Singh v Point to Point Transport Commissioner

NCAT Occupational|2024-07-05

Introduction and summary

Harpartap Singh has been driving taxis for around 18 years. Taxi driving seems to have been his sole or at least main income-earning activity.
For most of that time Mr Singh has driven for what are now called 'authorised service providers', most recently the provider known as GM Cabs.
But in the middle of 2023, GM Cabs 'offboarded' Mr Singh as one of its drivers and initiated the process to terminate its affiliation with him. This action was taken as a direct result of Mr Singh's being charged with several domestic violence related criminal offences. Unable to drive for GM Cabs and unlikely to be taken on by an alternative authorised service provider, Mr Singh applied to the Point to Point Transport Commissioner for authorisation to provide his own taxi service. A delegate of the Commissioner refused to grant the provider authorisation, and that decision was affirmed on internal review.
Mr Singh has applied to the Tribunal for an administrative review of the decision to refuse his application. I have decided to affirm the original decision and now provide my reasons for doing so.

The Tribunal's jurisdiction

Mr Singh's application for authorisation to provide a taxi service was made under s 30 of the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) (PTP Act) and the application was refused under s 31. A decision to refuse an application for an authorisation is a 'reviewable decision' (s 145(2)); a person aggrieved by such a decision may apply to the Tribunal for an administrative review of the decision (s 145(1)). That makes the decision a decision over which the Tribunal has administrative review jurisdiction: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 9(1). It is under the ADR Act that the review is undertaken.

The facts

Mr Singh holds a taxi licence for a motor vehicle with a designated taxi plate. Following a period of suspension during 2023, the licence was renewed on 14 March 2024 and expires on 13 March 2025. But it seems the licence is of little practical value to Mr Singh unless he is also authorised by the Commissioner to provide a taxi service.
In June 2023 Mr Singh was arrested and charged with a number of serious criminal offences, all of them domestic violence related. They are alleged to have occurred between July 2022 and March 2023.
Once Mr Singh was charged, GM Cabs removed Mr Singh from their books as a driver. This meant Mr Singh had to apply for authorisation to provide a taxi service in his own name, unaffiliated with GM Cabs or any other authorised service provider. He applied for that authorisation in July 2023.
On receipt of Mr Singh's application, the Commissioner requested further information from him, including whether he planned to drive taxis himself, and how his business would be affected if he were found guilty of a 'disqualifying offence'. In his response Mr Singh indicated he planned to be driving taxis himself, and would not engage any other drivers. He said he understood he would have to stop driving immediately and surrender his authorisation if he were found guilty of any of the nominated offences.
After considering Mr Singh's response and other available information, the Commissioner refused the application for authorisation. The Commissioner acknowledged Mr Singh had not been convicted of any of the alleged offences, but had 'significant safety concerns' about Mr Singh being authorised to drive taxis while the charges remained before the courts.
Mr Singh has pleaded not guilty to all charges. He claims the allegations against him are false. The complainant is his wife, from whom he is now separated. He claims she has made the allegations to gain permanent residency through the 'domestic violence pathway' since her visa was about to expire or be cancelled. He also claims she has been helped in this endeavour by one of the police detectives involved in the case. Mr Singh made a formal complaint about that detective, who has since been removed from the case.
Mr Singh claims his estranged wife has since admitted to a friend that the allegations she made against him are false. That friend has made a formal statement to the police about this, and Mr Singh has provided a copy of the statement to the Tribunal.
To complicate things even further, in April 2023 Mr Singh applied for an Apprehended Domestic Violence Order (ADVO) against his estranged wife. Counsel informed me during the Tribunal hearing on 5 July 2024 that the ADVO matter is travelling together with the criminal proceedings.
At the time of the Tribunal hearing Mr Singh's criminal matter was listed to come before the Local Court two weeks later, on 19 July 2024. I adjourned the matter to await the outcome of that event, since the Tribunal dispute was likely to fall away if, as appeared possible, the prosecution did not proceed. However, on 19 July 2024 Mr Singh was committed for trial to the District Court on each of the criminal charges.

