The applicant Mr Michael Alan Stockdale on 27 February 2018 applied to this tribunal for review of a decision by a delegate of the respondent Roads and Maritime Services (RMS) on 30 January 2018 refusing his application for a bus driver authority pursuant to s 12 of the Passenger Transport Act 1990 (NSW) (PT Act). The reason given for the decision was that RMS could not attest that 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 public passenger vehicle, within s 11(2) of the PT Act.
The delegate's statement of reasons related that RMS had examined the applicant's criminal history and had identified the following offence. On 13 August 2002, the applicant was convicted at Sydney District Court of the offence of soliciting, encouraging (etc.) to murder. He received a 6-year custodial sentence with a non-parole period of 3 years and 9 months. Leave to appeal to the Court of Criminal Appeal was denied on 26 February 2004 (R. v Stockdale [2004] NSWCCA 1).
The statement of reasons explained that the assessment of his repute, fitness and propriety was taken from the perspective of the public and determined objectively by RMS on the basis of the facts mentioned and in light of the role that the applicant was seeking to undertake: "Your criminal conviction reflects negatively on your moral integrity and character and has led RMS to conclude that you cannot be safely entrusted with the responsibilities to drive a bus or safely convey public passengers".
[3]
Applicable legislation
Section 12 of the PT Act relevantly provides as follows:
12 Criteria and procedure
(1) Having regard to the purpose of an authority, RMS may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.
Section 11(2) of the PT Act sets out the basic criteria that an applicant is required to meet:
(2) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated, and
(ii) in accordance with law and custom.
The issue in this case is thus whether the applicant 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.
[4]
The evidence
The material facts are not in dispute and are set out later in these reasons.
The parties called no oral evidence. The respondent relied on the s 58 documents (exhibit R1). The applicant tendered a bundle of documents (exhibit A1) which included a signed statement by him dated 23 May 2018, which consisted partly of submissions. In it he stated inter alia that he owns and operates a company called Fine Wine Tours that offers guided educational wine appreciation tours of the Hunter Valley and other wine regions within New South Wales.
Currently he charters a vehicle of appropriate size for his groups from an accredited operator, and acts as a guide. If he were to be granted an authority, he would be able to drive the vehicle himself.
In 2001 he was convicted of the crime of solicit to murder and sentenced to a total term of imprisonment of 6 years, with a non-parole period of 3 years and 9 months. He pleaded guilty to the offence, which obviated the need for a trial and thus avoided significant costs to the state. He was released on 5 April 2005. That has been his only criminal conviction, although a serious one, in the 67 years of his life and his 38 years in Australia.
The offence was an aberrant event for which he is deeply remorseful. He brought shame and humiliation on himself and, more importantly, on his family. He had endeavoured over the past 13 years to attempt to lead a life which, in some measure, tries to ameliorate his appalling conduct.
The role of the criminal law and society is not only to punish, but to rehabilitate. He believes that by being denied a driver authority, he is continuing to be punished for events that occurred some 17 years ago and, in circumstances where he had already served a significant custodial sentence.
It was his contention that he is a fit and proper person and of good repute. He tendered some character references to support the application from his peers within the travel industry and from a personal friend, all of whom had known him for a considerable time and could attest to his honesty, integrity and standing within the community [their contents are outlined below].
He remains married to his wife Catherine, with whom he has two adult sons. He has had the support of his family throughout his period of incarceration and continues to enjoy that support today. He believes that, having served his time and successfully re-integrated himself into the community, he should be allowed the opportunity to be granted a driver authority.
Among the documents in exhibit A1 was a document dated 18 March 2002 from Mr Tom Jones to the legal aid service which is headed "Clinical Psychologist Forensic Assessment Pre-Sentence Report", which relates to the applicant. It is based on some psychometric tests and an interview with the applicant on 13 February 2002, and a telephone interview with Mrs Kate Stockdale on 13 March 2002.
The report found that "On the clinical scales of [the Minnesota Multiphasic Personality Inventory] Mr Stockdale's scores were unremarkable. That is, he did not appear to have any clinically significant features of anxiety, depression, anti-social tendencies or other obvious features of psychological maladjustment…. In particular, it was notable that he did not have anti-social personality characteristics according to this inventory". The report concluded that overall he appeared to be credible and essentially normal in intelligence and social adjustment and free of characteristics of personality disorder. His statement that he did not intend for the killing to actually proceed appeared plausible. His claim that he could not have actually paid for a contract killing is also plausible.
