NZTA takes aim at illegal Uber drivers but stays mum about 'aiding and abetting' legal advice

The app based taxi service Uber is at loggerheads with the NZTA after it began to allow its drivers to operate without a "P" endorsement in New Zealand. Above, Uber's San Francisco headquarters. Photo / AP

NZTA has sought legal advice over whether it can prosecute Uber for flouting New Zealand laws, and is targeting drivers without the correct licences.

The app based taxi service is at loggerheads with Crown agency NZTA after it began, in March, to allow its divers to operate without a passenger, or "P" endorsement - a legal requirement for small passenger vehicle drivers, including taxi and Uber drivers.

The endorsement requires police vetting and checks on past and pending convictions in New Zealand and overseas.

The Government says the endorsement system is "fundamental" to ensuring passenger safety, but Uber calls the process cumbersome, costly, unsustainable and unnecessary.

Documents obtained by the Weekend Herald show that NZTA requested legal advice in May over its ability to include the company as a second party for aiding and abetting offending in the case of prosecutions taken against Uber drivers operating without the endorsements.

When questioned this week, the agency would not expand on what advice was given, citing legal privilege, but Fortune Manning transport law expert Shafraz Khan said there was no way Uber allowing its drivers to operate without the endorsements was lawful.

"I see no reason why NZTA could not prosecute Uber as a second party to a driver infringement, as they are facilitating the drivers' work without the proper licences," Khan said.

Though Uber drivers were self-employed contractors, it did not absolve the company of responsibility, he said.

Uber did not respond to questions about whether they too had sought legal advice on the matter.

In a report to associate minister of transport Craig Foss on May 9, NZTA access and use manager Celia Patrick said the agency was investigating "potential breaches of the law with a primary focus on [Uber] drivers with a criminal or medical history of concern and complaints received."

"A number of these investigations have already resulted in compliance action including formal warnings and breach notices," Patrick said.

The agency was also taking "enforcement action" against Uber drivers without P endorsements, and investigating any complaints received.

On May 16, Patrick told the minister "we also expect to receive final legal advice on our ability to include Uber as a second party for aiding and abetting offending in the event of prosecution taken against Uber drivers."

Between March 31 and September 23, NZTA sent out 2703 warning letters to prospective Uber drivers, issued 118 formal warnings, 141 infringement notices and ordered 29 drivers off the road.

According to the document, police have undertaken an "Uber operation" at Auckland airport and NZTA was targeting "suspected Uber drivers with high-risk factors such as failed medical or fit and proper checks or suspended or revoked P endorsements."

An Uber spokesman told the Herald that the screening process for its drivers included a criminal background and driving history check.

And unlike NZTA, Uber did not allow anyone with a history of driving under the influence, dangerous or careless driving on the platform - though their conviction checks do not extend outside of New Zealand, and the Clean Slate scheme can clear some convictions older than seven years.

"The Transport Minister has clearly stated that a screening process isn't a panacea for safety - technology and apps now help ensure safety before, during and after a ride in ways that have never been possible before," the spokesman said.

Under the P endorsement system, a driver with a historical conviction - which could include a careless driving conviction, even one that causes injury or death - could still obtain an endorsement, if they had gone on to demonstrate many years of driving without offending, an NZTA spokesman said.