Birch v Commissioner of Fair Trading [2017] NSWCATAD 166
Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70
Husain v Roads and Maritime Services [2017] NSWCATOD 8
Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31
Source
Original judgment source is linked above.
Catchwords
Birch v Commissioner of Fair Trading [2017] NSWCATAD 166Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70Husain v Roads and Maritime Services [2017] NSWCATOD 8Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31Keane v Roads and Maritime Services [2015] NSWCATAD 114Lal v Director-General, Department of Transport [2001] NSWADT 74
Mielczarek v Commissioner of Police [2016] NSWCATAP 255
Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10
Naziry v Director-General, Ministry of Transport [2004] NSWADT 40
Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320
R v Mauger [2012] NSWCCA 51
Re T and Director of Youth and Community Services [1980] 1 NSWLR 392
Re Upton and Department of Transport (1977) 18 ALD 150
Saadieh v Director-General, Department of Transport [1999] NSWADT 68
Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72
Shi v Migration Agents Registration Board (2008) 235 CLR 286
Sodiki v Roads and Maritime Services [2013] NSWADT 145
On 1 December 2017 the applicant, Mr Muddasir Khan, lodged an application with the respondent Roads and Maritime Services (RMS) for an authority under the Passenger Transport Act 1990 (PT Act) to drive a bus or tourist vehicle (exhibit R2, pp 16 ff). He had previously been driving taxicabs for several years. On 5 April 2018 RMS refused the application. In its statement of reasons it pointed inter alia to his record of traffic infringements and to his failure to declare any of the offences in question on his application form. The applicant applied to this tribunal on 8 June 2018 for review of that decision.
[3]
Applicable legislation
Section 12 of the PT Act empowers the respondent to 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.
The nature and effect of authorities granted under the Act is explained in s 11:
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.
Clause 29 of the Passenger Transport (General) Regulation 2017 sets out the criteria for authorization to drive public passenger vehicles:
29 Criteria for authorisation to drive public passenger vehicles
(1) For the purposes of section 12 (2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in subclauses (2) and (3).
(2) The applicant for a driver authority:
(a) must be at least 20 years of age, and
(b) must hold a driver licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving), and
(c) must have held an Australian driver licence for a total of at least 12 months in the 2 years immediately preceding the date of the application, and
(d) must have passed an examination or assessment, at a level determined by TfNSW, in medical fitness, and
(e) must satisfy RMS that he or she:
(i) may lawfully work in Australia, and
(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and
(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.
(3) In the case of an application for authorisation to drive buses, the applicant must also have successfully completed a bus driver training course approved by TfNSW and conducted by a registered training organisation (or must have such competence as a driver of buses as RMS considers appropriate).
(4), (4A) (Repealed)
(5) In this clause:
Australian driver licence means:
(a) a driver licence, or
(b) a licence issued under a law in force in a State or internal Territory authorising the holder to drive a motor vehicle on a road or road related area, being a licence that is not a learner licence, probationary licence, provisional licence, restricted licence, driver licence receipt or conditional licence (other than a conditional licence the sole condition of which is that the holder must wear corrective lenses at all times while driving).
[4]
The evidence
The basic facts are not in dispute and neither party called any oral evidence. The respondent relied on the s 58 documents (exhibit R2) and an updated driving record relating to the applicant (exhibit R1). The applicant tendered four references dated 1 August 2018 from Mr Shafiullah Khaja, Mr Shareef Khaja, Mr Mohammed Mubeen and a person signing herself only as Rhonda (exhibit A1).
[5]
Applicant's submissions
The applicant on 17 July 2018 filed written submissions from Mr Michael Jools, president of the Australian Taxi Drivers Association, who appeared by leave at the hearing as the applicant's agent. In those submissions Mr Jools noted inter alia that it might appear unusual for an association concerned with taxi driver matters to represent an applicant for a bus driver authority, but explained that it arose because of what he hoped was an unintended consequence of new legislation for the public passenger transport industry. Mr Khan was a respected member of their association and had requested their assistance.
The second reading speeches in both houses of the New South Wales Parliament gave no indication that an otherwise authorized or eligible driver of taxis, hire vehicles or buses would become unable to drive, or even to apply to drive, for 10 years, if no more than an application to drive another mode were to be refused.
Yet that was the impact of the rejection of Mr Khan's application to drive a bus. The applicant had been driving taxis that were 12-seater buses for several years without complaints or problems, other than a current driver's licence with excess demerit points. He asked the tribunal to reassess the rejection on two grounds. First, that the application should not have been considered, as RMS had noted that it was deficient in several significant respects and was therefore not in a form that could be rejected or approved. Secondly, a rejection based on the applicant not being a "fit and proper person" was, in all the circumstances, an unsound determination.
