Victorian Civil and Administrative Tribunal|2010-04-06

FC v Director of Public Transport (Occupational and Business Regulation) [2010] VCAT 437 (6 April 2010)

Occupational & Business Regulation List; Application for issue of drivers accreditation despite conviction of Category 1 offence; Transport Act 1983 Sections 164, 165, 169 and 169N.

FC v Director of Public Transport (Occupational and Business Regulation) [2010] VCAT 437

The respondent is directed pursuant to Section 169N(2)(a) of the Transport Act 1983 to issue a driver accreditation to the applicant for a commercial passenger vehicle/private bus.

Section 165 of the Transport Act 1983 prohibits a person from driving a commercial passenger vehicle without the necessary accreditation. A passenger bus is within the definition of 'commercial passenger vehicle' under the Transport Act. In this case, Mr F C seeks accreditation to be a bus driver. In accordance with the Transport Act 1983 he made an application for accreditation to the respondent, Director of Transport.
In accordance with the requirements of the statute the Director enquired as to Mr F C's antecedents. In his application Mr F C disclosed a number of criminal offences. One of those offences was the offence of threatening to kill. That offence is, under the terms of Transport Act a Category 1 offence. Section 169(2) of the Transport Act 1983 provides that the Director must not issue an accreditation if the Director is aware that the applicant for the accreditation has been found guilty of a Category 1 offence.
As a result of the information available to the Director, his delegate declined to issue the accreditation in obedience to the section to which I have just made reference. Section 169N of the Transport Act 1983 enables a person in Mr F C's situation to apply to this Tribunal seeking a direction that the Director issue a driver accreditation to him in accordance with Section 169N(2). This is the application which Mr F C makes. Before venturing further into the legislative thicket, it is necessary for me to say something about Mr F C's life history.
He is now aged 53 years and up to the year 2000 for some years, he served as an Officer of the Victoria Police. At that time Mr F C was a married man. He said that his wife worked shift work at a psychiatric hospital. Mr F C says that there was a culture of drinking in the Victoria Police and in the station where he carried out his duties in a provincial city. This combined with the stresses of his life as a husband and father of four, with the usual difficulties that such a life carries with it, led him to descend into alcoholism. To use his own words he ultimately 'hit the gutter'.
In the year 2000, for reasons which he says he finds difficult to explain but conceives must have derived from a sexual fetish, he stole an item or items of women's underwear from a clothes line. He was charged and sustained a finding of guilt for being unlawfully on the relevant premises. He was dismissed from the Victoria Police for disgraceful conduct.
In the year 2001, he was before the Magistrates Court pleading guilty to charges of theft, once again involving women's clothing, charges of assaulting police, charges of resisting police and making threats to kill. He was placed on a one year community based order with the following conditions, to submit for testing for alcohol/drug use as selected by the regional manager, to undergo assessment and treatment for alcohol/drug addiction or submit to medical/psychological/psychiatric assessment and treatment as directed by the regional manager, to be under the supervision of a Community Corrections Officer. There were further conditions that he abstain from alcohol abuse and adhere to the management plan formulated by the local Psychiatric Service. He was also required to participate in an assessment by the CORE Sex Offender Program and any treatment deemed appropriate.
He did attend an assessment for this sex offender program, but the matter seems to have gone no further. He received psychiatric assistance and completed his community based order. He says that from that date he has abstained from the use of alcohol.
It is necessary to say something more as to the matters that brought him to court in 2001. It seems clear that the officers that apprehended him were acting in proper pursuit of their duty, and yet on the summary that has been placed before me, Mr F C behaved in a truly disgraceful manner of which he says he is thoroughly ashamed. He used indecent language and assaulted the police officers involved. He says that in the course of these tumultuous events he received a beating, but made no complaint of it because he realised that as a disgraced former officer his word against the word of the other officers involved would carry no weight. Moreover as he rightly concedes, to a degree, he deserved what he got.
His other brushes with the law were speeding tickets in 1986 and in 2005. In the most recent matter in 2005 he was recorded travelling at 144kph on a road with a speed limit of 100kph. There was one other traffic incident which Ms Holt, on behalf of the respondent Director, sought to cross-examine Mr F C about. Mr F C took objection, saying it had been agreed prior to the hearing that this matter would not be the subject of any cross-examination. It was common ground that whatever it was that occurred on 13 May 2001, and which was the subject of court proceedings, Mr F C was acquitted. Ultimately, Ms Holt on behalf of the Director did not press the questions and so I know no more as to this matter than I have just indicated.
Mr F C has presented testimonials from two friends and associates who have known him for a number of years and speak very highly of the extent to which he has gotten his life back on track after the incidents of 1999 and 2001. They both speak of his life before 1999 as one of good citizenship and responsible conduct. They give him in his present state of life, an unqualified endorsement. Mr F C has also put before me a short letter from a consultant psychiatrist. The psychiatrist was not available to give evidence or to be cross-examined and Ms Holt on behalf of the respondent Director, has submitted that little or no weight should be given to the opinion expressed by the doctor in his letter. For what it is worth therefore, I note that the doctor says under the heading, 'Impression', 'nil the psychiatric issues' at this time. 'Plan to discussion' that 'nil obvious psychiatric contra indications for bus licence at this time'.
It is necessary now to return to what I have described as the legislative thicket. Subsection (3) of Section 169N of the Transport Act 1983 says:

