AII v Director General, Transport NSW

[2012] NSWADT 10

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	AII v Director General, Transport NSW [2012] NSWADT 10
Hearing dates:	29 September 2011, 18 October 2011
Decision date:	01 February 2012
Jurisdiction:	General Division
Before:	S Montgomery, Judicial Member
Decision:	The decision to suspend the Applicant's driver authority is affirmed.
Catchwords:	Passenger transport - bus driver authority - suspension - serious criminal charges - decision affirmed
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Cases Cited:	Commissioner for Motor Transport v Darcy Francis Leo, NSW Supreme Court (McInerney J), 10 September 1986, unreported Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Director of Public Transport v XFJ [2011] VSCA 302 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Nasour v Director General, Department of Transport NSW [2011] NSWADT 9 Williamson v Director General, Department of Transport [2001] NSWADT 3
Category:	Principal judgment
Parties:	AII (Applicant) Director General, Transport NSW (Respondent)
Representation:	Counsel M Robinson SC and C Jackson (Respondent) McAuley Hawach Lawyers (Applicant) Smythe Wozniak Legal (Respondent)
File Number(s):	113271

REasons for decision

1. GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant holds an authority to drive a public passenger vehicle (bus) under the Passenger Transport Act 1990 ("the Act").

1. On 22 August 2011 the Applicant was charged by NSW Police with the following offences:-

14 counts of Aggravated Sexual Assault - Victim under authority of offender,

10 counts of Sexual Intercourse with person under care >=17 & <18yrs

3 counts of Sexual intercourse with person under care >=16 & <17yrs

2 counts of Aggravated Indecent Assault - Victim under the authority of offender.

1. The charges relate to events alleged to have occurred between May 2009 and June 2011.

1. The Respondent was made aware of those charges on 24 August 2011 and a delegate of the Director General made the decision to suspend the Applicant's driver authority until such time as the criminal matters were dealt with by the Court. There is no evidence before me as to when the charges will be heard.

1. The delegate of the Director General of Transport stated:

"The fact that you have been charged with such serious criminal offences of a sexual and violent nature indicates that you may not be a person of good repute and, in all respects, a fit and proper person to drive a public passenger vehicle. Therefore, I cannot attest that you are a fit and proper person to hold a public passenger authority in accordance with section 11(2) of the Passenger Transport Act 1990.

Having regard to all matters raised, and considering the interests and the safety of the travelling public and the general public, I am not of the opinion that you are a fit and proper person to be the driver of a public passenger vehicle. Therefore, you do not meet the required standards for authorisation as the driver of a public passenger vehicle.

Accordingly, the determination has been made to suspend your public passenger driver vehicle authority."

1. The determination to suspend the Applicant's driver authority was affirmed on internal review.

1. The Applicant applied to the Tribunal for external review of the determination.

Applicable legislation

1. Section 63 of the Administrative Decision Tribunal Act 1997 ("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.

1. A 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.

1. Section 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.

1. Section 11 of the Act provides that a person who drives a public passenger vehicle is guilty of an offence unless the person is the holder of an appropriate authority. The purposes of an authority are set out in section 11(2) which provides:

11 Authorities

...

(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.

...

1. The power to suspend the Applicant's authority is under section 14 of the Act which provides that having regard to the purpose of an authority, the Respondent may at any time vary, suspend or cancel any person's authority.

Relevant decisions

1. The objective seriousness of the charges brought against the Applicant is the reason for the Respondent's decision to suspend his authority. In considering a review of a decision to suspend a driver authority, the Tribunal is not to examine the strengths or weaknesses of the prosecution case against an authority holder: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [22].

1. The approach to be adopted by the Tribunal in considering a review of a decision to suspend a driver authority was considered most recently by the Appeal Panel in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (" AIC "). In that matter the Director General had suspended AIC's taxi driver authority after being informed that he had been charged with two counts of indecent assault of a child under the age of ten. The conduct was said to have occurred in 1999. At hearing the Tribunal set aside the suspension decision. The Director General successfully appealed the Tribunal's decision.

