Birch v Commissioner of Fair Trading [2017] NSWCATAD 166
Cho v Transport for New South Wales [2020] NSWCATAD 214
Director-General, Department of Transport v AIC [2011] NSWCATAP 65
Eshaq v Roads and Maritime Services [2014] NSWCATOD 66
Source
Original judgment source is linked above.
Catchwords
Birch v Commissioner of Fair Trading [2017] NSWCATAD 166Cho v Transport for New South Wales [2020] NSWCATAD 214Director-General, Department of Transport v AIC [2011] NSWCATAP 65Eshaq v Roads and Maritime Services [2014] NSWCATOD 66Keane v Roads and Maritime Services [2015] NSWCATAD 114Loye v Director-General, Department of Transport [2000] NSWADT 145Mielczarek v Commissioner of Police [2016] NSWCATAP 255
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
Re T and Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Judgment (10 paragraphs)
[1]
REASONS FOR DECISION
The applicant Mr Leon Kenneth Hunt applied to this tribunal on 22 May 2020 for review of a decision by the respondent on or about 28 April 2020 affirming a decision to refuse his application to renew his bus driver authority.
The applicant had applied to renew the authority on 17 February 2020. On receipt of the application, the respondent examined his criminal history and had identified an offence against him. On 26 September 2019, he had been convicted at Camden Local Court of the offence of assault occasioning actual bodily harm [ABH] (DV) - T2, which resulted in a community correction order for 18 months commencing on 26 September 2019 and concluding on 25 March 2021.
The application was then rejected on the ground that the respondent could not attest either to the applicant's good repute or that he is a fit and proper person to be the driver of a public passenger vehicle in accordance with law and custom, in accordance with s 11(2) of the Passenger Transport Act 1990. The applicant applied for an internal review, which was dismissed on or about 28 April 2020 (the letter was undated) on the same grounds. The applicant then applied to this tribunal for review of that decision on 22 May 2020.
[2]
Applicable legislation
Under s 12 of the PT Act, the Director-General may grant authorities to persons applying for them:
12 Criteria and procedure
(1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
(3) Procedures for the purposes of this section may be settled by RMS, subject to any provision in that behalf made by the regulations.
Pursuant to s 11(1) of the PT Act, a person who drives a public passenger vehicle other than a ferry is guilty of an offence unless holding an appropriate authority. Section 11(2) explains the purpose of such authorities:
11 Authorities
(1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division.
Maximum penalty: 100 penalty units.
(2) 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 public passenger vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated, and
(ii) in accordance with law and custom.
(3) The regulations may create categories or grades of authority.
The issue in this application is therefore whether the respondent (and by derivation this tribunal) is able to attest that the applicant is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.
[3]
The evidence
The respondent called no oral evidence but relied on the s 58 documents (exhibit R1) and certain other written material (exhibit R2). The applicant called oral evidence and tendered written character references (exhibit A1). The oral evidence, and the submissions, were heard by audio-visual link.
[4]
Mr Leon Hunt
The applicant Mr Leon Hunt gave oral evidence by audio-visual link in which he adopted his undated statement (part exhibit A2) which declared that he is the applicant in these proceedings, is aged 52 and has held a bus driver authorization for approximately six years. On or about 13 February 2020 he lodged an application to renew his driver authority with Transport for New South Wales (TfNSW). Shortly afterwards he received correspondence from the respondent stating that his renewal application was unsuccessful, and attaching a statement of reasons for that decision.
The applicant had then lodged an application for review of the decision with TfNSW, later receiving further correspondence affirming the original decision and attaching a statement of reasons. He had then applied to this tribunal for review of the decision.
On 30 August 2019, he had been arrested and charged with assault occasioning actual bodily harm in respect of an incident that occurred between him and his partner Angela Potter. The matter was dealt with by Camden Local Court and he pleaded guilty at the first opportunity. The court did not impose a fine, but he was convicted and directed to enter into a community correction order for 18 months commencing on 26 September 2029 [scil. 2019].
