sought was not an order directing that a particular person or group of persons be prosecuted or that the Commissioner give consideration to the prosecution of any particular person or group of persons. By the time the matter reached the Court of Appeal, the Commissioner had already decided of his own volition to reverse the policy and relief was refused on that ground. It appears, however, that subject to some reservations about Mr Blackburn's standing, the Court of Appeal would otherwise have ordered the issue of a writ of mandamus directing the Commissioner to reverse the policy.

44 Lord Denning MR held that it was the Commissioner's duty 'to enforce the law of the land'. That included such steps as posting police officers so crimes could be detected. In making decisions about such operational matters, the Commissioner was not answerable to the executive, only to the law. His Lordship then made the following observations about the Commissioner's discretion:

Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner ... to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can or should give him direction on such a matter. He can also make policy decisions and give effect to them, as, for instance, was often done when prosecutions were not brought for attempted suicide. But there are some policy decisions with which, I think, the courts in a case can, if necessary, interfere. Suppose a chief constable were to issue a directive to his men that no person should be prosecuted for stealing any goods less than £100 in value. I should have thought that the court could countermand it. He would be failing in his duty to enforce the law.

A question may be raised as to the machinery by which he could be compelled to do his duty. On principle, it seems to me that once a duty exists, there should be a means of enforcing it. This duty can be enforced, I think, either by action at the suit of the Attorney-General; or by the prerogative writ of mandamus ... mandamus is a very wide remedy which has always been available against public officers to see that they do their public duty ... No doubt the party who applies for mandamus must show that he has a sufficient interest to be protected that that there is no other equally convenient remedy. But once this is shown, the remedy of mandamus is available, in case of need, even against the Commissioner of Police of the Metropolis.

45 Salmon LJ similarly held (138 - 139) that 'the police owe the public a clear legal duty to enforce the law'. His Lordship gave an example similar to Lord Denning's - if the police instituted a policy whereby they would no longer prosecute burglars, mandamus would be available. Although the police have a 'wide discretion as to whether or not they will prosecute in any particular case', such a policy would 'be so improper that it could not amount to an exercise of discretion'. His Lordship's reasoning appears to be founded upon the incompatibility of the policy with the purposes of the statute (139D - G).

46 Edmund Davies LJ responded to an argument advanced by the Commissioner's counsel to the effect that law enforcement officers owed no duty to the public to enforce the law as follows:

Carried to its logical limit, such a submission would mean that, however brazen the failure of the police to enforce the law, the public would be wholly without a remedy and would simply have to await some practical expression of the court's displeasure. In particular, it would follow that the commissioner would be under no duty to prosecute anyone for breaches of the Gaming Acts, no matter how flagrantly and persistently they were defied. Can that be right? Is our much-vaunted legal system in truth so anaemic that, in the last resort, it would be powerless against those who, having been appointed to enforce it, merely cocked a snook at it? The very idea is as repugnant as it is startling, and I consider it regrettable that it was ever advanced. How ill it accords with the seventeenth-century assertion of Thomas Fuller that, 'Be you never so high, the law is above you.'

47 The reasoning in Blackburn was considered by the Full Court of this Court in King-Brooks v Roberts (1991) 5 WAR 500. In that case two women who had been charged with prostitution offences under s 76F and s 76G of the Police Act 1892 (WA) sought:

(i) prohibition against the magistrate hearing the charges, on the basis that they were an abuse of process; and

(ii) a writ of mandamus commanding the police commissioner to direct all his officers to desist from applying the 'containment policy' and to bring prosecutions against all persons contravening s 76F and s 76G.

48 The containment policy was a policy of the West Australian Police Force (the existence of which, as distinct from its content, was described by Malcolm CJ as a notorious fact) whereby women would not be prosecuted for involvement in prostitution provided that the brothel complied with certain conditions. Malcolm CJ gave the leading judgment (Pidgeon & Rowland JJ agreeing), in which he noted that the evidence before the court regarding the content of the policy was 'vague, ambiguous and sketchy' (at 510). The Court dismissed the order nisi for prohibition and mandamus.

