Applicable legislation
8Section 4 of the Act provides:
4 Objects
The objects of this Act are:
(a) to require the accreditation or authorisation, by [the Respondent] of the operators of and drivers involved in public passenger services (other than ferry services), and
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(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
(f) to encourage co-ordination of public transport services.
9Section 33 of the Act provides:
33 Authorities
(1)The Director-General may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver".
(2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units.
(3) 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 taxi-cab, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab:
(i) in accordance with the conditions under which the taxi-cab service concerned is operated, and
(ii) in accordance with law and custom.
10Section 33F of the Act provides:
33F Variation, suspension or cancellation of authority
Having regard to the purpose of authorisation under this Division, the Director-General may at any time vary, suspend or cancel any person's authority under this Division.
11The decision under review in the current proceedings is a decision to cancel the Applicant's taxi driver authority. Section 33F clearly provides that in making a cancellation decision regard is to be had to the purpose of the authority. The purpose of an authority is to attest to the matters set out in subsections 33(3)(a) and 33(3)(b) of the Act, namely, to attest that the authorised person is:
- of good repute; and
- a fit and proper person (to be so authorised); and
- considered to have sufficient aptitude and responsibility to drive a taxi cab in accordance with -law and custom; and in accordance with the conditions under which the taxi service is operated.
12Section 63 of the ADT Act provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.
13A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker.
14Section 63(3) of the ADT Act provides that in determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
15A useful review of the authorities was provided in the case of Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199:
7........The purposes of a taxi drivers authority are set out is s 33(3).....
8.The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380:
'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'
9. The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:
'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 ... to rehabilitate himself, would object to the Applicant as the driver of the taxi.'
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12. In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389:
"...is to be found in the estimate of his moral character entertained by some specific group of people, such as by 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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 etseq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character.
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14. In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that:
...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation."
16In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 the Tribunal cited Waddell J in Re T and the Director of Youth and Community Services at 393:
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 conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation.
17A decision of the Appeal Panel of the Tribunal: Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 also provides useful guidance:
38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39.
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
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42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z's background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?
43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P ...:
18The Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 reviewed relevant authorities and concluded:
When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public
19The decision in Murray was subject of comment by the President in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91:
In that case [Farquharson] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material.
The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known.
However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)).
A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13].
A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'.
20In Saadieh v Director General, Department of Transport the Tribunal offered further guidance as to assessing a person's fitness to be authorised to drive a taxi-cab. The Tribunal observed:
17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include:
-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 re-offend, be the subject of further complaints or commit further traffic offences.
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.
21in Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Simpson J considered the assessment of whether the applicant was a "fit and proper person" and stated:
42 By s 11(2)(a) the holder of an authority is required to have two attributes: he/she is to be 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". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly.