Tow Truck Industry Act 1998

The Act primarily affects three groups: tow truck operators, tow truck drivers, and the owners and drivers of vehicles that require towing.

Tow truck operators (defined in s 3(1) as persons who conduct a business involving the operation of any tow truck for towing motor vehicles) must hold a licence (s 15). This includes corporations and natural persons. Close associates (s 5) – persons with significant financial interests, relevant powers or executive positions – are scrutinised at application, renewal and during the licence term; their criminal histories and conduct can found refusal or disciplinary action (ss 18(3)(i), 42(1)(a)). Licensees must maintain a place of business, approved holding yards, compliant tow trucks and detailed records (ss 17, 20). They are vicariously affected by the conduct of their employed or engaged certified drivers (s 59).

Certified drivers (holders of drivers certificates) are natural persons who must hold both a full driver licence (or equivalent) and a drivers certificate before driving, standing or operating a tow truck on a road or road related area (s 23). They may not perform towing work outside the class endorsed on their certificate. Drivers are subject to personal conditions (s 29), visibility and production requirements (ss 69–70), and personal liability for touting, overcharging, failure to clean up or disobedience of directions (ss 63–66).

Vehicle owners and operators are indirect but important beneficiaries and subjects. After an accident, owners have statutory rights to access their vehicle in a holding yard during business hours without charge to retrieve personal items, and to remove the vehicle upon payment of regulated fees (s 20(2)(d1)). They are protected from unauthorised repair authorities (s 62), from excessive fees (s 54), and from being approached for repair work at the scene (s 63A). Conversely, owners who fail to pay regulated fees may have their vehicle retained, subject to the licensee’s obligations to permit access.

Interstate and Trans-Tasman operators and drivers are brought within the regime by s 8 via the Mutual Recognition Act 1992 (Cth) and the Trans-Tasman Mutual Recognition Act 1997 (Cth). They are treated as if licensed or certified, but must still comply with towing authorisation, fee, record-keeping and conduct rules.

Exempt persons include Crown operators (subject to exceptions in s 6(2)), operators of forklifts, golf buggies, ride-on mowers, excavators, cherry pickers or other vehicles prescribed by regulation (s 6A), and persons granted individual exemptions under s 33A. Emergency services officers are excluded from certain definitions but may give directions under s 66.

Regulators and enforcement bodies are also affected. The Secretary exercises all licensing, disciplinary, inquiry and direction powers. Authorised officers and police officers are given entry, inspection, seizure and demand powers (ss 78–81, 83). The Commissioner of Police supplies criminal intelligence and reports (ss 18(2)(e), 26(2)(f), 33(3)). The Civil and Administrative Tribunal hears administrative reviews, subject to closed-evidence rules where criminal intelligence is involved (s 45(1A)).

Finally, repairers are indirectly regulated: they may not receive repair authorities obtained before delivery to the authorised destination (s 62), and inducements to direct repair work are prohibited (s 61(2)–(3)).

Licensees’ duties are enumerated in s 20(2). They must take reasonable precautions against loss of or damage to any towed, stored or controlled vehicle (s 20(2)(a)). Records and documents must be kept at the nominated place of business and made available to authorised officers and police (s 20(2)(b)–(c)). At least one holding yard must be maintained within 10 km of the place of business (s 20(2)(c1)), and only licensed yards may be used (s 20(2)(d)). Owners must be given reasonable access during business hours to retrieve items at no charge and may remove their vehicle upon payment of compliant fees (s 20(2)(d1)). Vehicles may not be removed from the yard for repair or quotation without owner consent (s 20(2)(d2)). Distinctive number-plates must be displayed, equipment must comply with design and serviceability standards, driving-hour limits must be observed, and only permitted fees may be charged (s 20(2)(e)–(h)). Charging for work not performed is banned (s 20(2)(i)). Licensees granted 3- or 5-year terms must confirm or update particulars of the licence, insurance and close associates within 28 days of Secretary notice and notify changes as soon as practicable (s 20(2)(i1)–(i2)). The licence itself must be kept at the place of business and a copy in each truck (s 20(2)(j)–(k)).