49 With regard to mandamus, Malcolm CJ (at 515) referred to Blackburn and observed that while police officers have a 'duty to uphold and enforce the law', decisions to arrest or charge in any given case involve the exercise of a discretion.

50 Mandamus was not available in King-Brooks v Roberts, essentially for two reasons:

(i) there was no evidence that the Commissioner had adopted the containment policy, although it was accepted that a policy of that name existed (see 517); and

(ii) there was no evidence that the Commissioner had been called upon to prosecute in a case where there was sufficient evidence and had declined to do so (518); in other words, there was no evidence that the Commissioner had failed to perform his duty by applying the policy so as to avoid the proper exercise of his discretion.

51 Thus the court did not have to grapple with the lawfulness of the policy. Malcolm CJ noted (at 517) that there existed 'questions regarding the legal basis and rationale of the policy', but went on to say that 'the circumstances of this case are not such as to call for an examination of those questions'. His Honour also suggested that there was insufficient evidence to determine the lawfulness of the policy (at 519).

52 Rowland J was in general agreement with Malcolm CJ but added some observations of his own to the effect that he might have been willing to grant mandamus in some later case if it were shown there was a policy which was 'not sustainable ... in the proper exercise of [police officers'] discretion' (521).

53 The applicants also relied upon R v Chief Constable of Sussex; Ex parte International Trader's Ferry Ltd [1998] UKHL 40; [1999] 2 AC 418. In that case the court was asked to quash a decision of the Chief Constable to decline to provide a constant police presence to prevent protesters, protesting the applicant's live animal export activities, from breaching the peace, and to quash a subsequent decision of the Chief Constable to refuse to change his earlier decision or delay its implementation. The case did not involve an application for a writ of mandamus nor did it involve a policy bearing upon the exercise of a prosecutorial discretion. It concerned decisions made about the allocation of police resources. The case is authority for the proposition that decisions made by the officer in charge of a police force are susceptible of judicial review on grounds including the ground that the decisions were unreasonable in what is often referred to as the 'Wednesbury' sense (being a shorthand reference to the judgment of Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223). In the present application, the applicants are not seeking to quash any decision made by the respondents but are seeking the issue of a writ of mandamus to compel the prosecution of particular persons or to compel consideration of the prosecution of particular persons. In my view, International Trader's Ferry Ltd does not advance the applicants' case.

The principle established by the reasoning in Blackburn

54 It was submitted on the respondents' behalf that the reasoning in Blackburn and Kings-Brooks is concerned with the circumstances in which the courts will grant relief to remove an impermissible fetter on the discretion to investigate and prosecute criminal offences, the fetter being a 'no prosecution, save in exceptional cases' policy. I accept that submission.

55 The reasoning reflects the general rule that an executive decision maker on whom a discretion is conferred cannot fetter the exercise of the discretion by adopting an inflexible policy. A discretion must be exercised in accordance with the scope and purpose of the statute conferring the discretionary power. It follows that any policy taken into account by a decision maker exercising a statutory discretion must be consistent with the legislation: NEAT Domestic Trading v AWB Ltd [2003] HCA 35; (2003) 216 CLR 277 [24] (Gleeson CJ). Thus if a discretion is conferred to enable the statutory objective to be fulfilled, the adoption of a policy that the discretion will never be exercised will be unlawful as it would be inconsistent with the achievement of that objective. The effect would be to replace a discertion with an inflexible rule: Perder Investments Pty Ltd v Lightowler [1990] FCA 239; (1990) 25 FCR 150, 159.

56 The decisions in Blackburn and King-Brooks are not authority for the proposition that a writ of mandamus will issue to compel the investigation and prosecution of particular persons or even to compel a decision maker to consider the investigation and prosecution of particular persons. At the risk of unnecessary repetition, the order sought in Blackburn was an order compelling the Commissioner to reverse the policy he had adopted as opposed to an order to compel the prosecution, or to compel the consideration of the prosecution, of named individuals.

57 There is no case in which an order in the terms sought by the applicants has been made. No doubt, the absence of such authority is attributable to the restraint exercised by the courts in the context of prosecutorial discretions.

