1. The decision to refuse the applicant accreditation was made by the Taxi Services Commission under section 75(2)(b) of the Act.
2. Section 253(4) says the Tribunal must not make an order granting driver accreditation unless:

(i) is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing commercial passenger vehicle services; and

(ii) is a fit and proper person to provide a commercial passenger vehicle service; (sections 253(4) and 75(1)(b)); and

1. The applicant has demonstrated that the issue of accreditation is appropriate having regard to the public care objective, which is that the services provided by drivers of commercial passenger vehicles:

(a) be provided to persons using those services and to other persons, particularly children and other vulnerable persons -

(b) be provided in a manner that is not fraudulent or dishonest; and (sections 253(4)(b), 75(1)(a) and 69);

(i) the making of the order would not pose an unjustifiable risk to the safety of users of commercial passenger vehicle services; and

(ii) in all the circumstances, it is in the public interest to make the order (section 253(4)(c)).

1. The term 'fit and proper person' referred to in criteria A above is not defined in the Act but its meaning has been the subject of much judicial comment. The test does not carry defined criteria but allows for a wide range of matters to be considered. It includes not only whether a person has the necessary honesty, knowledge and ability but also whether the person is possessed of sufficient moral integrity and rectitude of character to permit him to be accredited to the public as a person to be entrusted with the sort of work the licence entails.[2] The decision maker needs to make a value judgment and in so doing must make an assessment of the seriousness or otherwise of the particular conduct for evaluation. The same approach is to be applied to weighing matters in favour of the person. The test must be applied in the context of what the person will be authorised to do if the relevant permission is given.[3]
2. Accredited drivers are entrusted to drive persons, including the vulnerable, to their destination safely. As they occupy a position of trust, drivers are expected to behave in a respectful and professional manner to ensure the passengers, who are travelling alone in the car with a stranger, feel safe and at ease. Unfortunately, it is often the case that accredited drivers must carry difficult, aggressive and/or intoxicated passengers. An accredited driver must be able to deal with challenging situations such as these without resorting to any form of violence or interfering with a passenger's autonomy.
3. When considering criteria C above, the Tribunal must consider the following:
   • (i) the nature and gravity of the offence and its relevance to the commercial passenger vehicle service to be provided by the applicant;
   • (ii) the period of time since the applicant committed the offence;
   • (iii) whether a finding of guilt or conviction was recorded;
   • (iv) the sentence imposed for the offence;
   • (v) the age of the applicant when the offence was committed;
   • (vi) in relation to any sexual offence, the age of any victim;
   • (vii) whether or not the conduct that constituted the offence has been decriminalised since the offence was committed;
   • (viii) the applicant's behaviour since committing the offence;
   • (ix) the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person;
   • (x) any information given by the applicant.[4]
4. In ZZ v Secretary, Department of Justice & Anor,[5] at paragraph 134 Bell J said the following about the unjustifiable risk criteria in the predecessor to section 253(4)(i) of the Act:

The test of 'unjustifiable risk' requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. The assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances.

1. Section 253(4)(c)(i) has the effect that accreditation may only be granted if, in all of the circumstances, it is in the public interest. The High Court of Australia discussed the meaning of that term in ICM Agriculture Pty Ltd v The Commonwealth.[6] The High Court said:

The term "in the public interest" is one of broad import. When used in a statute, the term classically imports a discretionary value judgment to be made by reference to undefined factual matters confined only by the subject matter, scope and purpose of the statute in question.[7]

1. The predominant public interest here is the safety of the travelling public. Also relevant to this test is the interest in encouraging people to be 'worthy citizens and people of good fame and reputation',[8] including by their participation in the workforce.

