AJO v Director-General of Transport

[2012] NSWADT 101

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

AJO v Director-General, Department of Transport [2012] NSWADT 101

Hearing dates:

21 and 22 November 2011, 19 and 20 January 2012

Decision date:

25 May 2012

Jurisdiction:

General Division

Before:

P H Molony, Judicial Member

Decision:

1.Order under s 75(2) of the Administrative Decisions Tribunal Act 1997 prohibiting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any child who gave evidence before the Tribunal, or whose identity or circumstances were disclosed in the course of the proceeding.

2.Affirm the decisions to suspend and cancel AJO's driver authority.

Catchwords:

Passenger Transport - driver authority - cancellation - fit and proper person - school bus

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Children and Young Persons (Care and Protection) Act 1998
Passenger Transport Act 1990
Passenger Transport Regulation 2007

Cases Cited:

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65
Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448
Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127
Melbourne v The Queen [1999] 198 CLR 1
Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18
Pillai v Messiter [No.2] (1989) 16 NSWLR 197
Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392
Saadieh v Director General, Department of Transport [1999] NSWADT 68
Sobey v Commercial and Private Agents Board 20 SASR 70

Category:

Principal judgment

Parties:

AJO (Applicant)
Director-General, Department of Transport (Respondent)

Representation:

Counsel
I Nash (Applicant)
K Eastman (Respondent)
Michael Kreveld Legal (Applicant)
Smythe Wozniak (Respondent)

File Number(s):

113143 and 113191

Publication restriction:

Section 75(2) of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION

Introduction

1. [General Division,(P. H. Molony, Judicial Member)] This is a review of a decisions made by the Director-General of Transport to suspend, and subsequently to cancel, AJO's authority to drive a bus under the Passenger Transport Act 1990 (the PT Act).

1. Much of the material relevant to the Tribunal's consideration concerns events that occurred on a school bus, and their consequences. This traverses the behaviour and affairs of some of the children on the bus, their parents, and teachers, as well as AJO and his wife. In the course of the four days of hearing I heard evidence from many of them.

1. Section 75 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) relevantly provides:-

(1) If proceedings before the Tribunal are to be determined by holding a hearing, the hearing is to be open to the public.

(2) However, if the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order that the hearing be conducted wholly or partly in private,

(b) an order prohibiting or restricting:

(i) the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of, any person (whether or not a party to proceedings before the Tribunal or a witness summoned by, or appearing before, the Tribunal), or

(ii) the doing of any other thing that identifies, or may lead to the identification of, any such person,

(b1) an order prohibiting or restricting the publication or broadcast of any report of proceedings before the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

1. The Tribunal's hearing in this matter was conducted in public. The names and identifying information of children is protected as matter of course in other jurisdictions (e.g. see s 105 of the Children and Young Persons (Care and Protection) Act 1998) and in the Community Services Division of the Tribunal (see s 126 of the ADT Act). There are sound public interests underlying such provisions, grounded in the protection of children and the maintenance of their best interest.

1. In this case, of my own motion, I have determined to make orders under s 75(2) of the ADT Act prohibiting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of any child who gave evidence before the Tribunal, or whose identity or circumstances were disclosed in the course of the proceeding.

1. To that end the names the children and of other persons whose identity could lead to their identification, including that of the applicant, have been anonymised in this decision. I have also sought to avoid geographical and other references that could lead to their identification.

Background

1. AJO and his wife operate a transport business that provides school bus transport under contract with the agency. AJO refers to that business as "the partnership." The school bus route in issue is a lengthy run, taking up to an hour and half each way. Drivers on the route include AJO, his wife and employed drivers.

1. Since 2009 there have twelve complaints lodged by parents with the agency concerning the services on that route. Those complaints were principally directed to the manner in which AJO conducted himself when driving, especially with respect to his management of the children, as well as complaints as the adequacy and reliability of the bus used. AJO responded to those complaints fully and, in some instances, disputed the bona fides of the complainants.

1. There can be no doubt that there have been issues concerning student behaviour on the bus, as one would expect on any school bus route. AJO considers some of the students on the route to be very badly behaved, especially a group of 14 to 16 year old boys. The complaints about his interactions with students principally relate to them, and their siblings. The complaints suggest that he targets particular individuals (and in some cases their siblings) whom he has identified as badly behaved and keeps a rigorous eye on them.

1. References from other parents relied on by AJO show that they do not hold similar concerns and do not have complaints about the service he provides.

1. Whether student behaviour is an equally significant problem for all drivers on the route is an issue of contention. There is evidence that AJO's wife has difficulties. An affidavit from an adult passenger on the bus tells of how perturbed he was by the behaviour he witnessed when she was driving on 25 May 2011 and how he intervened to bring it under control. On the other hand, an employed driver was not disturbed by the students behaviour on the bus. He commented that apart from crude language, swearing and disobedience, he had not experienced a great deal of misbehaviour. He could set limits, and the students would listen.

1. The situation has been rumbling along for some years. In 2010 some students started filming AJO with their mobile phones: taking pictures of him driving while using his mobile phone, not wearing a seat belt, of rubbish bags on the bus, and of him leaving the bus. There are no films of his interactions with students, or of student behaviour.

1. The situation was brought to a head in May 2010 following the misbehaviour on 25 May 2011. The partnership issued a series of notices to students either suspending them from the bus, or terminating their travel on it. The students who were given notices are those whose parents had complained. They, in turn appealed to the agency.