The application lodged in November 2017 did not include certain mandatory items of information, such as a driving record and medical certificate. An RMS email dated 1 December 2017 noted that unless certain documents were supplied by 4 December 2017, the application would be returned. The documents were not supplied, but the application was not returned. Consequently, it was not an application capable of being considered and, it was submitted, it was void ab initio.
The application having been (perhaps wrongfully) accepted for consideration, the principal matters were that the driving record obtained by RMS caused RMS officers to determine that the applicant was not a fit and proper person to hold a bus driver authority and lacked the requisite moral responsibility and aptitude. No further action was taken by RMS in pursuance of its obligations, under several Acts, to ensure in the interests of public safety that the public was not at risk by Mr Khan's continuance is a public passenger transport driver.
[6]
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 (NSW) (CAT Act) and s 52 of the PT Act. The latter inter alia 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 (NSW) (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 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].
[7]
Claimed invalidity of the decision under review
The applicant's first line of argument was that the initial application for a driver authority was incomplete as it omitted a number of material pieces of information. Consequently, it was contended, RMS should not have entertained it and its decision was a nullity.
It is not necessary to consider whether the decision was valid or not, as that fact has no bearing on this tribunal's jurisdiction. These proceedings are in the nature of merits review, not judicial review. Merits review tribunals have from time to time been called upon to review decisions that, if the challenge had been brought before a court, would probably have resulted in the court declaring the decision to be a nullity.
Thus, in Re Upton and Department of Transport (1977) 18 ALD 150, the federal Administrative Appeals Tribunal said that its jurisdiction arose when an application was brought to review a decision, and while the decision was in that instance outside the power vested in the decision-maker, that fact was relevant only to the tribunal's decision on the appeal, not to its jurisdiction. Failure to comply with prescribed procedures required the tribunal to set the decision aside; it did not require it to refuse to review the decision.
In other words, the tribunal reaches its own decision on the merits of the matter, rather than reviewing the propriety or legality of the original decision. It is not an appeal from the decision, but a re-exercise of the function of the original decision-maker: Shi v Migration Agents Registration Board (2008) 235 CLR 286, [134]. Thus, the tribunal may affirm the decision despite a claim that it was invalid: Verdugo v Government Superannuation Office [2002] 20 VAR 1, [19] - [25].
Indeed, the Federal Court has held that a merits tribunal has jurisdiction to hear an appeal, not only where the decision was defective, but also where the decision-maker was not empowered to make the decision: Secretary, Department of Social Security v Alvaro (1994) 34 ALD 72. The applicant's contention in this case that there is no decision for the tribunal to review therefore cannot succeed.
[8]
Fit and proper person and of good repute
The respondent's case under s 11(2) of the Act was based primarily on the applicant's not being a fit and proper person of good repute and with sufficient responsibility and aptitude to drive in accordance with law and custom. The applicant disputed that contention.
An authority under ss 11 and 12 can be granted only if it is possible 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" and having the necessary responsibility and aptitude. 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".
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].
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;
[9]
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: 10 August 2018
It is not disputed that the applicant meets the relevant age requirement and that he has successfully completed a bus driver training course approved by Transport for New South Wales and conducted by a registered training organization within the meaning of cl 29(3). The issue in the present application is whether he is "of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned", or "has sufficient responsibility to drive the vehicle concerned in accordance with law and custom", or both, within the meaning of cl 29(2)(e).
RMS's letter of 27 February 2017 seeking submissions was not received. If it had been, a response would have been made. The document of 5 April 2017 advising rejection of the application was not received. If it had been, a response would have been made. The applicant's eligibility to drive a taxi did not become noted by the Point to Point Commission until June, some three months after that letter. The failure to deal with those issues created sufficient doubt as to the applicant's lack of suitability to continue driving public passengers as to warrant setting aside the determination.
Further, in view of his long-term record of having nil passenger complaints, of years of taxi and bus driving, and of a driving record without serious infringements, albeit with a number of low-level incidents which had resulted in a satisfactorily completed good behaviour bond, he remains a fit and proper person to drive a taxi and a taxi/bus. If not, a properly functional regulator would not still have him driving, otherwise. All of the driving infringements occurred in a private vehicle, thereby raising the point that his public passenger driving record is unblemished. He is well aware of the added responsibilities of public transport. The point of different driving behaviour was not considered.