Do the applicants have a special interest entitling them to apply for mandamus?

58 The respondents conceded that the applicants had standing to apply for the issue of a writ of mandamus. I consider this concession was properly made. My reasons are as follows.

59 The applicants have brought this application in their personal capacities and in a representative capacity. They have been elected to represent the interests of stakeholders in the taxi industry, including taxi plate owners, operators and drivers. To further that purpose they have incorporated the company known as Taxi Operators Legal Defence Fund Pty Ltd as a vehicle for raising funds to meet the costs of making this application.

60 As to the applicants' own personal circumstances - Mr Samra estimates that his income from his taxis has declined by up to 30% since the launch of UberX. Mr Martin estimates his income has dropped over the same period by between 25% and 30%. There was no challenge to their evidence. I accept that the drop in their incomes has been brought about by increased competition in the form of the UberX service.

61 Since 2007 Mr Jankulovski has spent over $800,000 on the acquisition of the three taxi plates he holds. Of this sum, approximately $20,000 has been paid to the Department of Transport in respect of transfer fees.

62 Closely intertwined with the applicants' commercial interests are wider questions concerning the administration of the taxi industry in this State. The applicants point to the fact that their activities are regulated and those of UberX drivers are not.

63 I am satisfied that the applicants have standing to apply for the issue of a writ of mandamus for two reasons: first, because their livelihoods and financial interests are adversely affected by the activities of UberX; and secondly, both in their personal capacities and in their representative capacities, they are directly involved in the taxi industry and have an interest in ensuring the legislation is administered in accordance with the law.

What are the respondents' duties and powers and to whom are they owed?

64 This question is critical because a writ of mandamus will only issue to compel the performance of a public duty (including a duty to exercise a discretion).

65 The applicants answer the question posed by contending the respondents:

(i) have a duty to protect lawful commercial operators within the taxi industry in Western Australia; and

(ii) have a duty to prevent unlawful commercial operators operating within the taxi industry in Western Australia.

66 The respondents say that no such duties are owed.

67 The duties and powers of the respondents are to be ascertained by reference to the Taxi Act and the TCA.

The Minister's duties under the Taxi Act

68 The Minister is responsible for the Taxi Act. His powers, duties and functions are expressed in relatively confined terms in the Act and include the following:

(i) the power to give directions in writing to the Director General with respect to the performance of his or her functions, either generally or in relation to a particular matter (s 5(1));

(ii) the power to delegate a power or duty under the Taxi Act (other than the power of delegation) to the Director General, an officer of the department or any other person (s 6(1));

(iii) the power to appoint one of the members of the Taxi Industry Board to be the chairperson (s 10(1));

(iv) the power to approve the issue of taxi plates (s 18(2));

(v) the duty and power to determine a reasonable amount to be paid to 'deemed plate holders' on the surrender of their plates (s 43); and

(vi) the duty to review the operations of the Act every five years and to prepare a report to be laid before both Houses of Parliament (s 45).

69 The Minister is responsible for the TCA. The Minister's powers, duties and functions under the TCA are expressed in terms more extensive than those employed in the Taxi Act and are not, for present purposes, capable of being summarised in a helpful way. It is sufficient to observe that the approach taken in the TCA is to confer upon the Minister a wide range of powers, including the power to issue licences relating to the provision of various transport services and to impose conditions on those licences, but to confer upon the Minister the power to delegate his powers to the Director General. In relation to taxi-cars, the Minister has the power to grant taxi-car licences and to impose conditions on such licences (s 47ZD). The Minister has a duty to review the operation of the Act every five years and to prepare a report to be laid before the Houses of Parliament.

The Director General's powers and duties under the Taxi Act

70 The Director General's powers, duties and functions under the Taxi Act include:

(i) the power to give effect to any direction given by the Minister with respect to the Director General's functions (s 5(1));

(ii) the power to delegate a power or duty under the Taxi Act (other than the power of delegation) to an officer of the department or any other person (s 6(2));

(iii) the power to advise the Minister as to the most effective way of ensuring the provision of adequate and efficient taxi services to the public (s 7);

(iv) subject to various provisions, the power to issue a tenderer or applicant with taxi plates (s 18); and

(v) the power to designate any officer of the department as an authorised officer, and to appoint as many authorised officers as he or she considers necessary for the purposes of the Taxi Act (s 31).