1. On 6 June 2011 the agency made a decision to suspend AJO's driver authority on the basis that he had used a mobile phone while driving and had left his seat on the bus without reasonable cause. The notice telling him of that decision warned that the agency was considering cancelling his authority.

1. On 7 June 2011 AJO applied for a stay of that decision. On 14 June 2011 a stay was granted. In support of his stay application AJO swore an affidavit. Paragraphs 4 and 12 of that affidavit said:

4. In November 2010 allegations emerged of my use of a mobile phone while driving service N2339 and information was provided by an informant to the local Police. The matter was investigated at the time and while no charges were laid the matter was subsequently referred to the Respondent's Newcastle office and Officers from that Office conducted an investigation which led ultimately to a verbal warning in relation to such conduct during a visit on 15 November 2010. 1 appreciated at the time the seriousness of the matter and treated the warning a salutary reminder of my obligations while driving generally - not to mention a school bus with children on board. Since that date I have not used my mobile phone while driving the school bus.

...

12. In summary my evidence so far is principally this. In about November 2010 allegations were made about my using a mobile phone while driving a school bus. The respondent addressed the allegations by meeting with me and providing a warning. I heeded that warning and have desisted from any such conduct since the warning ...

1. On 14 July 2011 the agency made a decision to cancel AJO's driver authority on the basis that he is not a fit and proper person to drive a public passenger transport vehicle.

1. AJO subsequently sought a stay of that decision which was granted on 20 July 2011. At that time it was determined that the reviews of the suspension and cancellation decisions be heard together.

1. The hearing took place over four days between November 2011 and January 2012.

The Applicable Law

1. Section 52(1) of the PT Act confers jurisdiction on the Tribunal to review a decision to cancel an authority. Section 63 of the ADT Act says 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 may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409.

1. In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:-

"... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."

1. Section 14 of the PT Act empowers the Respondent to suspend or cancel a person's authority having regard to the purposes of an authority. Those purposes are set out in s 11(2) of the PT Act, which provides:

(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. Section 12(1) provides that the TfNSW may grant authorities, while s 12(2) requires that applicants "must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant." TfNSW means Transport for New South Wales: see s 3.

1. Clause 29 of the Passenger Transport Regulation 2007 (the PT Regulation) specifies the criteria for authorisation to drive public passenger vehicles. Relevantly it provides:

(2) The applicant:

...

(e) must satisfy the Director-General that he or she:

(i) may lawfully work in Australia, and

(ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and

(iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom.

1. Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.

1. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321,Chief Justice Mason explained that, at 380:

'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.'

Toohey and Gaudron JJ said at 380:

"The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."

1. A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):

"The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."

1. In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:

"In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."

1. Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake. Thus in Obradovic -v- Commissioner for Fair Trading, Office of Fair Trading (GD) [2006] NSWADTAP 18 the Appeal Panel agreed that a formerly licenced building contractor should have his application for a new licence refused, despite there being no evidence that he was dishonest or of bad repute. Evidence that he had been extremely tardy and intransigent in dealing with customer complaints, and the regulator, when he held a licence, was sufficient to conclude that he was not fit and proper for the role. In that case the licensing scheme was among other things, designed to protect consumers and to provide them with adequate means of redress against licensed contractors. In Bond the assessment occurred in the context of whether the applicant was a fit and proper person to hold a licence under the Broadcasting Act 1942 (Cth).

1. In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:

• the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted;
• the applicant's reputation in the community; and
• the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.

1. In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 the Appeal Panel, at [37] the Appeal Panel drew attention to the role public interest considerations play in the assessment of fitness and propriety.

The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....

The comments of Kirby P in Pillai v Messiter [No.2], quoted above, are an example of this.

1. The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."

1. As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:

'A distinction must be drawn between "repute" or "reputation" and

"character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."

In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:

"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."

1. In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character:

"... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation."

That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:

"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279."

Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:

'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 cannot 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. In the present case the regulated activity is that of a country school bus driver who regularly transports high school age children for long distances, for up to three hours each school day. When doing so, drivers are entrusted with ensuring the safety of the students and are responsible for regulating their behaviour in accordance with established policy.

1. With respect to requirement that an authority holder have sufficient responsibility to drive the vehicle concerned in accordance with law and custom, the Tribunal's task is assess the authority holder's likely future conduct. Evidence of past failures to comply with relevant law and custom is relevant to and informs that assessment. I agree with the Agency that law and custom means more that simply the rules of the road applicable to bus drivers, but the lawful requirements and directions that must be observed by them. Custom includes industry standards, including applicable policies of the Agency relevant to the to an authority holder.

1. Division 4 of Part 7 of the PT Regulation provides:-

99 Dealing with contraventions of this Regulation by school students

(1) Despite any other provision of this Regulation, the operator of a bus service, a driver of a bus or an authorised officer may take only such action under this Regulation as is reasonable in the circumstances when dealing with a school student who has contravened a provision of this Regulation concerning travel on buses.

(2) In determining what action is reasonable for the purposes of subclause (1), regard is to be had to any guidelines for managing the behaviour of school students on buses published from time to time by the Director-General.

100 Directions to move to certain part of the bus

(1) A driver of a bus, or an authorised officer on a bus, may direct a school student on the bus to occupy a specified seat on the bus, or to move to a particular part of the bus, if the driver or authorised officer believes on reasonable grounds that it is necessary for the preservation of order on the bus.

(2) A school student who is given such a direction must comply with it.

Maximum penalty: 5 penalty units.