Relevant legislation

The current legislation regulating the provision of taxi and passenger hire vehicle services comprises the PTP Act and the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) (PTP Regulations). Replacing the Passenger Transport Act 1990 (NSW) (PT Act), the current scheme came into effect in November 2017. In both structure and language, there are marked differences from what was contained in the PT Act. For example, there is no longer a requirement on the regulator to make a positive finding that an applicant for authorisation is of good repute and in all other respects fit and proper to be responsible for the operation of a taxi service. Reputation and character are no longer referred to as considerations for authorisation.
You can't provide a taxi service unless you are authorised to do so: PTP Act, s 27(1). You have to apply to the Commissioner for authorisation, and the Commissioner may determine the application by granting or refusing the application: PTP Act, ss 30 and 31.
The Act doesn't specify the circumstances in which the application must be granted, only when it must not be granted. Section 31(2) says the Commissioner must not grant an application for authorisation unless satisfied that the applicant meets the general standards for authorisation or the standards for a current provider. It is important to note that the Act does not require the Commissioner to grant the application if satisfied the applicant meets those standards. In other words, s 31(2) is a disentitling provision, rather than one which necessarily leads to a favourable outcome for an applicant.
The 'general standards for authorisation' are specified in s 31(3). While the Commissioner accepts Mr Singh meets these standards, it is helpful to specify what they are. For an individual who has applied for authorisation (authorisation applicant), the standards are: 1. that the applicant has not been convicted of a disqualifying offence and that there are no current proceedings against the applicant for a disqualifying offence; and 2. that a close associate of the applicant has not been convicted of a disqualifying offence and that there are no current proceedings against a close associate of the applicant for any such offence.
'Disqualifying offences' for the purposes of these provisions are prescribed in clause 37 of the PTP Regulations. The offences with which Mr Singh has been charged are offences under ss 59, 61, 61I and 61KC of the Crimes Act 1900 (NSW) but none of those are specified in clause 37 - and it should also be noted that he has not been convicted of any of these offences anyway.
So, the Commissioner's acceptance that Mr Singh meets the 'general standards for authorisation' is clearly correct.
The PTP Regulations (clauses 33-36) prescribe additional standards that are required to be met for authorisation. The Commissioner accepts Mr Singh meets these standards as well.
The PTP Regulations also specify offences that are 'disqualifying offences' for drivers. These offences are different from those that are disqualifying offences for authorisation applicants. The offences in relation to drivers are specified in clause 24(2)(c) of the PTP Regulations. Included in that list are offences under ss 59, 61I and 61KC (but not s 61) of the Crimes Act.
So, in summary: 1. Mr Singh's application to the Commissioner is an application for authorisation to provide a taxi service; 2. Mr Singh meets the general standards for authorisation for the purposes of s 31 of the PTP Act and the additional standards in clauses 33-36 of the PTP Regulations; 3. Even if he were convicted of any of the offences of which he is charged, he would still meet the general standards for authorisation, and the convictions would have no impact on his meeting the additional standards; 4. Mr Singh has indicated that if the authorisation is granted, he is the only person who will be driving taxis under that authorisation; 5. Some of the offences of which he is charged are disqualifying offences for a taxi driver; he would be disqualified from driving if he were convicted of any of those offences.

Should Mr Singh's application for authorisation be granted?

The discretionary nature of the decision

It is clear from the use of the word 'may' in s 31(1) of the PTP Act that neither the Commissioner nor the Tribunal undertaking administrative review is obliged to grant the application even if the general standards for authorisation, and the additional standards in the regulations, are met. Instead, the decision whether to grant or refuse the application is at the discretion of the decision-maker.
It is equally clear, as the Commissioner observes, that the PTP Act and the regulations do not expressly identify any relevant factors for the exercise of that discretion. But that doesn't mean the decision-maker is free to take into account any factors that may spring to mind, no matter how obscure or eccentric. Instead, the factors the decision-maker may take into account are to be determined by implication from the subject matter, scope and purpose of the statute: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 40.

