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[2010] ACAT 85
ACT Civil and Administrative Tribunal
2011-02-25
Original judgment source is linked above.
Having considered your admission that you allowed a person that did not hold a taxi licence to drive a taxi and your police character check, I believe there are reasonable grounds for the RTA to find that you are not a suitable person to hold a public vehicle driver licence.
As a result I have decided to vary your full licence to cancel your taxi and omnibus driver licence under section 87(1)(c) of the Road transport (Driver Licensing Regulation 2000.
I propose to cancel your licence on 28 July 2010.
Four of these infringements notices were issued after the parties met on 20 May 2010 when the question of the Applicant's suitability to hold a public vehicle licence was discussed. Two fines have been paid and two had not been admitted at the time of the hearing.
Ms Katavic for the respondent argued that there were essentially three separate grounds for finding that the Applicant was not a suitable person to hold a public vehicle licence. She submitted that each ground was sufficient for a finding of unsuitability.
The first ground was the attempted deception of the Respondent in stating that TS was the driver of the taxi at the time of the infringements, when it was in fact the Applicant. Although the attempted deception was by way of a false statutory declaration the Tribunal accepts that he did not appreciate the gravity of making a false statutory declaration. The Applicant has learned English as an adult and so his limited understanding of the formal document is understandable.
The second ground was the Applicant's not insignificant criminal record between 1993 and 2007. The Applicant submitted that he was experiencing some difficult personal problems in the past when most of the offences were committed and that he had undertaken anger management counselling. He spent a number of years in refugee camps and came to Australia in 1987 as a humanitarian refugee.
The third ground was the Applicant's lengthy history of traffic infringements over a ten-year period, including some issued after the Applicant was put on notice that his suitability as a taxi driver was under investigation.
The Applicant submitted that as a taxi driver he was on the road for 12 hours a day and, while he accepted that he must obey the traffic laws, it was inevitable that from time to time those laws would be breached. The tribunal notes that the breaches average just under four a year. He also pointed out the hardship he and his two dependent children would suffer if he lost his public vehicle licence because taxi driving was the only occupation he was qualified to do.
Reliance was placed by the Respondent on Disallowable Instrument D12006-26. This is a set of Guidelines made under section 90A of the Regulations which empowers the Minister to approve guidelines about the exercise of the Respondent's functions, inter alia, to vary, suspend or cancel drivers' licences under section 87(3)(a) of the Regulations. The Guidelines deal with certain criminal offences relevant to the suitability of a person to hold a public vehicle licence. In this matter however the Respondent has cancelled the Applicant's taxi licence under section 87(1)(c) so that the Guidelines cannot be applied by force of the statute. However many of the matters in the Guidelines are relevant to the Respondent's decision under section 87(1)(c) of the Regulations and may properly be considered by the Respondent and this Tribunal.
Ms Katavic argued that under section 87(1)(c) of the Regulations hardship was not a relevant consideration. She quoted a number of authorities to support her position. In the principal authority, Director-General of Planning and Infrastructure v Nealon [2003] WASCA 161, Miller J held that hardship was not relevant. He said that express reference had been made to hardship in another section of the Road Traffic Act 1974 (WA) and if had been intended to be considered in the operative section an express reference would have been included. In the Regulations there is an express reference in section 47(2)(d) to unreasonable inconveniences or loss being relevant for the grant of a restricted licence but nothing similar in section 87(1)(c).
Rather than rely on this application of the maxim expressio unius est exclusio alterius which Professor Pearce suggests should be applied with caution (D.C.Pearce Statutory Interpretation in Australia 2nd Ed. 1981 Butterworths, Sydney) the Tribunal considers that when the criterion of not being a suitable person is examined it becomes clear that hardship is not a relevant criterion. A person who is not suitable to hold a taxi licence cannot be rendered suitable if the cancellation of the licence would cause hardship. These are quite different matters. In any event the Tribunal finds that the evidence before it is not sufficient to show that the Applicant would suffer hardship on the cancellation of his taxi licence.
In deciding if the Applicant is not a suitable person to hold a taxi licence the Tribunal must consider not only the misconduct of the Applicant but also those matters favourable to the Applicant. All of the relevant circumstances must be taken into account, including the nature of the offences, the time when they were committed and any rehabilitation efforts made. It is a value judgment by the decision-maker. In Maythisathit and Registrar of Motor Vehicles [1996] ALD 475 Curtis P proposed the following test:
One must put oneself, so far as is possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public knowing the applicant's criminal record and what he had done ... to rehabilitate himself would object to the applicant as the driver of the taxi.
That test related to whether Mr Maythisathit was a fit and proper person to hold a taxi licence. He had been convicted of a number of dishonesty offences but not imprisoned. Although the phrase is a different one the Tribunal believes that the test propounded by Curtis P is appropriate in deciding whether the Applicant is a suitable person to hold a taxi licence.
The Tribunal has taken into account the Applicant's position that because he is on the road 12 hours a day he is at a higher risk of being caught offending. It also accepts that there are no records of complaints being made against him and that he is solicitous of his passengers.
The Applicant's criminal record over 14 years affords the Tribunal considerable disquiet. In particular the offences against the person and the Applicant's periods of imprisonment lead the Tribunal to conclude that a member of the public, knowing of them, would object to the Applicant as the driver of a taxi in which they might travel.
The large number of infringement notices for traffic offences suggests that the Applicant seems to be unable to comply with his obligations to obey the rules of the road even after having been warned in May 2010 and having his licence suspended for accumulating demerit points in March 2009. This chronic inability to drive within the road rules would cause a member of the public to object to the Applicant as the driver of a taxi in which they might travel. The Applicant would not be a suitable person to hold a taxi licence.
