McArthur, M.H. v Punch,G , Minister for the Arts, Sport, Environment,Tourism & Territories & anor [1988] FCA 400

AND: GARY PUNCH, MINISTER OF STATE FOR THE ARTS, SPORT, THE ENVIRONMENT, TOURISM AND TERRITORIES

JUDGE MAKING ORDER : Neaves J. DATE OF ORDER : 28 July 1988 WHERE MADE : Canberra

1. The application be dismissed.
2. The applicant pay the respondents' costs of the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

BETWEEN : MALCOLM HUGH McARTHUR Applicant AND: GARY PUNCH, MINISTER OF STATE

FOR THE ARTS, SPORT, THE ENVIRONMENT, TOURISM AND TERRITORIES

Malcolm Hugh McArthur ("the applicant") has applied to the Court for an order of review under s.5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the Judicial Review Act"). The application, dated 6 May 1988, identifies the following as being the matters in respect of

(a) the decision made on 30 June 1987 by the then Minister for Territories (the Hon. Gordon Scholes) ("the Minister") that

"the applicant not be granted a taxi licence under preferential conditions";

(b) the decision made on 30 June 1987 by the Minister "not to remit or refund to the applicant a portion of the sum payable under sub-section 27(1)(a) of the Motor Traffic Ordinance (1936) as amended"; and

(c) the failure of the second respondent, Catherine Parsons, to decide that the

applicant should be granted a taxi licence under preferential conditions.

The first respondent is the Hon. Gary Punch, the Minister of State for the Arts, Sport, the Environment, Tourism and Territories, being the Minister for the time being

administering the Motor Traffic Ordinance 1936 (A.C.T.)

("the Ordinance"). It may be assumed that he has been joined as a party pursuant to s.17 of the Judicial Review Act. The second respondent is the Registrar of Motor

The Ordinance provides (s.168) that a person who, except in pursuance of a licence granted under the Ordinance, uses any motor vehicle, or causes, permits or suffers it to be used, upon a public street as a taxi is guilty of an offence. Provision is made by sub-s.27(1) for the grant of a Licence to use a motor vehicle as a_ taxi. That sub-section provides that the Registrar, that is to say the Registrar of Motor Vehicles appointed in pursuance of the Ordinance, may grant to a person who intends to use a motor vehicle as a taxi, on payment of the sum of $80,000, a licence to use the vehicle as a taxi. The Registrar is not to grant a taxi licence to the holder of a private hire car

licence or to a person who already holds two taxi licences

(sub-s.27(2)). Sub-section 27(2B) provides that the Registrar 1s not to grant a taxi licence if the number of

taxi licences in force would exceed 149 or such higher

number as the Minister, by instrument in writing published

in the Commonwealth of Australia Gazette, from time to time

determines. Sub-section 209(1) provides that the Minister may, whenever he thinks fit, remit any fee or portion of any fee payable under the Ordinance, or refund to any person any fee under the Ordinance paid by that person or any portion

It appears that for many years prior to 1986 taxi lacences had been granted to drivers of taxis on the basis of seniority, seniority being determined in accordance with a list maintained by the taxi industry. In 1986, a decision was taken that the system of allocating taxi licences to drivers under the seniority system would no longer apply. Under the new policy, reflected in the amendments made by the Motor Traffic (Amendment) Ordinance 1986 (A.C.T.) which came into operation on 27 March 1986, a fee of $80,000 was payable for a taxi licence. The Minister decided, however, that a final opportunity would be given to a limited number of senior drivers to obtain such a licence upon payment of a fee of $250. In order that a licence might be granted at the concessional rate, it was necessary that the Minister remit the fee otherwise payable except to the extent of

By a press statement issued on 16 July 1986, the Minister announced what were referred to as "major changes to Canberra's taxi industry". One of the matters announced was the sale of 25 new tax1 licences. Although it was apparently intended that in the issue of these licences preference would be given to eligible senior drivers who

would be required to pay a fee at the concessional rate of

Following the press announcement, the Canberra Taxi Proprietors' Association, by letter dated 5 August 1986, provided the Registrar of Motor Vehicles, at her request, with a list of names of taxi drivers, some 39 in all, who considered themselves eligible for the grant of a taxi