(3) VCAT must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless-

there then follows some pre-named paragraphs with the third of them including a number of sub-paragraphs.

I turn to the first of those paragraphs which is designated (a), it reads:

(a) VCAT is satisfied of the matters set out in section 169(1)(b)

I turn therefore to that provision. Section 169 states inter alia:
1. Matters to be considered by the Director when issuing or renewing an accreditation

(1) If subsection (2), (3) or (4) does not apply to an applicant for the issue or renewal of a driver accreditation, the Director may grant the application if the Director is satisfied-

(i) is technically competent and sufficiently fit and healthy to be able to provide the service; and

(ii) is suitable in other respects to provide the service

Ms Holt on behalf of the respondent Director contends that the Tribunal should not be satisfied of the technical competence, fitness and health of Mr F C in light of the matters, which have been recited above. She drew attention to his driving history and also to his alcoholism. I raised with Ms Holt how we are to read the Transport Act 1983 in combination with the well known provisions of the Equal Opportunities Act 1995, which in broad terms prohibit discrimination against individuals based on a variety of attributes, one of which attributes is disability. Ultimately, I think Ms Holt was prepared to concede that alcoholism is an attribute which could be relevant for so-called disability discrimination. She did not, as I understand it, contend that if Mr F C is shown to suffer the disability of alcoholism that this was the end of the matter. She did submit however, that it was a matter which would have to be considered. She stressed that it was incumbent in terms of the Transport Act, upon Mr F C to satisfy the Tribunal as to the relevant matters.
I accept that the psychiatrist's letter of opinion is a relatively slight thing to go upon in the circumstances in which it is produced. It is, in my view, indicative to some degree of the fitness of Mr F C for the accreditation, which he seeks.
Given Mr F C's age, it is reasonable to infer that he has been a driver in Victoria for about 30 years, or perhaps more. The history of his driving is as I have recited it. He conceded that during his period, to use his words, 'in the gutter' from 1999 to 2001, he confesses that he did drive motor vehicles whilst intoxicated, even although he was not prosecuted or convicted for those offences.
I also have the evidence from Mr F C himself as to the life that he has led since 2001 and the endorsement of that picture by the two character witnesses which he has called.
In my view, it would be an inappropriate manner in which to proceed to focus upon Mr F C's admitted alcoholism and regard that as an inherent flaw in his health, which would make him unfit. The assumption that underlies the Equal Opportunity Act and its provisions as to disability discrimination, is that if a person is able to discharge the duties of a particular occupation, at a particular time the fact that in the past that person has suffered from some disability, or continues to suffer from a disability ought not be held against the person, as long as the person is in fact able to carry out the duties. There is no evidence to contradict Mr F C's account of his life since 2001 (which is almost a decade) to the effect that he has led a sober life and compared to many in our community, including members of the judiciary, has largely managed to avoid adverse attention for his driving. I am satisfied that in accordance with Section 169(1)(b), Mr F C is technically competent and sufficiently fit and healthy to provide the service that accreditation as a bus driver would require him to provide.
I turn next to Section 169N(3)(b) which requires the applicant, Mr F C, to demonstrate:

that the issue, renewal or reinstatement is appropriate having regard to the public care objective.

The public care objective is to be defined at Section 164 of the Transport Act 1983 in the following terms:

(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services-

(ii) with comfort, amenity and convenience- to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

I am satisfied that Mr F C is able to provide these services with safety. His driving record is not immaculate, and as he himself has conceded, there are matters in his record which have not attracted prosecution, but which other things being equal, might well have. I accept that he has reformed from the active alcoholism which gripped him in 1999 to 2001. As to the two speeding matters, one presents as being some 25 years in the past and so distant as not to raise doubts as to the safety to which he can now drive and secondly, a relatively minor matter. Mr F C accepts that exceeding the speed limit is inherently dangerous, particularly when it is exceeded by so wide a margin as some 44kph. He does contend, and I think with some credibility, that such speeding is dangerous in any location, but less dangerous on an open country road in light traffic, which is where the relevant offence occurred. I am not satisfied that this matter is so serious as to call into question Mr F C's ability to provide a service as an accredited bus driver with safety.
As to 'comfort, amenity and convenience', the matter focused on by Ms Holt was the issue of 'comfort'. I do not understand her to be raising any questions as to the amenity and convenience of the service which an accredited Mr F C might provide. Her suggestion was that the comfort in the mind of passengers who might be affected by knowledge of Mr F C's criminal record. As I had occasion to remark in the somewhat notorious case of XFJ v Director of Public Transport [2009] VCAT 96 in context the reference to comfort seems more likely to refer to the physical circumstances of which a transport service is provided, rather than comfort in mind. I accepted however, that the word is perhaps wide enough to cover that situation. I remain of the view, which I expressed in XFJ that comfort must be judged by reference to the comfort of a reasonable passenger. Some passengers would take the view that they would feel uncomfortable being in the care of a driver who had any significant transgressions in his or her life history. A more reasonable passenger however would, I think, reach a level of comfort based on the conduct of the individual at the particular time that the service was being provided, and would allow for the possibility that people can put wrong doing and failures in life behind them and establish themselves, or rather re-establish themselves as persons of good character. A person considering Mr F C's history would, I think, be able to reach a level of comfort in those circumstances, and so I am not satisfied that there is any doubt as to the level of comfort, amenity and convenience which Mr F C could render as an accredited bus driver to his passengers. To put it another way, I am satisfied that he could render the appropriate service for comfort, amenity and convenience.
The final issue as to the public care objective is the issue of fraudulence or dishonesty. As Ms Holt correctly observed the criminal history disclosed by Mr F C does disclose offences of dishonesty. On the other hand, as Mr F C was disposed to concede realistically as he was obliged to do, the offences in question derive from some sort of sexual fetish that was let loose by his intoxication. There is no reason to think, as a result of these matters, that Mr F C is in a broader sense dishonest, though it has to be said he conceded giving a false account of the circumstances of which he was found on private premises in the course of his first theft of underclothing was dishonest. In my view, the circumstances of which a bus driver would operate are so remote from those of which Mr F C committed his offences of dishonesty that there is no reason to think that he would render services as an accredited bus driver in a fraudulent or dishonest manner.
That then brings me to the third criterion, or rather set of criteria, set out in paragraph (c) of Section 169N. This requires the Tribunal to be satisfied that:

(i) the making of the order would not pose an unjustifiable risk to the safety of persons using services provided by the drivers of commercial passenger vehicles and private bus services, having regard to-

(A) the matters set out in section 169C(3)(b)(i) to (x); and

(B) any other matter that VCAT considers relevant to the application; and

(ii) in all the circumstances, it is in the public interest to make the order.

I go to Section 169C. This section dealing with Category 2 and Category 3 offences invites attention to the following ten matters: (i) the nature and gravity of the offence and its relevance to the service to be provided by the applicant; here the offence, particularly the ones committed in 2001, are of a serious nature. They are the subject of a serious disposition of namely, one year community based order. On the other hand they are not regarded as so serious as to be dealt with on indictment or presentment in the County Court. It is now almost a decade since these events occurred, the next subclause calls for consideration of a period of time since the applicant committed the offence. We must not lose sight of the speeding offence in 2005, it was matter of some seriousness, as I previously indicated and what is more directly relevant to the service which an accredited bus driver would provide; (iii) invites us to consider whether a finding of guilt or conviction is recorded. In each case, by one means or another, a finding of guilt or plea occurred, I have already referred (iv) to the sentence imposed for the offences. It is worth noting in (v) that Mr F C was a man of full years and maturity. These matters cannot be brushed off as mere youthful indiscretions; (vi) was not treated as relevant by the Director; (vii) likewise; (viii) invites attention to the applicant's behaviour since committing the offences. Mr F C has generally been on the right side of the law since 2001, with a speeding offence in 2005 being the sole exception to that; (ix) is important and requires consideration of 'the likelihood of applicant committing another such offence in the future, in particular any future threat to a child or other vulnerable person'. It is said that an alcoholic is never cured, Mr F C says that he does not feel a craving for alcohol, he abstains, but does not find it necessary to be a regular attendee of any groups, such as Alcoholics Anonymous. He did however describe himself as a recovering alcoholic, making the concession I think that one is never cured of alcoholism. It has to be said, that there is a possibility that Mr F C will slip back into the situation he was in, in 1999 to 2001. If one had considered Mr F C's life in say 1995, there would have been no indication at all that he would have gone the way that he did from 1999 to 2001. Indeed, it is fair to say that there is possibility that any of us may take a wrong turn in life, even of the most appalling and spectacular kind that Mr F C's did. The existence of that possibility, and of course an increased risk where this has happened in a person's life already, is something that needs to be considered. It is I think, a significant negative factor in Mr F C's application.
Having regard however to the other matters which I referred to earlier in these reasons, which are generally supportive of a favourable outcome, I do not believe that the risk is so significant as to outweigh the other matters. So acknowledging Section 169C(3)(ix) has a negative in the fact that it is not of sufficient magnitude to exclude the possibility of success by Mr F C.
As to paragraph (x) which invites consideration of any information given by the applicant, I have made extensive reference to the material Mr F C has put before me and I take those matters into account. Paragraph (b) of 169N(3)(c) requires consideration of any other matter that VCAT considers relevant to the application and there are no other matters that particularly occur to me; paragraph (ii) of Section 169N(3) calls for consideration of whether in all the circumstances that is in the public interest to make the order. Ms Holt on behalf of the Director submitted in the circumstances it was not in the public interests to make the order and the public interest that called for consideration was wholly or predominantly in the public interest of passengers using the services which are accredited for which Mr F C might provide. I accept that this is the predominant public interest which must be given heed to. The fact that even in the case of Category 1 offences the Tribunal is given a discretion to allow an accreditation to occur indicates that this public interest cannot predominate to the exclusion of everything else. To put it another way, it cannot be right to say once there are serious blots on anyone's character, an accreditation application under this section must fail. There are other public interests which call for consideration and require some weight to be given to them in the balance, albeit that the public interest of users of public transport, is the predominant one. The public interest that I see here is the interest in offenders being encouraged to establish themselves as worthy citizens and people of good fame and reputation. There are an increasing number of provisions in Victorian Statute Law and in the statute law of other jurisdictions in Australia of the type which we are considering here. It would surely not be in the public interest if the public interest in these circumstances was seen in all these various instances as furthering the exclusion of those who have strayed from the straight and narrow holding out no hope for those people, that cleaning up their act and living responsible upright lives can lead to them being given the entitlements that come as a matter of course to other members of the community.
Weighing up the public interest in that manner, I conclude that the public interest favours making the order sought by Mr F C.

FC v Director of Public Transport

At a glance

Court

Decision date

Source

Judgment (25 paragraphs)

FC v Director of Public Transport (Occupational and Business Regulation) [2010] VCAT 437 (6 April 2010)

Parties