Subject matter, scope and purpose of the statute

The Commissioner observes, correctly, that the PTP Act does not have an express objects provision. Nevertheless, as has been previously noted by the Tribunal, safety is a paramount concern under this legislation: Haggar v Point to Point Transport Commissioner [2018] NSWCATOD 38 at [37].
On the issue of safety, the Commissioner's written submissions include the following: [32] … [T]he safety duties and standards applying to providers, drivers and others are governed by Part 2 of the PTP Act. Relevantly, s 12 provides that the provider of a taxi service (being a subset of a passenger service: see s 5(2)) must ensure, so far as is reasonably practicable, the health and safety of passengers and other persons in connection with the provision of the service; and must eliminate or minimise risks to safety so far as is reasonably practicable. Clause 7(1) of the PTP Regulation imposes a further duty on the provider of a taxi service to identify and keep a record of reasonably foreseeable hazards that could pose a risk to the health and safety of passengers and other persons, including the control measures taken to eliminate or minimise those risks. [33] Accordingly, the discretion under s 31(1) should be exercised with a view to recognising and promoting the paramount importance given to public safety under the PTP Act, including with regard to the providers of taxi services.
I agree with the Commissioner's identification of public safety as a matter of 'paramount importance' in the exercise of the discretion under s 31(1) of the PTP Act. What that means in a practical sense is that I must evaluate, first and foremost, the extent to which public safety may be at risk if Mr Singh is authorised to provide a taxi service as a driver, in light of the fact that he has been charged with several serious domestic violence related criminal offences - and in circumstances where, if he is convicted of any offences under s 59, 61I or 61KC of the Crimes Act, he will be disqualified from driving in any event.
The Commissioner submits I should approach the formation of my evaluative judgment assisted by the following: [40] Further, it is well established that the mere fact that allegations of serious criminal conduct have been made can be a sufficient basis to refuse an application for a licence or approval, particularly when considering the exercise of discretions which engage broad considerations such as the public interest. The Tribunal has repeatedly accepted this in the context of decisions under predecessors to the PTP Act: see e.g. Farquharson v Director General, Department of Transport [1999] NSWADT 53 at [27]; Hossain v Roads and Maritime Services [2018] NSWCATOD 11 at [32]; Hayden v Ministry of Transport [2008] NSWADT 261 at [29]. Similarly, the Tribunal has repeatedly rejected submissions that a matter where no conviction has been recorded (either because no conviction was pursued, or the criminal proceedings have not yet been heard) cannot be considered or given any weight: see e.g. FZQ v Commissioner of Police, NSW Police Force [2024] NSWCATAD 11 at [42].

The cases relied on by the Commissioner

The first three of the cases cited in the Commissioner's written submissions ([30] above) were taxi-driver cases.
In Farquharson, the applicant's driver authority had been suspended while he was free on bail pending trial on the charge of soliciting to murder. The legislation in force at the time gave the administrator the discretion to suspend an authority 'having regard to the purpose of the authority'; that purpose was relevantly 'to attest that an authorised person is considered to be of good repute and in all other respects a fit and proper person to drive a public passenger vehicle'.
In reviewing the suspension decision the Tribunal commented as follows: [20] … Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include, as part of their continuing oversight powers, a power to suspend the licence for public interest reasons. While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. … [21] An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence … [22] In considering whether to exercise any discretion to suspend or otherwise interfere with the licence, an administrator can not reasonably be expected to enquire into the strength or weakness of the case against the licensee. … Similarly a review tribunal can not be expected to go behind the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case. … [27] A taxi driver has a continuing responsibility to ensure that he is of 'good repute' and a 'fit and proper person'. Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. 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 … … [29] The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his 'good repute' even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict. [30] The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. … [36] In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. … [40] A licence confers a right on an individual to pursue a regulated occupation. The considerations relevant to the exercise of an administrator's discretion in that context will be affected by the nature of the statutory scheme, the legislative objectives and the specific terms of statutory powers. …
I have quoted from Farquharson at length to provide the context, and especially the legislative context, surrounding the Tribunal's reasons at [27], on which the Commissioner relies.
It is clear to me, and it is hardly surprising, that the Tribunal's reasoning in Farquharson was based on the legislation then in force - with the concepts of 'good repute', 'fit and proper person' and 'public interest' central to its determination. Those concepts have not been included in the current legislative scheme.
Similarly, in Hossain, the Tribunal turned its mind to the question whether the applicant was 'considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab'. In that context the Tribunal found at [32] (but only by way of obiter, in light of the conclusion that there was no avenue of review open to the applicant), and in reliance on the reasoning in Farquharson: [T]he fact that he has been found guilty of assault adversely affects his good repute. Similarly, the circumstance that he has been charged with other crimes adversely affects his good repute, irrespective of whether he is ultimately convicted of those charges.
The Tribunal in Hayden also relied on Farquharson in considering whether the applicant was 'of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab'. In relation to the 'fit and proper person' requirement, the Tribunal said at [29]: The likely perceptions of travelling members of the public are relevant in this consideration.
The Tribunal continued at [30]: In the circumstances of this matter I agree with the respondent that the objective seriousness of the charge against the applicant is such that a reasonable member of the travelling public would object to the applicant as the driver of a taxi in which they were travelling as a passenger. The seriousness of the charge is sufficient in its own right to permit the respondent to suspend the authority. That being the case I am satisfied that the decision made was the 'correct and preferable' one in the circumstances.
The fourth case cited by the Commissioner, FZQ, involved a person whose firearms licence had been revoked on the basis of the regulator being satisfied it was 'not in the public interest for the licensee to continue to hold the licence'. The applicant had been charged with, but not yet tried for, several serious sexual offences which had allegedly occurred over a period of 7 years. He submitted among other things that the matters alleged against him 'should be disregarded, not considered or not given any weight in deliberating on the issues because they are "untested" allegations'. At [42] the Tribunal stated: Likewise, I reject the Applicant's submissions that matters where no conviction has been recorded (either because no conviction was pursued, or the criminal proceedings have not yet been heard) cannot be considered or given any weight in the matter.

