HOPKINS v ROAD TRANSPORT AUTHORITY

2. Mr Hopkins (the Applicant) is seeking review of the following two decisions made by Access Canberra, acting through the Road Transport Authority (the Respondent): (a) The decision to require the Applicant to undergo a medical examination, and to provide a report of the examination, in accordance with section 78 (2) of the Road Transport (Driver Licensing) Regulation 2000 (the Regulation) (the medical examination decision); and (b) The decision to suspend the Applicant's driver licence under section 87 (1) of the Regulation (the suspension decision) because the Applicant failed to comply with the requirements of the medical examination decision.

3. The Applicant seeks to have both decisions set aside, including an order that no further medical assessments be imposed unless the Applicant consents voluntarily to providing his personal health information.

Deciding the application on the papers

4. On 24 February 2025, the Tribunal gave notice to the parties that it proposed to decide the application on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.

5. Section 54 (1) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) provides that the Tribunal may, on application by a party or on its own initiative, decide an application on the basis of documents, without the parties, their representatives or witnesses appearing at a hearing.

6. The discretionary power in section 54 (1) is conditional on the Tribunal being satisfied that: (a) it is in the public interest not to hold a hearing; and (b) the Tribunal has sufficient information to make an informed decision on the application.

7. The objects of the ACAT Act are set out in section 6, which relevantly include: (a) to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and (b) to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and (c) to ensure that decisions of the tribunal are fair.

8. Section 7 of the ACAT Act provides that in exercising its functions, the Tribunal must, among other things, seek to ensure that Tribunal procedures are as simple, quick, inexpensive and informal as is consistent with achieving justice, as well as implemented in a way that facilitates resolution of the issues so that the cost to the parties and Tribunal is proportionate to the importance and complexity of the subject matter of the proceeding. The Tribunal must also observe natural justice and procedural fairness.

9. The Respondent supported the Tribunals proposal to decide the application on the documents, without the parties, their representatives or witnesses appearing at a hearing.

10. The Applicant’s preference was for an oral hearing, but he did not actively oppose the Tribunal’s proposal.

11. Given the foregoing and considering that: (a) The scope of the issues in dispute in this application are narrow. (b) The Applicant relies on documentary evidence to assert that the risk associated with their condition is lower than that contemplated by the medical standards. (c) There are no witnesses to be cross-examined, nor any questions of credibility, (d) The issue is straightforward and can be properly determined by reference to the material and submissions of the parties. (e) The Tribunal decided the matters on the papers.

BACKGROUND

12. On 8 July 2024, the Respondent wrote to the Applicant, requesting that he undergo a medical assessment and submit a Driver Licence Medical form completed by a General Practitioner, in accordance with section 78 (2) of the Regulation.

13. The basis of the request was the Applicant’s medical history, specifically his diagnosis of insulin-treated diabetes, a condition that under the publication Assessing Fitness to Drive (as updated in 2022 by Austroads), necessitates medical review at least every two years.

14. Given the Applicant failed to submit a Driver Licence Medical form, the Respondent sent the Applicant a follow-up notice on 5 September 2024, advising him that failure to comply by 5 October 2024 would result in licence suspension.

15. On 14 August 2024, the Applicant sought an internal review of the Respondents decision of 8 July 2024 pursuant to section 91A of the RT General Act.

16. A decision to require a medical assessment for a driver licence is an internally reviewable decision under Schedule 1, Part 1.4, item 58 of the Road Transport (General) Regulation 2000.

17. That internal review was finalised on 12 December 2024, confirming the requirement for the Applicant’s medical examination and explaining the rationale which was based on public safety, national medical standards, and privacy protections.

18. The Respondent followed through with a final notice to the Applicant stating that failure by the Applicant to submit the medical assessment by 13 January 2025 would result in licence suspension on 14 January 2025.

19. The Applicant failed to submit the medical assessment by 13 January 2025 which resulted in the Respondent suspending his driver licence.

