The Regulation defines several key concepts that are central to its operation. Driving instruction is defined in clause 3 as instruction given to a person for the purpose of teaching them to drive a motor vehicle. This is broad, but clause 4 then carves out certain scenarios. Driving instructor’s licence means a licence under the Act. The Act itself contains further definitions (not reproduced in the Regulation) but the Regulation’s definitions are the starting point for understanding the scope.

The concept of a driving school is not defined in the Regulation itself, but clause 8 imposes duties on the proprietor of a driving school. The clause defines an owner of a school broadly: a person who has any share in the capital of the business or any entitlement to receive any income derived from the school, whether at law or in equity or otherwise. This sweeps in silent partners and beneficial interest holders, not just the person with principal control. The person having principal control, management and administration of the school must also be recorded. This creates a de facto register of school ownership and control, which may assist enforcement but also imposes a privacy and administrative burden.

The licence types introduced in clause 7A (inserted in 2019) create a tiered system based on vehicle mass, number of axles, and type. GVM (gross vehicle mass) is defined by reference to the Road Transport Act 2013. Type 1 covers most cars, utes and vans up to 4.5 tonnes GVM, but excludes motor bikes, motor trikes and vehicles seating more than 12 adults including the driver. Type 2 covers medium vehicles (GVM between 4.5 and 8 tonnes) and buses up to 8 tonnes. Type 2 endorsed adds two‑axle trucks over 8 tonnes. Type 3 adds three or more axle trucks and articulated buses. Type 4 adds prime movers with a single semi‑trailer and rigid vehicles with a trailer over 9 tonnes GVM. Type 4 endorsed is a catch‑all for everything except Types 1 and 5. Type 5 is for motor bikes and motor trikes. This structure mirrors the driver licensing classes, ensuring instructors are qualified to teach the vehicles they use.

A critical concept is the condition in clause 7B(a): a licence does not authorise instruction in a relevant class of motor vehicle unless the instructor also holds a driver licence for that class. This prevents an instructor from teaching a class they are not licensed to drive themselves, which is a sensible alignment but can create gaps if an instructor’s driver licence is suspended or cancelled. Clause 7B(b) states that if the licence is marked “restricted”, it does not authorise instruction for the holder of a learner licence. This power allows Transport for NSW to impose restrictions on instructors for disciplinary or other reasons without revoking the licence entirely.

The concept of duplicate driving controls (clause 11) is key: instructors generally must use a vehicle equipped with dual controls approved by Transport for NSW. Exceptions apply for motor bikes, where the student provides the vehicle, where Transport for NSW approves in writing, for vehicles over 4.5 tonnes GVM, and for certain heavy machinery. This requirement imposes an upfront cost on instructors (retrofitting dual controls or buying purpose‑built vehicles) but is a standard safety measure.

Finally, the concept of service of documents by electronic address (clause 11A) prescribes that an electronic address other than an email address (such as a messaging platform or portal), if approved by Transport for NSW, can be used for service under section 58(1)(f) of the Act. This expands the permissible methods of formal communication, reducing reliance on physical service but also raising due process questions if the address is not regularly checked.

The Regulation directly affects four main groups: licensed driving instructors, proprietors of driving schools, persons who are exempt from licensing, and Transport for NSW as the administering agency.

Licensed driving instructors are the primary subject. They must comply with duties to produce their licence before each lesson (clause 6), keep detailed records (clause 9), maintain comprehensive insurance (clause 10, acting through the school or personally), and ensure their vehicle has duplicate controls (clause 11). They are also subject to licence conditions (clause 7B) regarding vehicle class and any restrictions. The 20‑penalty‑unit maximum penalty for breach of these duties (currently $2,200 per offence at $110 per unit) creates a real financial risk. For a sole operator, recordkeeping alone can be a significant time cost; the form must be approved by Transport for NSW, meaning any change in approved format imposes a compliance update cost.

Proprietors of driving schools face similar but broader obligations. Clause 8 requires them to keep records of the school’s owners, managers, instructors, students, vehicles and insurance policies. The definition of “owner” is expansive, potentially including passive investors and family members entitled to income. This may deter some from structuring a driving school through a trust or partnership if they wish to avoid revealing beneficial interests. The five‑year retention period is longer than typical record‑keeping periods for small businesses under tax law (generally five years for Australian Taxation Office purposes, but this is a separate requirement). The records must be in a form approved by Transport for NSW, which gives the regulator control over the format and may be changed at any time.