101 Direction to leave bus

A driver of a bus, or an authorised officer on a bus, is not to direct a person who the driver or authorised officer knows is a school student (or ought reasonably to know is a school student) to leave the bus unless:

(a) on leaving the bus, the school student will be in the care of a person who is legally responsible for the student, or

(b) the place at which the student is directed to leave the bus would appear to a reasonable person to be appropriate, having regard to the traffic conditions, proximity to other transport and nature of the locality.

102 Refusal to pick up school student

A driver of a bus may refuse to stop for, or to allow onto the bus, a school student who the driver believes on reasonable grounds has contravened a provision of this Regulation concerning travel on buses (whether or not the student has been prosecuted in relation to the contravention).

103 Review of action taken by operator or driver

The Director-General may review any action taken by the operator of a bus service or by a driver of a bus that involves the refusal to carry a particular school student on a bus or the placing of conditions on the carrying of a particular school student on a bus.

1. Of particular relevance in the present case are the Agency's Guidelines for Managing School Student Behaviour on Buses (the Behaviour Guidelines). Clause 99(2) makes it clear that in managing student behaviour an authority holder should have regard to those Guidelines.

1. Part 4.5 of the Behaviour Guidelines says that drivers are responsible for the operation of a bus, including:

...

behaving with civility and propriety towards all passengers

providing reasonable directions to ensure the safety and comfort of all passengers, including students

contacting the bus operator for clarification of correct procedures if there is any uncertainty in relation to student misbehaviour.

Where a student breaches the Code of Conduct the bus driver will:

advise the student that their behaviour was inappropriate and of the consequences of the offence, e.g. pass may be withdrawn

obtain the student's name and school (directly from the student or from the travel pass)

issue an interim pass in place of the school bus travel pass if the bus operator has a system of interim passes in place

advise the student that their behaviour will be investigated by their bus operator in a situation where travel passes are not in use

record the incident as part of the driver's own record in a situation where a formal warning is to be issued

report breaches of the Code of Conduct to the bus operator

report to the bus operator when repeated attempts by the driver to control misbehaviour have been unsuccessful.

When an incident of misbehaviour is considered life threatening, the bus driver will stop the bus and contact police on 000 and/or the bus operator and await instructions. Students should be advised to stay in the bus until assistance has arrived.

For the purposes of these Guidelines, a formal warning is considered issued when the driver obtains the student's name and school.

1. Part 6 of the Behaviour Guidelines establishes categories of inappropriate behaviour. It says:-

6. Categories of inappropriate behaviour

To promote consistency and fairness in responding to breaches of the Code of Conduct, inappropriate behaviour has been divided into three categories.

6.1 Category 1 - Unacceptable behaviour

This category includes minor offences, but is not limited to behaviour that may be irritating or unpleasant. Examples include:

distracting the driver by persistent noise or calling out to the driver

failing to show a travel pass, except where passes are not issued (i.e. non-commercial services in rural areas)

eating or drinking (other than water) on the bus, unless for medical reasons or with the written permission of the bus operator

smoking

spitting

using offensive or racist language

minor bullying, intimidation and harassment of other passengers

pressing the stop button continually

damaging property

window etching

behaving so as to adversely affect the comfort or safety of other passengers (e.g. not giving up seats to any adults and disabled passengers).

6.2 Category 2 - Dangerous behaviour

This category includes more serious offences, but is not limited to behaviour that may cause an element of danger to individuals. Examples include:

serious bullying and harassment of other passengers

allowing any part of their body to protrude from the bus while the bus is in motion

stopping others from disembarking at their stop

verbally threatening the driver

standing on steps or in areas not set aside for standing and refusing to sit down

pushing and shoving when boarding or exiting the bus

swinging on bus handrails

throwing things inside or out of the bus

fighting with other passengers

causing significant damage to property in buses

using matches/lighters

carrying dangerous items

group misbehaviour.

6.3 Category 3 - Highly dangerous or life threatening behaviour

This category includes major offences, but is not limited to highly dangerous behaviour. Examples include:

pushing students out of the doors or windows

interfering with the driving controls or the emergency door release

assaulting the driver or other passengers

interfering with safety equipment

recklessly or negligently endangering the safety of other passengers or themselves

destruction of bus property.

If appropriate, the bus driver should report any incident involving highly dangerous or life threatening behaviour to the police.

The list of examples above is not intended to be exhaustive, but should be used

1. Part 7 of the Behaviour Guidelines sets out the procedures to be followed in responding to each of the three categories of inappropriate behaviour. With both inappropriate behaviour and dangerous behaviour drivers are instructed to advise the student that the behaviour is unacceptable, take their name and school, and advise that the matter will be reported. For second offences of inappropriate behaviour the driver may request the students travel pass and issue an interim pass. With dangerous behaviour the driver is required to report the matter to the operator.

1. With highly dangerous behaviour, the driver is required to advise the student that their behaviour is highly dangerous or life threatening, to request their pass, to report immediately to the bus operator and, in extreme cases, to contact the police and await instructions.

1. The Behaviour Guidelines require an operator to keep records of these offences, and provide an escalating series of sanctions they can impose, together with a procedure for doing so. Parents have a right to have such decisions reviewed by the Agency (Part 8).

