AL EDANY and DEPARTMENT OF PLANNING AND INFRASTRUCTURE
[2005] WASAT 165
•11 JULY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: AL EDANY and DEPARTMENT OF PLANNING AND INFRASTRUCTURE [2005] WASAT 165
MEMBER: MR T CAREY (MEMBER)
HEARD: 10 JUNE 2005
DELIVERED : 11 JULY 2005
FILE NO/S: CC 2428 of 2005
BETWEEN: HUSSEIN ABDUL ZAHRA AL EDANY
Applicant
AND
DEPARTMENT OF PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Administrative law - Road traffic - Review of suspension of taxi endorsement on driver's licence - Capacity to take into account charge of indecent assault under s 48(1)(a) Road Traffic Act 1974 (WA)
Legislation:
Criminal Code (WA), s 323
Passenger Transport Act 1990 (NSW), s 48(1)(a)
Road Traffic Act 1974 (WA), s 6, s 6A, s 42, s 48
State Administrative Tribunal Act 2004 (WA), s 27, s 29, s 32
Result:
Application unsuccessful
Decision of respondent affirmed
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr P Busby (as Agent)
Solicitors:
Applicant: Self-represented
Respondent: N/A
Case(s) referred to in decision(s):
Commissioner for Motor Transport (NSW) v Leo (1986) 4 MVR 183
Commissioner of Police v Batty, unreported; SCt of WA (Kennedy J); Library No 8185, 21 March 1990
Commissioner of Police v Plum, unreported; SCt of WA (Pigeon J); Library No 6009, 20 September 1985
Director General for Planning and Infrastructure v Nealon [2003] WASCA 161
Farquharson v Director General, Department of Transport [1999] NSWADT 53
Hargreaves v Department of Planning and Infrastructure, unreported; Court of Petty Sessions, (Hogan SM); PE 43115/02; 29 November 2002
Musa Farah and Department for Planning and Infrastructure [2005] WASAT 24
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant's taxi endorsement on his driver's licence was suspended on the grounds that he was not a person of good character, based on a charge of indecent assault of a female passenger. The Tribunal found that the decision was consistent with considerations of the interests of members of the public to which the Director General was permitted to, and did, have regard, and was the correct and preferable decision.
Application
The applicant seeks review under s 48(4) of the Road Traffic Act 1974 (WA) ("Act") of a decision purportedly of the respondent on 10 May 2005 to suspend the applicant’s driver’s licence endorsement class "T". The applicant has been a taxi driver for two years and relies upon his endorsement class "T" for his income.
The decision was made by Ms Anne Mason, in her capacity as manager, central customer services in the respondent’s department. It was made under s 48(1) of the Act, on the ground appearing as paragraph (a) of that subsection that the applicant "is not of good character".
Based on the "Grounds" section of the application, which was prepared by a lawyer (although Mr Al Edany was self-represented at the hearing), and confirmed by the applicant at the hearing, the applicant relies upon three grounds of review:
(1)Ms Mason was not the respondent’s properly appointed delegate for the purpose of the decision;
(2)the decision was based on a charge of indecent assault laid against the applicant which is denied, and the applicant otherwise asserts he is of good character; and
(3)the applicant is married with two young children and he is the sole breadwinner.
The applicant seeks an order that the decision be quashed.
Basis for the decision
The respondent filed relevant parts of the department’s file, which make clear that the decision was made solely on the basis that the applicant has been charged with indecent assault under s 323 of the Criminal Code (WA) in connection with an incident on 30 April 2005. According to a copy of the statement of material facts prepared by the investigating police officer, the 19‑year‑old female complainant was a passenger in the applicant’s taxi when she alleges he touched her breast from outside her jacket initially and continued to do so for a time after being told to stop. The complainant is described in the statement as suffering from Williams Syndrome, a condition affecting her intellectual capacity to the extent that she has the intellectual capacity of a 5 or 6‑year‑old.
According to a file note among the filed documents, Ms Mason concurred with an earlier recommendation to suspend the applicant’s taxi endorsement, after "(t)aking into consideration the seriousness of the charge, that the offence occurred during the course of the applicants taxi duties and with regard to the Departments obligations as a regulatory body and the rights of the public to be able to travel safely in a taxi".
Road Traffic Act 1974 (WA)
The relevant provisions of the Act are as follows:
Section 6 sets out the functions of (relevantly) the respondent Director General, who is charged with the administration and enforcement of the licensing provisions of the Act.
Section 6A provides that the Director General may, by writing signed by the Director General, delegate to a person any power or duty of the Director General (apart from the power of delegation).
Section 42 provides for applications for drivers’ licences to be lodged with the Director General specifying the class of motor vehicle for which the licence is sought. Subject to the other provisions in the same Part in the Act (including s 48), on being satisfied that the applicant is of the requisite age, has demonstrated his ability to control the class of motor vehicle for which the licence is sought and satisfied other requirements under the regulations, and has a reasonable knowledge of the traffic laws of the State and of safe driving techniques, the Director General "shall" issue the appropriate licence.
Section 48 deals with the Director General’s power to refuse, cancel and suspend drivers’ licences. Relevant to this matter:
Section 48(1) provides that the Director General may suspend a driver’s licence where the Director General has reason to believe that the holder of a driver’s licence "is not of good character".
Section 48(2) allows for the Director General, where he suspects that grounds may exist for suspension or cancellation of a driver’s licence on a ground referred to in subsection (1), to serve a notice on the holder of the licence requiring him to satisfy the Director General that he would not be empowered to do so (suspend or cancel), but this was not a course availed of in the applicant’s case.
Section 48(4) provides for a person aggrieved by a decision of the Director General to suspend a licence to apply to the Tribunal "for a review of the decision".