1. The Appeal Panel in AIC considered the provisions of section 33 of the Act. Section 33 is applicable to authorities to drive taxi-cabs but is otherwise in similar terms to section 11 of the Act. Section 33 of the Act provides:

"33 Authorities

...

(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."

1. In regard to the construction of section 33(3) of the Act the Appeal Panel stated:

"12 The first point to n ote is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' ( Macquarie Dictionary, 4th ed. 2005). 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 conte xt.

13 As we see it paragraph (a) focuses on general characteristics of the driver relevant to the regulated function, paragraph (b) focuses on maturity and technical competence. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]­[29]).

14 Different l icensing schemes use variations on this language, for example 'good fame and character'; sometimes the term 'fit and proper' only is used. Sometimes there are specific references to such matters as 'honesty', 'integrity' and 'competence'.

15 As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds.

16 In the regulatory context, the exercise of the power of suspension is in fact intended to have a temporary effect. Meaning no 3 in the Macquarie Dictionary (4th ed. 2005) reflects this understanding, i.e. 'temporary abrogation of a law or privilege'; similarly the Australian Concise Oxford Dictionary (3rd ed. 1997) 'suspend' ­ 'debar temporarily from a function, office or privilege'.

17 The power is a usual part of accreditation and licensing schemes. It is a disciplinary power. Disciplina ry powers have as their object protection of the public.

18 The power to suspend an occupational accreditation, licence or authority is used by regulators in, at least, two contexts. One is as a disciplinary sanction for misconduct that lies at a level of seriousness that warrants a more severe penalty than, say, a fine or imposition of conditions. Used in this way, it is often imposed for a relatively short period, say 3 months. It is a form of final order.

19 The other is where information comes to light about a licensee's conduct that is seen as throwing into question their suitability to continue to use the licence pending further inquiry or investigation of the matters of concern. This is the use made of it in the present case. In these circumstances it is being used for the protection of the public until more is known.

20 In either case, the effect of a suspension may be very harmful to the individual financially. There is also the humiliation and damage to public reputation that may follow."

1. The Appeal Panel in AIC revisited the question of the extent to which the Tribunal is 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 and of good repute. In doing so it considered a number of relevant decisions including Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 (" Murray ") and Nasour v Director­General, Transport NSW [2011] NSWADT 9 (" Nasour ").

1. In Murray the Appeal Panel reviewed various 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".

1. Murray was the subject of comment by the Tribunal's President in Nasour. The President stated at paragraphs [30] - [34]:

30 In [ 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.

31 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.

32 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)).

33 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].

34 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'.

1. In an earlier Appeal Panel decision in Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel observed at paragraph [38]:

38 Good Repute : The approach to be adopted in considering `good repute' is well explained by Waddell J in Re T [ Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392]. ... `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.

1. The Appeal Panel in AIC noted at paragraphs [39] - [40]:

39 The exercise of power under s 33F forms part of a statutory scheme in which the reasonable expectations of the community for safe transport services has a central place. The power of suspension can not, as we see it, be divorced in the administration of the NSW Act from the underlying goals of passenger transport regulation, in particular, the object found in s 3 of the Act:

(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services,

40 Objective (e) refers, as we see it, to the perspective reflected in the approach adopted in Farquharson . In our view, the public safety objective of passenger transport regulation remains one of relevance to the exercise of suspension powers. Protection of the public and the broader public interest may justify the exercise of the power of suspension.

1. The Appeal Panel in AIC contrasted the provisions of the Act with those considered in the recent Victorian Court of Appeal decision, Director of Public Transport v XFJ [2011] VSCA 302 (" XFJ "). There the administrator of taxi driver licensing refused a licence application from a person who in all respects satisfied the eligibility criteria on the ground that the fact that he once killed a person (he was acquitted of murder by reason of insanity) meant that he should not be granted a licence. The Court of Appeal upheld the review tribunal's decision to overturn the administrator's decision and grant the licence. The Appeal Panel observed:

35 We note that the Victorian taxi driver accreditation scheme is more variegated and complex than the NSW scheme: see Part VI of the Transport (Compliance and Miscellaneous) Act 1983 (Vic). It deals in greater detail with eligibility matters, and importantly it has mandatory interim suspension provisions in relation to certain categories of charges for serious offences: see paragraph 169K(2)(a) of the Victorian Act. The decision in XFJ must therefore be approached and applied with care in considering the operation of the NSW scheme.