1. Also relevant to the present circumstances are a number of provisions of the PT Regulation that impose obligations on bus operators and drivers. These include:-

• Clause 19 which requires operators to maintain record of who drove a bus and when they did so.
• Clause 20 that requires bus operators to keep records for 5 years and produce them to the Agency on demand.
• Clause 35(b) that requires that drivers behave in an orderly manner and with civility and propriety towards any passenger, or intending passenger.
• Clause 37 which requires that drivers must ensure that the vehicle is clean and tidy.
• Cluse 40(a) which provides that a driver must not move the vehicle while any door is open.
• Clause 44 which requires a driver to notify the Agency of alleged driving offences, and penalty notice received for driving offences.
• Clause 92 which requires drivers to display their authority cards.
• Clause 97 which provides that, "The driver of a bus must not, without reasonable excuse, leave the driving seat of the bus."

1. In August 2010 the Agency issued its Policy on the Use of Hand-held Mobile Phones and Other Unacceptable Behaviour by Drivers. It advised that, "TNSW considers use of a hand-held mobile by a driver of a public passenger vehicle is unacceptable conduct." It warned that "the use of a mobile phone while driving" merited suspension and possible cancellation.

1. It is to be noted that Clause 4 of the PT Regulation provides that "drive a vehicle (other than a vessel) includes cause or allow the vehicle to stand."

The Factual Issues

1. In AJO's case there is a large volume of material and oral evidence going to a series of circumstances relied on by the Agency to support the decision to cancel his driver's authority. AJO took strong issue with a number of them, but agreed with others, either in part or in whole. In these reasons I do not intend to address all of those issues or to comprehensively outline and review all the evidence relating to each.

1. Rather I will set out the conclusions of fact I have reached, and my reasons for doing so, with respect to the matters that have persuaded me to affirm the decisions to suspend and then cancel AJO's driver authority.

1. The issues I will traverse are:

• The circumstances surrounding an incident when the bus left a student, AJQ far from home
• Threats made by AJO to AJP, a student, on the bus.
• The events when a student was ill on the bus.
• AJO's use of a mobile phone while driving the bus.
• AJO's compliance with and knowledge of the Behaviour Guidelines.
• Whether AJO misled the Tribunal in the affidavit he swore in support of his stay application on 14 June 2011.
• Other matters.

I have not addressed the issues concerning an event when it is alleged that AJO closed the bus door as AJP was about to enter the bus, and then moved the bus forward. A considerable amount of highly contradictory evidence was given concerning this event. I have spent some time trying to resolve those contradictions, but am unable to do so. I am unable to reach any positive conclusions as to the precise sequence of events and locations involved. I therefore am not prepared to draw any conclusions based on that incident.

The circumstances surrounding an incident when the bus left a student, AJQ, far from home

1. In semester 2 of 2010 AJO was driving the bus home when an incident occurred at a school when the bus stopped to pick up students. AJQ, who is now 16, told me AJO caught him mooning another bus. AJO told AJQ to get off the bus while he called the Police. AJQ said that he complied with the instruction and had wandered off, because it was raining and there was no shelter. He said he had not run away. The bus then departed: he did not see it go. He walked into a nearby town, phoning his father to tell him he had done something silly and had been kicked off the bus. He had to walk a considerable distance before he could get a signal on his phone.

1. AJQ's father gave evidence. He confirmed that AJQ had phoned him to say that he had been put off the bus. AJQ sounded distressed and was wet. He had walked some distance in order to get a signal on his phone. AJQ's father then rang AJO, but the call went to message bank. He obtained a number for AJO's wife, and rang her. She was elsewhere at the time and was not aware of what occurred. He explained what had happened and she just said "[AJO] doesn't know how to handle children; he shouldn't be doing the bus."

1. In his affidavits AJO did not directly address this issue. In cross examination he agreed that driving off and leaving a student in such circumstances was not an appropriate way for a driver to respond. He said he had not apologised to AJQ or to his parents for doing so. When it was suggested he had simply driven off, he said, "I couldn't find the child." In re-examination, he was asked whether he thought his conduct in leaving was reasonable. He explained:

I thought under the circumstances no, because I had a bus load of kids on. I got off the bus and went to look for him, and I could find no trace of him anywhere and, you know, I had - went to the back of the bus and I looked around and couldn't - there was no sign of him anywhere, and I had a walk around the immediate area in the school, and I - I had a bus load of kids and I thought well, what do I do. Do I drive round [the area] with a bus load of kids looking for him, or do I, you know? And I attempted to ring my wife [name] on the mobile and I - I - and I can't remember if I actually got through to her that day or not, but anyway, I tried to ring her on my mobile and at - at that - point I just thought, well, I've got to get these kids home, I've got to keep on route, and he was a high school aged boy, he wasn't a juvenile, he was, you know, fourteen or fifteen, he with his own mobile phone, so um --

1. It is to be noted that there is no evidence verifying that AJO either attempted to or did ring his wife. This is to be contrasted with the fact that AJQ's father had no difficulty contacting her around the same time. AJO did not attempt to ring AJQ's parents, despite the fact that he had contact details for them on his phone. He gave no evidence of speaking with the authorities at the school he was picking up from, or ringing the Police and reporting a missing child.

1. AJQ's evidence as to where he went when he was ejected from the bus, and saw AJO making a phone call he believed was to the Police, is unclear. While AJQ denied running away, I think it probable that he made himself scarce: a not an unexpected action from a 15 year old boy threatened with Police.

1. I am satisfied from AJO's own evidence that he made a cursory examination of the area before driving off; leaving AJQ stranded some 75km from home. AJO did not make contact with any responsible authority, his wife, or AJQ's parents before doing so.