Sometime prior to 18 August 1986, the view had apparently been taken that the Minister should define more precisely than had previously been done "the criteria for eligibility to participate in the preferential issue of taxi licences to senior taxi drivers". For that purpose a submission bearing that date was put to the Minister. It

"12. It is recommended that you endorse the following criteria to identify senior taxi drivers eligible to receive preferential treatment in the current licence issue (refer para 4) -

four years full-time experience as a taxi driver in the ACT as at 16 July

(b) only residents of the ACT with current taxi driver licences and who do not hold

a current ACT taxi or private hire car licence (proprietors)

(c) a full-time driver is one who has averaged in excess of 34 hours a week as a taxi driver for the last 4 years and whose primary source of income (earned or unearned) is derived from his occupation as a taxi driver

(ad) where extended period of ill health can be identified as the only reason whereby the average hours as a taxi driver cannot be met, then the periods during

which bona-fide sickness can be established will be ignored in calculating the average hours of operation

(e) the onus will be on the taxi driver to prove his claim in the event of a dispute.

13. It is recommended that drivers meeting the above criteria be granted a non-transferable tax1 licence for $250 and that these licences will have to be made transferable within two

years of the new Public Vehicle Ordinance at 75% of market value (same as for last issue). To

implement this, you agree to remit $79,750 of the fee currently required for non-transferable taxi plates under the Motor Traffic Ordinance.

14. It is further recommended that no further preferential treatment be given to senior taxi drivers in future licence issues."

The reference in par.12 of the submission to par.4 thereof

"4, In my submission of 27 June 1986 I suggested that this preferential treatment be

defined as granting those taxi drivers with four or more years full time experience non-transferable taxi plates at $250 which could be converted to transferable licences within two years of the new Public Vehicles Ordinance being enacted, at a fee of 75% of the market value. (This would compare to the purchase of a licence at $80,000 for other taxi licences to be sold in the next issue of 25)."

On 5 September 1986 the applicant received a letter

"The Canberra Taxi Proprietors' Association has provided me with a list of taxi drivers

the past four years. Your name appears on this list but neither the Proprietors'

Association or Csicl the Transport Workers Union records could substantiate your claim.

In consequence if you are to be issued a licence under favourable conditions as a senior taxi driver I will require evidence

that your full time occupation has been taxi driving over the past four years.

The agreed criteria for inclusion on the list of senior drivers with over four years experience are:~-

(a) the drivers are required to have had four years full-time experience as a taxi driver in the ACT as at 16 July (b) only residents of the ACT with current taxi driver licences and who do not hold a current ACT taxi or private hire car licence (proprietors)

(c) a full-time driver 1S one who has averaged in excess of 34 hours a week as a taxi driver for the last 4 years and whose primary source of income (earned or unearned) is derived from his occupation as a taxi driver

be identified as the only reason whereby the average hours as a taxi driver

which bona~fide sickness can be established will be ignored in

{e) the onus will be on the taxi driver to prove his claim in the event of a dispute.

In establishing a4 claim I will require documentary evidence such as tax records, taxi owner's records or statutory declarations regarding your driving history, or Co-op driving records.

I wish to finalise the list of those senior drivers eligible to be issued a licence under favourable conditions as soon as possible and unless you provide your evidence by the 19th

of September 1986 your name will not he included on the list."

The applicant subsequently forwarded to the Registrar of Motor Vehicles three statutory declarations, one made on 10 September 1986 and two made on i6 September

One of the statutory declarations, that made on 10 September 1986, sets out the applicant's taxable income for the years ended 30 June 1982 to 30 June 1985 inclusive and the income tax paid in respect of the taxable income derived during each of the years ended 30 June 1983, 30 June 1984 and 30 June 1985. No further details were given. In particular, no information was given as to the source of the income derived by the applicant in any of the years

