Government's lack of apparent action against Uber
Lack of apparent action against Uber for facilitating partner/drivers to break New Zealand Law
My name is Justin Courtier Le Grice. I am currently working through the regulatory process to be a fully licenced Small Passenger Service Vehicle operator with the intention of driving for hire using the Uber, Zoomy and other smartphone app based Driving for Hire services. This process has taken me some six months so far and about $2000 in various fees.
I began this process in the beginning of April 2016 with a visit to the offices of Uber in Parnell, Auckland. I had been attracted by their promises of $30 per hour and being able to work whenever it suited me. As part of gathering information, tips and trick for driving for Uber I joined a couple of Facebook groups.
A couple of weeks after my visit to Uber they unilaterally and with no notice, decreased their per km rate from $1.80 to $1.35 and their minimum fare from $6 to $5. At the same time Uber dropped their requirements for people accessing the platform from the legally required P Endorsement, Passenger Service Licence, Certificate of Fitness and Commercial Vehicle Insurance to simply having a two year old full Class 1 Drivers Licence, Warrant of Fitness and 3rd Party Personal Motor Vehicle Insurance.
The reaction to these changes on the Facebook groups was immediate and angry. Such was the anger there were calls for meetings of drivers and some even suggested going on strike. Even though I was in no position to drive as I did not yet have the licences to begin I attended a meeting held on the steps of the Auckland War Memorial Museum. It was from this meeting that the formation of what is now the New Zealand Uber Driver Association began. As someone who had a vested interest in what was happening I joined this group and am currently a committee member and primarily responsible for their website.
As I have progressed through my P Endorsement, Passenger Service Licence and come to know the requirements for my vehicle to have a Certificate of Fitness I have become quite disappointed by the regulatory authorities tendency to go for the “lowest hanging fruit”, being the drivers, as far as enforcement of these laws and regulations. There seems to be a reluctance from the New Zealand Transport Agency and the New Zealand Government to fulfil the roles they are charged with, namely enforce our laws as they stand.
At one stage in the past I was considering a career in law and started first year law at Auckland University. While I never went on to complete this, it did give me an appreciation and the knowledge of how to actually locate specific laws and read Acts of Parliament, so I undertook some basic research on the laws around the issues concerning driver licencing.
In my research I have found that Uber has, on the face of it, committed multiple offences under the Crimes Act 1961, specifically Part 4, Section 66, 1 and 2. And I quote from the legislation;
Part 4 Parties to the commission of offences
66 Parties to offences
(1) Every one is a party to and guilty of an offence who—
(a) actually commits the offence; or
(b) does or omits an act for the purpose of aiding any person to commit the offence; or
(c) abets any person in the commission of the offence; or
(d) incites, counsels, or procures any person to commit the offence.
(2) Where 2 or more persons form a common intention to prosecute any unlawful purpose, and to assist each other therein, each of them is a party to every offence committed by any one of them in the prosecution of the common purpose if the commission of that offence was known to be a probable consequence of the prosecution of the common purpose.
By facilitating drivers to “drive for hire” without the required licences Uber is clearly “abetting” and “inciting, counselling or procuring” an offence under the Transport Act in relation to driver licencing requirements.
So my question now becomes, Why is the Government of New Zealand not using these provisions to prosecute Uber? Surely a simple subpoena for Uber’s driver records, and then matched against NZTA’s P Endorsement records will allow the enforcement agencies to build a case for prosecution under the Crimes Act.
As part of the New Zealand Uber Drivers Association we have drivers who are coming to us with all sorts of issues and problems with Uber, but one in particular has really stood out for me. We have been told of at least one driver that is driving in breach of their visa, quite which type of visa we are not certain, but believe it to be a student visa. Now I have no direct proof of this, but the source is credible.
Given this scenario I then went looking under the Immigration Act 2009 for the powers of Immigration New Zealand to require companies to hand over records where offences may be suspected. I note that under the Immigration Act Section 343, specifically (1)(d) where a person “aids, abets, incites, counsels, or procures any other person to be or to remain unlawfully in New Zealand or to breach any condition of a visa granted to the other person under this Act” commits an offence and would seem to be grounds under Section 277 to require Uber to hand over their driver records for evidence of such offending.
I have initiated a request to Uber as to whether they are checking applicants for their entitlement to work in New Zealand. At this stage I have not received any more than a robo-reply from them and await a proper response from them. But from what I have seen and been through myself, they are not specifically checking for work entitlements.
Now I’ll be honest here and declare my self interest in pursuing this, I want to get illegal drivers off the road so there is more business for the legal drivers. Legal drivers incur costs that illegal drivers do not and makes it harder for legal drivers to earn living. But having said that there is a bigger issue here and that is the curtailing of multinational companies to flagrantly breach New Zealand law.
I have also looked at the way Uber was operating, particularly in respect to their blatant “thumbing of the nose” to New Zealand law. Uber continues to say to drivers that have been issued with infringement notices, “it’s OK we’ll pay the fine so keep on driving”. So clearly the punitive measures of fines and demerit points are not having the intended effect of modifying driver behaviour. As an association we keep pointing out to those that ask that there are greater consequences than just the fine. We anticipate that such notices will have a marked effect on the driver at P Endorsement renewal time.
So to say that I am disappointed with the government and regulatory agencies response, or lack thereof, would be an understatement. I am angry that a multinational company has been allowed to operate in New Zealand in the manner they have with no real consequences, but yet undertake actions such as checkpoints that affect only the drivers. Drivers, many of whom are just trying to make ends meet, feed their families and eke out a living.
So what are you, as our duly elected and appointed representatives, going to do about this situation?
Justin C. Le Grice