Road Safety (Driving Instructors) Regulations 2020

The regulations define several key terms that structure the regulatory scheme. An authority is a driving instructor authority granted under section 33(1) of the Road Safety Act 1986. It is the primary licence that permits a person to teach driving for reward. An identity photograph is issued by Safe Transport Victoria under regulation 8 to the holder of an authority. It must include the holder’s photograph (either provided by the applicant or taken by Safe Transport Victoria), an identifying number for the authority, and the expiry date. The photograph must be displayed in a location clearly visible to persons seated in the driver seat and the front passenger seat of the vehicle used for instruction. This is a prescribed condition under section 33B of the Act. An authorised person is a person authorised by Safe Transport Victoria under regulation 16. Safe Transport Victoria may appoint someone it is satisfied is suitably qualified to be an authorised person for the purposes of requesting production of the authority and identity photograph when teaching (regulation 13(b)), or for requesting production of records, driver licence, authority, identity photograph, and working with children assessment notice (regulation 15), or both. Authorisation must be in writing. The assessment notice has the same meaning as in section 3(1) of the Working with Children Act 2005. It is a notice issued under that Act regarding a person’s suitability to work with children. The regulations also rely on two indexed units: fee units under the Monetary Units Act 2004 and penalty units under the Sentencing Act 1991. The fee for an application is 36 fee units. The penalty for failing to return an authority or identity photograph on cancellation, suspension, or cessation is 5 penalty units. The value of a fee unit for 2024-25 is $16.33 and a penalty unit is $197.59. These values are fixed annually by the Treasurer and published. The regulations also incorporate the concept of conditions on authority, which may be imposed by Safe Transport Victoria at grant, renewal, or during the currency of the authority. Conditions can be varied, revoked, or new ones added. The holder must receive a written copy of any conditions. The regulations additionally create a mandatory condition that records of each lesson must be kept for two years, including the student’s full name, learner permit number and expiry date, and the date and starting time of each lesson.

The regulations directly affect several groups. Driving instructors holding an authority under the Road Safety Act are the primary regulated persons. They must comply with all conditions set out in the regulations, including application procedures, recordkeeping, production of documents, medical notification, and working with children notice requirements. Any person who applies for a driving instructor authority must meet the prescribed application requirements: provide a completed form, a medical certificate stating they are not suffering from a condition that would prevent them working as a driving instructor, two passport-size colour photographs (or attend for a digitised image if required by Safe Transport Victoria), and pay 36 fee units. Safe Transport Victoria (the regulator, renamed from the former Transport Safety Victoria by the 2024 amendments) is responsible for processing applications, issuing authorities and identity photographs, granting partial refunds where an authority is issued for less than three years, imposing and varying conditions, and authorising persons to exercise enforcement powers. Authorised persons are individuals appointed by Safe Transport Victoria to request production of documents from driving instructors. They must show evidence of their authorisation before making a request. Police officers can also request production of the authority and identity photograph when a holder is teaching (regulation 13(a)). Learner drivers or students are indirectly affected: they are the persons whose details are recorded by instructors and whose safety may be at issue in medical condition notifications. Employers of driving instructors may need to ensure their instructor employees comply with recordkeeping and notification obligations. Medical practitioners are involved indirectly through the requirement for applicants to provide a medical certificate; the regulations do not impose duties on practitioners but the certificate must state that the applicant is not suffering from a condition that would prevent working as a driving instructor. The Department of Justice and Community Safety (through the Sentencing Act and penalty units) and the Treasurer (through fee unit indexing) are also relevant. Working with Children Check units are affected because holders who have an assessment notice must notify Safe Transport Victoria within five business days if that notice ceases to be current. The regulations impose no direct obligations on the general public, but anyone riding in a vehicle used for instruction may see the required display of the identity photograph. The regulations also affect the Governor in Council (who made them) and the Victorian Parliament (through the Subordinate Legislation Act sunset mechanism).