September 1986 did no more than assert that taxi driving was

the only full-time occupation in which the applicant had

worked since obtaining his. taxi driver's licence on 18 October 1981. The second statutory declaration of that date stated that the applicant had been driving taxis for the past 4 years 11 months. The document then set out a list of owners for whom the applicant had driven and details of the periods during which he had driven for particular owners. Also listed were two periods of time when the applicant was on holidays. Attached to the statutory declaration were

statements made by taxi owners by whom the applicant had

By statutory declaration made on 2 October 1986 the Secretary/Manager of Aerial Taxi Cabs Co-operative Society Limited, relying for this purpose upon the driver records maintained by the Society, vouched for 11 of the applicants whose names had appeared in the letter dated 5 August 1986 as being drivers who met the criteria which had been made known to the Society. The Society was unable to vouch for any of the others whose names appeared in the letter dated 5 August 1986. In particular, the Society was not able to

It was accepted that each of the eleven drivers whose eligibility had been vouched by the Secretary/Manager of Aerial Taxi Cabs Co-operative Society Limited was eligible for the grant of a licence at the concessional rate. It was decided that the other applicants should be required to establish their eligibility. Because of concern

as to the accuracy of some of the claims made by a number of

• bea resident of the ACT with a current taxi driver's licence and not hold an

interest in an ACT taxi or private car licence (proprietors)

• bea full-time driver who has averaged in excess of 34 hours per week and whose primary source of income (earned or unearned) 15s derived from his/her occupation as a taxi driver. Consideration may be given to drivers

Shlomo Cohen John Fitzpatrick Malcolm McArthur Tony Jackson Brian Elliott Robert Gaillard

Note: There may be further additions to list at a later date. Such additions

Any person who considers that any of the do not meet the criteria may inform

Registrar of Motor Vehicles, giving reasons which would make the person ineligible according to the set criteria."

The Registrar of Motor Vehicles did not regard as entirely satisfactory the information provided by the applicant in the form of statements by taxi owners by whom the applicant said he had been employed as a driver. In some instances the ainformation provided stated that the applicant had been employed only as a part-time driver while in other instances the information provided did not state in what capacity the applicant had been employed, whether full-time or part-time. To take another example, the information provided showed that during the period 22 July 1984 to 6 December 1984 the appellant was employed both as a full-time driver by one owner and as a part-time driver by another. The unsatisfactory nature of the information provided led to further enquiries being made into the applicant's eligibility for the grant of a taxi licence at

The applicant supplemented the material previously provided by furnishing two further statutory declarations, both made on 19 January 1987. Those statutory declarations sought to deal more specifically with the applicant's employment as a taxi driver during the period 2 July 1984 to 6 December 1984. Subsequently, the applicant also furnished

Vehicles of the records concerning the applicant, it was

discovered that on 3 February 1984 the applicant had had his driver's licence cancelled for twelve months for driving while under the influence of alcohol and that, on an application subsequently made to the Court, he had been granted a special licence permitting him to drive a taxi from 4 p.m. to 4 a.m. on 6 days a week with effect from 30 April 1984. The discovery of this information led to further doubts concerning the accuracy of some of the material supplied by the applicant in support of his application. A particular cause for concern was that a Mr A.L. Prieto had provided a statement showing that the applicant had been driving for him on a full-time basis during the whole of the period when the applicant had no

On 30 June 1987, the Minister accepted a recommendation put to him by the Registrar of Motor Vehicles "that Messrs McArthur and Canother person] are not eligible for the issue of taxi licences at $250". The recommendation was supported by a submission dated 24 June 1987. Reference was made in the submission to the circumstance that, of the 25 licences the Minister had agreed in July 1986 to issue, 15 had been allocated, 8 applicants had been refused and two applications, including that of the applicant, were yet to be determined. The submission stated that it had recently come to the author's attention that the applicant had had

his driver's licence cancelled for twelve months for driving

while under the influence of alcohol and that he had obtained a special licence to drive a taxi after three months. In the result, so the submission proceeded, the applicant was "ineligible to drive for a three month period during the eligibility period" and that he was considered "unable to meet strictly the criterion of four years full time driving during the eligibility period". The submission then referred to the fact that the applicant had "resisted providing evidence that his primary source of income was from taxi driving". The submission referred to certain documents as being annexed to it. Those documents are not in evidence. It would appear that one of them set out the criteria which the Minister had agreed should apply in

determining who was eligible for a licence on preferential

On the same day, 30 June 1987, a letter was addressed by the Minister's Senior Private Secretary to the applicant's wife in reply to a letter which she had written

"T refer to your letter of 25 May 1987 to the Minister for Territories concerning your husband's application for a taxi licence under the preferential conditions for senior taxi drivers. Mr Scholes has asked me to reply on his behalf.