The test was whether an intending passenger, informed of the circumstances, would refuse to be conveyed by the driver. That was complicated by whether it was a 4 or 5 seat taxi, or a 12 or 35 seat bus, but logically there would be a lesser issue for a bus driver than for a taxi driver. It was impossible to reconcile a refusal of a bus authority with the continuance of what used to be a taxi authority.
The matters in cl 29(2)(e) had to be objectively determined by RMS, but that had not been done. A public perspective could well be that since the applicant had already for several years been a taxi driver and a taxi/bus driver, there was no impediment to his driving buses more generally. It appeared to be the unilateral determination of one RMS officer, repeated without the consideration of all the circumstances by subsequent reviewing officers.
At no time had there ever been a notion or understanding that a failure to have a compatible and relevant application approved would result in a 10-year exclusion from all public passenger driving. Had there been any advice or warning from RMS that a driving record that still permitted him to drive a taxi, or a taxi/bus with 12 seats, was of such concern has to stop him driving a bus with more than 12 seats, he would not have submitted the application. In all the circumstances it would appear contrary to public policy to uphold the decision by RMS with such consequences and ambiguities, of which it should have been aware.
At the hearing Mr Jools reiterated those points, adding that the applicant's driving record as it stood was not remarkable. He could have the option of avoiding a suspension by undertaking a bond conditional on good behaviour, but by so doing would risk licence cancellation for 12 months; nevertheless, he would still hold a licence. RMS had an ongoing responsibility under s 11(2), which did not authorize RMS to overlook matters that it should know about. RMS had failed in its duty by allowing the applicant to drive a taxi in light of his prior suspensions. Nevertheless, they took no action. The respondent asserts that it did not know about his driving record, but the legislation gave RMS an ongoing responsibility.
His previous taxi authority permitted him to drive a bus with up to 11 passengers (including children) and he was considered fit and proper for that activity. Fitness and propriety should not depend on whether there are 12 or more passengers. He had been driving a taxi, including "maxi taxis", without any infringement, all his offences being in the course of private driving. To now say that he was not fit and proper to drive a bus could not be correct, especially as rejection of his application would make him ineligible for 10 years.
Clause 25(2)(b) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 provides that a person whose most recent application for a driver authority under the PT Act was rejected within the preceding 10 years on the grounds of not being of good repute and in all other respects a fit and proper person to be a driver of a public vehicle used for a public passenger service must not drive a taxi or hire vehicle being used to provide a passenger service. Yet the applicant had attended and passed a bus driver course and had received no warning about the possibility of ineligibility for 10 years.
He had been considered fit and proper to drive taxicabs for 10 years and his infringements had not impaired his ability to drive cabs. The number of passengers carried was irrelevant and he had not yet been declared unfit to drive. All the references he had tendered were from passengers. He had in effect been driving a bus, because maxi taxis carry more than 8 passengers, and thus came within the statutory definition of a bus.
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]) when 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 of the Supreme Court of New South Wales v P [2003] NSWCA 320 (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.
In the applicant's favour is his lack of any non-traffic convictions. There have been no reports of violence, abusive behaviour towards passengers, sexual misconduct or instances of drug-taking or alcohol abuse. No passenger complaints have been lodged against him.
One of his referees, Mr Shafiullah Khaja, who provides transport services to the disabled and has employed the applicant in that role, states that he has found the applicant to be a very honest person who is dedicated to his work, especially when handling their aged passengers, and some of their customers only like to travel with him. He concludes, "We hope Mr Muddasir A Khan [will be] also more responsible and conscious to avoid these types of traffic infringements in the near future".
Mr Shareef Khaja believes the applicant's "whole behaviour is without question is [sic] totally opposite to what has been assessed". He is aware that the applicant's driving record is less than perfect, but says he has not committed any serious and life-threatening offences.
Mr Mohammed Mubeen, accountant, states that in light of his experience as a passenger in the applicant's taxi on many occasions travelling to and from work, he sees him as always focused, respectful and courteous to his passengers while driving them along the way to work or elsewhere. He had never seen him as a negligent driver.
The reference signed Rhonda states that the writer has known and respected the applicant for several years. He has driven a small bus on occasion and his whole behaviour has been beyond question. She is aware that his driving record is less than perfect, but he has not committed any serious and life-threatening offences.
Despite some tell-tale similarities of wording between a couple of the references, they can broadly be regarded as supportive, especially as regards his work with elderly or disabled passengers, though Mr Shafiullah Khaja's expression of hope that the applicant will in the future be more careful about complying with traffic rules does suggest certain misgivings. On the whole, however, the evidence suggests that the applicant is held in good repute by the people with whom he regularly associates.