On the other hand, he did actually meet with the man known as "Mal" he believed to be a contract killer [but was actually an undercover policeman], and provide Mal with enough information to enable the contract killing to occur. On the balance of probabilities, Mr Jones thought it likely that the applicant would have wanted to cancel the contract with Mal in order to prevent the killing from actually taking place, but had no way of telephoning Mal in order to do so. He was somewhat recklessly counting upon Mal telephoning him back at some unpredictable time, which would have given him a last opportunity to cancel the killing.
Mr Jones concluded that he did not think Mr Stockdale was likely to commit criminal offences of any kind in the future. In his favour was the fact that he continues to enjoy the support of his wife, he does not have a prior criminal history and he has prospects for future employment. The risk of recidivism was low.
[5]
Applicant's submissions
At the hearing the applicant reiterated the points made in his signed statement in exhibit A1 and added that he realized he had committed a very serious offence that warranted his sentence of 6 years less parole. He had been paroled on 5 April 2005, as soon as his date of eligibility arrived, as he had been classified as a model prisoner. Kinchington DCJ had said that everyone was allowed to make one mistake in life. Since his release he had rebuilt his life with the help of his wife. His parole period ended on 1 July 2007.
He is a member of the Association of International Travel Professionals, which is based in Spain. He operates wine tours, but has to charter a suitable bus and a driver. All his passengers are adults and he has no wish to drive children. He did pass a working with children check when he started teaching in private colleges, but now the rules have changed and the individual, not the college, must make the application.
In addition to organizing the wine tours he still teaches international students at a private college in fields such as business management, tourism and personnel management.
He had rehabilitated himself well and Mr Jones had written his pre-sentence report as he had seen the situation. He would be willing to accept a driver authority subject to appropriate conditions, such as confining the authority to driving for his Fine Wine Tours operation. He had also been offered a position driving for an airport transfer company. All his referees knew about his conviction and had been supportive. At the time of his conviction he was a United Kingdom citizen and still is. He is not an Australian citizen but a permanent resident.
The applicant also supplied copies of a number of cases, without comment but with certain passages highlighted. They were Saadieh v Director-General, Department of Transport [1999] NSWADT 68, Armani v Director-General, Department of Transport [1999] NSWADT 20, Ashford v Roads and Maritime Services [2017] NSWCATOD 170, Loye v Director-General, Department of Transport [2000] NSWADT 145, Keane v Roads and Maritime Services [2015] NSWCATAD 116, and Prothonotary of the Supreme Court of New South Wales v P [2003] NSWCA 320. My observations on those cases are set out below.
[6]
Consideration
This tribunal has jurisdiction to review the respondent's decision refusing to grant the applicant an authority by reason of s 29 of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and s 52 of the PT Act. The latter inter alia permits a person whose application for an authority has been refused to apply to the Civil and Administrative Tribunal for review.
Under s 63 of the Administrative Decisions Review Act 1997 (NSW) (ADT Act), the tribunal is to decide what is the correct and preferable decision having regard to the material then before it and the applicable law. In doing so it may exercise all of the functions conferred or imposed by any relevant enactment. There is no onus of proof as that term is generally understood: Nakad v Commissioner of Police, New South Wales Police Force [2014] NSWCATAP 10, [28] - [30], [34].
The respondent's case under s 11(2) of the Act was based primarily on the applicant's not being a person of good character and repute. An authority under that provision can be granted only if it is possible to "attest" that the person is "of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle". As the Appeal Panel noted in Director General, Transport New South Wales v AIC [2011] NSWADTAP 65, [12], "The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context".
The Appeal Panel went on to explain that the concepts of "good repute" and "fit and proper" character involve different considerations: "The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not" (at [27]). Taking it a little further, Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said: "A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession".