1. This reflects adversely on his fitness to drive a school bus, and on his capacity to conduct himself in accordance with law and custom. Requiring AJQ to leave the bus was a breach of Clause 101 of the PT Regulation and in obvious breach of the Behaviour Guidelines. Threatening the Police to call the Police is at odds with the Behaviour Guidelines. Both reflect adversely on AJO's ability to appropriately manage children in his bus, and on his understanding of and insight into the expectations cast on a person with the responsibility of driving a school bus. Driving off and leaving an adolescent boy, unsupervised and far from home, is not the conduct expected of a competent school bus driver.

1. I note that there is uncontested evidence that on another occasion AJO called Police to speak with a student who was refusing to comply with a direction as to where to sit.

Threats made by AJO to AJP, a student, on the bus.

1. On 24 August 2010 an incident occurred on the bus when AJP opened a window - he says twice - on the bus, contrary to AJO's instructions. AJP said it was hot. AJP was sitting at the front of the bus, behind the driver. When another student, sitting behind him, closed the window, AJP went to open it.

1. AJO then said, "Leave it shut or I will break your arm off." AJP then held his arm out and said, "Go on then."

1. In his evidence AJP agreed that his behaviour on the bus was not good. I accept that was the case, and consider that his "go on then" comment to AJO is indicative of his general attitude and behaviour on the bus.

1. Once again AJO did not specifically address this issue in his affidavits. In cross-examination he agreed that he did threaten AJP with physical violence. He had earlier explained that the opening of windows on the bus was an issue, when it was cold. He agreed that threatening physical violence to a student was inappropriate.

1. He conceded that when AJP got off the bus, where his mother was waiting for him, he had thrown a bag of rubbish from the bus and claimed it was AJP's. He did not speak with AJP's mother as, he said, he did not recognise her. He gave no evidence of attempting to contact either of AJP's parents to discuss the problems with AJP.

1. He also accepted that as a result of this incident AJP's mother had made a complaint to the Agency. In his very long letter in response to that complaint he wrote:-

To suggest that I would tell a child I would break his arm and that I had a right to do so is absurd. I told him I had a right to put him off the bus and to take him to the nearest police station if he didn't behave.

He went on to complain about the conduct of AJP and others on the bus, noting that, with AJP and another student, it was often necessary for him to have to confront them.

1. Given the evidence, I am satisfied that AJO threatened AJP with physical violence. I am persuaded that this followed conscious misbehaviour and disobedience by AJP.

1. That, however, does not justify threats of physical violence. It is unacceptable conduct on the part of a school bus driver. That AJO followed this threat up by throwing the bag of rubbish after AJP got off the bus, points to the restraint AJO claimed he exercised not being present.

1. AJO's subsequent written denial that he had threatened AJP is false. He was not honest in his dealings with the Agency about that important matter. Indeed, a full reading of the letter reveals that he was keen to put all the problems experienced on the bus at the foot of the children, or the state of the bus, and to deny any personal responsibility.

1. I agree with the Agency that this reflects adversely on his understanding of the requirements of his role. His denial also reflects adversely on his truthfulness and reliability, especially in his dealings with the Agency.

1. His explanation in the letter of what he told AJP he was entitled to do - put him of the bus and take him to the police - is not consistent with the Behaviour Guidelines and with the provisions of Clause 101 of the PT Regulation. It points to AJO having a very poor or not understanding of the rules relating to drivers of school buses.

1. Further, the evidence demonstrates that AJO breached clause 35(b) of the PT Regulation by failing to behave in an orderly manner and with civility and propriety towards AJP.

The events when a student was ill

1. In semester 1 of 2011 AJR, who is in year 7 and one of the youngest passengers on the bus, became ill and vomited on the bus. There is a significant discrepancy as to what then happened among the children who gave evidence and from AJO. Much of the conflict concerns who initially cleaned the mess up into a dustpan, with AJR saying he did it himself, others saying it was his brother or a number of senior boys, and AJO being of the view that he asked two older boys to clean it up. In my view it is not necessary to resolve these conflicts.

1. There is substantial agreement among those who were able to say when the incident occurred that AJR vomited when the bus was travelling on a freeway, some minutes short of a stop at another school. AJO was told that someone had been sick. He requested that the mess be cleaned up and indicated where the cleaning gear could be found. He said that the vomit was partially in the isle, and obstructing egress. In cross-examination he added that "the kids were complaining about it." The mess was tidied into a dustpan and left on a seat. When the bus arrived at its next stop there is consistent evidence that AJR disposed of it, he says at AJO's request.

1. In his affidavit of 30 October 2011 AJO said:-

The partnership followed it up that evening by contacting parents to work out who had been sick and whether the child had any special needs.

1. In cross examination AJO accepted that asking children to clean up vomit in a bus travelling on a freeway was inappropriate. He did not accept it was very dangerous. He agreed that cleaning up the mess was his responsibility.

1. In my view opinion this event once again raises real questions as to AJO's understanding of his obligations and suitability for his role. Asking students to clean up a mess, when that was his job, while the bus was travelling at high speed on a freeway, exposed them to significantly increased risk in the event of accident. It was not a reasonable action or request by an authority holder.

1. Also of concern is the fact that AJO, on his own evidence, made no inquiries as to who had been sick, or as to their welfare. In my opinion it is reasonable, and essentially a matter of common decency, to expect a country school bus driver to inquire about the welfare of a student who has been sick; to make sure they are all right and fit to continue travelling. Making phone calls at the conclusion of the trip, in an effort to make such inquiries, is too late.

