Relevant decisions
13The objective seriousness of the charges brought against the Applicant is the reason for the Respondent's decision to suspend his authority. In considering a review of a decision to suspend a driver authority, the Tribunal is not to examine the strengths or weaknesses of the prosecution case against an authority holder: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [22].
14The approach to be adopted by the Tribunal in considering a review of a decision to suspend a driver authority was considered most recently by the Appeal Panel in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (" AIC "). In that matter the Director General had suspended AIC's taxi driver authority after being informed that he had been charged with two counts of indecent assault of a child under the age of ten. The conduct was said to have occurred in 1999. At hearing the Tribunal set aside the suspension decision. The Director General successfully appealed the Tribunal's decision.
15The Appeal Panel in AIC considered the provisions of section 33 of the Act. Section 33 is applicable to authorities to drive taxi-cabs but is otherwise in similar terms to section 11 of the Act. Section 33 of the Act provides:
"33 Authorities
...
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver.
Maximum penalty: 100 penalty units.
(3) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:
(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and
(ii) in accordance with law and custom."
16In regard to the construction of section 33(3) of the Act the Appeal Panel stated:
"12 The first point to n ote is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' ( Macquarie Dictionary, 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present conte xt.
13 As we see it paragraph (a) focuses on general characteristics of the driver relevant to the regulated function, paragraph (b) focuses on maturity and technical competence. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28][29]).
14 Different l icensing schemes use variations on this language, for example 'good fame and character'; sometimes the term 'fit and proper' only is used. Sometimes there are specific references to such matters as 'honesty', 'integrity' and 'competence'.
15 As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds.
16 In the regulatory context, the exercise of the power of suspension is in fact intended to have a temporary effect. Meaning no 3 in the Macquarie Dictionary (4th ed. 2005) reflects this understanding, i.e. 'temporary abrogation of a law or privilege'; similarly the Australian Concise Oxford Dictionary (3rd ed. 1997) 'suspend' 'debar temporarily from a function, office or privilege'.
17 The power is a usual part of accreditation and licensing schemes. It is a disciplinary power. Disciplina ry powers have as their object protection of the public.
18 The power to suspend an occupational accreditation, licence or authority is used by regulators in, at least, two contexts. One is as a disciplinary sanction for misconduct that lies at a level of seriousness that warrants a more severe penalty than, say, a fine or imposition of conditions. Used in this way, it is often imposed for a relatively short period, say 3 months. It is a form of final order.
19 The other is where information comes to light about a licensee's conduct that is seen as throwing into question their suitability to continue to use the licence pending further inquiry or investigation of the matters of concern. This is the use made of it in the present case. In these circumstances it is being used for the protection of the public until more is known.
20 In either case, the effect of a suspension may be very harmful to the individual financially. There is also the humiliation and damage to public reputation that may follow."
17The Appeal Panel in AIC revisited the question of the extent to which the Tribunal is to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person and of good repute. In doing so it considered a number of relevant decisions including Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 (" Murray ") and Nasour v DirectorGeneral, Transport NSW [2011] NSWADT 9 (" Nasour ").
18In Murray the Appeal Panel reviewed various authorities and concluded:
"When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson , to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public".
19Murray was the subject of comment by the Tribunal's President in Nasour. The President stated at paragraphs [30] - [34]:
30 In [ Farquharson ] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
31 The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
32 However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
33 A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
34 A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
20In an earlier Appeal Panel decision in Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel observed at paragraph [38]:
38 Good Repute : The approach to be adopted in considering good repute' is well explained by Waddell J in Re T [ Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392]. ... Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the `good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
21The Appeal Panel in AIC noted at paragraphs [39] - [40]:
39 The exercise of power under s 33F forms part of a statutory scheme in which the reasonable expectations of the community for safe transport services has a central place. The power of suspension can not, as we see it, be divorced in the administration of the NSW Act from the underlying goals of passenger transport regulation, in particular, the object found in s 3 of the Act:
(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services,
40 Objective (e) refers, as we see it, to the perspective reflected in the approach adopted in Farquharson . In our view, the public safety objective of passenger transport regulation remains one of relevance to the exercise of suspension powers. Protection of the public and the broader public interest may justify the exercise of the power of suspension.