1. The Appeal Panel also considered that a clear distinction must be drawn between the exercise of the power of suspension and the exercise of final powers such as refusals of applications or cancellations. It observed at paragraphs [41] - [49]:

"41 In this case the alleged offences were ones that, if made out, involved a fundamental violation of the trust of a child. Even though the fact sheets placed the events in a domestic context unrelated to taxi driving, clearly they went to circumstances involving mutual trust, and to a situation that drivers will sometimes be in, being alone with a vulnerable person such as a child, a person with disabilities or a frail aged person.

42 While the person facing the charges may have an otherwise impeccable life history, charges of this kind will ordinarily, we think, be seen as requiring immediate action to protect the public pending their resolution.

...

44 The reality of high volume licensing schemes is that an application for a licence is normally processed favourably if the relevant particulars are in order and nothing is revealed by criminal record checks. The approach is a beneficial one from the point of view of applicants. If the applicant meets the skills and competency requirements, the only issue that remains is that of his intrinsic personal and moral characteristics as relevant to the licence. The truth is that nothing is usually known to the administrator in any meaningful sense about the person's probity and character.

45 The laying of a serious criminal charge, especially one suggesting exploitation of an immediate relationship with a vulnerable person, will therefore frequently be the first time anything adverse of relevance becomes known about a driver. In these circumstances it would be normal, we think, for a conscientious administrator to have regard to the function of public protection served by the power of suspension. The administrator would ordinarily give the licensee an opportunity to be heard before acting. But in cases such as the present the position is more difficult. The duty to advise of the criminal charge was not carried out. Had that occurred there may have been an opportunity to be heard. If there is no report and the administrator learns of the charge from another source (such as from data matching outputs), he or she may decide to act peremptorily. In cases like this, often the first interchange takes place at the steps of the Tribunal.

...

48 In cases where a suspension is being considered pending finalisation of charges the administrator, and the Tribunal, should, we think, have regard to all that is known to date about the applicant's repute, fitness and propriety, take into account the view it might form on that matter if the charges are proven, and assess the degree of risk to the public that is involved in leaving the driver on the road pending disposal of the charges. It should also take note of the personal hardship that might be caused to the driver. But the ultimate determinant is the public interest.

49 It is noteworthy that in the case of Commissioner for Motor Transport v Leo , BC 8600704 (10 September 1986, McInerney J), upon which the decision in Farquharson drew, the passenger transport law of the time squarely referred to the public interest as a criterion for the exercise of the power of suspension (see Transport (Public Vehicles) Regulations 1930, cl 19(1)(5)(b) ­ 'The Commissioner may suspend for such period as he thinks fit any licence held by any person ... (b) if, having regard to any of the matters referred to in CL(1), the Commissioner considers such action desirable in the public interest'.) The Tribunal's interim order power does the same (ADT Act s 60(3)). In our view, the omission of an express reference to the public interest in s 33F does not preclude the administrator from taking the public interest into account. In our view the public interest is relevant to any exercise of a power of suspension of a general kind in a licensing scheme."

Material before Tribunal

1. The Applicant relies on an affidavit in which he sets out his background and financial circumstances and also annexes number of testimonials going to his fame and character. The Applicant also relies on an affidavit of Mr Scott Hanna.

1. As required by section 58 of the ADT Act, the Respondent has lodged all relevant material in its possession. It is made up of the Department's file, as well as the Police facts sheet and associated material in relation to the charges. The Department's file includes records of the Applicant's traffic offence history.