The Minister has requested that the guidelines, which he established for granting taxi licences on preferential terms, should be strictly applied. On a strict application of the guidelines, your husband did not drive a taxi for a continuous period of 4 years and is not eligible for the grant of a taxi Csic] on the preferential terms. The Minister would not want to be seen to be making an exception to the

guidelines, which have been strictly applied to deny other applicants, for persons who do not meet the guidelines because of a drink driving conviction. Accordingly, the Minister is not prepared to grant Mr McArthur's application for a taxi driver's CsicJ licence under the preferential conditions.

Even if the Minister agreed to waive the period when your husband was unlicenced, it would be unlikely for your husband to he able to satisfy the requirement that his 'primary source of income' (earned or unearned) was derived from his occupation as a taxi driver. I note' that your husband was not prepared to produce copies of taxation returns which would have shown whether he satisfied this requirement."

Subsequently, the applicant received a letter dated 3 July 1987 from the Registrar of Motor Vehicles reading as

"I refer to your application for a taxi licence under the preferential conditions the Minister for Territories agreed to make licences available to senior drivers.

As your wife was informed by the Minister's Senior Private Secretary, the Minister has requested that the guidelines which he established for granting taxi licences on preferential terms, should be strictly applied. On a strict application of the guidelines you did not drive a taxi for a continuous period of 4 years, and you are therefore not eligible for the grant of a taxi licence on the preferential terms. The Minister would not want to be seen to be making an exception to the guidelines, which have been strictly applied to deny other applicants, for persons who do not meet' the guidelines because of a drink driving conviction. Accordingly, the Minister is not prepared to grant your application.

You are further advised that even if the Minister agreed to waive the period when you were unlicenced it would be unlikely that you could satisfy the requirement that your 'primary source of income (earned or unearned)' was derived from your occupation as a taxi driver. He noted that you were not prepared to produce copies of taxation returns which would have shown whether you satisfied that requirement."

In June 1987 I received a submission from my Department ("the departmental submission") relating to the eligibility of two persons who were being considered for concessional licences, one of those persons being the applicant in these proceedings. Part of that submission is amnexure Q to the affidavit of Catherine Parsons sworn in these proceedings. The two persons' applications did not fall within the criteria I had laid down.

On 30 June 1987 I agreed with the recommendation in the departmental submission that the applicant in these proceedings was not eligible for the issue of a taxi owner licence at the concessional fee of $250. At about that time I asked my staff to signa letter to the applicant's wife who had written to me in a letter dated 25 May 1987 relating to the applicant's application for a taxi owner licence on preferential terms.

I took into account the advice provided to me by my Department that the applicant had had his licence cancelled by a Court for a twelve month period in 1984 and that he had not obtained a special licence to drive until 30 April 1984 almost three months after his licence was cancelled on 3 February 1984.

I considered whether the criteria which I had settled and which had been advertised in the Canberra Times on 24 December 1986 should be waived in relation to the applicant and another person. In relation to the applicant I decided that the criterion of 4 years full-time driving between July 1982 and July 1986 should not be waived for a person who had had a gap in his driving period caused by a drink driving conviction. that

8. My decision to refuse to allow the applicant to purchase a licence at a concessional fee of $250 was based upon the fact that he could not satisfy the 4 year full-time driving criterion because of the gap caused by his drink-driving conviction. This was in my view the disqualifying factor. The applicant's primary source of income was a factor to be considered only after he satisfied

the criterion of 4 years full-time driving or I was satisfied that in the circumstances that criterion should be waived. Iwas not satisfied that it should be waived in this case.