But 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 High Court has explained that assessing whether a person is fit and proper to hold a licence is a value judgment, involving concepts that should not be "narrowly construed or confined" and may extend to "any aspect of fitness and propriety that is relevant to the public interest": Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 348. Toohey and Gaudron JJ at 380 went on to say:
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.
In the setting of driver authorities, the process of evaluating fitness and propriety also requires the tribunal to imagine the possible reactions of members of the travelling public. As the tribunal pointed out in Naziry v Director-General, Ministry of Transport [2004] NSWADT 40, quoting from Mayathisathit v Registrar of Motor Vehicles [1986] ACT 165:
"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" (at [55]).
In that context his driving record paints a less than favourable picture. Since obtaining an unrestricted class C licence in April 2004, the applicant has accrued 54 demerit points, starting with the loss of three points for speeding six months after obtaining his licence. Most of his offences are for exceeding the speed limit, but there are also instances of disregarding a stop sign, three instances of disregarding a traffic light and one of driving using a hand-held telephone. Such conduct is potentially dangerous and it is not possible to assert, as some of his referees categorically do, that none of his traffic violations has been of a life-threatening character.
He has received three warning letters, the most recent being dated 10 July 2018, and a courtesy letter on 1 June 2018. His licence has been suspended on no fewer than five occasions, the first time on 4 October 2007. Two of those suspensions have not been implemented, conditionally on his entering into a bond to be of good behaviour. His most recent suspension occurred on 11 July 2018, to take effect on 15 August 2018 for three months. There is no indication of a non-implementation decision in relation to that suspension. He has incurred 13 demerit points just since the respondent's decision to refuse his application for a bus driver authority, in the period of less than three months between May and July 2018.
There is no evidence so far of his fulfilling Mr Khaja's hope that henceforth he will be more careful to comply with the traffic regulations and the record does not support Mr Jools's contention that his driving history is unremarkable. Thus, while the first, second and fourth of the Saadieh factors support the applicant's case, the third (his driving record) and fifth (the likelihood of his committing further traffic offences) do not.
As was noted above, Keane (at [53]) indicates that it is relevant that the offences apparently arose in the context of use of a private motor vehicle and do not directly relate to his taxi or maxi taxi driving. But they do involve driving on the public roads of New South Wales, which lies at the heart of the present application. Further, Prothonotary v P (at [14]) pointed out that conduct not occurring in the course of the applicant's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. In this case there is a pattern of violations beginning soon after he obtained a licence, which has continued for 11 years and to date shows no sign of diminishing.
Placing oneself in the position of prospective passengers in a bus driven by the applicant, consistently with the perspective sketched in Naziry, it seems probable that they would feel misgivings about travelling under the control of a driver whose record as such as to have incurred five licence suspensions, including one to take effect at about the time this decision is to be published.
Further, a bus driver authority of the kind that the applicant seeks entitles the holder to drive a wide variety of public vehicles, including school buses. While none of the evidence suggests that the applicant represents, or has ever represented, any threat to the welfare of children or adolescents, it is likely that many parents of schoolchildren, perhaps especially kindergarten pupils, would feel concerned about entrusting their offspring to a driver with such a record.
Related to that concern 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 TP 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. Many members of the public might find their confidence in the passenger transport regulatory scheme somewhat shaken if they knew that someone with a record like the applicant's were granted a bus driver authority.
Then there is the applicant's failure to declare his licence suspensions in his bus driver authority application. Question 21 in the form reads, "Have you ever had your driver licence suspended, cancelled, disqualified or refused for any reason in NSW or elsewhere?" The question then goes on to explain: "You must provide details if you have ever had your driver licence suspended, cancelled, disqualified or refused for any reason. If your driver license has been suspended, cancelled or disqualified for any reason regardless of whether you think the reason was appropriate you are required to provide details".
In answer to that question the applicant ticked the box marked "No" (exhibit R2, p 16, 17). The respondent's statement of reasons for refusing the application states, "You have also failed to declare any of these offences on your application form. This is considered an offence in itself as you have attempted to obtain an authorisation through withholding information. This, along with the numerous traffic offences recorded against you, provides strong grounds for your application to be refused" (exhibit R2, p3).
In that regard a relevant provision might be s 307A of the Crimes Act 1900:
307A False or misleading applications
(1) A person is guilty of an offence if:
(a) the person makes a statement (whether orally, in a document or in any other way), and
(b) the person does so knowing that, or being reckless as to whether, the statement:
(i) is false or misleading, or
(ii) omits any matter or thing without which the statement is misleading, and
(c) the statement is made in connection with an application for an authority or benefit, and
(d) any of the following subparagraphs apply:
(i) the statement is made to a public authority,
(ii) the statement is made to a person who is exercising or performing any power, authority, duty or function under, or in connection with, a law of the State,
(iii) the statement is made in compliance or purported compliance with a law of the State.