1. Each of the parties made oral submissions at the hearing on 18 October 2011. On that occasion I invited the parties to make further submission in relation to the relevance, if any, of the Victorian Court of Appeal decision in Director of Public Transport v XFJ . I set a timetable for the filing of those submissions. The timetable required submissions by the Respondent to be filed by 25 October 2011 and submissions by the Applicant to be filed and served by 1 November 2011. The Respondent complied with that timetable however submissions by the Applicant were not served until 23 December 2011. Those submissions also deal with issues other than the relevance of the decision in Director of Public Transport v XFJ . The Respondent has objected to the consideration of those submissions by the Tribunal. The Respondent requested the opportunity to make further submissions if the Tribunal proposes to take the Applicant's submissions into account.

1. While I note the Respondent's concerns in regard to the late service and the nature of the Applicant's submissions, it is my view that the submissions do not take the Applicant's case further than the oral submissions made on 18 October 2011. In the circumstances I do consider that taking the Applicant's submissions into account will prejudice the Respondent. Nor do I consider that further submissions from the Respondent are warranted.

Outline of Circumstances Giving Rise to Charges

1. The incidents that gave rise to the charges did not arise in connection with the Applicant's work as a bus driver. The alleged offences involved the Applicant's stepdaughters. At the time of the alleged offences, the Applicant was living with both of the alleged victims. The alleged victims were aged between 16 and 18 years of age and were in the Applicant's care. The Applicant had been in a relationship with the mother of both alleged victims for about fifteen years.

The Respondent's Submissions

1. The Respondent referred to the fact of the laying of the criminal charges and their seriousness. It is not in dispute that the charges are serious ones and that, if convicted, a term of imprisonment is to be expected. The Applicant has been charged with 29 offences extending between May 2009 and June 20011.

1. The Respondent's submission is that the charges demonstrate that the Applicant can not, for the time being, be regarded as a person of 'good repute' or as generally 'fit and proper' to drive a public passenger vehicle.

1. The Respondent contends that the fact that the charges have been laid casts doubt about the Applicant's fitness and propriety and that in light of those charges the Tribunal is unable to make the positive attestation referred to in section 11(2) of the Act.

1. Counsel for the Respondent submitted that the decision in Director of Public Transport v XFJ is entirely distinguishable and should not be applied by the Tribunal in the present case to the matters that the Tribunal has to decide. It is argued that this is so for the following reasons:

• The facts of the Victorian case are unique and they are wholly distinguishable from the Applicant's case in these proceedings.
• The legislation considered and applied in the Victorian case is completely different from the applicable legislation and regulation in New South Wales. The Victorian Transport Act as recently enacted in July 2007 in respect of taxi licensing has a very different central focus from the New South Wales Act. It also has a different structure.
• The New South Wales Act focuses on traditional notions of "good repute" and, "in all other respects aft and proper person". In addition to this, the licence attests "sufficient responsibility and aptitude to drive the vehicle" and other notions concerning the conditions set out in the regulations and in accordance with "law and custom".
• These notions are very different from the complicated, structured, and multilayered design of the Victorian Act.
• The Victorian Act contains many more concepts under the rubric of a unifying principle known as the "public care objective" which is defined in section 164(1) (judgment at [22]). This contains numerous notions concerning safety, amenity and convenience and "comfort". The word "comfort" was given significant attention by the Court of Appeal (judgment at [30 to [32]).
• The public care objective has no counterpart in the New South Wales legislation.
• Similarly, the list of discretions in section 169(3) and (4A) of the Victorian Act do not appear in the New South Wales Act at all. These discretions were significant to the Court of Appeal's decision (judgment at [47] to [51]). They are irrelevant to be present case.
• Neither the Act nor the Passenger Transport Regulation 2007 (NSW) contains any provision comparable to the Victorian accreditation scheme.