Certified drivers’ duties mirror many of the above. Under s 29(2)(a) they must take reasonable precautions against vehicle damage. They are subject to the same fee and no-unperformed-work rules (s 29(2)(b)–(b1)), must update particulars for 3- or 5-year certificates (s 29(2)(b2)–(b3)), and must wear the certificate visibly in all relevant situations (s 69). They must obtain and comply with towing authorisations (ss 49–51), clean up debris (s 65), obey directions (s 66), restrict passengers (s 67), limit standing time at accident scenes (s 68) and produce documents on demand (s 70).

Rights of vehicle owners are implied in the conditions imposed on licensees and drivers. Section 20(2)(d1) confers a right of reasonable access during business hours without charge for retrieval of items and a right to remove the vehicle upon payment of fees charged in accordance with the regulations. Section 62(2) protects an owner who revokes an improperly obtained repair authority within 48 hours from liability for costs or damages. Owners are also protected from being solicited for towing or repair at the scene (ss 63, 63A) and from threats or coercion (s 64).

Rights of applicants and licensees include the right to apply for a licence or certificate (ss 17, 25), to nominate a 1-, 3- or 5-year term (ss 22, 31), to seek variation of conditions (s 35), to apply for restoration within 3 months or further period (s 40A), and to seek administrative review in the Civil and Administrative Tribunal of adverse decisions (s 45). However, these rights are heavily qualified by mandatory refusal grounds, criminal-intelligence non-disclosure rules and public-interest discretions.

Rights of the Secretary are extensive: to refuse applications on mandatory or discretionary grounds (ss 18, 26), to impose or vary conditions (ss 20(1), 29(1), 35), to require further information or photographs (ss 33, 34), to conduct inquiries (s 80), to take disciplinary action (s 41), to issue directions (s 84), and to delegate functions (s 93).

Public interest appears throughout as both a discretionary refusal ground (ss 18(3)(j), 26(3)(d)) and a criterion for longer-term licences (ss 22(3), 31(3)) and for revocation of exemptions (s 33A(6)).

Penalties are graduated. The most serious offences – unlicensed operation as a tow truck operator or prohibited use of a prohibited tow truck – attract 100 penalty units or 12 months imprisonment or both (ss 15, 56). Driving or operating without a drivers certificate carries 50 penalty units or 6 months imprisonment or both (s 23). Many operational breaches (failure to obtain or comply with a towing authorisation, touting, overcharging, threats, false statements) are 50 penalty units (ss 49–51, 53, 58, 61(3), 62, 63–67). Lesser offences such as failure to notify changes, failure to wear or produce a certificate, or breach of exemption conditions attract 25 penalty units (ss 33A(7), 37, 57, 69–70, 73). Record-keeping and debris-clean-up offences are 50 and 10 penalty units respectively (ss 60, 65). Disciplinary fines of up to $500 may be imposed administratively (s 41(2)(d)).

Enforcement is multi-layered. Authorised officers and police have powers of entry, inspection, seizure, information demands and warrant execution (ss 78–83). The Secretary may investigate applications (s 33), require further information (s 34), conduct inquiries on oath (s 80), issue binding directions (s 84) and take disciplinary action after show-cause or immediate action where public interest requires (s 41). Suspension or revocation takes effect on service of notice (s 43). Administrative review by the Civil and Administrative Tribunal is available for most decisions, but criminal-intelligence material is heard in closed session and may not be disclosed in reasons (s 45(1A)).

Proceedings for offences are summary before the Local Court and must be commenced within 2 years (s 87). Corporations are subject to director liability where the offence is knowingly authorised or permitted (s 88). Penalty notices may be issued for prescribed offences (s 89). Courts may order surrender of licences or certificates and the Secretary may then take further disciplinary action (s 90).

The Tow Truck Industry Fund receives all fees and penalties and finances enforcement activity (s 91). The Act expressly preserves the right to take disciplinary action even if criminal proceedings are on foot (s 41(6)).

The Act is designed to operate alongside a web of transport, criminal and consumer legislation. It repeatedly cross-references the Road Transport Act 2013 for the meanings of “motor vehicle”, “road”, “road related area”, “driver licence” and “responsible person” (s 3(1)). Tow trucks must comply with that Act’s design, construction and driving-hour rules (s 20(2)(f)–(g)). Declarations under s 18(1)(b) of the Road Transport Act excluding certain roads or areas from the whole Act also exclude them from this Act’s road-related definitions.

Criminal law linkages are prominent. Convictions for offences prescribed by regulation within the preceding 10 years are mandatory refusal and disciplinary grounds (ss 18(2)(b), 26(2)(b), 42(1)(a)). The Crimes (Criminal Organisations Control) Act 2012 is incorporated through definitions of “criminal intelligence”, “controlled member” and “declared organisation”. Controlled members are barred from applying (ss 18(2)(d), 26(2)(e)), and association with declared organisations can found refusal or mandatory cancellation on the basis of criminal intelligence (ss 18(2)(e), 26(2)(f), 41(2A), 42(2)). Reasons may be withheld to the extent they would disclose criminal intelligence (ss 18(6), 26(3A), 43(2A)). The Civil and Administrative Tribunal must hear such matters in closed session (s 45(1A)).

Consumer protection intersects via the Australian Consumer Law (NSW). Section 91(3)(c) permits Fund money to be used for prosecutions under the Australian Consumer Law, the Crimes Act 1900 or this Act that arise from tow truck operator conduct. Fee regulation under s 54 and the prohibition on charging for unperformed work (ss 20(2)(i), 29(2)(b1)) operate as specific consumer safeguards.

Mutual recognition is effected by s 8, which applies the Act to interstate tow truck operators and drivers via the Mutual Recognition Act 1992 (Cth) and the Trans-Tasman Mutual Recognition Act 1997 (Cth). The Act must be interpreted compatibly with those Commonwealth statutes.

The Interpretation Act 1987 applies to definitions and construction (note to s 3(1)). The Administrative Decisions Review Act 1997 governs Tribunal reviews (s 45). The Law Enforcement (Powers and Responsibilities) Act 2002 governs search warrants (s 83). The Fines Act 1996 applies to penalty notices (s 89). The Privacy and Personal Information Protection Act 1998 is disapplied for good-faith disclosures under information-sharing arrangements with the Commissioner of Police (s 95(1A)). Spent convictions may be disclosed for licensing purposes despite the Criminal Records Act 1991 (s 96).

The Act does not apply to Crown tow trucks except where persons contract with the Crown (s 6), nor to the listed specialist vehicles in s 6A. It prevails over inconsistent regulations made under other Acts in respect of tow-truck design and construction (s 55(2)). Contracting out is void (s 103).

The statute has been amended on more than 20 occasions since 1998. The Tow Truck Industry Amendment Act 2007 (No 54) substituted Part 2 (now repealed), introduced new mandatory refusal grounds based on criminal organisations, abolished the Tow Truck Authority and transferred functions to the (then) Roads and Traffic Authority, and expanded towing authorisation rules. These changes responded to concerns about organised-crime infiltration of the industry and the need for a single regulator.

The Tow Truck Industry Amendment Act 2008 (No 83) introduced 3- and 5-year licence and certificate terms (ss 22, 31), lengthened the mandatory conviction look-back period, added consumer-protection conditions on holding yards and owner access (s 20(2)(d1)–(d2)), prohibited charging for unperformed work, and tightened touting and repair-authority rules (ss 62–63A). The stated purpose was to reduce administrative burden on compliant operators while strengthening protections for vehicle owners and suppressing “ambulance chasing”.

Amendments in 2012 and 2009 (via the Criminal Organisations Legislation Amendment Act 2009) inserted and refined the criminal-intelligence and declared-organisation provisions (ss 18(2)(d)–(e), 26(2)(e)–(f), 42(2)), reflecting a broader government policy of disrupting outlaw motorcycle gangs and other criminal groups from legitimate industries.

The Fair Trading Legislation Amendment (Reform) Act 2018 (No 65) transferred licensing functions to the Secretary of the Department of Customer Service, introduced restoration applications (s 40A), updated exemption provisions (s 33A), aligned penalty-notice procedures with the Fines Act 1996, and made minor drafting improvements. These changes were part of a wider regulatory reform package aimed at reducing red tape while maintaining consumer safeguards.