Further, his Honour continued, evidence of conviction for a criminal offence is admissible as evidence, indeed most cogent evidence, of bad reputation. Such convictions are the raw material upon which bad reputation is built. They have taken place in open court and are matters of public knowledge. They are acted on by people generally as the best guide to his reputation and standing: Loye v Director General, Department of Transport [2000] NSWADT 145, [25]
A history of convictions does not itself constitute prima facie evidence of bad repute. It does, however, create a presumption that the person has, among those who know of that history, a bad reputation. It places the onus on the person to establish his or her good reputation: id., at [27] - [29]. The difference may be a subtle one, but it is to be given effect to. Whether community members know about the less savoury aspects of the person's past is relevant: "Whether the person's criminal history is known in the community will be a factor in assessing what weight to give to the evidence of repute": id., at [31]. It does not, however, appear to be conclusive.
Evidence of a person's repute comes from people who can say what a "specific group of people" think of the person. A person may hold a position in the community from which it is reasonable to infer that the person is well regarded: at [32].
Having a criminal record is not necessarily an absolute and permanent bar to a finding that an applicant is of good repute and a fit and proper person to hold an authority. In Armani, the tribunal when setting aside a refusal of a taxi-cab authority stressed the need for a balancing of the positive and negative aspects of the applicant's record, including evidence of contrition and of a determination to make a new start.
In Saadieh, Hennessy DP pointed out that "being a 'fit and proper person' includes being of 'good repute'" (at [12]). At [17] her Honour listed five factors to be considered on the question of suitability in such cases:
The nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
The nature, seriousness and frequency of any complaints made against the applicant;
The applicant's driving record;
The applicant's reputation in the community; and
The likelihood that the applicant will reoffend, be the subject of further complaints or commit further traffic offences.
The tribunal then added (at [18]), "In assessing the last factor, several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers".
Also relevant, as was stated in Keane (at [53]) when a refusal was set aside, is whether the offences related to taxi (or, by analogy, bus) driving and whether they involved any sexual misconduct: see also Prothonotary v P (at [14]) On the other hand the court in the latter case noted that conduct not occurring in the course of the respondent's professional activities could, if sustained over a long period, show a systematic non-compliance with legal and civic obligations. The application to strike the practitioner off the roll was, however, dismissed.
The facts of the present case are not in dispute. In R v Stockdale at [5] the Court of Criminal Appeal adopted the statement of facts contained in the sentencing judge's reasons for sentence:
"Sometime in August 1999 the accused came into contact with a group of women who were being shown over an inner city club and over the months that followed that meeting a friendship developed between the accused and one of those women and only came to an end in late May 2000 when the woman informed the accused that she had met someone special and did not want to see him anymore. Despite being told this the accused over the next four or five months on a number of occasions attempted to renew the relationship by telephoning the woman, sending her flowers a present and champagne despite being told on a number of occasions that his approaches were not appreciated and to stop trying to communicate with her. However the accused's fixation about wanting to re-establish a relationship with the woman did not go away and during the early months if (sic) 2001 he had a number of discussions with a friend he knew about disposing of her new boyfriend apparently in the hope that if the boyfriend disappeared from the scene the accused would be able to successfully re-establish the relationship with her. In these circumstances during the first half of 2001 the accused repeatedly raised this topic with his friend and repeatedly indicated that he wanted the woman's boyfriend 'dead' and asked his friend whether he could find someone who would be prepared to do the job or whether he would do it himself and indicated not only the name of his intended victim, but his professional status, his home and work addresses and drove his friend to those places as well as to the woman's residence. Eventually his friend became so concerned about the situation he reported this matter to the police and arrangements were made for an undercover police officer to contact the accused under the guise of being a person interested in killing the intended victim.
On 26 June 2001 the undercover officer made contact with the accused and they met in Hyde Park where they discussed matters pertaining to the victim and the accused agreed to pay him $5,000.00 plus expenses for the murder of the intended victim. During this conversation the accused also gave the undercover officer a piece of paper with the victim's name, home address, telephone number, work address, vehicle type colour and registration number and also stated that the intended victim did not work on Wednesdays. Later that same day the accused accompanied and directed the undercover officer firstly to the woman's house during which journey they discussed both appropriate ways and times to commit the murder. The accused then directed the undercover officer to the work place of the intended victim and on the way stopped off at an ATM so that the accused could withdraw the sum of $500 which he paid to the undercover officer on account of expenses. Following this they then drove to the intended victim's home and shortly thereafter left the vicinity.