Persons exempt under clause 4 are affected because they are carved out of the Act’s licensing requirement. This includes classroom and simulator instructors, and those teaching a fully licensed driver (unless the instruction is about removing a condition). This exemption reduces the regulatory burden for those providing informal instruction, but it also means that such instructors are not covered by the compulsory insurance requirement, which could leave them exposed to liability. Students receiving instruction from an exempt person have no guarantee of the instructor’s qualifications or insurance cover.

Transport for NSW is the recipient of fees, the issuer of licences and certificates, the approver of record forms and duplicate controls, and the body that may grant exemptions from insurance requirements (clause 10(2)) and approve electronic addresses for service. The Regulation gives the agency broad administrative discretion that can be exercised without public consultation, creating uncertainty for regulated entities.

Service NSW and Transport for NSW employees conducting assessments or tests are also directly exempted from being driving instructors (clause 4(2)). This ensures that testing personnel are not considered instructors and therefore do not need a driving instructor’s licence, which aligns with the separation of instruction and assessment.

Indirectly, students are affected: they must provide personal information (name, address, phone number, driver licence number) that is recorded and retained for five years, raising data privacy concerns. The insurance requirement gives students some protection (indemnity for damage and excess), but the minimum cover of $5 million may be insufficient for catastrophic accidents involving multiple vehicles or substantial property.

The Regulation imposes several specific duties and confers a few rights.

Duties on driving instructors:

• Produce driving instructor’s licence to the student before giving instruction and allow time to examine it (clause 6). This must happen on every occasion, not just the first lesson. Failure is an offence.

• Not to produce an altered, mutilated, defaced or false licence, or a licence not issued to the person (clause 7(1)). Not to use such a licence to act as an instructor, drive, or cause a vehicle to be driven or stood (clause 7(2)). Not to alter, mutilate or deface a licence without reasonable excuse (clause 7(3)). Not to lend or part with possession of the licence (clause 7(4)).

• Keep a record of the instructor’s own details, each school worked for, each student’s details (name, address, phone number, driver licence number), dates and times of instruction, vehicle registration numbers, and for vehicles hired solely for a test, the person’s details (clause 9(1)). Retain the record for at least five years (clause 9(2)).

• Comply with licence conditions: not to instruct in a vehicle class for which the instructor does not hold a driver licence (clause 7B(a)); if the licence is marked “restricted”, not to instruct learner licence holders (clause 7B(b)).

• Not use a motor vehicle for instruction unless equipped with duplicate driving controls approved by Transport for NSW, subject to exceptions (clause 11). The exceptions are motor bikes, where the student provides the vehicle, written approval from Transport for NSW, vehicles over 4.5 tonnes GVM, and implements under the Road Transport (Vehicle Registration) Regulation 2017.

Duties on proprietors of driving schools:

• Keep a record of the school’s name, each owner (broadly defined), the person with principal control/management/administration, any other person involved in control/management/administration, each instructor’s details (name, driver licence number, instructor’s licence number), each student’s details, each vehicle’s registration number, and details of the comprehensive motor vehicle insurance policy (insurer, insured, policy number, expiry date) (clause 8(1)). Retain for five years (clause 8(2)).

Duties on all persons:

• Not to do any of the prohibited acts regarding licences (clause 7). Also, by implication, to ensure that if they fall within the definition of driving instructor (by giving driving instruction unless exempt), they must hold a licence under the Act; the Regulation does not create that duty, but the Act does.

Rights:

• The right to apply for a licence (subject to fee and Act requirements). The Regulation sets the fee but does not create a right to a licence.

• The right to request a certificate under section 46 of the Act (clause 5(2) says it may be issued without fee, but the schedule sets a $38 fee - note the clause says “may be issued without the imposition of a fee” while the schedule says $38; this appears contradictory. The schedule is the operative fee provision, but clause 5(2) gives discretion to waive the fee. In practice, Transport for NSW may charge the fee unless it exercises the discretion not to impose it. This creates ambiguity.)