He consented to an apprehended violence order (AVO), which was taken out by the police on behalf of his partner on the same date. That order was for a period of 12 months from 26 September 2019. It did not require that he not approach Angela Potter. The AVO imposed conditions to not assault, threaten, stalk, harass, intimidate or destroy property of Angelo Potter, nor to take alcohol or drugs within 12 hours of being in her company.
In relation to the matters surrounding 30 August 2019, the applicant said he had been to lunch with Angela Potter. They met up again after work and planned to have a few drinks and watch the football on television. They consumed numerous drinks together and he fell asleep. When he awoke a disagreement arose regarding her use of his mobile telephone. The disagreement resulted in the realization of infidelity by both of them. At that time they had been in a relationship together for approximately 5 or 6 years.
There had been only one 750 ml bottle of bourbon purchased and it was consumed with a Coca-Cola mixer. The assault occurred by his attempting to recover his mobile telephone from Angela. He understands that he grabbed her and pushed her to the ground, and placed his forearm on her chest in an attempt to recover his telephone from her. At no time did he strike Angela. As a result, Angela had a red mark on her arm and upper chest and a small scratch near her lip
[5]
Ms Angela Potter
The applicant also adduced evidence from Angela Potter, who adopted her undated statement (part exhibit A2) in which she declared that she is the partner of the applicant, Leon Hunt and is currently aged 52. She has been in a relationship with him for approximately 6 years. They had an incident on 29 August 2019 which resulted in her calling the police and Leon being arrested. That day they had met for lunch and later following work, and had a few drinks before watching the football on television. There was one 750 ml bottle of bourbon, which Leon was mixing with Coca-Cola. He fell asleep watching football. They were both intoxicated.
When Leon awoke he thought she was holding his telephone and going through his messages. He became angry and wanted his telephone back. She did not have his mobile telephone at the time. He approached her demanding his phone and grabbed her, then pushed her to the ground. He placed his forearm on her upper chest in an attempt to obtain what he believed was his mobile phone. During the struggle she pushed him away, and he grabbed her legs and pulled on her pyjama bottoms, pulling them down. She waited in another room and called the police because she wanted him to leave the house. When he told Leon that she had called the police he sat down and waited for them to arrive.
She had told the police what had happened and that she just wanted Leon to leave. The police arrested him and took him to the police station. At the time of calling the police, she had not known that he was going to be arrested and charged with assault and have an AVO placed on him. The police pursued the AVO as a result of the assault situation in the household. As a result of the incident, she had sustained small red marks on her forearm and upper chest, and a slight scratch to her chin.
At no time before or since that incident had there been any violence in the relationship. The incident had arisen because of the realization of infidelity by both of them while being in their relationship.
They had since communicated about the issues and now reside together 5 to 7 days per week. Previously they had been together up to 5 days per week, while being apart the other days. Leon had not breached the AVO.
The witness was not cross-examined.
The applicant also tendered a medical certificate from Dr Ramana Venkatesan dated 14 March 2020 (part exhibit A1), which stated that the applicant has been a patient of his practice for about 31 years. While Dr Venkatesan is aware of his conviction on 26 September 2019 at Camden Local Court, he wished to state that the offence he was charged with was totally out of character. Specifically, there was no history of violent behaviour. Mr Hunt truly understood the seriousness of his actions and was also genuinely remorseful about what he had been charged with, pursuing remedial actions available to him as instructed by the court.
[6]
Applicant's submissions
On behalf of the applicant, Mr Ashley Smith relied on written submissions filed on 11 September 2020 in which he noted that the respondent's determination that the applicant was not a fit and proper person pursuant to s 11 rested on the basis of his conviction in Camden Local Court of assault occasioning ABH on 26 September 2019. He explained that at the time of entering the plea of guilty before Camden Local Court, submissions had been made correcting the fact sheet. There had been one 750 ml bottle of bourbon that was consumed as a mixed beverage with cola. It was also noted that the injuries consisted of a red mark on the upper chest and arm.
The applicant and his partner had been drinking together for several hours. The applicant had been asleep on the couch before the incident, and when he awoke a disagreement arose regarding a mobile telephone and the issue of infidelity by both parties.