1. In the event I accept that, without inquiring as to his welfare, AJO required AJR to dispose of the vomit at the next stop. This is not an appropriate way in which to treat a sick child.

AJO's use of a mobile phone while driving the bus

1. This is a matter of some contention.

1. On 19 October 2010 a parent approached local police with a complaint concerning AJO. She showed police mobile phone footage of AJO while driving the bus. According to the COPS Event report the footage showed: -

[AJO] driving ... talking on his mobile phone and changing gears with the other hand. [AJO] did not have his hands on the steering wheel for a period of 27 seconds.

There was also footage of [AJO] driving west of ... on ...with the door open for a period of 15 seconds...

1. The COPS Event records the parents of the students concerned were unwilling for them to make statements.

1. It noted that AJO attended the Police station and stated that the bus was stationary while he was talking on his mobile phone. It continues:-

Police informed [AJO] that Police viewed the footage and clearly shows that the bus was moving, that it was raining and that it was a dangerous practice. Police informed [AJO] that he was very fortunate that he wasn't being charged ...

1. Having viewed those and other videos taken by students on the bus I am satisfied that the police summary of their contents is accurate. Other videos show AJO driving while using his mobile phone before that date, as well as leaving the bus to dispose of rubbish, to go into a shop, and to go to the toilet.

1. On 15 November 2010 officers from the Agency attended at AJO's residence in relation to complaints against him, and warned him about the use of a mobile phone while driving.

1. AJO did not dispute using his mobile phone while driving before the police spoke to him in October 2010. He described the subsequent meeting with officers from the Agency as a "salutary warning." He insisted he had not used his mobile phone while driving, in the sense of when the bus was in motion, since then. He did not dispute using his mobile phone when the bus was standing.

1. There was inconsistent evidence from the children concerning whether, since October 2010, they had seen AJO using a mobile phone when the bus was moving. Some said they had seen this on one or more occasions, while others said they had not. Statements from other students, produced by AJO, indicated that he did receive calls while driving the bus, but pulled over to answer them. A video taken on 6 December 2010 of AJO entitled "on the phone moving" does not show the bus moving when he uses his mobile phone.

1. On 15 June 2011 officers from the Agency carried out an inspection at the partnership's premises. The following relevant documents were obtained by the Agency under a notice to produce:

• Daily vehicle checks and driver logs for the route.
• Telephone accounts relating to the partnership's office phone and the mobile phones used by AJO and his wife.

1. Armed with those documents agency officers then performed an analysis to establish when calls were made to or by AJO's mobile phone, and where those calls originated from (by reference origin of each outward call, as identified in the accounts). That data was then compared with the Annual Review Survey Assessment 2011 (ASRA) submitted by the partnership to the Agency in accordance with contract obligations.

1. The ASRA shows the time and location of all pick up and drop off of points for students on the route. It does not show the duration of stops. It commences when the bus leaves the depot and ends when it returns. It provides an indication of approximately where on the route the bus should be at a given time. It is obviously subject to variation and dependant on many variables, such as traffic conditions and mechanical breakdown.

1. By comparing the information in the telephone accounts with the ASRA and the worksheets, the Agency concluded that there had been a total of 28 phone calls made to or from AJO's mobile phone when he was driving the route in the period 17 November 2010 to 5 April 2102. In realty this is closer to a three month period, as it covers the school holidays when the bus did not operate.

1. Having reviewed the relevant documents I agree with that conclusion.

1. Eleven of the phone calls were made from AJO's mobile phone. Of the seventeen calls made to his mobile, six are of a length that is consistent with a telephone conversation occurring, as opposed to the call going through to voice mail (30 seconds and less). With respect to each to eleven outward calls and six in bound calls, comparison of the time of the calls with the ASRA shows the bus on route.

1. The Agency says that this demonstrates that, contrary to his assertion in his affidavit, that AJO used his phone while driving the bus.

1. The documentary evidence supports the evidence of the children who say that they saw AJO using his mobile phone while driving in 2011. While it is not possible to positively find that the bus was in motion while AJO made or received a specific phone call, the weight of the documentary evidence combined with the positive evidence from the children who say they saw him using the phone while driving, persuades that the bus was in motion received a number of calls in 2011. It seems to me logical, and consistent with the statements of the students on which AJO relies, that in all probability this relates to incoming calls. I accept that as a result of his "salutary warning" AJO sought not to make outgoing phone calls while the bus was in motion.

1. AJO did not, however, seek to reduce his use of the mobile phone while the bus was standing. Such use of a mobile phone is clearly in technical breach of the Policy on the Use of Hand-held Mobile Phones and Other Unacceptable Behaviour by Drivers. Those breaches are relevant to AJO's capacity to undertake bus driving duties in accordance with law and custom. Pulling over to enable his to engage in calls while driving students is at odds with his duties and that policy.

1. Of much greater concern is the fact that AJO, while in the act of driving a school bus on public roads, used his mobile phone on a number of occasions when there were children on board. Not only is this a breach of the road laws, but it is risky behaviour. It indicates that AJO has little insight into the responsibilities of the role of a school bus driver, especially the fact the safety of the children on the bus is placed in his hands. Any reasonable parent would be very concerned at the prospect of their child being driven by a bus driver, who did not have a hand on the steering wheel for 27 seconds, while using a mobile phone. That AJO engaged in such conduct reflects poorly on his insight into his role and responsibilities.