Subsequently on the 3 July 2001 the undercover officer and the offender met in Hyde Park whereupon the offender was arrested."
[7]
Orders
1. The decision under review is set aside.
2. For the decision under review is substituted a decision that the applicant be granted a bus driver authority subject to the condition that he only drives buses in connection with his Fine Wine Tours business or any similar wine tour business with which he becomes associated, and in any event only for the carriage of persons aged over 18 years.
[8]
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: 15 June 2018
In relation to the first Saadieh factor, the seriousness of that crime is self-evident. Its inherent nature places it in only the second rank of criminal offences in terms of gravity, following only such crimes as murder and treason. Not being an Australian citizen, the applicant may have been fortunate to escape repatriation to the United Kingdom under the character provisions of the migration legislation.
Next, the offence did not result from a foolish spontaneous impulse, but was an idea that the applicant pursued over a period of several months. He took a number of active steps towards the execution of a homicide, repeatedly raising it with a friend and asking him if he knew anyone who would be prepared to do it. He gave written details of the putative victim's name, address and other particulars to his friend, and subsequently to "Mal", the undercover police officer. He withdrew $500 cash from an ATM and gave it to Mal as a deposit for the supposed $5000 fee. He drove Mal to the intended victim's home and work addresses, as he had previously done with his friend.
He said, however, that he had no way of raising the balance of the $5000 to complete the deed and had wanted to contact Mal beforehand to stop the process, but did not have a telephone number for him. After being committed for trial he pleaded guilty to the offence, although not at the first opportunity.
The second Saadieh factor does not apply, as the evidence does not show any complaints against the applicant. In relation to the third, his driving record is certainly not unblemished and in earlier years included two prescribed concentration of alcohol violations. It has improved in recent years, although it records a speeding infringement in October 2017. Nevertheless, the respondent did not argue that the applicant's driving record constituted a sufficient ground for an authority refusal.
The fourth factor, the applicant's reputation in the community, plainly overlaps the "good repute" factor. Here it is the subject of a number of character references (part exhibit R1). The first, from Mr FA Clark OAM and dated 20 May 2018, states that the writer had known the applicant for a considerable amount of time, before and after his conviction. He had always found the applicant to be an honest and upright person, well respected by his friends and peers, who are aware of his past history, and with whom Mr Clark socializes frequently. When Mr Clark was asked to be master of ceremonies at the applicant's wedding to Catherine in 1990, he gladly accepted and was honoured to be asked.
When informed about the crime the applicant had committed, he was shocked, as it seemed totally out of character for the person he had come to know. The writer stated that the applicant had the support of his family and friends who visited him regularly while he was imprisoned, and still had that support, all those concerned being aware of his past. Since his release in 2005, he had re-established himself in society, put his past behind him and got on with his life. When the applicant had asked him to be a character reference in support of his application for a driver authority to drive a public passenger vehicle, he said that he would provide the reference gladly.
Next is a reference dated 6 May 2018 from Mr Mervyn R Sinden, of Gladesville, who states that he has known the applicant for about 30 years, before and after his conviction. During that time he had found him to be an honest, upright person, of good repute and someone with whom he often socialized. The remainder of the reference is similar to Mr Clark's.
Mr AJ Brazenell, managing director of Felix Travel Pty Ltd, noted that Mr Stockdale's application to drive a passenger bus had been refused because of a criminal conviction dating back to 2001. The writer said he had known the applicant for 27 years and always found him to be an honest person and well respected amongst his industry colleagues. When informed about the crime he had committed, Mr Brazenell was shocked, as he knew it to be totally out of character for him. He could only put his behaviour down to a temporary aberration around the time the offence was committed.
He knew that the applicant had always enjoyed the support of his family and friends, and since his release in 2005 had made a successful re-integration into society and had been diligent and hard-working. In 2013 Mr Brazenell and the applicant became business partners in a travel company. They often meet, both socially and for work-related reasons. He would have no hesitation in supporting the application for his driver authority.