Is the reasoning in the earlier cases still relevant?

As I have already noted, the concepts of 'good repute', 'fit and proper person' and 'public interest' are not expressed anywhere in the current legislative scheme. Their omission - and it must be assumed to be a deliberate omission - gives rise to the question whether the reasoning in the earlier cases, based as they are on those concepts, is still relevant.

Farquharson, Hossain and Hayden

The propositions in Farquharson, which provides the foundation for the reasoning in Hossain and Hayden, can be summarised as follows: 1. The concept of 'good repute' goes to the way in which a person is regarded by others in the community (fairly or unfairly), while 'fit and proper person' goes to an individual's intrinsic characteristics, whether they are known to others or not - [27]; 2. The laying of serious charges bears on the reputation of an individual and may raise questions as to the person's character - [27]; 3. The administrator can be expected to consider whether to take action if a licensed person has been charged with serious criminal offences - [21]; 4. The administrator (or a review tribunal) cannot be expected to enquire into the strength or weakness of the case against the licensed person - [22]; 5. The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences - [30]; and 6. The administrator must take account of likely perceptions of the travelling public; suspending the licensed person provides assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence - [36].
Proposition (1) contains an explanation of the concepts of 'good repute' and 'fit and proper person'. Proposition (2) explains how those concepts may be brought into question by the laying of serious charges.
Proposition (3) is unsurprising, since under the legislation then in force, the purpose of a driver authority was to attest (among other things) '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'. Once something occurred that brought that attestation into question, the administrator was obliged to look into the circumstances and decide whether to take some regulatory action.
Proposition (4) emphasises that the administrator is not the tribunal of fact in respect of the charges; that is a role that will ultimately fall to a judge or jury (or perhaps to a prosecutor who, fully apprised of the facts, elects not to proceed with the prosecution). But, by Proposition (5), the administrator (or, on review, the Tribunal) may take account of the general circumstances giving rise to the charges.
Proposition (6), in my view, follows naturally from the status of the driver authority as an 'attestation' as to the reputation and character of the driver: see [43] above.

FZQ

This firearms case was decided on the concept of 'public interest' which, as already mentioned, does not appear in the current legislation.