AJO's compliance with and knowledge of the Behaviour Guidelines

1. In this case AJO is both a driver and operator. While I am not concerned with his operator accreditation, a number of the record keeping obligations imposed on an operator are relevant to my consideration of his driver's authority. This is so as those records are relevant to some of the issues in dispute.

1. One example are the records of student behaviour that an operator is required to maintain under the Behaviour Guidelines. A bus driver has a role in keeping records and informing an operator about student behaviour, so that the operator can comply with those obligations.

1. In this case AJO has consistently maintained that student behaviour on his bus has been very poor, and that there have been numerous instances of poor behaviour over a number of years. AJO has not produced any record of misbehaviour by or of a warning given to a student for misbehaviour under the policy to verify this.

1. This omission was put to him in the course of cross-examination. He denied that he did not have records and insisted it was documented, although he agreed the records had not been produced.

1. In his affidavit of 30 October 2011 AJO said:

Operating a school bus service is not an entirely straight forward matter: Operators are not trained in managing behaviour and we do the best we can having regard to the overlapping obligations we have for transportation. safety, timeliness, order, comfort, protection of our business assets and so on. In short I juggle those obligations and responsibilities as best I can - trying to maintain reasonable order and safety with timely and relatively comfortable transportation. I impose boundaries on child behaviour in keeping with the standards I have set for all the children I have carried over the eight years I have been in the industry and similar to the standards I set for my own children. I do not for instance readily tolerate rude or sexual discourse in public earshot, nor for instance swearing aloud esp. directed at me. There are of course many other acts that would fall outside usual standards of acceptable behaviour and I act, I think reasonably, to manage that kind of behaviour.

1. In a detailed letter written by AJO in response to complaints from three parents dated 28 October 2009 he wrote, among may other things, that:

In cases where students are non compliant, the matter is almost always resolved by re-allocation of the student's seating position usually near the front of the bus where the driver can observe and monitor the student's behaviour and minimise the potential risk to other students. In extreme cases and in compliance with the MOT's school student behaviour policy a student may be removed from the bus. This only occurs under extreme circumstances and then we usually work with the parent to assist with alternative transport arrangements ...

1. In answer to a question AJO said that when he wrote that letter he had "a reasonable grasp" of the Behaviour Guidelines. However, in his affidavit of 30 October 2011 AJO said:

While ... Transport NSW has been in regular communication with the partnership concerning behavioural issues on the school bus throughout 2011, I was not until recently alerted to any departmental guidelines on the subject. I now know of such guidelines and while Ms O'Neill mentioned them in her letter of 7 June 2011 and referred ... to the Department's home page, it was not a link as such, and I remained unaware o the guidelines until recently when the Respondent handed the partnership a copy.

1. AJO explained this apparent discrepancy as to when be came aware of the Behaviour Guidelines by saying that "we didn't have a copy of it." When pressed about his statement that he had only been recently alerted to the Guidelines, he said that he was referring to a hard copy only.

1. He denied that he had been less than truthful in his affidavit.

1. AJO's attention was then directed to the Behaviour Guidelines. He said that at the time he wrote the letter of 29 October 2009 he had not read the Behaviour Guidelines. He said he had informed himself of his obligations as a driver through Bus Association Meetings, MOT forums, and discussions with other operators, as well as his own experience. He had not sought a copy of the policy between then and June 2011, despite the behavioural problems on the bus.

1. AJO said he had now read the Behaviour Guidelines. He denied a suggestion that his response to the children's behaviour had been inconsistent with the Behaviour Guidelines.

1. I conclude that at the time of writing his letter of 29 October 2009 AJO had not read the Behaviour Guidelines and had no understanding of his obligations as a driver in managing student behaviour. His statement in that letter about removing children from the bus and that the partnership "usually work with the parent to assist with alternative transport arrangements" displays no understanding whatsoever of the provisions of Clause 101 of the PT Regulations and of the Behaviour Guidelines.

1. In my opinion it is apparent from the evidence that AJO had not read the Behaviour Guidelines until they were provided to him by the Department in June 2011. In the meantime he had been imposing his own standards of behaviour and understanding of relevant policy on the students in the bus - which differ from those in the Behaviour Guidelines - and imposing discipline as he saw fit. His treatment of AJQ and AJP is ample evidence of this.

1. The Agency also argued that in enforcing his own standards AJO acted capriciously and vindictively. I do not think it necessary to determine that issue for the purposes of this determination.

1. I conclude that as a bus driver AJO did not inform himself of the laws and policies applicable to that role. I also accept that, in his evidence to the Tribunal concerning this issue, AJO was not initially truthful. He sought to quibble about not having seen "a hard copy" of the behaviour policy in an effort to hide his ignorance.

Whether AJO misled the Tribunal in the affidavit he swore in support of his stay application on 14 June 2011

1. At paragraph 15 above, I quoted two paragraphs from the affidavit that AJO swore in support of his initial application to stay the decision to suspend his driver authority. Put simply, AJO asserted that he had stopped "using a mobile phone while driving a school bus."

1. The Agency relies on that documentary evidence, which it obtained as a result of the inspection on 15 June 2011 to contradict this. That contradiction was as one of the reasons for cancelling AJO's driver authority.

1. Given the conclusion I have already reached with respect to AJO using his mobile phone while driving in 2011, I accept that AJO's assurance to the Tribunal that he had stopped using the mobile phone while the bus was in motion is an exaggeration and not true.