Mr Kevin Millard's reference dated 10 May 2018 described how he met the applicant in 1987 when he called on him at his travel agency in his position as a sales manager for a travel-related company. Since then they and their families had become firm long-standing friends. At one stage they worked together for a travel related organization running a helpdesk for travel agents. They attended each other's weddings.
When he was informed about the crime the applicant had committed, he was very surprised as that behaviour did not fit in with the character he knew and still does know the applicant to be. He could only assume that there must have been some sort of aberration in his behaviour. He knows that the applicant had the support of his family and friends while he was imprisoned, and since his release in 2005 he had continued to enjoy that support. He had very successfully re-integrated into society and is well respected by his peers. He has re-built his life.
Mr Millard is now a sales manager with Redy2Go, an airport shuttle bus service in Sydney. He would have no hesitation, as would his fellow directors who have also known the applicant for many years, in offering him a position as a driver for their shuttle buses, should he be successful in regaining his driver authority.
On behalf of the respondent Mr Wozniak argued that the references should be given little weight as they followed a very similar outline and could have been copied from a draft supplied to them. While that could be true of one of the references, the others, though dealing with similar points, do so in their own words and give individual background facts. Importantly, they all display full knowledge of his criminal conviction and incarceration. Further, Mr Millard's reference contains an assurance of employment in the industry with his company.
The references in my view constitute sufficient evidence that, despite his criminal record, the applicant is held in good repute in the industry and, to that extent, in the community generally.
The fifth Saadieh factor is the likelihood that the applicant will reoffend. Some of the referees specifically expressed the opinion that such an occurrence is very unlikely. There is also Mr Jones's pre-sentence psychological report. As was noted above, he concluded that the future risk to either the woman or her new companion was minimal, explaining that "He is essentially a conventional person, will seek to preserve whatever is left of his own reputation and the stability of his family. In my opinion he is not likely to take further risks". He did not think Mr Stockdale was likely to commit criminal offences of any kind in the future. In his favour was the fact that he continues to enjoy the support of his wife, he does not have a prior criminal history and has prospects for future employment. In addition, he had no history of drug or alcohol problems.
The Court of Criminal Appeal also quoted (at [6]) a reference by the trial judge to a psychologist's report from a Mr Taylor. His Honour stated:
It is also clear from Mr Taylor's report and the other evidence herein that the offender has no problem with drugs or alcohol and up to the time of the events that gave rise to the present offence had led an unexceptional and ordinary life and so not surprisingly has been assessed by Mr Taylor as "having a very low disposition towards recidivism". The offender is hopeful that on his release from prison he will be able to not only resume his life with his wife and children but also return to some form of work in the tourist industry.
There is no more recent psychological report in evidence. Nevertheless, while the available psychological evidence is rather old, it is noteworthy that the two psychologists fully agree on all material matters, including the applicant's low risk of recidivism.
Most of the evidence considered above in relation to good repute is relevant also to the question of fitness and propriety, although in a slightly different way, reflecting the different foci of the two factors. In the context of fitness and propriety, the decision-maker is evaluating the applicant's inherent qualities of knowledge, competency and integrity. Mr Stockdale's knowledge and competency in relation to driving a bus are not in dispute. The question is whether the applicant has sufficiently rebuilt his standing as a man of integrity.
Questions of good repute and fitness and propriety are to be assessed in the context of the nature and purpose of the activities that the person is seeking to undertake: Sodiki v Roads and Maritime Services [2013] NSWADT 145, [38]. The question before the tribunal is thus whether the applicant is fit and proper and of suitably good repute to drive a public bus. In that regard it is relevant that his offence did not occur in the context of bus driving, nor was it part of a long term pattern of systematic non-compliance with legal and civic obligations: Prothonotary v P, at [7]. There was no element of sexual misconduct, actual violence or threatening behaviour towards passengers, or other persons: Keane at [53].
The respondent submitted that while the cases establish that it is possible for a person with a serious criminal record to rebuild his or her character and good repute, that process takes time and the real issue here was whether enough time had elapsed for the tribunal to be satisfied that he had succeeded in doing so. The 17 years since the offence was not a "dramatic" length of time and was insufficient to permit drawing that conclusion.