The regulations create several duties on holders of driving instructor authorities, most of which are framed as conditions of the authority. Recordkeeping duty: under regulation 14, the holder must keep a record for each person taught, containing full name, learner permit number and expiry date, and the date and starting time of every lesson. These records must be kept for two years from the date of creation. Production duty on request: under regulation 15, the holder must produce the records, their driver licence, authority, identity photograph, and any assessment notice when requested by an authorised person. The holder must also allow the authorised person to make copies of those items. Under regulation 13, the holder must produce the authority and identity photograph when teaching if requested by a police officer or an authorised person. Duty to return authority and identity photograph: regulation 10 requires return to Safe Transport Victoria within seven days after the authority is cancelled, suspended, or otherwise ceases to have effect. Failure to comply attracts a penalty of 5 penalty units. Medical condition notification duty: regulation 18(1) requires the holder to notify Safe Transport Victoria as soon as practicable after becoming aware of a medical condition that may impair their ability to continue working as a driving instructor. This is an ongoing duty throughout the currency of the authority. Change of information notification duty: regulation 18(2) requires the holder to notify Safe Transport Victoria as soon as practicable of any change in the information previously provided. Working with children assessment notice duty: regulation 19 requires the holder, if they have an assessment notice, to notify Safe Transport Victoria within five business days of becoming aware that the notice is no longer current. Display duty: regulation 9 prescribes that the identity photograph must be displayed in a location clearly visible to persons in the driver seat and front passenger seat. This is a condition for the purposes of section 33B of the Act. Duty to comply with additional conditions: under regulation 12, Safe Transport Victoria may impose, vary, or revoke conditions at any time. The holder must comply with any conditions imposed, and Safe Transport Victoria must give written notice of conditions. The holder also has a right to apply in writing for variation or revocation of a condition, or imposition of a new condition. Safe Transport Victoria has discretion to act on its own initiative or on application. Right to request duplicate: under regulation 11, the holder may request a duplicate authority or identity photograph if the original is illegible, altered, defaced, lost, stolen, or destroyed. Safe Transport Victoria may grant the duplicate if satisfied of the circumstances. Right to receive evidence of authorisation: under regulation 17, an authorised person must show evidence of their position before requesting production under regulation 13(b) or 15. The holder is entitled to refuse production if the authorised person does not comply with this requirement (though the regulations do not expressly state that right, it is implicit). Right to partial refund: under regulation 7, if Safe Transport Victoria grants an authority for less than three years, it may refund the difference between 36 fee units and the amount calculated at 12 fee units per year of the term. This is a discretionary power, not an entitlement.

The regulations contain only one express penalty provision. Regulation 10 imposes a maximum penalty of 5 penalty units (currently $987.95 as at 2024-25) for failing to return the authority and identity photograph to Safe Transport Victoria within seven days after cancellation, suspension, or cessation of effect. This is a summary penalty enforceable through the usual criminal process. However, the enforcement landscape is broader. The regulations create conditions of an authority; breach of a condition is likely to be a ground for cancellation, suspension, or refusal to renew under the Road Safety Act 1986, although the Act itself is not reproduced in this instrument. The regulations create a system of authorised persons who can demand production of records and documents. An authorised person does not need a warrant to make a request under regulations 13 and 15, but must first show evidence of their authorisation under regulation 17. If the holder refuses to produce records, the authorised person may have no direct penalty under these regulations for that refusal, but such refusal could constitute a breach of condition, potentially leading to regulatory action under the Act. The regulations do not specify consequences for failure to keep records, failure to notify medical changes, or failure to notify about working with children notices; those are conditions, and their breach would be dealt with under the Act’s provisions for cancelling or suspending authorities. The enforcement powers of police are independent: police can request production of the authority and identity photograph when a holder is teaching. There is no penalty for non-compliance with that request in the regulations, but the condition of the authority requires production, so non-compliance is a breach of condition. The regulations also allow authorised persons to make copies of produced items; there is no express limitation on what they may do with those copies, but privacy laws would apply. The fee structure is enforced through the application process: the applicant must pay 36 fee units before the authority is granted. Safe Transport Victoria may grant a partial refund if the authority is for less than three years, but this is discretionary, not mandatory. There is no provision for late payment fees or interest. The sunset clause (10 years from making) means the regulations will automatically expire on 11 February 2030 unless remade. This is a legislative enforcement mechanism: if the regulations are not reviewed and remade, the entire framework for driving instructor authorities prescribed by these regulations would lapse, leaving gaps in the Act’s operation.