The circumstances of the threat and the guilty finding

1. The applicant was found guilty of making a threat to kill after he pleaded guilty. The fact it is within the category 1 offences, reflects the seriousness and gravity of the offending.
2. In brief, the applicant believed his wife, Ms Kaur, was involved with another man. Over the course of a weekend in July 2017 he kept pushing her to tell him about what he believed to be an affair. His wife attended the local police station to report that he had threatened to kill her several times over the weekend.
3. In his interview with Victoria Police, the applicant admitted he said words to the effect 'You tell me the truth. If you have physical relations with the people then there's no chance. If you don't tell me now, then I'm going to kill you.' The applicant denied the allegation that he told his wife he would cut her up and throw her body pieces into the rubbish. He later told police he made that threat in anger but did not mean it and that he would never do that.[9]
4. I noted the applicant's statements in his correspondence with the Tribunal that he did not intend to make a threat to kill but rather said words to the effect that he and his wife's relationship would end.
5. I noted Ms Kaur's statutory declarations,[10] which said that, at the time the threat was made, she and her husband were having some problems and she had made friendships with men who she spoke to without the applicant's knowledge. At the time, she was scared and went to police for help. She also said that in heated moments the applicant said things which do not reflect his true personality. In her statutory declaration, Ms Kaur said that the applicant meant that their relationship would end. While she took it as a threat to kill, later and after reconciling with her husband, she understood he really meant their relationship would end. She went to the police station to withdraw the charges but Victoria Police continued to pursue them.
6. I also noted an email from the Victoria Police informant to the Commission dated 21 September 2017. The informant interviewed the applicant and Ms Kaur.
7. The officer said Ms Kaur's English was good enough for her to make an allegation but became worse when asked to be more specific. It seemed he regarded language as an actual or perhaps convenient barrier to her being clear about what occurred.
8. The officer went on to say, though, the applicant made admissions to him immediately, including about his own behaviour and ranting at his wife about whether she was having an affair. He admitted making the threats. The officer said that the applicant presented as desperately looking for the truth and was 'ashamed of the possible truth'. The officer believed the applicant when he said he did not mean the threats. However, as the applicant had made the admissions and the circumstances involved family violence, it was sufficient to present at court. The officer commented that he did not think the police summary reflected all of the story. He said that he would have no hesitation in getting into a taxi with the applicant.
9. The materials indicated that, at around the time of the charges, an intervention order was applied for and granted against the applicant but that while Child Protection interviewed the applicant as a result of reports he had been arguing with his wife in front of the children, it seems no action was taken.

Information about the applicant's subsequent conduct and character

1. In his written application to this Tribunal, (which required confirmation the contents were true and correct), the applicant recounted the above events. He explained he was suffering severe emotional distress at the time and was devastated that his family life was threatened. He described himself as acting irrationally and out of character. He described his behaviour as coercive and unacceptable. He expressed deep regret for what led to the criminal charges. He said looking back he had been emotionally weak but said he had emerged strong. He described the corrective steps he had taken which are summarised below. He mentioned he and his wife had attended psychological and counselling sessions after these events - some separate and some together. The applicant said a positive outcome on his application to the Tribunal would have a strong bearing on his ability to earn more and provide for his family in future.
2. Ms Kaur's statutory declarations confirmed she and the applicant had attended counselling sessions individually and together. She declared their relationship was back to normal and that they had both learnt good lessons which would help in their future life together.
3. The applicant sent the Tribunal various documents including a statement showing he had attended 13 (out of 14) sessions of a Men's Behaviour Change program in 2017.[11] On policy grounds the statement does not make any comments about the matters discussed or the applicant's level of participation in that program but rather describes in general terms the matters covered.
4. A record of the applicant's attendance at a Caring Dads program was more revealing.[12] It indicated that, in the past, the applicant had displayed controlling behaviour in relation to his wife and children. The applicant was described as a thoughtful and reflective participant who engaged well and completed the assigned homework in detail and with insight. The report indicated the applicant accepted he needed to work on managing his own behaviour and responses to his wife and children and ensure that he placed emphasis on their needs and rights. The report said that the applicant had been surprised at the response of Victoria Police and others to the events surrounding the criminal charges but had come to realise his behaviour was causing harm to his family.
5. The applicant supplied a letter from a clinical psychologist dated 12 March 2018. The letter reported that the applicant had attended a number of sessions commencing in August 2017. The report recounted the events of July 2017 and the aftermath - the applicant was described as a 'reliable historian who was genuinely interested addressing his emotions and behaviour.' The psychologist stated the applicant engaged well and presented as comfortable talking about his problems. The letter indicated the applicant had reflected on his past behaviour, accepted any physical or emotional abuse was unacceptable and that he was determined that no such behaviour occurs in future. The psychologist stated that, as at the last appointment in early March 2018, there were no concerns about risk to the applicant's family.
6. The applicant provided a number of written references which supported him and referred to him in positive terms. A number were written by work supervisors and colleagues. While some indicated an awareness of family violence matters, it was not clear whether they were referring to the intervention order or the guilty finding of the offence of threat to kill. In those circumstances, I noted their contents but gave them only limited weight.