The Better Regulation and Customer Service Legislation Amendment (Bushfire Relief) Act 2020 (No 3) inserted a power for the Secretary to waive, reduce, postpone or refund fees on grounds of financial hardship or special circumstances (reflected in s 105(2)(q) and transitional provisions). This was a temporary COVID- and bushfire-related relief measure but remains on the statute book.

Amendments in 2024 and 2025 (notably 2024 No 53 and 2025 No 17) adjusted term-of-licence criteria, restored certain mutual-recognition provisions, and made minor updates to definitions and delegations. Overall, the trend has been toward longer licensing periods for low-risk operators, tighter criminal-association controls, enhanced consumer rights in respect of storage and fees, and greater flexibility in fee relief and exemptions, all while preserving the core licensing and accident-scene controls introduced in 1998.

Because the Act channels most disputes into the Civil and Administrative Tribunal rather than the courts, reported superior-court litigation is limited. Tribunal decisions have nevertheless tested key provisions. Refusals based on criminal intelligence have generated procedural controversy; the closed-hearing requirement in s 45(1A) has been upheld as a proportionate response to the need to protect police sources, consistent with the Crimes (Criminal Organisations Control) Act 2012 scheme. Applicants have argued that the non-disclosure of reasons breaches procedural fairness, but the Tribunal has ruled that the statutory limit on disclosure displaces the common-law duty to the extent of the criminal-intelligence material.

Fitness and propriety findings under ss 18(3)(a) and 26(3)(a) have been litigated on the basis that past minor convictions or regulatory breaches should not automatically preclude licensure once the 10-year period has expired. The Tribunal has emphasised that the public-interest discretion remains available and that the Act’s protective purpose justifies a broad reading of “fit and proper”.

Touting and solicitation offences under ss 63 and 63A have produced arguments about the precise meaning of “within 500 metres of the scene”. Courts and the Tribunal have construed the distance as measured from the outermost point of the accident site itself, not from where vehicles come to rest after being moved, consistent with the definition of “scene of an accident” in s 3(1).

Challenges to disciplinary action under s 41 have tested whether the Secretary may act on the same facts that are the subject of pending criminal charges. Section 41(6) expressly permits this, and the Tribunal has refused stays where public safety is engaged.

Controversies in the industry have centred on allegations that some operators use “spotters” despite s 61, that storage fees are sometimes inflated beyond regulatory maxima, and that certain holding yards are located at distances that inconvenience owners. The 10 km holding-yard rule (ss 17(2)(c1), 20(2)(c1)) has been criticised as arbitrary in rural areas; the Secretary’s discretion to approve greater distances has mitigated but not eliminated complaints.

No High Court or Court of Appeal decision has struck down any provision as constitutionally invalid. The mutual-recognition provisions in s 8 have operated without reported constitutional challenge, reflecting the settled jurisprudence on the Mutual Recognition Act 1992 (Cth).

Most practitioners assume that a clean criminal record automatically qualifies an applicant; however, s 18(3)(a) and (5) permit refusal on fitness grounds even where no prescribed conviction exists, and close-associate convictions can infect the applicant (s 18(3)(i)). The 10-year look-back is measured from the date of conviction or finding of guilt, not from the date of the offence or release from custody.

The criminal-intelligence provisions in ss 18(2)(e), 26(2)(f) and 42(2) operate on “reasonable grounds to believe from information provided by the Commissioner of Police”. Because reasons may be withheld (ss 18(6), 26(3A), 43(2A)) and Tribunal hearings are closed, an applicant may never learn the precise basis of refusal. This creates a practical barrier to meaningful challenge.

Section 20(2)(d1) is frequently misunderstood. Owners are entitled to remove their vehicle only after paying fees charged “in accordance with the regulations”. If the licensee has charged an unregulated or prohibited fee, the owner may lawfully refuse payment, yet many storage contracts purport to create a lien for higher amounts. The statutory condition overrides any contractual term to the contrary (s 103).

The “within 500 metres” touting prohibition (s 63) applies regardless of whether the driver has already obtained a towing authorisation for another vehicle at the same scene. The exception in s 63(2) is narrow and does not permit general solicitation once any authorisation has been granted.

Renewal applications for 3- or 5-year licences or certificates are barred if the applicant or any close associate is under investigation or has been subject to prescribed disciplinary action in the preceding 5 years (ss 22(2), 31(2)). The definitions of “prescribed conduct” and “prescribed disciplinary action” in those sections are circular and self-referential; conduct that would justify refusal or suspension is itself a bar to the longer term. Practitioners must therefore advise clients that even an unresolved complaint can disqualify them from a multi-year licence.

The automatic revocation of a drivers certificate upon cancellation or suspension of the underlying driver licence (s 32) is often overlooked. A traffic infringement that leads to licence suspension instantly removes the driver’s authority to operate a tow truck, even if the tow-truck certificate has months remaining.

Finally, the obligation to notify changes in close-associate particulars “as soon as practicable” (ss 20(2)(i2), 29(2)(b3)) is stricter than the 7-day pre-change notification for other particulars (s 37). Failure to notify a new business partner or financier can trigger disciplinary action under s 42(1)(g) or (d).

Compliance begins with accurate licensing. An operator must lodge an approved-form application disclosing every close associate (s 5), the precise place of business, all intended holding yards (none more than 10 km distant unless approved), the number and registration details of tow trucks, and proof that the applicant is the responsible person under the Road Transport Act (s 17). Qualifications and training prescribed by regulation must be completed. Once granted, the licence must be kept at the place of business and a copy carried in each truck (s 20(2)(j)–(k)). Distinctive number-plates issued under s 57 must be displayed.

Daily operations require a towing authorisation before any accident towing work (s 49). The authorisation must be completed in accordance with the regulations, specifying the destination, and the vehicle must be towed there or to the nearest licensed holding yard if the destination is inaccessible (s 51). No additional towing authorisation may be obtained while an earlier one remains current (s 49A). Drivers must not solicit within 500 m of the scene except in accordance with the statutory exceptions (s 63), must clean up debris (s 65), obey all lawful directions (s 66), restrict passengers (s 67) and wear their certificate visibly (s 69).

Fee compliance is critical. Only fees fixed or permitted by regulation may be charged; charging for work not performed is prohibited (ss 20(2)(h)–(i), 29(2)(b)–(b1)). Owners must be allowed free access during business hours to retrieve personal items and may remove the vehicle upon payment of compliant fees (s 20(2)(d1)). Vehicles must not be removed for repair without owner consent (s 20(2)(d2)).

Record-keeping obligations are onerous. Licensees who authorise accident towing must record driver details, dates, passengers, accident locations, authorisation numbers, destinations and registration numbers for each use of a licensed tow truck (s 60). Records must be kept at the place of business for 5 years and produced on demand (s 60(4)–(6)). Changes in licence particulars, insurance or close associates must be notified as soon as practicable or within 28 days of Secretary notice for longer-term licences (s 20(2)(i1)–(i2)).

Holding yards must be suitable, listed on the licence, and maintained at the required distance. The licensee must ensure that tow trucks and equipment comply with all design, construction and road-transport standards (s 20(2)(f)).

To avoid disciplinary action, operators and drivers must not supply false information (s 36), must avoid any conduct that would have justified refusal (s 42(1)(a)), and must not associate with declared organisations in circumstances that suggest furtherance of criminal activity (s 42(2)). Bankruptcy, winding-up or cessation of business for one month are independent grounds for action (s 42(1)(i)–(k)).

Regular self-audits are advisable. Licensees should maintain a register of close associates and update it whenever a new director, financier or manager is introduced. Insurance particulars must be current. Drivers should carry both their drivers certificate and a copy of the operator’s licence at all times.

When an application is refused on criminal-intelligence grounds, the only practical recourse is Tribunal review conducted in closed session; legal advice should be obtained on whether to seek redacted reasons or to challenge the use of the intelligence at all.

Finally, all staff should be trained on the 500-metre rule, passenger restrictions, debris-clean-up obligations and the absolute prohibition on repair inducements. A single breach by an employee can expose the licensee to disciplinary sanction and can result in personal liability for the driver. Compliance is not a set-and-forget exercise; the Act’s continuing-notification and record-retention requirements, combined with the Secretary’s audit and inquiry powers, make ongoing vigilance essential.