1. In addition, the Agency argued that during the inspection on 15 June 2011, when completing the driver's worksheet for 6 December 2010, AJO and his wife had deliberately and wrongly recorded that she, rather than AJO, was driving the bus on the afternoon of that day. The origins recorded in the telephone records make it clear, and AJO accepted, that he was driving at the time. His wife could not have been.

1. 6 December 2010 is a sensitive date. It is the date the video of AJO entitled "on the phone moving" was filmed.

1. It was put to AJO that his wife had been nominated as the driver on that date in order to provide evidence to contradict the video evidence. AJO denied this.

1. I am not prepared to draw the conclusion that the worksheet was deliberately completed incorrectly. It impresses me as more likely to be a simple mistake made when reconciling records.

Other matters

1. The material before the Tribunal demonstrates a number of other breaches of the PT Regulations and traffic law that are not controversial.

1. First, it is clear from the video evidence that on 1 March 2011 he left the bus, while it was on route, in order to buy a newspaper. This is a breach of Clause 97 which provides that, "The driver of a bus must not, without reasonable excuse, leave the driving seat of the bus."

1. I am not persuaded that the videos of AJO leaving the bus to go to the toilet or to place a bag of rubbish in a bin constitute leaving his seat without reasonable excuse.

1. Secondly, in March 2010 AJO incurred a speeding offence. He did not notify the Agency of this in breach of his obligation under clause 44.

1. Thirdly, video evidence demonstrates that on 15 October 2010 AJO drove the bus with the door open. This is a breach of Clause 40(a).

1. Fourthly, video evidence demonstrates that AJO drove the bus with without wearing a seat belt on at least two occasions.

Evaluation

1. I have found that when driving a school bus AJO:

• Put a student off the bus and left him 75 km from home. I agree with the Agency that in the circumstances this can reasonably be viewed as abandonment. When putting the student off the bus AJO did not make contact with any responsible person in the area who could see to his welfare, contact the student's parents, or make inquiries about alternate transport.

• Threatened a student with physical violence when the student failed to obey his direction to leave a window closed.
• Threw a bag of rubbish out of the bus as that students alighted from the bus.
• Falsely, in a letter to the Agency, refuted the allegation that he had threatened violence to a child.
• Asked for a student(s) to clean up vomit on the floor of the bus while it was proceeding at high speed on a freeway.
• Failed to make inquiries to identify a sick child on his bus or to ascertain that child's well being.
• Used his mobile phone when the bus was in motion.
• Had not read Behaviour Guidelines until they were provided to him by the Department.
• Imposed his own standards of discipline (and applied his own understanding of procedure) on students.

1. In addition I am satisfied that AJO has not been strictly honest in his dealing with the Agency and the Tribunal with respect to his knowledge of the Behaviour Guidelines and his use of a mobile phone.

1. In the light of those finding I am not satisfied that AJO is a fit and proper person to hold a driver authority authorising him to drive a school bus. The evidence demonstrates that despite driving and operating school buses for some years, AJO's knowledge of an essential facet of those duties, the Behaviour Guidelines, was ill-informed and wrong. In all his years of driving (and acting as an operator) he has failed to inform himself of that highly relevant and applicable guideline. He has also demonstrated ignorance of the provisions of the PT Regulation applicable to the operations of school buses, and had breached them on a number of occasions. This reflects poorly on his ability to undertake his duties as a driver.

1. While AJO outlined the high standards of behaviour he sought to impose on students on his bus, it is apparent that he had not imposed similarly high standards on himself. He has not informed himself of the laws and policies applicable to the management of student behaviour, nor sought assistance or training in regard to them. He has enforced and proclaimed strategies for the management of student behaviour which are at odds with both the Behaviour Guidelines and the PT Regulation.

1. Worryingly, he has demonstrated an active disregard for the consequences his own actions have on his student passengers. More generally, his continued use of a mobile phone while driving the bus on the road disregards the risks to their welfare and demonstrates a disregard for them, and the concerns of their parents who entrust the children's safety to him. Specifically, his conduct in putting a student off the bus 75 km away from home, and in failing to inquire after the welfare of an sick boy on the bus, point to a lack of understanding of his responsibilities as a driver and a disregard for their welfare.

1. These factors point to AJO not having the insight, knowledge or understanding, necessary for me to certify that he has the ability to undertake his duties as an authority holder. It also relevant that in is dealings with the agency and the Tribunal he has denied adverse matters going to his conduct as a driver, albeit he has latter conceded them. This does not reflect well on his honesty when dealing with regulatory matters.

1. It follows that I am not satisfied that AJO has the basic knowledge and ability required of an authority holder. I am also not satisfied that he will deal honestly with the Agency unless constantly policed. He is therefore not a fit and proper person to hold a drivers authority.

1. Further, his record and conduct over the past years also persuades me that, if he continues to hold an authority, I could not be satisfied that he has sufficient responsibility and aptitude to fulfil the demands of the role.

1. Similarly, I am not satisfied that he has sufficient responsibility to drive a bus in accordance with law and custom. His ignorance and/or disregard of applicable Regulations and Guidelines, and his demonstrated breaches of applicable regulations, gives me no confidence that he has sufficient responsibility to drive in accordance with law and custom.

1. I make no finding in respect of AJO's repute. There is contradictory evidence in that regard, and given the findings I have already made, it is not necessary to resolve them.

Conclusion

1. It follows that that the correct and preferable decision is to affirm the decisions to suspend and cancel AJO's driver authority.

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Decision last updated: 25 May 2012