The Director General's powers and duties under the TCA

71 The Director General's powers and duties under the TCA include the following:

(i) the power to sub-delegate matters delegated to him or her by the Minister (s 15(2));

(ii) subject to the TCA and to the general control of the Minister, the Director General is responsible for the administration of the TCA (s 15B(1));

(iii) the duty to maintain an overview of the existing transport services within the State and to report to, provide advice to, and assist the Minister and transport agencies in relation to transport services, and the funding of the same, and generally to assist the Minister in carrying out the Minister's functions under the Act (s 15B(2));

(iv) the power to delegate to any person the functions or powers of the Director General under the TCA, except the power of delegation (s 18(1));

(v) the power to authorise a person to do certain things (such as requiring the owner and driver of a vehicle to produce for inspection a licence, permit or other document that is required to be obtained in respect of a vehicle or its operation or carried on a vehicle) for the purposes of ascertaining whether the provisions of the TCA, or of any regulation made under the TCA, are being or have been contravened (s 49(1)); and

(vi) the power to direct that proceedings be taken for the recovery of penalties in respect of offences committed against the provisions of the TCA or of any regulation (s 58(1)).

Conclusion on the duties owed by the Minister and the Director General

72 The Minister is under a duty to administer the Taxi Act and the TCA with the assistance of the Director General. The Acts do not confer an express power on the Minister to commence prosecutions and it was submitted on his behalf that he had no power to commence prosecutions in the course of his duties. It is not necessary for me to determine whether he has such a power. Under the Taxi Act the Minister has power to give directions to the Director General. I consider this power is wide enough to embrace the power to give a direction to the Director General to initiate prosecutions, or to consider a prosecution of those who commit offences against the Act. The respondents accepted that it was 'conceptually possible' that the Director General may commence, or direct the commencement of, prosecutions in the course of his duties, though both Acts contemplate investigations and prosecutions will be commenced by authorised officers (Taxi Act) and authorised persons (TCA).

73 Thus the position is that the Director General in the course of his duties may exercise, or direct the exercise of, a discretion to prosecute those who commit breaches of either Act. It is, however, a discretion and not a duty. It is a discretion unlimited by anything other than the scope and purpose of the Acts. Neither the express provisions of the Acts nor their scope and purpose are such as to warrant the conclusion that either the Director General or the Minister (assuming for the purposes of this element of the argument that the Minister has a discretion to prosecute) is under a duty to exercise the discretion to prosecute or to direct the commencement of prosecutions.

74 As I hold that neither of the respondents are the subject of a public duty to commence prosecutions, or direct the commencement of prosecutions, the application for a writ of mandamus on that basis compelling the commencement of prosecutions must be refused.

75 Lest I am wrong in the conclusion I have reached on the question of whether the respondents owe a public duty to prosecute or direct the commencement of prosecutions, and in deference to the forceful and detailed submissions made on the applicants' behalf to the effect that a constructive 'no prosecution' policy exists, in the next section of this judgment I will consider whether the respondents adopted such a policy.

76 Before doing so, however, I must deal with the alternative form of mandamus sought by the applicants, that is, to compel the respondents to consider the commencement of prosecutions, rather than to commence prosecutions.

77 In their respective submissions neither the applicants nor the respondents addressed specifically the issue of the existence of a duty to consider the commencement of prosecutions.

78 I understand, however, that the applicants relied on the decisions in Blackburn and Kings-Brooks to support the existence of a duty to consider the commencement of prosecutions as well as a duty to commence prosecutions. Arguably, it is implicit in the reasoning in those cases that the duty to enforce the law encompasses a duty to consider the commencement of prosecutions.

79 On the other side of the argument, however, there are the statements of McHugh J in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 374, 425 - 426, to the effect that the executive is free not to enforce the law, a view his Honour expressed most powerfully in his reasons in Bateman's Bay Local Aboriginal Land Council v The Aboriginal Community Benefit Fund Pty Ltd [1988] HCA 49; (1998) 194 CLR 247 [80] - [86].