22The Appeal Panel in AIC contrasted the provisions of the Act with those considered in the recent Victorian Court of Appeal decision, Director of Public Transport v XFJ [2011] VSCA 302 (" XFJ "). There the administrator of taxi driver licensing refused a licence application from a person who in all respects satisfied the eligibility criteria on the ground that the fact that he once killed a person (he was acquitted of murder by reason of insanity) meant that he should not be granted a licence. The Court of Appeal upheld the review tribunal's decision to overturn the administrator's decision and grant the licence. The Appeal Panel observed:
35 We note that the Victorian taxi driver accreditation scheme is more variegated and complex than the NSW scheme: see Part VI of the Transport (Compliance and Miscellaneous) Act 1983 (Vic). It deals in greater detail with eligibility matters, and importantly it has mandatory interim suspension provisions in relation to certain categories of charges for serious offences: see paragraph 169K(2)(a) of the Victorian Act. The decision in XFJ must therefore be approached and applied with care in considering the operation of the NSW scheme.
23The Appeal Panel also considered that a clear distinction must be drawn between the exercise of the power of suspension and the exercise of final powers such as refusals of applications or cancellations. It observed at paragraphs [41] - [49]:
"41 In this case the alleged offences were ones that, if made out, involved a fundamental violation of the trust of a child. Even though the fact sheets placed the events in a domestic context unrelated to taxi driving, clearly they went to circumstances involving mutual trust, and to a situation that drivers will sometimes be in, being alone with a vulnerable person such as a child, a person with disabilities or a frail aged person.
42 While the person facing the charges may have an otherwise impeccable life history, charges of this kind will ordinarily, we think, be seen as requiring immediate action to protect the public pending their resolution.
...
44 The reality of high volume licensing schemes is that an application for a licence is normally processed favourably if the relevant particulars are in order and nothing is revealed by criminal record checks. The approach is a beneficial one from the point of view of applicants. If the applicant meets the skills and competency requirements, the only issue that remains is that of his intrinsic personal and moral characteristics as relevant to the licence. The truth is that nothing is usually known to the administrator in any meaningful sense about the person's probity and character.
45 The laying of a serious criminal charge, especially one suggesting exploitation of an immediate relationship with a vulnerable person, will therefore frequently be the first time anything adverse of relevance becomes known about a driver. In these circumstances it would be normal, we think, for a conscientious administrator to have regard to the function of public protection served by the power of suspension. The administrator would ordinarily give the licensee an opportunity to be heard before acting. But in cases such as the present the position is more difficult. The duty to advise of the criminal charge was not carried out. Had that occurred there may have been an opportunity to be heard. If there is no report and the administrator learns of the charge from another source (such as from data matching outputs), he or she may decide to act peremptorily. In cases like this, often the first interchange takes place at the steps of the Tribunal.
...
48 In cases where a suspension is being considered pending finalisation of charges the administrator, and the Tribunal, should, we think, have regard to all that is known to date about the applicant's repute, fitness and propriety, take into account the view it might form on that matter if the charges are proven, and assess the degree of risk to the public that is involved in leaving the driver on the road pending disposal of the charges. It should also take note of the personal hardship that might be caused to the driver. But the ultimate determinant is the public interest.
49 It is noteworthy that in the case of Commissioner for Motor Transport v Leo , BC 8600704 (10 September 1986, McInerney J), upon which the decision in Farquharson drew, the passenger transport law of the time squarely referred to the public interest as a criterion for the exercise of the power of suspension (see Transport (Public Vehicles) Regulations 1930, cl 19(1)(5)(b) 'The Commissioner may suspend for such period as he thinks fit any licence held by any person ... (b) if, having regard to any of the matters referred to in CL(1), the Commissioner considers such action desirable in the public interest'.) The Tribunal's interim order power does the same (ADT Act s 60(3)). In our view, the omission of an express reference to the public interest in s 33F does not preclude the administrator from taking the public interest into account. In our view the public interest is relevant to any exercise of a power of suspension of a general kind in a licensing scheme."