While it is true that the more years have elapsed since offending behaviour the better, in the present case the applicant's obvious contrition, his lack of other convictions, his rating as a model prisoner, his receiving parole at the earliest opportunity and the support of his peers in the tourism industry indicate that he has earned back his good repute and no longer presents any danger to the community.
The applicant submitted that, having served his custodial sentence and his probation, and having rehabilitated himself, he had paid the penalty for his crime and to deny him an authority would constitute additional punishment. Occupational licensing, however, is not about punishment but about protecting the public.
Related to that is another important factor bearing on fitness and propriety and good repute. Among the objects of the PT Act as stated in s 4 is "(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services". In Mielczarek v Commissioner of Police [2016] NSWCATAP 255, [162] the Appeal Panel noted that "occupational regulatory schemes such as the TP Act not only directly protect the public from harm, but also help to preserve public confidence in the regulated activity and its members" (see also Birch v Commissioner of Fair Trading [2017] NSWCATAD 166, [80] - [81]). Part of that involves preserving public confidence in the licensing regulatory system itself.
As Mr Wozniak pointed out, a bus driver authority entitles the holder to drive a wide variety of public vehicles, including school buses. While none of the evidence suggests that the applicant represents, or has ever represented, any threat to the welfare of children or adolescents, it is likely that many parents of schoolchildren, perhaps especially kindergarten pupils, would feel concerned about entrusting their offspring to a driver who had a conviction such as the applicant's.
That consideration was central to O'Connor J's reasons in Farquharson v Director-General, Department of Transport [1999] NSWADT 53, where his Honour had this to say:
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.
37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]:
"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi."
Issuing an authority subject to a restrictive condition that, for example, the holder should only use it for the purpose of driving airport shuttle buses pre-booked by adults would not exclude the possibility that minors accompanying their parents would seek to come on board. A driver wishing to oblige the parents might by so doing render himself or herself liable to prosecution. Such cases have occurred, Mr Wozniak said. That real possibility constitutes a serious objection to the grant of an authority in this case.
Another possible condition, and one which the applicant said he would be quite willing to accept, would be to grant an authority subject to the condition that it could only be used in connection with driving buses for the applicant's Fine Wine Tours or any other similar tours, and on the further condition that only persons aged over 18 would be carried.
The respondent then in that connection referred to Health Care Complaints Commission v Litchfield [1997] NSWCA 264, in which the Court of Appeal was concerned with the case of a doctor who had been suspended from practice because of sexual impropriety with women patients. The medical tribunal had decided to restore his registration subject to conditions, including that the doctor submit to psychiatric assessment. The court referred to, and overruled, an earlier Court of Appeal case in which a condition had been imposed on a doctor prohibiting him, except in the case of an emergency, from seeing a female patient except in the presence of a female chaperone. The court thought that the necessity for imposing such conditions demonstrated that the appellant was unfit to practice (at 8 - 9). The same consideration applied in this case, the respondent contended.
In this case, however, the suggested condition does not represent a qualification of the conclusion that he is held in good repute and is fit and proper for the particular purpose of driving for wine tours, and indeed the evidence points to the contrary conclusion. The necessity for such a condition in this case stems, not only from some lingering reservations about fitness or repute, but also from the need to maintain public confidence in the industry, its members and the regulatory scheme, and the associated need to prevent inadvertent or ill-advised breaches of the broader type of condition that was mentioned as a possibility.
Returning therefore to the question whether the applicant has sufficiently redeemed his right to be regarded as a person of good character, and therefore fit and proper to hold an authority, the evidence leads to answering with a qualified affirmative. The qualification is that, at least at this stage, such an authority should be restricted in the manner indicated above.
I therefore conclude that the evidence provides sufficient basis for the tribunal to be able to attest that for the purposes of his Fine Wine Tours business and similar wine tours the applicant meets the requirements of s 11(2) of the PT Act, and I so find. The authority granted to the applicant should therefore be subject to that additional condition under s 11B(1)(b) of the PT Act.
Consequently the appropriate order is that the decision under review be set aside and replaced with a decision granting the applicant a bus driver authority subject to the condition that the holder only drives buses in connection with his Fine Wine Tours or any similar wine tour business with which he becomes associated, and in any event only for the carriage of persons aged over 18 years.