After various media reports of tow truck operators engaging in unscrupulous practices, the Queensland government has announced a three-month inquiry into the tow truck industry to be headed by retired District Court Judge Michael Forde.The investigation will advise the Minister for Main Roads and Road Safety on various matters, including whether:
- fees and charges for towing and storage should be regulated and in what manner; and
- existing licensing and accreditation schemes could be expanded to cover the practice of removing parked vehicles from private car parks and private roads accessible to the public.
In light of this development, we explore the current legislative requirements with which Queensland tow truck operators must comply.
What legislation regulates the tow industry in Queensland?
In Queensland the tow industry is regulated by the Tow Truck Act 1973 (Qld), the Tow Truck Regulation 2009 (Qld), the Transport Operations (Road Use Management—Vehicle Standards and Safety) Regulation 2010 and the Transport Operations (Road Use Management—Vehicle Registration) Regulation 2010.
The Tow Truck Act 1973 provides that certain tow truck operators must hold an appropriate licence and driver's certificate and keep prescribed records.
The licensing scheme applies across most of south-east Queensland, and in major coastal cities.
Does this legislation apply to operations on private property?
Towing from private property is not covered by the current Tow Truck Act. This is because the definition of 'tow truck' under the Act is limited to vehicles that are used for towing vehicles damaged in an incident or seized by a police officer.
What are the obligations of a licence holder under the Tow Truck Act?
A licenced operator is subject to a significant number of conditions including the following:
- Any tow truck and associated equipment must comply with relevant legislation including legislation that limits hours of driving.
- Tow trucks must be inspected as required under the Transport Operations (Road Use Management) Act 1995.
- A tow truck cannot tow a damaged vehicle or seize a vehicle on a road without the consent of the owner.
- A tow truck driver cannot obtain or attempt to obtain a signature on a towing authority form unless the name and address of the business or place the vehicle is being taken to is on that form.
- All reasonable precautions must be taken by the licence holder to prevent loss from, or damage to, a damaged or seized motor vehicle while being towed.
- An inventory of movable property (including any radio or sound production device) in any damaged or seized vehicle must be prepared.
- The licence holder may not refuse a request to deliver the motor vehicle to the registered owner once they have paid reasonable charges for the towing and storing of the motor vehicle.
- A tow truck driver cannot unnecessarily permit the tow truck to stand upon a road so as to cause an obstruction or to stand at the scene for a period longer than would reasonably be required to obtain a towing.
In addition, section 12(2) of the Act provides that the licence holder must not 'charge a sum other than a reasonable sum for the towing, salvage or storage of a motor vehicle'. The Tow Truck Regulation prescribes certain maximum fees for standard towing operations associated with vehicles involved in incidents.
What other behaviour is forbidden under the Act?
Section 20 of the Tow Truck Regulation provides that a licensed operator must not, at any scene:
- cause or threaten wilful injury to a person;
- cause or threaten wilful damage to a person's property;
- intimidate or harass a person;
- abuse or insult a person;
- prejudice the delivery of first aid or medical treatment to a person who is receiving, or needs to receive, first aid or medical treatment; or
- obtain, or attempt to obtain, the signature of an owner of a motor vehicle involved in the incident, or the owner's agent, on a towing authority, if the owner or agent appears unable to make an informed decision about whether or not to sign the towing authority.
Under the Tow Truck Regulation:
- the most direct route must be used to tow a motor vehicle from a scene to the holding area;
- no charge can be imposed on an owner of a stored vehicle for viewing that vehicle in business hours; and
- no charge for storage of a motor vehicle can be imposed unless the owner of the motor is given written notice.
When can a licence be revoked?
Section 21A of the Tow Truck Act provides for the cancellation or suspension of a licence in certain circumstances, including if the licensee:
- is convicted of an offence against the Act;
- is charged with or convicted of certain offences;
- has given false or misleading information to an authorised officer; or
- in the opinion of the Chief Executive, is no longer an appropriate person to hold a licence.
May a tow truck operator refuse to release a vehicle unless and until it has been paid towing fees?
Currently, neither the Tow Truck Act nor the regulations make any provision for a lien or statutory right to refuse to release a vehicle until towing charges have been paid.
Section 35 of the Tow Truck Regulation provides that:
- Subsection (3) applies if—
- a motor vehicle is stored in the holding yard of the holder of a licence or towing permit; and
- the owner of the motor vehicle, or the owner's agent, asks the holder to release the motor vehicle.
- The holder must release the motor vehicle as soon as is practicable but no longer than 4 business hours after the request by towing or moving the motor vehicle to an accessible position at the entrance of the holding yard.
There is no Queensland case that specifically deals with any common law right of a tow truck operator to retain possession of a vehicle until its towing charges are paid. In 2009, the NSW Court of Appeal in Stapley v Towing Masters Pty Ltd  NSWCA 382 found that a tow truck operator:
- did not have a 'repairer's lien' or 'workman's lien' over a vehicle it had towed; and
- was not a common carrier and therefore did not have a particular lien at common law on this basis.
Therefore, a Queensland tow truck operator may not be entitled to refuse to release a vehicle on the basis that it has not been paid its towing fees.
Cooper Grace Ward is a leading Australian law firm based in Brisbane.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please contact Cooper Grace Ward Lawyers.