80 In the light of the conclusion I have reached in the next section of this judgment - to the effect that the respondents have not adopted a 'no prosecution' policy which fetters any duty to consider the commencement of prosecutions, should such a duty exist - it is unnecessary for me to determine whether such a duty does in fact exist.

Is there a policy not to prosecute the Uber companies and their management in Western Australia? The applicants' case - there is a 'no prosecution' policy

81 The applicants submit the existence of a no prosecution policy is to be inferred from the following:

(1) the respondents and staff of the Department of Transport have known since at least December 2013 that the UberX Driver App and the UberX Rider App are illegal in Western Australia;

(2) the UberX Driver App and the UberX Rider App have been in operation in Western Australia since October 2014;

(3) no Uber entity is registered as a taxi dispatch service;

(4) the respondents and department officers have broad powers of investigation yet:

(a) no search warrants have been executed against Uber Australia or its management or businesses associated with the provision of the UberX service;

(b) no notices to produce documents have been issued against Uber Australia or its management or associated businesses;

(c) no interviews have been conducted with Uber Australia's directors, employees, representatives or agents or those involved in associated businesses;

(5) the applicants have asked the respondents to investigate and prosecute Uber and its management, and have drawn what they contend are flagrant breaches of the legislation to the attention of the Department's staff, but no action has been taken;

(6) the Premier of Western Australia has publicly stated that the Government of Western Australia would not take any legal action against Uber;

(7) no investigation or prosecution has been commenced against Uber companies, particularly Uber Australia, or the Uber management;

(8) the elements of the offences that the applicants contend have been committed are straightforward and the evidence to establish those elements is readily available;

(9) the enforcement action taken to date has been inadequate and directed to UberX drivers and not those who control the UberX service;

(10) the lack of effective enforcement action cannot be explained away by a lack of financial resources as the Department's annual report recorded that taxi licence fees of $9,857,000 were collected in the 2014/15 financial year and there was a balance of over $31 million in the Taxi Industry Development account; and

(11) the applicants' solicitors have prepared a prosecution brief for the respondents including a draft prosecution notice, a list of offences, a statement of material facts, references to the evidence adduced in these proceedings which establishes the elements of the offences the applicants contend have been committed and a statement setting out the reasons why the proposed prosecutions comply with the Director of Public Prosecutions' Statement of Prosecution Policy and Guidelines 2005 (this brief is very comprehensive but it is unnecessary to refer to it in detail).

82 The applicants' submissions emphasised that for a policy to exist it is not necessary to find the policy alleged to exist in written or published form. A policy may be evidenced by bureaucratic practice.

The respondents' case - a 'no prosecution' policy does not exist

83 The evidence of Ms Nina Lyhne formed the evidentiary foundation for the respondents' submission that there was no policy not to prosecute the Uber companies and their management for breaches of the legislation. Ms Lyhne affirmed an affidavit on 2 November 2015, on which she was cross-examined at the hearing of the application. Ms Lyhne's evidence was to the following effect.

(1) She is the managing director of transport services of the Department of Transport and has held that position since 24 January 2011. She reports directly to the Director General. Her responsibilities include being a member of the Transport Portfolio Council, the provision of strategic and technical information systems advice to the Director General and the departmental executive, and leading and managing the operational performance of all the department's business units, including a unit known as the On-Demand Transport Unit.

(2) The On-Demand Transport Unit is responsible for the licensing, registration and regulation of on-demand transport services, which include taxis, limousines and tour and charter vehicles. The On-Demand Transport Unit is responsible for controlling those entering the industry as well as maintaining the standards of those who are operating within it. Its legislative tools are the Taxi Act and the TCA and associated regulations.