The attempted deception of the Respondent by the making of a false statutory declaration is a serious matter. The Tribunal accepts that the Applicant did not apprehend the gravity of his actions. When confronted by the consequences of his actions he admitted his wrongdoing. In giving his evidence to the Tribunal he was frank and did not seek to excuse his actions. In applying the test enunciated by Curtis P the Tribunal takes the view that a member of the public, knowing the whole of the evidence, would not object to the Applicant as the driver of a taxi in which they might travel if this were the only basis for his unsuitability to hold a taxi licence.
26. The Tribunal affirms the decision under review.
RESPONDENT: Ms K. Katavic, ACT Government Solicitor
DATE/S OF HEARING: 12 October 2010 PLACE: CANBERRA
DATE/S OF DECISION: 1 December 2010 PLACE: CANBERRA
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
Department of Transport and Infrastructure
Murray
Perceptions of the travelling public 9The basis for the Department's submission that the Tribunal should have determined Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public was a decision of this Tribunal in Farquharson v Department of Transport [1999] NSWADT 53. In that case, the Department had suspended Mr Farquharson's taxi driver authority when he was on bail pending trial for charges of soliciting to murder. The Tribunal affirmed the Department's decision expressing the view that a passenger was likely to be concerned to know that the driver of their taxi is facing trial on a charge of soliciting to murder. The Tribunal stated that: 36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public . A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. (our emphasis) 10The Tribunal then noted that: 37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 11The test this Tribunal formulated in Farquharson was not identical to that formulated by the ACT Administrative Appeals Tribunal in Maythisathit. In Farquharson the Tribunal said that the Tribunal must take account of the likely perceptions of the travelling public as one of the relevant factors in making its determination. In Maythisathit Curtis P was suggesting that all the relevant circumstances be viewed through the eyes of a member of the travelling public. That test has been applied in at least three subsequent decisions of the ACT Administrative Appeals Tribunal: Forbes and Road Transport Authority [2004] ACTAAT 38; Voelker and Road Transport Authority [2006] ACTAAT 4 and Turk and Territory and Municipal Services [2010] ACAT 85. The test formulated in Farquharson has been applied routinely by this Tribunal. 12Neither the approach in Farquharson nor that in Maythisathit has been applied by the courts. In fact, those approaches are contrary to the tests applied in similar circumstances by the Supreme Court, the Federal Court and the High Court. 13The Supreme Court has examined another similar test for suitability to engage in various occupations or professions, that is, that the applicant be of 'good fame and character'. In Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2006] NSWSC 1338 at [56] Johnson J made it clear that the assessment of character is an objective evaluation which might conflict with what the general public thinks: Whilst there is a certain overlapping of the two terms 'fame' and 'character', there is a distinction. Fame involves being known, favourably, by a large section of the public, whilst character is directed to a more objective evaluation which might conflict with what the general public thinks": Clearihan v Registrar of Motor Vehicle Dealers in the ACT (1994) 122 ACTR 25 at 29 (Miles CJ) 14The decision was affirmed on appeal: Jackson (previously known as Subramaniam) v Legal Practitioners Admission Board [2007] NSWCA 289. 15In coming to its conclusion that a person's character requires an objective evaluation and is not necessarily what the general public thinks, Johnson J relied on a 1994 decision of the Supreme Court of the ACT: Clearihan v Registrar of Motor Vehicle Dealers in the Australian Capital Territory (1994) 122 ACTR 25 at 29. The ACT Supreme Court decision was an appeal from a decision of the ACT Administrative Appeals Tribunal. Significantly, the proposition in Clearihan which was adopted by the NSW Supreme Court in Jackson is inconsistent with the formulation in Maythisathit which was a later first instance decision of the ACT Administrative Appeals Tribunal. Maythisathit was the decision to which this Tribunal referred in Farquharson v Department of Transport [1999] NSWADT 53. 16The meaning of the phrase "fit and proper person" was the subject of consideration by the High Court in litigation between Alan Bond and the Australian Broadcasting Tribunal: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The ABT was required to refuse a licence if it was not satisfied that the applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. (our emphasis) 17In the same case, Mason CJ stated at [63] that: The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker . So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. (our emphasis) 18While the seriousness of the conduct is a matter for evaluation by the decision maker, the question of whether it can be assumed that the conduct will not recur is a matter which is to be viewed through the eyes of the general community. 19The Federal Court applied the decision in Bond in relation to the meaning of 'fit and proper person' when it upheld a decision of the Administrative Appeals Tribunal relating to taxation agents: Toohey v Tax Agents' Board of Victoria (No 3) [2010] FCA 356 at [46-47]; Toohey and Tax Agents' Board [2008] AATA 262. Middleton J held at [37] that "determining whether a person is the prescribed fit and proper person involves an evaluation of character and reputation." At first instance the AAT decided that the public as a general body would not have confidence in the conduct not occurring again (at [156-160]). The Federal Court reiterated that the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur.
The seriousness of the offence 21The second ground of appeal on a question of law was said to be that the Tribunal erred by finding that Mr Murray had sufficient responsibility to drive a private hire vehicle in circumstances where he downplayed the seriousness of his conviction on the application for authorisation. The Tribunal dealt with this issue in its reasons: Murray v Department of Transport and Infrastructure [2010] NSWADT 295 at [15]. This ground of appeal does not identify a question of law.
[2008] AATA 262
(1990) 170 CLR 321