• The right to seek an exemption from the compulsory comprehensive insurance requirement (clause 10(2)). No criteria are specified, giving wide discretion.

• The right to use an approved electronic address for service of documents (clause 11A). This is a right only if the person provides such an address.

The Regulation does not confer private rights of action; enforcement is by the regulator.

The Regulation creates nine separate offences, each carrying a maximum penalty of 20 penalty units. Under section 17 of the Crimes (Sentencing Procedure) Act 1999 (NSW), the value of a penalty unit is currently $110, so 20 units equals $2,200. However, the Regulation itself does not state the dollar value; practitioners must cross‑reference the penalty unit legislation. Offences are:

• Clause 6: giving driving instruction without first producing the instructor’s licence to the student and allowing time to examine it.

• Clause 7(1): producing an altered, mutilated, defaced or false licence, or another’s licence, in purported compliance with clause 6.

• Clause 7(2): using such a licence to act as a driving instructor, drive a motor vehicle, or cause or permit a motor vehicle to be driven or stood.

• Clause 7(3): altering, mutilating or defacing a driving instructor’s licence without reasonable excuse.

• Clause 7(4): lending or parting with possession of a driving instructor’s licence.

• Clause 8(2): failing to retain a driving school record for at least five years after it is made.

• Clause 9(2): failing to retain an instructor’s record for at least five years after it is made.

• Clause 11(1): using a motor vehicle to give driving instruction without approved duplicate driving controls (except where an exception applies).

Additionally, failure to keep the records at all (clause 8(1) and 9(1)) is also an offence by implication - the clause says “must keep … a record” and the penalty is expressed at the end of the clause. The structure is that subclause (1) imposes the duty and the penalty box at the end applies to the whole clause. So failing to keep records and failing to retain them are both covered.

No offences are created for breach of licence conditions (clause 7B) - those conditions are imposed “subject to” the licence, and breach likely triggers disciplinary action under the Act rather than an immediate fine under the Regulation. However, if an instructor instructs in a vehicle class for which they do not hold a driver licence, they may also be in breach of the Act’s general prohibition on acting without a licence (Act section 5), which carries a higher penalty.

Enforcement is likely by Transport for NSW through its regulatory officers or by police. The Regulation does not create any infringement notice (on‑the‑spot fine) regime; prosecutions would require court proceedings. The maximum penalty is modest compared to Act offences (e.g., unlicensed instruction under Act section 5 carries a maximum penalty of 50 penalty units for a first offence and 100 for a subsequent offence). This suggests the Regulation’s offences are treated as less serious, but they are still strict liability (no mens rea element stated, except clause 7(1)(c) requires knowledge that particulars are false or misleading). This means a driving instructor who inadvertently forgets to produce their licence before a lesson is guilty unless they can show reasonable excuse (not available for clause 6). For recordkeeping, inadvertent loss or destruction of records within five years is likely an offence.

The Regulation does not provide for any defence of due diligence or reasonable excuse except where expressly stated (clause 7(3)). This imposes a high compliance burden.

The Regulation interacts with several pieces of legislation, primarily the Driving Instructors Act 1992 (the parent Act). The Regulation is made under the Act and must be read with it. Key cross‑references: section 4(3) of the Act allows the Regulation to declare persons not to be driving instructors; clause 4 exercises that. Section 11(2) of the Act refers to fees for licence applications; the Regulation sets those fees in Schedule 1. Section 23 of the Act requires renewal applications, and the Regulation’s note clarifies that the application fee applies to renewals. Section 30(2)(b) of the Act deals with duplicate licences; the Regulation sets the fee. Section 46 of the Act deals with certificates; the Regulation sets a $38 fee. Sections 47 and 48 of the Act require driving schools and instructors to keep records; the Regulation prescribes what must be recorded. Section 54C of the Act requires comprehensive insurance; the Regulation prescribes the policy details. Section 58(1)(f) of the Act allows service of documents by electronic means; the Regulation prescribes approved electronic addresses.