These regulations are made under section 95 of the Road Safety Act 1986 and operate as subordinate legislation under that Act. The Act itself (not reproduced here) contains the primary provisions for granting, refusing, suspending, and cancelling driving instructor authorities. The regulations fill in procedural and prescriptive details: application requirements, fees, conditions, recordkeeping, production, and notification. They also prescribe the format and location for display of the identity photograph as required by section 33B of the Act. Therefore, the regulations must be read together with the Act. Any person subject to these regulations also has obligations under the Act. The regulations incorporate the Working with Children Act 2005 by reference: the definition of assessment notice comes from that Act, and regulation 19 imposes a notification duty in relation to such notices. The Working with Children Act itself imposes separate obligations on those working with children; a driving instructor who teaches minors would need a valid assessment notice under that Act, and the regulation adds a notification duty to the regulator. The Monetary Units Act 2004 governs the calculation of fees and penalties. The fee of 36 fee units and the penalty of 5 penalty units are amounts that change annually with the index as fixed by the Treasurer. The regulations do not set a fixed dollar amount; practitioners must check the current fee unit and penalty unit values for the relevant financial year. The Sentencing Act 1991 defines a penalty unit; the regulations import that definition for the penalty in regulation 10. The Subordinate Legislation Act 1994 provides the sunset mechanism: these regulations will expire 10 years after making (11 February 2030) unless remade. The regulations also revoke the Road Safety (Driving Instructors) Regulations 2010 and the 2018 amendment regulations. There is potential interaction with other laws not mentioned in the instrument. For example, privacy laws (Privacy and Data Protection Act 2014) may govern how Safe Transport Victoria handles applicant photographs and personal information. The Health Records Act 2001 may apply to medical certificates. The Equal Opportunity Act 2010 may limit conditions that discriminate against instructors with disabilities; the medical certificate requirement could raise issues if applied too broadly. The Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law may apply to the supply of driving instruction services, particularly in relation to misleading conduct or unfair contract terms. However, these interactions are not addressed in the regulations themselves. The regulations do not create a private right of action; enforcement is through regulatory action by Safe Transport Victoria or through the penalty for non-return of documents. The regulations also interact with the Road Safety (General) Regulations 2020 (the parallel instrument amended by the same 2024 amending regulation), which may contain related provisions about learner permits and vehicle standards.

The Road Safety (Driving Instructors) Regulations 2020 (S.R. No. 7/2020) were made by the Governor in Council on 11 February 2020 and came into operation on 15 February 2020. They revoked the earlier Road Safety (Driving Instructors) Regulations 2010 (S.R. No. 9/2010) and the Road Safety (Driving Instructors) Amendment Regulations 2018 (S.R. No. 17/2018). The principal amendment to date is the Road Safety (Driving Instructors) and (General) Amendment Regulations 2024 (S.R. No. 60/2024), made on 25 June 2024, with regulations 4 to 13 commencing on that same date. The 2024 amendments updated the reference from Transport Safety Victoria to Safe Transport Victoria throughout the regulations. This reflects the machinery of government change that transferred functions to Safe Transport Victoria. The amendments also updated regulation 6(b) and (c) to change the recipient of applications and photographs from Transport Safety Victoria to Safe Transport Victoria. Regulation 6(a) and (b) were amended to replace “Transport Safety Victoria” with “Safe Transport Victoria”. Regulation 6(c)(ii) was similarly amended. Regulation 7’s heading and text were amended to refer to Safe Transport Victoria. Regulation 8’s heading and text were amended accordingly. Regulation 10’s heading and text were amended. Regulation 11’s heading and text were amended. Regulation 12’s heading and text in subregulations (1), (2), and (3) were amended. Regulation 16’s heading and text were amended. Regulation 18’s heading and text in subregulations (1) and (2) were amended. Regulation 19’s heading and text were amended. The amendments did not change any substantive duties or fees, only the name of the regulator. The current version is Version No. 002, incorporating the amendments as at 25 June 2024. There is no earlier amendment between 2020 and 2024. The regulations are scheduled to sunset on 11 February 2030, ten years after the day of making, under section 5 of the Subordinate Legislation Act 1994. No further amending instruments have been registered as at the date of this version. The endnotes indicate that the explanatory details include a table of fee unit values for 2023-24 ($15.90) and 2024-25 ($16.33) and penalty unit values ($192.31 and $197.59 respectively), but these are not amendments to the regulations themselves; they are informational. The Instrument has not been affected by any Acts of Parliament that directly amend it; it remains a standalone statutory rule.