(3) By way of an indication of the scope of the activities of the On-Demand Transport Unit, Ms Lyhne gave evidence that there are 2,178 taxi plates issued under the Taxi Act for metropolitan taxis and 5,136 plates issued under the TCA for the operation of country taxis, tour and charter vehicles and small charter vehicles. Between July and September 2015, 444 complaints were received regarding the use of on-demand transport. 344 of those complaints were resolved, 28 cautions issued and 126 enforcement proceedings commenced. The On-Demand Transport Unit includes two compliance teams. There is an 'on road team' whose members go out on the road and carry out checks to ensure that drivers and vehicles meet applicable standards. Members of this team have the ability to issue cautions or infringements and to recommend the commencement of prosecutions. The team consists of a team leader, five senior compliance officers and a compliance officer. The other team is the 'investigations team'. This team responds to and investigates complaints about potential offences. The team also initiates investigations. The team comprises a team leader, six senior compliance officers and an administrative officer. Within the department there is a Regional Services Business Unit and a small part of that unit's work is to provide 'on-demand transport regulation' in regional areas.

(4) The Department has a formal operational policy regarding prosecutions under the Taxi Act and the TCA, entitled 'Prosecution Policy Guidelines', which provides guidance to authorised officers and authorised persons as to the conduct of prosecutions and the exercise of the discretionary power to commence prosecutions. The Guidelines list the matters to be taken into account and those matters not to be taken into account when considering a decision to prosecute.

(5) The On-Demand Transport Unit has undertaken investigations into Uber. At first, these involved senior compliance officers downloading the apps, signing up as a customer and taking trips with UberX drivers. Information from members of the public about possible offences was also accepted and reviewed. Upon information from these sources being collected, a senior compliance officer would contact the relevant UberX driver and invite them to attend the Department's offices to participate in an interview. A small number of drivers were investigated in this way. Some drivers attended interviews but others did not. This method of investigation ceased to be practical because the Uber companies blocked the name, credit card, email address and phone of the relevant compliance officers. This had the consequence that the compliance officers were unable to book an UberX driver. Taking trips and collecting evidence in the manner just outlined was labour intensive and a decision was taken to engage private investigators to take Uber trips and collect evidence instead of using the Department's senior compliance officers. As at 2 November 2015 the Department was continuing to undertake 'non-intrusive' forms of investigation to collect evidence regarding Uber's operations.

(6) Many meetings have been held within the Department of Transport regarding Uber's operations and the Department has engaged its own inhouse counsel as well as the State Solicitor's Office to provide legal advice.

(7) Ms Lyhne has discussed Uber's activities with the Minister and at no time has the Minister made any suggestion to her to 'not prosecute any corporate entities or individuals related to Uber's operations'. Ms Lyhne has also discussed Uber's activities on many occasions with the Director General and at no stage has he made any suggestions to her to 'not prosecute any of the corporate entities or individuals related to Uber's operations'. No suggestion of a nonprosecution policy has been made by anyone in Ms Lyhne's presence. Ms Lyhne is unaware of any decision made within the Department not to prosecute any of the Uber companies or individuals associated with it.

(8) The Department of Transport currently has 29 separate prosecutions before the courts relating to Uber's operations. These fall into two categories: 'notice to produce offences' and 'driving offences'. The notice to produce prosecutions arise from the issue of notices requiring persons whose vehicles were suspected of being used to transport passengers using Uber and persons who were suspected to have been transporting passengers using Uber to produce documents to the Department. Fiftysix notices to produce were issued to 42 persons allegedly involved with UberX. The notices were issued under s 32(7) of the Taxi Act. Of the 56 notices issued, 12 were second requests and two were third requests. Consequent on the issue of the 56 notices to produce, the Department has charged 19 people with failing to comply with a lawful direction from an authorised officer exercising powers conferred by the Taxi Act, contrary to s 32(8)(a). The prosecutions were commenced between April and June 2015. At the time of affirming her affidavit Ms Lyhne believed the prosecutions were next before the court on 23 November 2015. (At the hearing I was informed that a number of the matters had been listed for hearing in February 2016.)

(9) As a result of the Department's investigations a decision was made to prosecute 10 persons suspected of driving for UberX with offences of contravening s 15 of the Taxi Act and reg 13B of the Taxi Regulations 1995 (WA). Those charges were commenced between April and June 2015 and are proceeding before the Perth Magistrates Court. At the time of the hearing a trial allocation was awaited.