APPLICANT’S SUBMISSIONS

20. The Applicant objects to the requirement to disclose medical information which he believes: (a) To be an arbitrary demand by the Respondent for personal health information, with a threat of driver’s license suspension, for noncompliance. (b) To be discriminatory and authoritarian and based on his disability (Type 1 diabetes) and the need to use Insulin and nothing to do with his driving ability. (c) The rules and regulations do not comply with Privacy Laws. (d) The medical data and potential data breaches may be used for further discrimination either by Government or third parties; and (e) That the suspension of his licence adversely affects his independence and identification.

RESPONDENT’S SUBMISSIONS

21. The Respondent submitted that the reviewable decisions are, in each case, the correct and preferable decision and the Tribunal ought to confirm them on the basis of the following: (a) The Applicant was the holder of a driver licence for the purposes of section 78(2) of the Regulation. (b) The Applicant has insulin-treated diabetes. (c) The medical standards provide for a person with insulin-treated diabetes to be subject to minimum 2-yearly medical review. (d) Section 78(2)(c) and (d) of the Regulation gives the Respondent discretionary power to require the Applicant to undergo a medical examination in accordance with the medical standards and to provide a report of the examination. (e) The Applicant did not comply with the requirements of the medical examination decision. (f) Section 87(1)(k) of the Regulation gives the Respondent discretionary power to suspend the Applicant's driver licence on its own initiative if satisfied on reasonable grounds that the Applicant has not complied with its requirements. (g) The Regulation was applied equally and consistently, and the decision was made without bias or arbitrariness. Medical conditions such as insulin-treated diabetes are known to carry risks, including sudden incapacitation, and require regular assessments.

22. The Respondent acknowledged a technical defect in the notice under section 88(1) for failing to state the proposed suspension period. However, the suspension was clearly linked to non-compliance and was to be lifted upon submission of the required form.

Issues for Determination

23. Are the reviewable decisions the correct or preferable decisions under section 68(3)(a) of the ACAT Act? Legislation

24. The Tribunal undertakes a merits review under the ACAT Act, to determine the correct 1 or preferable decision on the facts and law before it.

25. As Senior Member Orlov expressed in Applicant 362024 v Director General, ACT 2 Education Directorate : It is settled law that in a merit review of an administrative decision – (which is what this application is) – a tribunal is required to make the correct or preferable decision on the material before the tribunal, not the material before the original decision maker.

26. Senior Member Orlov at paragraph 46 of his decision also referred to Shi v Migration 3 Agents Registration Authority , where Kiefel J explained: “the Tribunal reaches its decision as to what is the correct decision by conducting its own, independent assessment and determination of the matters necessary to be addressed”. 4

27. The respondent is a statutory authority. Its powers include the issuing, cancelling or 5 suspending of driver licences, and imposing conditions on them. Those powers are to be exercised in accordance with the Road Transport (Driver Licensing) Act 1999 and Regulation 87 of the Regulation. The Regulation provides a discretionary power to the Respondent to vary, suspend or cancel driver licences. Relevant to the application for review, the Regulation provides: 87 When authority may vary, suspend or cancel driver licences (1) The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that— … (d) the person does not comply with the required medical standards …

1 Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 2 Applicant 362024 v Director General [2025] ACAT 28 at [45] 3 Shi v Migration Agents Registration Authority [2008] HCA 31 at [141] 4 Road Transport (General) Act 1999 s 16 5 Road Transport (Driver Licensing) Act 1999 ss 6, 7

28. The required medical standards are those set out in the Guidelines which are published 6 and periodically amended by Austroads. The 2022 edition of the Guidelines apply in the current proceedings.

Respondents powers to make medical examination decision

29. Section 78 of the Regulation sets out the powers of the Respondent in relation to testing and medical examination of drivers. Under section 78(2)(c) and (d) the Respondent may require a person to undergo, at the person's own cost, a medical examination by a doctor in accordance with the required medical standards, and to provide a report of the examination.

Respondents power to make suspension decision

30. Section 87 of the Regulation sets out the Respondent's powers to vary, suspend or cancel driver licences. This includes the power to suspend a person's driver licence on its own initiative if satisfied on reasonable grounds that the person has not complied with a requirement made by the Respondent in relation to the licence.