1. The Respondent contends that the Applicant's application should be dismissed for the following reasons:

• The criminal charges are significant, they are serious, there are many of them, and they relate to very recent and disturbing alleged conduct;
• Even the Applicant's legal representatives concede that were the charges to be proven, the Applicant would be imprisoned for a substantial term;
• The Tribunal does not have to determine the Applicant's guilt or innocence on the criminal charges but it must consider whether the fact of the charges justifies the suspension of his licence - Commissioner for Motor Transport v Darcy Francis Leo , NSW Supreme Court (McInerney J), 10 September 1986, unreported; and Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [17] and [20] and [22] and [29] - [31];
• Contrary to the submissions of the Applicant's legal representatives, for which no evidence was adduced, the Tribunal is not in a position to determine whether or not the Applicant will be employable during the period of his suspension. Simply no evidence was led on this point. The Applicant's affidavit dated 22 September 2011 sets out at [10] to [14] the previous work of the Applicant as an owner and operator of a bakery for eight years. There is simply no evidence about why he cannot work as a baker in that industry again.
• The determination made by the Director-General was that of suspension and not of cancellation. That fact is significant. It takes into account that things might change after subsequent events occur. This is not necessarily the case with a cancellation. The authorities have accepted and adopted the difference, see, for example: Farquharson at [31].
• The suspension of an authority is justified where a person's reputation or fitness to drive a taxi is sufficiently compromised by allegations or findings of impropriety for it to be in the public interest that the person not drive until those issues are addressed or resolved - Williamson v Director General, Department of Transport [2001] NSWADT 3 at [21].
• Most relevant factors in cases such as the present include the "seriousness of the allegations" and "the effect they have on [the driver's] reputation and the public's perception of [the driver's] fitness to drive taxis or hire cars" Williamson [2001] at [23].
• The ultimate decision sought to be made by the Respondent is "the correct and preferable" decision in the circumstances (section 63(1) of the ADT Act).

Applicant's Submissions

1. The Applicant's solicitor submits that the attempt by the Respondent to distinguish the decision in Director of Public Transport v XFJ is artificial.

1. The Applicant filed an affidavit as to his personal circumstances. He referred to his financial commitments and asserts that he will suffer a significant financial detriment if he cannot resume using his authority pending the hearing of the charges.

1. The Applicant filed a number of positive testimonials. The makers of the statements stated that they were aware of the laying of the charges.

1. The Applicant also relies on an affidavit of Mr Scott Hanna. Mr Hanna has been employed as a bus driver with State Transit since 1994. His evidence concerns his daily routine as a bus driver and the presence of CCTV cameras on buses. His evidence is that the coverage provided by the cameras is such that all areas of the bus can be observed.

1. It is submitted for the Applicant that driving a public passenger vehicle is a public activity, involving constant observation, by passengers, as well as Revenue Protection Officers, and the possibility of observation by CCTV footage. There is no real possibility of misconduct that would go undetected, and there has never been any suggestion of misconduct by the Applicant since he commenced driving a bus in August 2007. Accordingly, it is submitted that it is hard to see how anyone would be put at risk by allowing the Applicant to continue to drive a bus.

1. As to the Applicant's good reputation, it is submitted that there is no prior complaint in respect of his conduct. He has been charged with criminal offences, but is entitled to the presumption of innocence. It is further submitted that the Applicant does not cease to be of good repute, and a fit and proper person to drive a public passenger vehicle, by reason of the charges brought, without more. He remains a fit and proper person to be the driver of a public passenger vehicle. It is submitted that his application should be upheld.

Consideration

1. In reviewing the Respondent's decision to cancel the Applicant's authority the existence of the criminal charges is a matter that may be considered, however, it is not the Tribunal's function to weigh and assess evidence that has yet to go before the court.

1. In this application, I have considered all of the evidence presented before the Tribunal. In particular I have had regard to the following issues:

• the preliminary nature of the allegations and the fact that while charges have been laid in relation to the allegations, no determination has been made in regard to those charges;
• the seriousness of the conduct to which the allegations relate;
• the fact that there is no suggestion that the alleged conduct occurred in the performance of the Applicant's duties as a bus driver;
• the responsibility of the Respondent under section 11 of the Act and the Act's objects;
• the interim nature of the decision to suspend;
• The Applicant's previous good character and the references provided on his behalf;
• the limited role the Tribunal has in reviewing the decision to suspend.