The regulations themselves do not record any litigation history. They are subordinate legislation and have not been the subject of judicial consideration reported in the text provided. However, it is possible that cases under the Road Safety Act 1986 have considered driving instructor authorities and conditions, but none are referenced in the instrument. Under the previous 2010 regulations, there may have been decisions relating to medical condition notification or recordkeeping, but these are not mentioned. The regulations are relatively recent (2020) and the only amendment (2024) was administrative. The absence of citations in the text suggests that no leading cases have interpreted these specific regulations. The penalty provision in regulation 10 (5 penalty units) is modest, so contested prosecutions may be rare; they would be heard in the Magistrates’ Court. Disputes over conditions imposed by Safe Transport Victoria would likely be resolved through internal review or the Victorian Civil and Administrative Tribunal (VCAT) under the Act, but no such cases are noted. The medical condition notification requirement (regulation 18) could potentially give rise to disputes about what constitutes a condition that “may impair” ability to work as a driving instructor; that phrase is broad and could be litigated, but no case law is recorded in the instrument. Similarly, the requirement to keep records for two years and produce them on request could be challenged on privacy grounds, but no challenge is recorded. The requirement for an authorised person to show evidence of their position could lead to disputes if a holder refuses production and later faces enforcement; the holder might argue the authorised person failed to comply with regulation 17. Again, no such litigation is mentioned. The sunset clause ensures that the regulations will expire in 2030 unless remade, which may be prompted by a review that could produce consultation documents. However, the instrument itself provides no litigation history. Given that the only procedural change in 2024 was renaming the regulator, no new litigation would be expected from that. Practitioners should note that any litigation under the parent Act (Road Safety Act 1986) may be relevant, but that is outside the scope of these regulations.

Several provisions in the regulations contain traps for the unwary. The medical condition notification duty in regulation 18(1) uses the phrase “as soon as practicable after becoming aware of the medical condition”. This is a subjective standard that could catch instructors who delay notification. The condition need not actually impair; it must only “may impair” the ability to continue working. This lower threshold means an instructor with a transient condition (e.g., a temporary injury) must still notify if there is any possibility of impairment. The duty continues for as long as the authority is held; there is no exemption for short-term conditions. The change of information duty in regulation 18(2) is similarly broad: any change in information previously provided must be notified “as soon as practicable”. This could include changes of address, contact details, or employment status. Failure to notify could be a breach of condition, even if the change is trivial. Regulation 19 requires notification within five business days if a working with children assessment notice is no longer current. This is a tight deadline. An instructor may not realise their assessment notice has expired or been revoked; the five-day clock starts when they “become aware”. That imposes an obligation to actively monitor the status of the assessment notice. The penalty for failing to return the authority and identity photograph on cancellation (regulation 10) is only 5 penalty units, but the failure to return is itself a breach of condition that could be used as a basis for other action under the Act, such as refusal of future applications. Regulation 11 gives Safe Transport Victoria discretion to grant a duplicate authority or photograph if satisfied the original is illegible, altered, defaced, lost, stolen, or destroyed. The discretion is not automatic; the applicant may need to provide evidence. There is no set time limit for Safe Transport Victoria to respond. Regulation 12 allows Safe Transport Victoria to impose, vary, or revoke conditions on an authority at any time during its currency, without any requirement for a hearing or prior notice beyond giving a written copy after the fact. This gives the regulator significant power to change the terms of an authority unilaterally. An instructor might find their right to teach certain types of students or in certain areas curtailed mid-term. The identity photograph display requirement in regulation 9 is prescriptive: it must be clearly visible to persons in the driver seat and front passenger seat. If the photograph is placed on a sun visor that is flipped up, or in a glove box, that would not comply. The location must be such that both the driver (student) and front passenger (instructor) can see it without moving. This could be tricky in some vehicles. The two-year recordkeeping obligation in regulation 14 does not specify the format; paper or electronic records are acceptable, but they must be producible on request. There is no exemption for instructors who cease teaching; they must still keep records for the full two years from the date of creation, even if they surrender their authority. The records must include the starting time of every lesson, not just the date. This is a precise requirement that could be missed. The fee of 36 fee units is not a fixed dollar amount; it increases annually with indexing. The partial refund in regulation 7 is discretionary: Safe Transport Victoria “may refund”, not “must refund”. An instructor who receives an authority for only one year might not get a refund of 24 fee units if the regulator decides not to exercise the discretion.