Considerations and Findings On the medical examination decision:

31. Road safety is a critical important feature of the relevant legislative framework. This includes to facilitate the regulation of drivers in the interests of road safety; and to provide a way of enforcing driving safety standards.

32. The legislation also includes offences for driving if one's ability to drive safely is impaired by a medical condition and failing to tell the relevant authorities about any permanent or long-term condition that may cause such impairment.

33. While governments have a right to ensure public safety the process and criteria must be applied consistently and fairly, in this case, balancing public safety with the rights of the Applicant with medical conditions is important.

34. It is undisputed that, the Applicant has insulin-treated diabetes.

6 Road Transport (Driver Licensing) Regulation 2000 s 78A

35. Given that diabetes is recognised as a condition which has the potential to cause significant impairment and/or sudden incapacity, the medical standards provide a minimum review period for diabetes.

36. Section 78(2)(c) and (d) of the Regulation gives the Respondent discretionary power to require the Applicant to undergo a medical examination in accordance with the medical standards and to provide a report of the examination.

37. The standards specifically provide that individuals with insulin-treated diabetes undergo a review at least every two years.

38. The Applicant had his last assessment in August 2022, more than two years had passed.

39. The Applicant is seeking a decision to the effect that the discretionary power under section 78(2)(c) of the Regulation is exercised only every 5 years, or ways inconsistent with the medical standards.

40. The Tribunal recognises that licensing requirements applying to people with medical conditions may be onerous and may impose additional cost and inconvenience. However, it also recognises that the licensing requirements are reasonable, justifiable and proportionate on the basis that they are aimed at ensuring public safety, including the safety of the Applicant.

41. The decision made by the Respondent was not discriminatory or arbitrary. It was applied to the Applicant on the basis of clear and objective criteria.

On the suspension decision:

42. Section 87(1)(k) of the Regulation gives the Respondent discretionary power to suspend the Applicant's driver licence on its own initiative if satisfied on reasonable grounds that the Applicant has not complied with the Respondents requirements.

43. Licensing authorities have a responsibility to ensure drivers are fit to operate vehicles safely, but this must be done without unfairly targeting individuals or groups.

44. Suspensions should be based on a reasonable assessment of the individual's fitness to drive, considering the specific condition and its potential impact on driving ability.

45. The Applicant was afforded fair opportunity to present evidence of their fitness to drive, by submitting a medical report, but chose not to comply.

46. The Tribunal finds that the Respondent was authorised under section 87(1)(k) to suspend the Applicant’s licence due to the Applicants non-compliance.

47. While there was a procedural omission under section 88(1)(c) Road Transport (General) Regulation 2000, the notice otherwise satisfied the statutory requirements, including stating the basis of the decision and effective date.

48. The procedural defect did not cause substantive unfairness or prejudice. As stated in 7 Project Blue Sky Inc v Australian Broadcasting Authority , not every failure to comply with a procedural requirement invalidates a decision.

49. The Tribunal acknowledges the Applicant’s privacy concerns as genuine and recognises the burden such requirements may place on individuals with medical conditions. However, the regulatory scheme aims to balance personal privacy with the paramount objective of public safety.

50. The Applicant's assertions concerning potential misuse of data, while important, are speculative and unsubstantiated in the present matter. The use and protection of personal health information is regulated by applicable privacy legislation and Access Canberra’s stated privacy practices.

51. The evidence before the Tribunal leads to the inexorable conclusion that, in all of the circumstances, any benefit which the Applicant might obtain from not complying with the legislative requirements would be outweighed by the potential risks both to himself and to the general public.

52. The Tribunal finds that that the reviewable decisions are, in each case, the correct and preferable decision and each is confirmed.

7 Project Blue Sky Inc v Australian Broadcasting Authority (1998) HCA 28 ORDERS

53. Pursuant to section 68(3)(a) of the ACT Civil and Administrative Tribunal Act 2008, the Tribunal orders as follows: 1. The medical examination decision is confirmed. 2. The suspension decision is confirmed. 3. The application for review is dismissed.

…….………………….. Member K Reddy

Date(s) of review on papers: 30 April 2025