1. There is no dispute that -

• The charges brought against the Applicant are serious criminal charges.
• If convicted, the Applicant is likely to be imprisoned.
• The Applicant does not have a criminal record.
• The Applicant has worked as a bus driver since 2007.

1. The Respondent has generally relied on the submission that because of the serious criminal charges laid against him the Applicant can no longer be regarded as a person of 'good repute' or as having the character (i.e. not 'fit and proper') to be a bus driver. The Respondent contends that the Tribunal must be able to make the positive attestation that 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.

1. This approach urged by the Respondent is consistent with that espoused by the Appeal Panel in AIC . The Respondent's submission in regard to the relevance of the decision in Director of Public Transport v XFJ is also consistent with that espoused by the Appeal Panel in AIC . I accept that submission.

1. I find that the Applicant has been charged with a number of serious criminal offences. These offences are alleged to have occurred over more than two years and the most recent alleged event was in June 2011.

1. There is no evidence that the Applicant has been charged with any other similar offences, nor is there any other suggestion of improper behaviour towards children or women. There is no evidence of any complaints made against the Applicant in regard to his duties as a bus driver.

1. However, the criminal charges are most serious, involving abuse of trust, in that the facts alleged are that the Applicant sexually assaulted his stepchildren. The charges involve allegations of more than one incident of sexual assault on the children.

1. As noted in AIC, the Tribunal's task is to decide whether, in the circumstances, the Applicant should be stood aside from the licensed occupation while those allegations remain unresolved. Protection of the public and the broader public interest may justify the exercise of the power of suspension.

1. As was the case in AIC , the alleged offences in this matter are ones that, if made out, involved a fundamental violation of the trust of a child. The alleged facts relate to circumstances involving mutual trust.

1. It is conceded by the Respondent that the charges did not arise from alleged conduct by the Applicant in the course of his occupation as a bus driver. However, the allegations against the Applicant go to the public trust that has been reposed in the licensee, and particularly the 'mutual trust' that must exist between licensees and their customers: see AIC at paragraph [21].

1. Notwithstanding the Respondent's concession, and contrary to the Applicant's evidence, it is conceivable that bus drivers will sometimes be alone with a vulnerable person. Mr Hanna's evidence regarding the existence of tight rostering and security cameras does not alter this fact. The existence of security cameras on buses would not prevent the occurrence of an incident. It would merely provide evidence of what had occurred. I do not consider that this is sufficient to meet the reasonable expectations of the community referred to in section 4(e) of the Act.

1. The Appeal Panel decision in AIC clearly anticipates that an administrator, and the Tribunal, will have regard to the function of public protection served by the power of suspension in circumstances where serious criminal charges laid against a licensee suggest exploitation of an immediate relationship with a vulnerable person.

1. In doing so it is necessary to have regard to all that is known to date about the Applicant's repute, fitness and propriety, take into account the view it might form on that matter if the charges are proven, and assess the degree of risk to the public that is involved in leaving the driver on the road pending disposal of the charges. It should also take note of the personal hardship that might be caused to the driver. But the ultimate determinant is the public interest: see AIC at paragraph [48].

1. In my view, the circumstances of this matter are within the scope of those contemplated by the Appeal Panel in AIC at paragraphs [39] - [40] i.e. circumstances in which protection of the public and the broader public interest may justify the exercise of the power of suspension. The testimonials from witnesses who vouch in general terms for the Applicant's reputation cannot be conclusive of the outcome.

1. When all of the relevant factors are weighed, I am unable to attest that 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. In the circumstances of this matter, it is my view that the public interest weighs against the Applicant being permitted to continue to drive a public passenger vehicle while the charges remain unresolved.

1. It follows that the decision to suspend the Applicant's driver authority should be affirmed.

Order

The decision to suspend the Applicant's driver authority is affirmed.

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Decision last updated: 01 February 2012