The couple have been in a relationship for about 6 or 7 years. There has been no previous issue of violence between them. The incident arose directly as a result of infidelity issues arising on the night by both parties. Those issues had been resolved between them and their relationship continues.
Following his conviction, a community correction order under s 8 of the Crimes (Sentencing Procedure) Act 1999 was imposed, commencing on 26 September 2019 and expressed to be for a period of 12 months [sic]. No fine was imposed. The order required the applicant to be under the supervision of Community Corrections and undertake any courses or programs recommended by them. Following meetings with Community Corrections, supervision was suspended on 10 December 2020 and no course or program was directed to be undertaken. The remaining condition of the order was to not commit any offence and participate in any program required by Community Corrections. The order remains in effect until 25 March 2021.
An AVO was consented to on the same date for a period of 12 months. That order did not prohibit the applicant and his partner from continuing a relationship. There had been no breach of that order.
Other than the matter before Camden Local Court, the applicant has had no history of violence. That is evidenced by his criminal record and a certificate issued by Dr Venkatasan dated 14 March 2020.
[7]
Consideration
This tribunal has jurisdiction to review the respondent's decision refusing to grant the applicant an authority by reason of s 29 of the Civil and Administrative Tribunal Act 2013 (CAT Act) and s 52 of the PT Act. The latter permits a person whose application for an authority has been refused to apply to the Civil and Administrative Tribunal for review.
Under s 63 of the Administrative Decisions Review Act 1997 (ADT Act), the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no general onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [30], [34].
[8]
Principles to be applied
The respondent's case under s 11(2) of the Act was based on the applicant's not being a person of good character and repute. As Mr Wozniak submitted, referring to Cho v Transport for New South Wales [2020] NSWCATAD 214, [39], an authority under that provision can be granted only if the respondent is able to "attest" that the person is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". As the Appeal Panel noted in Director General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "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 context".
The Appeal Panel went on to explain that the concepts of "good repute" and "fit and proper" character involve different considerations: "The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not" (at [27]).
Taking it a little further, Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession".
Moreover, his Honour continued, evidence of conviction for a criminal offence is admissible as evidence, indeed most cogent evidence, of bad reputation. Such convictions are the raw material upon which bad reputation is built. They have taken place in open court and are matters of public knowledge. They are acted on by people generally as the best guide to a person's reputation and standing: Loye v Director General, Department of Transport [2000] NSWADT 145, [25]
A history of convictions does not itself constitute prima facie evidence of bad repute. It does, however, create a presumption that the person has, among those who know of that history, a bad reputation. It places an onus on the person to establish his or her good reputation: id., at [27] - [29]. The difference may be a subtle one, but it is to be given effect. Whether community members know about the less savoury aspects of the person's past is relevant: "Whether the person's criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute": id., at [31]. It does not, however, appear to be conclusive.
[9]
Application to Mr Hunt's case
As set out in Saadieh, the first matter to be considered in connexion with repute, fitness and propriety is the seriousness and frequency of criminal convictions. The applicant has one conviction, on 26 September 2019 at Camden Local Court for assault occasioning actual bodily harm (DV-T2). The applicant was made subject to a community correction order for 18 months, expiring on 25 March 2021.
The police fact sheet, subject to the minor corrections noted above, relates that on 29 August 2019 the accused and the victim were at the victim's residence drinking alcohol and watching the football. Between them they had consumed the contents of a 750 ml of bourbon mixed with cola. The accused fell asleep on the couch and the victim contacted a friend by telephone, and was speaking with her for a short time.
The victim (Ms Potter) decided to cease drinking, as the accused (Mr Hunt) appeared to be becoming heavily intoxicated. The parties began to argue, accusing each other of infidelity. Mr Hunt walked after Ms Potter, who moved around the island bench to keep her distance from him. Mr Hunt calmed down and Ms Potter thought the incident was improving.
She then started to walk back into the living room, at which time Mr Hunter grabbed her around the shoulders and pushed her to the floor. He got on top of her and was using his forearm to push down on her upper chest and neck. Ms Potter tried to push him off her, but was unable to do so. After a short time, she stopped struggling and cowered under Mr Hunt, asking him to stop and get off.
He then tried to drag Ms Potter by the legs, but only managed to pull her pyjama pants off. He then went to sit on the lounge, at which time Ms Potter replaced her pants and ran into her room, locking the door and calling the police. The incident caused bruising to her collarbone and both arms, as well as a minor scratch to her chin and pain in her upper lip and the right side of her face.
Police arrested the applicant but were unable to obtain statements from either party because of their state of intoxication. The next day, Mr Hunt participated in a recorded interview, during which he initially denied ever assaulting the victim, stating that the argument was only verbal and related to accusations of infidelity on both sides.
After further questioning, police showed Mr Hunt pictures of the injuries to Ms Potter and put to him that he had assaulted her. He replied, "It's possible that I did that". At the conclusion of the interview he was escorted back to the custody room.
[10]
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 30 October 2020
After the court hearing, he made an appointment with Community Corrections as required and attended appointments with them to assess him and the facts, and determine whether there would be any courses required to be completed. Following those assessments, Community Services determined that he would not be required to undertake any courses and believed that further supervision was not warranted. On 16 December 2019, he received an order from Community Corrections stating that supervision was suspended and he must not commit any offence for the duration of the order. The order was from 10 December 2019 to 25 March 2021.
He has no prior domestic related charges or matters involving violence. He has had no further domestic related charges or matters involving violence since 30 August 2019. His general practitioner is Dr Venkatesan and he has been seeing him exclusively as his physician for approximately 31 years.
Following the court matter, he made an appointment to see Sofie Shreuders, a psychologist at Camden. He has seen her approximately 5 or 6 times to discuss matters, including the infidelity and the incident of 30 August 2019.
At the time of the incident, he and Angela had been living separately at their own residences. Angela was working with him labouring on certain jobs that he was doing, and they would also stay with each other 4 5 nights of the week. For about the past 10 or 11 months they have been living together at all times.
In cross-examination the applicant was asked whether, on receiving the court attendance notice (summons) dated 18 February 2020 (exhibit R1, p 25), he had notified the respondent as required by cl 44 of the Passenger Transport (General) Regulation 2017. He replied that he was not sure whether he had or not, as he did not know he was required to do so. He had not notified the respondent of the matter until he applied for renewal of his authority. At the time, he had not been employed as a bus driver, although he did hold an authority. He agreed that as the holder of that authority, he could drive a bus with young children as passengers.
He was then asked what the parents of kindergartners might think if they knew their children were being driven by a person subject to a community correction order. He replied that it would not be "a good look" and in that situation parents would be entitled to be concerned, although he thought it would make a difference if parents were aware of his lack of a criminal history. He agreed that he had accumulated 4 drink-driving infringements, the most recent being in 2004, but pointed out that he had applied for his driver authority after that, and although he was questioned about the violations, an authority had been issued to him.
Also tendered was a certificate from Sofie Schreuders, a psychologist based in Camden, dated 14 March 2020 (part exhibit A1), which stated that she had seen the applicant on four occasions. During those sessions, he had been compliant with appointments and had shown insight and remorse into his circumstances.
The respondent relied on the criminal conviction of the applicant and the community correction order in particular. No fine was imposed and the AVO expired on 25 September 2020. There has been no breach of those orders. Further, Community Corrections interviewed the applicant about the matter and identified that there was no program required to be undertaken for drugs or alcohol, domestic violence, anger management or any other program or intervention. Community Corrections released the applicant from supervision on 10 December 2019. These matters are relevant for consideration as to whether the applicant is "a fit and proper person".
TfNSW has stated that the applicant was required to "demonstrate change in [his] unacceptable behaviour", but such a demonstration cannot be provided, as the incident was out of character for the applicant, as demonstrated by his lack of a criminal record for any violence-related matter and the certificate from Dr Venkatesan. His character both before and after the incident were relevant matters to consider when demonstrating acceptable behaviour. In those circumstances the applicant had demonstrated acceptable behaviour and being a fit and proper person to hold a bus driver authority.