The Regulation also links to the Road Rules 2014 (NSW) for the definition of “motor bike” and “motor trike” (clause 3). The Road Transport Act 2013 (NSW) is used for the definition of “GVM” (clause 7A(3)). The Road Transport (Vehicle Registration) Regulation 2017 (NSW) is referenced for the definition of “implement” (clause 11(2)(e)). The Insurance Act 1973 (Cth) is referenced for the requirement that the insurer be an authorised corporation (clause 10(1)(c)). This federal interplay means if an insurer loses its authorisation, a policy already in place may become non‑compliant, requiring immediate replacement.

The Interpretation Act 1987 (NSW) is noted as affecting interpretation (clause 3 note). The Subordinate Legislation Act 1989 (NSW) is relevant to the repeal and replacement process (clause 2 note).

There is no direct interaction with the Competition and Consumer Act 2010 (Cth) or fair trading laws, but the requirement to record student personal information may interact with the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 (NSW). The Regulation does not mention privacy; instructors and schools must independently comply with those Acts when handling student data.

The Regulation’s recordkeeping provisions may also intersect with tax record‑keeping requirements under the Taxation Administration Act 1953 (Cth). However, the five‑year retention period for driving instruction records is separate from the five‑year period for tax records. A driving instructor who ceases business must still retain records for five years from the date each record was made, which may be longer than tax retention if the business ends.

The saving clause (clause 12) preserves any act, matter or thing that had effect under the repealed 2009 Regulation. This ensures continuity, for example, licence conditions, approved forms, or exemptions granted under the old Regulation remain valid. But any inconsistency with new provisions (e.g., new licence types) may override.

The Regulation has been amended several times since commencement on 1 September 2016.

2017 amendments:

• Clause 4 amended by the Statute Law (Miscellaneous Provisions) Act 2017 No 61, Sch 4.1[1], to update references (likely from “Roads and Maritime Services” to “Transport for NSW” or similar, though the exact change is not shown in the text; the note says “Am 2017 No 61, Sch 4.1 [1]”).
• Clause 11 amended by the Road Transport (Vehicle Registration) Regulation 2017 No 63, Sch 4.14, to update a cross‑reference from the old regulation to the new 2017 Regulation.
• Clause 11A inserted by 2017 No 61, Sch 4.1[2], adding the provision about service on approved electronic addresses.
• Schedule 1 substituted in 2017 by an amending regulation (2017 (240), cl 3), adjusting fees.

2018 amendment: Schedule 1 substituted again (2018 (318), cl 3), likely to update fees.

2019 amendments:

• Clauses 7A and 7B inserted by the Driving Instructors Amendment (Licence Types) Regulation 2019 (256), Sch 1. This introduced the tiered licence system and conditions. Previously, the Regulation had no clause 7A or 7B; the licence types were presumably defined elsewhere or not at all. This was a significant expansion.
• Schedule 1 substituted (2019 (239), cl 3) for fees.

2021 amendment:

• The entire Regulation was amended by the Transport Legislation Amendment (Transport for NSW) Regulation 2021 (137), Sch 1.1[1], which replaced “the Authority” and “The Authority” wherever occurring with “Transport for NSW”. This reflects the machinery of government changes where Roads and Maritime Services (RMS) was absorbed into Transport for NSW.
• Schedule 1 substituted (2021 (137), Sch 1.1[2]).

2022 amendment: Schedule 1 substituted (2022 (339), Sch 1.1).

2023 amendment: Schedule 1 substituted (2023 (550), Sch 1).

2024 amendment: Schedule 1 substituted (2024 (263), Sch 1).

2025 amendment: Schedule 1 amended (2025 (308), Sch 1).

The pattern of annual fee adjustments is notable. The Schedule has been substituted or amended at least eight times in nine years. This creates a compliance burden for practitioners who must check the current fee each year. The lack of automatic indexation means the government must actively amend, and any delay can leave fees outdated. The 2019 insertion of licence types was the only substantive policy change beyond fees and administrative updates.

The Regulation itself does not cite any case law, and it is a subordinate instrument unlikely to generate its own litigation. Disputes involving driving instructors are more likely to arise under the Act (e.g., refusal or cancellation of a licence, disciplinary action) rather than under the Regulation. However, regulatory provisions could be tested in court.