9. At the time I considered the departmental submission, I considered only whether the persons mentioned in the submission should be allowed to purchase taxi licences for a nominal fee of $250 instead of having to pay $80,000

laid down by section 27 of the Motor Traffic Ordinance. I did not at that time consider whether these persons should be able to purchase a taxi licence at the $80,000 fee set out in section 27."

For the applicant it was submitted that the Minister did not have power to make the decision which he purported to make, described as a decision to refuse the applicant a taxi licence, as that was a power which was vested by sub-s.27(1) of the Ordinance in the Registrar of

In my opinion, the submission is misconceived. It seeks to draw support from the references in the submission to the Minister upon which his decision was based and in other documents, such as the letters to the applicant's wife and the applicant dated respectively 30 June and 3 July

1987, to the refusal of the applicant's application for a

taxi licence. The submission, however, fails to give due weight to the fact that, in each instance, it is not to an application for a taxi licence simpliciter but to an application for a taxi licence under the preferential conditions enabling a licence, if granted, to be obtained at a@ concessional fee of $250 that the submission and the other documents refer. Iam left in no doubt that the correct analysis of what occurred is that the only decision which the Minister made was a decision pursuant to sub-s.209(1) of the Ordinance that he was not prepared, in the applicant's

case, to remit any portion of the fee which would otherwise be payable by him upon the issue to him by the Registrar of

Motor Vehicles of a taxi licence pursuant to sub-s.27(1).

It is convenient, at this point, to dispose also of the application in so far as it seeks an order of review in respect of what is described as the failure of the Registrar of Motor Vehicles to decide that the applicant should be granted a taxi licence under preferential conditions. The power vested in the Registrar by sub-s.27(1) is a power which, absent a remission by the Minister of the whole or part of the fee there prescribed, is conditioned to be exercised only upon the payment of a fee of $80,000. As it

is clear that the application made by the applicant was not,

and was not intended to be, an application which, if granted, would attract a fee of $80,000, the occasion for the exercise by the Registrar of the power vested in her by sub-s.27(1) had not arisen. That part of the application is

The decision of the Minister not to remit, in the applicant's case, any part of the fee payable upon the issue of a taxi licence was challenged on a number of grounds. The arguments presented on behalf of the applicant, however, had their focus in the criteria approved by the Minister on 28 August 1986 and later published in "The Canberra Times" newspaper. The argument, as f understood it, progressed by these steps. The Minister, on his own admission (see par.4 of his affidavit sworn 8 June 1988), purported to determine the question of the applicant's eligibility for the grant of a licence at the concessional rate by reference to the approved criteria and not otherwise. The Minister concluded that the applicant did not satisfy the requirement of "four years full-time experience as a taxi driver in the A.C.T. as

at 16 duly 1986" because he had been disqualified from

driving during the period of three months from 2 February to 30 April 1984, the ground of refusal being expressed in the letters dated 30 June and 3 July 1987 in terms that the applicant "did not drive a taxi for a continuous period of 4

years". Contrary to the view taken by the Minister, the approved criteria, om their proper construction, were satisfied in relation to an applicant's taxi driving experience if it were established that the quotient resulting from dividing the total number of hours) during which the applicant drove a taxi in the period of four years from 17 July 1982 to 16 July 1986 by the number of weeks in

that period was 34 or more. The Minister had, therefore,

failed to give effect to the approved criteria, properly

construed, and, in regarding the lack of continuity in the applicant's taxi driving record as decisive, he had taken into account a matter that was not an element of the approved criteria and was to be regarded as having taken unto account an irrelevant consideration. The decision was,

therefore, an improper exercise of the power conferred by sub-s.209(1) of the Ordinance (Judicial Review Act, s.5(1)(e) read with s.5(2)(a)). The submission was summarised by saying that the Minister had applied to the

interpretation based on an irrelevant consideration.