1. There was no issue that the applicant is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing commercial passenger vehicle services. Similarly, there was nothing to indicate he will not provide those services free of dishonesty and fraud.
2. The issue was whether the circumstances leading to and following the criminal charges and finding of guilt mean that the applicant does not meet the other aspects of the criteria for being accredited which go to character, risk, safety and the public interest.
3. I noted the police informant's hesitation about Ms Kaur's English when being interviewed about the detail of the threats. I noted that in her statutory declarations, Ms Kaur stated she works as a child care educator and so have proceeded on the basis that her English was sufficient to make those declarations.
4. Although I accept the applicant and his wife may now see the events which led to the criminal charges differently and as arising from very specific circumstances, I cannot look behind the applicant's guilty plea and the Magistrates' Court's guilty finding. While giving some weight to the informant's comments about his perception of the applicant, the fact the charges proceeded indicate that, at the time, the applicant's behaviour was of significant concern. The fact an intervention order was made and, presumably, he was required to attend the Men's Behaviour Change program indicates the Magistrates' Court considered at that time he presented a risk of emotional harm to his family. That view is supported by the report as to his attendance at the parenting program.
5. Pleasingly, the reports of his attendance at those programs and the psychologist's report indicate the applicant has accepted and understood his past behaviour was unacceptable and he has taken positive steps to change.
6. The applicant's past conduct raises concern about his treatment of his family, rather than his treatment of members of the public. Although the role of an accredited driver is different to that of a husband and parent, it is now well accepted that there is a link between a lack of respect for women and the risk of violence against them, including family violence. Accordingly, attitudes about the roles of men and women and a willingness to control others and so interfere with their autonomy might be of concern in circumstances where a driver is transporting women, vulnerable persons or others who may be alcohol or drug affected. Having said that, the Commission's material stated that there had been no complaints about the applicant when he was an accredited driver. There is nothing to indicate some of the applicant's past controlling behaviours have arisen as an accredited driver or at his workplace.
7. I am satisfied on the material before me that the applicant has taken positive steps to improve his understanding of his own attitudes and how to manage himself and his behaviour. That bodes well for him exercising good judgment and self-control when dealing with challenging situations and passengers. In my view, the applicant has demonstrated a willingness to reflect on his own attitudes and behaviour and to change and improve himself. His insight into the problems with his past attitudes indicates an awareness of how those matters can negatively impact on others. That all reflects well on the applicant's character.
8. Taking into account the role of an accredited driver and the various reports before me, including the psychologist's report, I find the applicant is currently a fit and proper person to be accredited (criteria A).
9. Criteria B above addresses the public care objective. Taking into account the applicant's past history and my findings as to his character and being fit and proper to be accredited, I am satisfied the applicant has demonstrated that the driver services can be provided to persons, particularly children and other vulnerable persons with safety and with comfort, amenity and convenience.
10. As noted earlier, criteria C, which is directed at unjustifiable risk required consideration of the factors under section 75(6) which are listed in paragraph 13 above. I have assessed them as follows.
11. I have described the offence the applicant has been found guilty of and its gravity. As discussed, while the offending was not directly connected to the service to be provided, the underlying attitudes displayed might have been of concern (item (i)).
12. The applicant was 40 years old when the offence was committed in July 2017, about 20 months ago. As stated earlier, he was found guilty in March 2018 and no conviction has been recorded. The applicant was fined $1,200 (items (ii) to (iv)).
13. The matters referred to in (vi) and (vii) are not relevant here.
14. I have described above the applicant's conduct since the offending. There has been no further offending. As discussed, I consider it to be highly relevant that the applicant has made serious and ongoing efforts to understand the causes of his behaviour and makes appropriate changes (item viii)).
15. Taking into account all of the above matters and for the reasons given above as to why I am satisfied the applicant is now a fit and proper person, I am also satisfied that there is a very low risk he would engage in the conduct which led to the category 1 offence again (item ix).
16. The material before me leads to the conclusion that there is no current risk to members of the public who may be transported by the applicant - balancing the events of July 2017 against the applicant's past conduct as an accredited driver and his current character as described above, I am satisfied the making of an order in the applicant's favour would not pose an unjustifiable risk to the safety of users of the service.
17. Finally, I find there is a public interest in allowing the applicant to participate in the community through work chosen by him and to improve his personal situation by increasing his income and capacity to support himself and his family.
18. For these reasons, I have decided to direct the Commission to issue the applicant with a driver accreditation.

[1] Section 100(2) of the Victoria Civil and Administrative Tribunal Act 1998 (Vic) says that, if the parties agree, the Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without any physical appearance by the parties or their representatives or witnesses

[2] See Hughes and Vale Pty Ltd v State of New South Wales (No 2) [1955] HCA 28; Boyd v Carah Coaches Pty Ltd (1979) HCA 56.

[3] Australian Broadcasting Tribunal v Bond per Mason CJ at paragraph 63.

[5] [2013] VSC 267.

[6] [2009] HCA 51.

[8] FC v Director of Public Transport [2010] VCAT 437 at paragraph 27.

[10] Declared on 19 September 2018 and 21 January 2019.