An AVO was put in place for a period of 12 months to protect the applicant's partner. It did not prevent the parties from having contact with each other. It imposed conditions to not assault, threaten, stalk, harass, intimidate or destroy property of his partner, nor take alcohol or drugs within 12 hours of being in her company. The police and the court considered a period of 12 months sufficient for such an order. There have been no breaches of the order and the parties continue in their relationship.
There is no allegation against the applicant of striking or hitting. It is accepted that there was pushing and the use of forearm applying pressure to the upper chest. The objective seriousness of the offence must be taken into account. The parties had been in a relationship for 5 or 6 years at the time of the offence. There is no suggestion of, nor any, violence between the parties before the accident or after. The resultant injuries were small red marks on the upper chest and arm.
The applicant had undertaken counselling of his own accord with Sofie Scheuders, psychologist at Camden. Her report confirms his attendances by the applicant states that he "has shown insight and remorse into his circumstances".
The likelihood of the applicant's reoffending is low, as the medical and psychological reports indicate. After interviewing the applicant, Community Corrections determined that he was not required for supervision or required to undertake any course or program. The incident was out of character for the applicant and he had demonstrated remorse for his actions, as indicated in Ms Schreuders's report, and made efforts to rehabilitate himself. At court, he had pleaded guilty to the offence at the first opportunity and had not breached the AVO, which has now expired. The current community correction order was a reminder to him of his requirement to be a good behaviour. A member of the public knowing the facts of the incident and his prior and subsequent good behaviour would consider the likelihood of the applicant reoffending to be low.
Following Eshaq v Roads and Maritime Services [2014] NSWCATOD 66, [83], the perception of a reasonably minded member of the travelling public would be to consider the likelihood of reoffending as low and the applicant to be a person of good repute, aptitude and responsibility. Eshaq (at [76]) also pointed out that when deciding whether a person is a fit and proper person, the question of whether the community would have confidence that any improper conduct would not recur is relevant.
The applicant submitted that the community or the reasonably minded travelling public would have confidence that any improper conduct would not recur with the applicant, taking into account his age, no previous convictions for violence, his remorse, his own attendance upon a psychologist, the determination of Community Corrections on 10 December 2010 [scil. 2020], of no further matters arising, the term of the AVO expiring and the incident being out of character, the applicant was a fit and proper person to hold a bus driver authority and of good repute, and the applicant should be entitled to renew his bus driver authority.
Evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. A person may hold a position in the community from which it is reasonable to infer that the person is well regarded: at [32].
Having a criminal record is not necessarily an absolute and permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. In Armani v Director-General, Department of Transport [1999] NSWADT 20, the tribunal when setting aside a refusal of a taxicab authority stressed the need for a balancing of the positive and negative aspects of the applicant's record, including evidence of contrition and of a determination to make a new start.
In Saadieh v Director-General, Department of Transport [1999] NSWADT 68, Hennessy DP pointed out that "being a 'fit and proper person' includes being of 'good repute'" (at [12]). At [17] her Honour listed five factors to be considered on the question of suitability in such cases:
The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
The nature, seriousness and frequency of any complaints made against the applicant;
The applicant's driving record;
The applicant's reputation in the community; and
The likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences.
The tribunal then added (at [18]), "In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers".
Also relevant, as was stated in Keane v Roads and Maritime Services [2015] NSWCATAD 114 (at [53]) where a refusal was set aside, is whether the offences related to taxi (or, by analogy, bus) driving and whether they involved any sexual misconduct: see also Prothonotary v P (at [14]) On the other hand, the court in the latter case noted that conduct not occurring in the course of the respondent's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. The application to strike the practitioner off the roll was, however, dismissed.