It was further submitted that, in so far as the Minister determined the application without having ascertained the average per week of the hours worked by the applicant as a taxi driver during the relevant period of four years, he failed to take into account a relevant consideration and the decision was, on that account, an improper exercise of power (Judicial Review Act, s.5(1)(e)

It was also submitted on behalf of the applicant that, in so far as the Minister took into account that the applicant had not produced copies of his income tax returns in respect of income derived during the relevant period of four years, the Minister had taken into account an irrelevant consideration. It was submitted that the

approved criteria did not require the production of income

tax returns and, in any event, the applicant had produced sufficient documentation to satisfy the requirement set out in the approved criteria that his primary source of income during the relevant period be shown to be his occupation as

In considering these submissions, it is important to bear in mind that the approval of the criteria by the Minister and their subsequent publication conferred no right upon the applicant to have a taxi licence granted to him at the concessional rate provided only that he brought himself squarely within those criteria. What the applicant needed to do in order to secure such a licence was to satisfy the Minister that he should exercise the discretion conferred upon him by sub-~s.209(1) of the Ordinance so as to remit, except as to $250, the fee otherwise payable on the grant of a taxi licence. The discretion which that sub-section confers 1s expressed in wide terms. The provision does not set out the factors to be taken into account and, consequently, those factors are to be determined by implication from the subject-matter, scope and purpose of

the Ordinance: Minister for Aboriginal Affairs v. Peko

Wallsend Ltd (1986) 162 C.L.R. 24 at pp.39-40. The approval and publication of the criteria did not operate to limit the

width of the discretionary power: Broadbridge v. Stammers

said by Fox J. in Minister for Industry and Commerce v. East

West Trading Co. Pty Ltd (1986) 64 A.L.R. 466 at p.470:

"When s.5(2)(a) refers to taking into account an irrelevant consideration and s.5(2)(b) refers to failing to take a relevant consideration into account, the references are to the requirements of the law. The law is to be ascertained by reference to the enactment under which the decision is made: see Sean Investments Pty Ltd v. MacKellar (1981) 38 A.L.R. 363; (1982) 42 A.L.R. 676; Gurleven v. Minister for Immigration and Ethnic Affairs umreported, Full Federal Court, 24 February 1984."

See also Minister for Immigration and Ethnic Affairs v.

the submissions put on behalf of the applicant would require, to discuss the question whether the Minister in this case took into account irrelevant considerations or failed to take into account a relevant consideration by reference to the criteria which the Minister approved. The question whether there was an improper exercise of the power on such grounds must be resolved by reference to the provisions of the Ordinance and, in particular, the terms of sub-s.209(1). When one turns to that sub-section, it cannot be doubted that the matters which the Minister took into account were matters which he could quite properly regard as being relevant to the question whether he should, in the

applicant's case, remit so much of the fee payable under

s.27 as would enable a grant of a taxi licence to be made to

What I have already said is sufficient to dispose of the submissions of the applicant which I have summarised above. I should add, however, that I am not satisfied that the Minister's decision 1s not supportable within the terms of the criteria approved by him. The language in which the criteria are cast is not as precise as it might be but it is certainly not the case that, in so far as they concern an applicant's taxi driving experience, they are open only to the construction for which the applicant contends. It was, in my view, clearly open to the Minister, on the material before him, to take the view that the applicant had not

eligibility - that he had had four years' full-time experience as a taxi driver in the Australian Capital

Other grounds relied upon are that the discretionary power was exercised in accordance with a rule or policy without regard to the merits of the applicant's case (ss.5(1)(e) and 5(2)(f) and that there was no evidence or other material to justify the making of the decision (ss.5(1)(h) and 5(3)). There is, in my opinion, no substance in either of these grounds. It is demonstrable on the material before the Court that the applicant's case was

considered on its merits and that there was material before

the Minister to justify the decision at which he arrived.

dismissed. The applicant must pay the respondents' costs.

I certify that this and the preceding 21 pages are a true copy of the Reasons for Judgment herein of the Honourable

Counsel for the applicant : Mr I.W. Nash Solicitors for the applicant : Snedden Hall & Gallop

Counsel for the respondents : Mr A. Robertson Solicitor for the respondents : Australian Government Solicitor