Potentially litigious areas include the definition of “driving instruction” and the scope of exemptions under clause 4. For example, whether instruction in a simulator using a real vehicle cab but not on a road falls within “classroom or by using a simulator” (clause 4(1)(a)) could be disputed. The phrase “such as in a classroom or by using a simulator” is illustrative, not exhaustive, leaving room for argument.

The requirement to produce the licence “on any occasion” may be interpreted strictly; a court may find that an instructor who briefly forgot and then produced it later has still committed an offence. However, no reported case law on this point has been identified within the Regulation text.

The clause 7 prohibition on lending a licence could be tested if an instructor allows a colleague to use their licence for a logbook signature or similar. The phrase “lend or otherwise part with possession” is broad; constructive possession may be enough.

The insurance requirement in clause 10(1)(a) mandates “cover of at least $5,000,000 against any liability for damage to property”. If a policy has a sub‑limit or exclusion, a court may need to determine if it meets the standard. The requirement that the policy “must indemnify each person for the time being receiving driving instruction … in relation to any damage (including any excess payable on a claim)” may conflict with standard policy exclusions for inexperienced drivers; insurers may charge higher premiums or exclude such cover, potentially rendering many policies non‑compliant despite being called “comprehensive”.

The contradiction between clause 5(2) (certificate may be issued without fee) and Schedule 1 (fee $38) could be litigated if an applicant seeks a certificate and refuses to pay. A court would likely resolve that the Schedule prevails as the specific fee provision, but clause 5(2) gives a residual discretion to waive.

No significant litigation history is apparent from the Regulation text. Practitioners should monitor the NSW Civil and Administrative Tribunal (NCAT) for decisions under the Act regarding licensing, which may interpret Regulation provisions.

Several traps exist for the unwary.

Licence production on every occasion: Clause 6 requires the instructor to produce the licence before giving driving instruction on any occasion and allow the student time to examine it. This means the instructor cannot rely on having shown it at the first lesson. For a regular student, the instructor must produce the licence each time they get into the car. Failure is an offence with no reasonable excuse defence. A practical solution is to keep the licence visibly displayed, but the clause requires active production and allowance for examination.

Recordkeeping scope: Clause 9(1)(c) requires the instructor to record the name, address and telephone number of each student. “Address” is not defined; is an email address sufficient, or must it be a physical address? Given the Act deals with service of documents, likely a physical address is intended. The record must also include the driver licence number of each student (clause 9(1)(d)). A student who refuses to provide their driver licence number cannot be lawfully instructed, as the instructor cannot comply with the recordkeeping duty. The instructor must also record dates and times of both theory and practical instruction (clause 9(1)(e)). This catches theory lessons, which are otherwise exempt under clause 4(1)(a) if done in a classroom or by simulator, but if the instructor provides theory instruction in a car or on the road without the dual controls, that may breach other provisions.

Five‑year retention: The records must be retained for at least five years after the record is made, not after the last lesson. This means a one‑off lesson record must be kept for five years. For a busy instructor with hundreds of students, this creates a significant document storage burden. Digital records are acceptable if in an approved form, but the retention period applies. Loss of a phone or laptop with digital records could be an offence.

Insurance indemnity for excess: Clause 10(1)(b) requires the policy to indemnify the student in relation to any damage including any excess payable on a claim. Many comprehensive policies have a compulsory excess for inexperienced drivers. If the insurer pays the excess, it may seek to recover it from the student or instructor. The regulation requires the policy to indemnify the student “in relation to” the excess, which likely means the insurer must pay the excess and not seek recovery. Instructors must check that their policy explicitly covers student excesses.

Duplicate controls exceptions: The exceptions to the duplicate controls requirement (clause 11(2)) are narrow. If a student provides their own vehicle for instruction, the instructor may still be liable if the vehicle is not equipped with dual controls - the exception only applies if the student provides the vehicle, but the instructor must ensure compliance with all other duties. The exception for motor bikes is absolute, but for other vehicles, approval in writing is needed from Transport for NSW. No criteria for approval are given.

Restricted licence: If a licence is marked “restricted”, the instructor cannot instruct a learner licence holder (clause 7B(b)). This is a condition of the licence, not an offence directly, but acting in breach of a condition may lead to suspension or cancellation of the licence. An instructor with a restricted licence who teaches a learner could be found to be acting without an effective licence, attracting higher penalties under the Act.