(10) In July or August 2015 Ms Lyhne discussed the 29 prosecutions with the general manager who had responsibility for them and informed him that the Department should wait to see how the existing prosecutions progressed before taking any further significant action in respect of Uber's activities. Ms Lyhne explained that this approach was because the scale of the OnDemand Transport Unit's regulatory activities is significant, yet the compliance teams are relatively small. Resourcing within the On-Demand Transport Unit was under constant assessment and, given significant resources had already been expended in commencing the 29 prosecutions, she considered that there were insufficient resources to commence new prosecutions whilst the current matters were on foot. She had informed the Minister and the Minister's office that the On-Demand Transport Unit would not be aggressively pursuing Uber or its drivers to collect evidence until the existing prosecutions had been concluded. Ms Lyhne said that the Department's investigations into Uber operations were ongoing but, as Uber took proactive measures to frustrate such investigations, no further detail regarding the nature of those investigations would be disclosed in the affidavit.

(11) Ms Lyhne does not have authority to draw on the funds in the Taxi Industry Development Account for the purposes of investigating and prosecuting the Uber companies. Decisions in relation to the expenditure of those funds are made within the Department of Treasury.

84 Relying upon Ms Lyhne's evidence, the respondents submit that:

(i) there is not a 'no prosecution' policy in relation to Uber;

(ii) no decision has been made not to investigate or not to prosecute Uber;

(iii) investigations into Uber's operations are currently on foot; and

(iv) associated prosecutions which relate to the process of investigation of Uber are under way and rational decisions have been made within the Department regarding the allocation of resources in relation to enforcement and compliance.

A policy of 'no Uber prosecution' does not exist

85 I am not satisfied that the respondents, or anyone within the Department, is failing to exercise a prosecutorial discretion on the basis of a policy that there will be no prosecutions of the Uber companies or their management for alleged breaches of the taxi legislation committed in the course of operating the UberX service.

86 The existence of such a policy is negated by Ms Lyhne's direct evidence that she is not aware of such a policy, that prosecutions against a number of UberX drivers have been commenced and that for resource allocation reasons no further prosecutions will be commenced until the outcome of those prosecutions is known. Moreover, the fact that the Department's investigations into the Uber companies are continuing is a factor that negates the existence of a 'no prosecution' policy.

87 While the applicants say that the Department's response to the threat to their livelihoods and the system of regulating the taxi industry in this State constituted by UberX is inadequate, it is not for this Court to assess or comment upon the adequacy of the Department's response. That is a political question for the executive branch of government.

88 Thus, even if I had found that the respondents were under a public duty to commence prosecutions, or to direct the commencement of prosecutions, I would have refused to issue a writ of mandamus on the ground that I was not satisfied that the duty was breached. Similarly, had I held that the respondents owed a duty to consider the commencement of prosecutions, I would not have found that duty to have been breached.

89 It follows from the finding that I have made about the non-existence of a 'no prosecution policy' that I will not make the first declaration sought by the applicants.

90 Nor am I prepared to make a declaration that the respondents have failed or neglected to prosecute the Uber companies or those involved in their management in relation to the operation and promotion of UberX. A declaration in those terms would imply the existence of a duty to prosecute and I have found no such duty exists. Secondly, a declaration in those terms affects the interests of the Uber companies and the natural persons named in the applicants' proposed declaration, none of whom are parties to this application. The court should not make a declaration affecting the interests of third parties unless they are parties to the application: Mineralogy Pty Ltd v Sino Iron Pty Ltd (No 6) [2015] FCA 825 [942] - [945] (Edelman J). Thirdly, courts should exercise restraint in making declarations that may bear upon the issue of whether criminal offences have been committed: Gedeon v New South Wales Crime Commission [2008] HCA 43; (2008) 236 CLR 120 [23] - [24] and the cases there cited. The need for restraint in this case is reinforced by the fact that there are criminal proceedings on foot in relation to the activities of UberX drivers.

91 I will dismiss the application and hear the parties in relation to costs.