Compliance with these regulations requires attention to both initial application and ongoing conduct. Applying for an authority: an applicant must complete a form approved by Safe Transport Victoria, provide a certificate from a registered medical practitioner stating the applicant is not suffering from a condition that would prevent working as a driving instructor, provide two recent passport-size colour photographs (full front view, head and shoulders, white background) or attend for a digitised image if required, and pay 36 fee units. The fee is indexed annually; check the current value on the Victorian Government Gazette or the Safe Transport Victoria website. On grant: Safe Transport Victoria will issue an authority and an identity photograph. The photograph must be displayed in the vehicle used for instruction in a location clearly visible to persons in the driver seat and front passenger seat. The authority itself should be carried or be readily available. Recordkeeping: for each student, maintain a record containing the student’s full name, learner permit number and expiry date, and the date and starting time of every lesson. Keep these records for two years from the date of creation. If using electronic records, ensure they are backed up and accessible on request. Production on request: when being taught, if a police officer or an authorised person requests production of the authority and identity photograph, produce them immediately. If an authorised person requests records, driver licence, authority, identity photograph, or assessment notice, produce them and allow copies to be made. The authorised person must first show evidence of their authorisation. If they do not, ask to see it before complying. Notification of medical conditions: as soon as you become aware of any medical condition that may impair your ability to work as a driving instructor (even if not yet actually impairing), notify Safe Transport Victoria. Keep a record of the notification. Notification of changes: notify Safe Transport Victoria as soon as practicable of any change in information you previously provided, such as address, phone number, or employer. Working with children assessment notice: if you hold an assessment notice under the Working with Children Act 2005, monitor its currency. If it ceases to be current (e.g., expires, is revoked, or you surrender it), notify Safe Transport Victoria within five business days. Return on cancellation, suspension, or cessation: if your authority is cancelled, suspended, or otherwise ceases to have effect, return the authority and identity photograph to Safe Transport Victoria within seven days. Failure to do so is an offence with a penalty of 5 penalty units (currently $987.95). Replacement: if your authority or photograph becomes illegible, altered, defaced, lost, stolen, or destroyed, apply to Safe Transport Victoria for a duplicate. There is no prescribed form; submit a written request explaining the circumstances. Conditions: read carefully any conditions imposed by Safe Transport Victoria on grant, renewal, or variation. If you disagree with a condition, you may apply in writing for variation or revocation. Keep a copy of the written notice of conditions. General: maintain a system to track all deadlines, especially the seven-day return, two-year record retention, and five-business-day working with children notice. Consider a compliance calendar. Ensure that any vehicle used for instruction has the identity photograph displayed in the correct location and that the authority is current. If using multiple vehicles, ensure each vehicle has the photograph displayed. Do not allow the authority to expire; apply for renewal in advance under the Act. Stay informed of changes to fee unit and penalty unit values each financial year.