Discussion

While they are not irrelevant, the cases on which the Commissioner should be viewed with some caution. This is because in each of them the reasoning is based on the meaning and effect of expressions that have not been included in the current law.
With one exception (of a historical nature), reputation and character have been abandoned as the criteria for entry into or remaining in the industry, and public interest is no longer an explicit consideration. The exception is found in clauses 25, 33, 35 and 36 of the Regulations, by which a person is taken to fail to meet a relevant standard if they had an authorisation under the previous law cancelled or rejected on the ground that they were not of good repute or not a fit and proper person. Of course, with the effluxion of time, the exception will cease to have any effect.
With those concepts abandoned, the focus must turn to safety. The question will no longer be 'What does the laying of charges say about Mr Singh's reputation and character?' but instead 'In light of the charges laid against Mr Singh, to what extent is there a risk to public safety if he is authorised to provide a taxi service?'

Consideration

As noted above, the safety duties and safety standards applying to providers, drivers and others are governed by Part 2 of the PTP Act.
Relevantly, if authorised, Mr Singh would have the following safety duties: 1. As the provider of a passenger service - a duty to ensure, so far as is reasonably practicable, the health and safety of himself as driver, and of passengers and others, by eliminating or minimising risks to safety: s 12; and 2. As a driver - a duty to take reasonable care for his or her own health or safety, and to take reasonable care that his acts or omissions do not adversely affect the health and safety of other persons: s 15.
I note the seriousness of the charges against Mr Singh. I also note, as emphasised by the Commissioner, that the Tribunal has repeatedly commented on the seriousness of the problem of domestic and family violence in the Australian community, the need to emphasise its abhorrence and the public expectation that regulated industries will take such questions seriously: Health Care Complaints Commission v Haasbroek [2018] NSWCATOD 177 at [87]; Combat Sports Authority of New South Wales v Fisher [2022] NSWCATAP 387 at [54]. I endorse those comments and acknowledge the appalling level of domestic and family violence that permeates our society.
The Police Facts Sheet commencing at page 16 of the Section 58 Documents indicates Mr Singh and his wife were married in India on 7 March 2022 and that the wife, together with her daughter from an earlier marriage, arrived in Australia on 31 May 2022 on a tourist visa. The relationship was apparently 'harmonious' until June 2022 (so, at most, a month) but at some time after that, Mr Singh's behaviour towards his wife is said to have undergone 'a drastic change'. There are accusations of coercive control, and of Mr Singh being on at least one occasion in a 'severe state of intoxication'.
The wife's complaints against Mr Singh are particularised in some detail. She reported to police that multiple assaults occurred between July 2022 and March 2023. There are accusations of kicking, hitting, pinching, hair-pulling, and sexual intercourse without consent. The Police Facts Sheet records an allegation that four instances of common assault occurred in November 2022, December 2022, February 2023 and March 2023; the complainant 'took pictures of her bruises and provide[d] the pictures to the police'.
The wife is now said to have admitted to lying about the alleged offences. She has not formally retracted her allegations, but according to a statement provided to police by a friend of hers, she told the friend the allegations are untrue. Mr Singh provides an explanation of what motivated his ex-wife to make the statements in the first place: she had not been truthful when applying for her Australian visa; she was at risk of having her visa cancelled once that was discovered; by making domestic violence allegations against her husband she might be able to obtain a permanent visa.
The fact remains that Mr Singh has been accused of repeated and sustained controlling and violent behaviour against an intimate partner. If, as he says, the accusations are fabricated, then it follows that his estranged wife has embarked on an elaborate scheme calculated to cause significant and irreparable damage to him. It is impossible to evaluate how likely a scenario that is. For present purposes it is sufficient to note that a Local Court magistrate, armed with the substance of the allegations against Mr Singh as well as, presumably, the statement asserting they are fabricated, thought there was enough material to support a decision to commit Mr Singh for trial in the District Court.
The circumstances alleged in the Police Facts Sheet - credible albeit contested allegations of serious repeated violent offending - create in my mind an unacceptable risk to public safety if Mr Singh were to be authorised to provide a taxi service in NSW. I am not dissuaded from that view by the fact that Mr Singh seems to have had an unblemished record as a taxi driver over almost 20 years.
I agree with the Commissioner's decision to refuse Mr Singh's application for authorisation.

Order 1. The decision under review is affirmed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 August 2024

(PTP Regulations). Replacing the Passenger Transport Act 1990(NSW)

At a glance

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Judgment (15 paragraphs)

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Legislation Cited (6)

Cases Cited (7)

Cited By (1)