Maximum penalty: Imprisonment for 2 years, or a fine of 200 penalty units, or both.
(2) Subsection (1) does not apply as a result of subsection (1) (b) (i) if the statement is not false or misleading in a material particular.
(3) Subsection (1) does not apply as a result of subsection (1) (b) (ii) if the statement did not omit any matter or thing without which the statement is misleading in a material particular.
(4) The burden of establishing a matter referred to in subsection (2) or (3) lies on the accused person.
(5) In this section:
application includes any claim, request or other form of application and also includes, in the case of an application for an authority, any application for the issue, grant, amendment, transfer, renewal, restoration or replacement of the authority and any other application in connection with the authority.
authority includes any licence, permit, consent, approval, registration or other form of authority.
benefit includes any advantage and is not limited to property.
The evidence before the tribunal appears to constitute a prima facie case under s 307A. The applicant has not been charged with any offence under that section, but It is established that the tribunal is to take into account matters indicating criminal conduct even though the particular offences have not been proven or have been dismissed: Joseph v Commissioner of Police, New South Wales Police Force [2017] NSWCA 31, [62] - [64]; Birch v Commissioner of Police, New South Wales Police Force [2017] NSWCATAD 166, [69]. It is the conduct rather than the conviction that is of concern to the tribunal: Esterman v Commissioner of Police, New South Wales Police Force [2014] NSWCATOD 70, [30]. In taking criminal conduct into account the tribunal may apply as lesser standard of proof than the criminal standard: Joseph, [60].
The making of a false declaration for regulatory purposes has frequently been held to reflect adversely on a person's honesty, and therefore on fitness and propriety: Husain v Roads and Maritime Services [2017] NSWCATOD 8, [39] - [47]. Those cases dealt with statutory declarations, whereas here the statement was unsworn and in an application form. Nevertheless, it might constitute an offence of dishonesty and it weighs against the applicant's fitness and propriety.
Mr Jools submitted that s 11(2) of the PT Act places an ongoing responsibility on RMS to make itself aware of any relevant traffic violations by licence holders. It had failed in its duty by allowing the applicant to drive a taxi when he had incurred several suspensions and RMS had taken no action. The respondent had thus treated the applicant as fit and proper to drive a bus carrying up to 11 passengers, including children. To say now that he was not a fit and proper person to hold a bus driver authority could not be right.
Nothing in s 11(2) places the respondent under such a duty, however. Its responsibility is to "attest" that an applicant is of good repute and fit and proper if it sees fit, and there is nothing to prevent it from seeking information from the applicant. Question 21 uses clear and emphatic terms and the applicant's response was on the face of it misleading.
Mr Jools explained that his client's prime concern was with cl 25(2) of the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017, which provides as follows:
(2) A person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person is a person:
(a) who last held a driver authority under the Passenger Transport Act 1990 or the Passenger Transport Act 2014 that was cancelled (other than on medical grounds), or
(b) whose most recent application for a driver authority under either of those Acts was rejected (within the preceding 10 years) on the grounds that the person was not considered to be of good repute and in all other respects a fit and proper person to be the driver of a public vehicle used for a public passenger service.
That provision, he said, meant that simply by reason of having made an application for a bus driver authority that proved unsuccessful on fitness and propriety grounds, he would become ineligible for a period of 10 years to drive any kind of public transport vehicle in New South Wales, including taxis. Such a result, he submitted, could not have been intended.
Clause 25(2) is self-executing and contains no discretionary element. The consequences for the applicant are thus quite severe, but the operation of other legislation that is not before the tribunal cannot be treated as relevant. In R v Mauger [2012] NSWCCA 51, the Court of Criminal Appeal pointed out that "it is not proper to dismiss a charge without conviction merely to avoid the operation of some other legislative provision that is otherwise applicable" (at [21]). That proposition applies by analogy to the instant case.
The applicant submits that he needs a driver authority so that he can work to support his family. Questions of possible hardship to an applicant or his family cannot, however, be taken into account in determining what is the correct and preferable decision: Lal v Director-General, Department of Transport [2001] NSWADT 74, [47].
In light of all the evidence, and in particular of the applicant's driving record and his apparent making of a misleading representation in his application form, it is not possible for the tribunal to attest that he is in all respects a fit and proper person to be the driver of a public passenger vehicle and that he has sufficient responsibility to drive such a vehicle in accordance with law and custom, and I so find. The decision under review must therefore be affirmed.