Fee trap for course‑conditioned licences: The application fee is $69 if the licence is issued subject to a condition requiring completion of a course within a specified time. Otherwise, it is $225. An applicant who is required to do a course as a condition of getting the licence pays the lower fee, but if they later breach the condition, they may face additional costs. The lower fee may be seen as an incentive to accept the condition, but it also funds the regulatory oversight of the course.

Service of documents: Clause 11A allows service on an approved electronic address that is not an email address. This could be a portal or messaging system. If a person provides such an address, they are deemed to have received documents served at that address. Not checking the portal could mean missing legal notices. The only addresses that are prescribed are “of a kind approved by Transport for NSW”. An instructor who does not want to use such an address should not provide one.

Compliance with the Regulation requires a systematic approach covering licensing, vehicle equipment, insurance, recordkeeping, and day‑to‑day conduct.

First, determine whether you need a licence. If you provide driving instruction in a motor vehicle (other than the exempt scenarios in clause 4), you must hold a driving instructor’s licence under the Act. The exemption for instructing fully licensed drivers is valuable but does not apply if the instruction is aimed at removing a condition from that person’s licence. For example, teaching a P‑plate driver how to pass a driving test to remove a “no passengers under 21” condition is not exempt. Obtain the appropriate licence type based on the vehicles you intend to teach. Application is made to Transport for NSW with the fee from Schedule 1 ($225 standard, $69 if a course condition applies). The licence will be issued with conditions including the vehicle class you may teach and any restrictions. If your licence is marked “restricted”, you cannot teach learner licence holders.

Second, ensure that any vehicle used for practical instruction is equipped with duplicate driving controls approved by Transport for NSW. For cars, this typically means brake and clutch pedals on the instructor’s side. Obtain written approval before using a vehicle not so equipped (clause 11(2)(c)). Motor bikes, very heavy vehicles and implements are exempt. If the student provides the vehicle, the dual‑control requirement does not apply, but you should still satisfy yourself that the vehicle is safe and legal.

Third, obtain a comprehensive motor vehicle insurance policy that meets clause 10 requirements: at least $5 million property damage cover, indemnifies the student for damage and any excess, and is with an insurer authorised under the Commonwealth Insurance Act 1973. Provide a copy of the policy details to your driving school (if you work for one) or keep it yourself. If you are a school proprietor, ensure each vehicle used for instruction has such a policy and that you record the insurer, policy number and expiry date in the school’s records.

Fourth, establish a recordkeeping system. Instructors must record the information in clause 9 for each student: name, address, phone number, driver licence number, dates and times of theory and practical instruction, vehicle registration numbers, and any test‑only hires. Use the form approved by Transport for NSW. Keep these records for at least five years from the date each record is made. Digital records are acceptable if in the approved form; consider a cloud‑based system with backup to avoid accidental loss. For sole instructors, this can be a simple spreadsheet or app, but it must capture all fields.

If you are a school proprietor, also record the school’s ownership details (including all persons with a capital or income interest), management, list of instructors (name, driver licence number, instructor’s licence number), student details, vehicle registration numbers, and insurance policy details for each vehicle. Retain these records for five years.

Fifth, before each lesson with a student, produce your driving instructor’s licence to the student and allow them time to examine it. Do not rely on having shown it previously. If you use an electronic copy (e.g., digital licence), confirm with Transport for NSW that this satisfies the requirement, as the Regulation refers to producing the licence, which may imply the physical card.

Sixth, never lend your licence, allow it to be altered, or use a false or mutilated licence. If your licence is lost or damaged, apply for a duplicate ($33 fee). If your licence is suspended or cancelled, you must not give driving instruction.

Seventh, if you receive a document from Transport for NSW, ensure you have provided a current address. If you have provided an approved electronic address, check it regularly for service. If you have not provided such an address, service may be by post or other means under the Act.

Finally, keep up to date with annual fee changes by checking the current Schedule 1. The fees change regularly, and using an outdated fee may result in your application being rejected or delayed. Also monitor any amendments to licence types or conditions, as the 2019 insertion of clause 7A was a substantial change. The Regulation is a living instrument; ignorance of amendments is not a defence.