A conviction for assault occasioning ABH cannot be regarded as a minor matter, although in this instance the facts would appear to lie somewhat towards the lower end of the scale of severity, notably as the victim gave evidence in the applicant's support at the hearing. While the applicant states that he pleaded guilty to the charge at the first opportunity, the police fact sheet shows that he initially attempted to deny assaulting Ms Potter and admitted possible guilt only after being shown photographs of her injuries.
Nor is the applicant's record otherwise unblemished. It lists two fines for cannabis possession and cultivation in 1990. His driving record is less than impressive, including as it does four prescribed concentration of alcohol matters, the most recent being in 2004. Two of the charges relate to high range PCA. There are no complaints about him in his work as bus driver, however.
The next Saadieh factor to be considered is his reputation in the community.
As Loye points out, a criminal conviction creates a presumption that the offender does not enjoy high repute. In this case there is little positive evidence of good character or repute. Dr Venkatesan does state that the assault was "totally out of character" and that the applicant has "no history of violent behaviour". He also notes Mr Hunt's understanding of the seriousness of his actions and his remorse. Ms Schreuders records simply that he had been compliant with his appointments and had shown insight and remorse into his circumstances.
The evidence supports Dr Venkatesan's comment that the applicant has no history of violent behaviour. That view is also corroborated by Ms Potter, who stated that in the six years of their relationship there had been no other instance of violence before or since the September 2019 episode.
Despite the paucity of evidence, I think one can conclude on the basis of his record overall, and bearing in mind his age, that the likelihood of his reoffending, as evaluated in Saadieh, is low. His misconduct also did not arise in connexion with his work as a bus driver and involved no sexual impropriety or dishonesty.
The fact remains, however, that his conviction relates to a relatively serious offence, is quite recent and he is still subject to the community correction order and will remain so until 25 March 2021. He is thus still under sentence, unlike the applicant in Eshaq, who was subject only to a conditional release order under s 10(1)(b) (for affray) but no conviction. Section 8(1) of the Crimes (Sentencing Procedure) Act makes it clear that such an order may be made only after conviction, and instead of the imposition of a sentence of imprisonment. In all the circumstances it is not at present possible for the tribunal to "attest" to the applicant's good repute.
Related to that is another important factor bearing on fitness and propriety and good repute. Among the objects of the PT Act as stated in s 4 is "(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services".
In Mielczarek v Commissioner of Police [2016] NSWCATAP 255, [162] the Appeal Panel noted that "occupational regulatory schemes such as the [Tattoo Parlours] Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members" (see also Birch v Commissioner of Fair Trading [2017] NSWCATAD 166, [80] - [81]). Part of that involves preserving public confidence in the licensing regulatory system itself.
In the present context, it should be borne in mind that as the holder of a bus driver authority, the applicant could be driving school buses or other vehicles carrying children or adolescents. While the evidence does not suggest that the applicant is in any way a danger to children or young people, one could understand parents of young children being troubled by the thought that their offspring were in the charge of someone who is still subject to a sentence for an aggravated assault.
Nor is that the end of the matter. Good repute is not the same as fitness and propriety. Under the statutory scheme the concept of fitness and propriety goes to an individual's intrinsic characteristics (AIC, [27]) and is to be assessed in the context of the nature and purposes of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is a fit and proper person to drive a public bus.
The evidence falls short of enabling the tribunal positively to attest to his being a fit and proper person to drive a bus at the present time. As was pointed out above, members of the public could well take exception to the issuance of a bus driver authority to a person who is still subject to a sentence for a significant offence of violence, even though it was an isolated occurrence.
There is also the matter of the applicant's admitted breach of cl 44 of the Passenger Transport (General) Regulation 2017 through his failure to notify TfNSW of the assault charge against him. His explanation that he did not know he had to do so is not sufficient, especially given that non-compliance with cl 44 is an offence. Maintenance of public confidence in the licensing system requires authority holders to ensure that they are aware of their statutory responsibilities and comply with them.
As the respondent pointed out, and as was noted in Cho (at [44]), there is nothing to prevent the applicant from lodging a new application once the community correction order period has expired, though I express no opinion about the view that the respondent or the tribunal could or should take in those circumstances. The decision under review must therefore be affirmed.