Section 48(10)(b) provides that a reference in s 48 to suspending a licence includes a reference to suspending an endorsement on the licence.
Evidence and submissions
Mr Al Edany appeared on his own behalf at the hearing with the assistance of an interpreter. He came to Australia a few years ago as a refugee from Iraq. The nub of his submission was that it was unjust for the respondent to regard a mere allegation against the applicant as a sufficient basis to conclude that he is not of good character and suspend his taxi endorsement. According to the applicant, there is no greater crime than to prevent a person from earning a living, particularly in the applicant’s circumstances of being the breadwinner for his wife and two young children.
Mr Al Edany maintained his innocence in the hearing. He asked me whether he was able to contest the charge. My response was that it was not appropriate in the hearing of this matter to conduct a mini-trial of his innocence or guilt, for reasons concerned with both his own protection as an accused person in a criminal proceedings (in respect of which I was informed a callover is to occur on 12 July 2005), and the nature of the respondent’s statutory discretion, which is exercisable where the Director General has "reason to believe" that a person is not of good character.
The applicant called four witnesses who fell within the description of character witnesses. For reasons that will become apparent, there is no need for me to describe their evidence in any detail. I accept that the applicant has demonstrated to these witnesses and others a kind and caring nature and general life attitudes that caused them to be "surprised" or "shocked" on hearing about the criminal charge, and to disbelieve Mr Al Edany’s guilt. The applicant informed me that he could have brought many more character witnesses to attest to his good character.
The respondent called the person who made the decision, Ms Mason. Ms Mason said that she has been the manager, Central Customer Services, for approximately nine months and as such she is a properly delegated officer to perform the powers and functions of the respondent under s 48 of the Act and in particular the power under s 48(1) to suspend a driver’s licence or endorsement. The instrument of delegation, signed by the Chief Executive Officer of the department and the Director General for the purposes of the Act, in favour of the holder of the office held by Ms Mason, had been filed prior to the hearing and was not challenged by the applicant.
Ms Mason confirmed that her decision was based on her review of the documents copies of which were filed with the Tribunal. She mentioned in her evidence the seriousness of the offence and the need for the public to feel safe in taxis, although I do not consider this as limiting the totality of the contents of her file note referred to above. In response to a question in cross examination, she said that given the seriousness of the alleged offence, she did not make any inquiries which might have disclosed "general character evidence" regarding Mr Al Edany. She denied that there would necessarily be the same result in any case where a complaint was made against a taxi driver, and pointed once again to the seriousness of the charge against the applicant and the fact that the applicant had been charged by the police, who would have conducted their own investigation before doing so.
Counsel for the respondent, Mr Busby, submitted that on the unchallenged evidence, Ms Mason was a properly delegated officer for the purpose of the decision she made.
Mr Busby submitted that the decision was the correct decision based on the known facts. The offence allegedly committed by the applicant is very serious, and relates directly to his occupation as taxi driver. Although it is not appropriate to enter into the issue of the guilt or innocence of the applicant, it was permissible to consider such indicators of the strength of the case as the complainant’s early report of the alleged offence and the absence of any identification issue.
Mr Busby observed that the system administered by the Director General is not a criminal system, but rather a licensing system. Two things were said to flow from this:
(a) hardship arising from a decision under s 48(1) is not a relevant consideration on a review of the decision, based on two unreported Supreme Court decisions, Commissioner of Police v Plum, unreported; SCt of WA (Pigeon J); Library No 6009, 20 September 1985 and Commissioner of Police v Batty, unreported; SCt of WA (Kennedy J); Library No 8185, 21 March 1990 – I would add the most recent Supreme Court authority on point, Director General for Planning and Infrastructure v Nealon[2003] WASCA 161 which cites the two previously mentioned cases with approval.
(b) the Director General has a duty to protect the safety of the travelling public. A driver operating under a taxi endorsement is in a position of trust. Where such a driver is facing a serious charge relevant to his vocation, the Director General was entitled, and indeed has a duty, to exercise his power so as to prevent the applicant from driving taxis while the charges are pending. A decision of Ms Hogan SM in Hargreaves v Department of Planning and Infrastructure, unreported; Court of Petty Sessions, (Hogan SM); PE 43115/02; 29 November 2002 which in turn relied upon a decision of the New South Wales Administrative Decisions Tribunal in Farquharson v Director General, Department of Transport[1999] NSWADT 53 and a decision of the Tribunal in Musa Farah and Department for Planning and Infrastructure [2005] WASAT 24 were cited in support of these propositions.
Mr Al Edany, in his closing submission, queried whether the Director General’s exercise of discretion in the manner in which he had done so was truly in the public interest when the applicant and his family are part of the community and have been deprived of their means of income. He drew upon the Tribunal’s charter (in s 32(2) of the State Administrative Tribunal Act 2004 (WA) ("SAT Act")) "to act according to equity, good conscience and the substantial merits of the case…" to exhort the Tribunal to quash the decision which was based on a presumption of guilt before guilt has been proven.
Consideration
There is no guidance provided by the Act for the manner in which the Tribunal is to conduct a review of a decision to revoke a licence pursuant to s 48(4). The matter comes within the review jurisdiction of the Tribunal which is the subject of Div 3 of Pt 4 of the SAT Act. Relevantly for present purposes, the review is by way of a hearing de novo and may involve consideration of new material whether or not it existed at the time the decision was made (s 27(1) SAT Act), the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review (s 27(2) SAT Act), the Tribunal has functions and discretions corresponding to those exercisable by the decision maker in making the decision under review (s 29(1) SAT Act), and the Tribunal may make any order it considers appropriate, including to affirm the decision, vary the decision, or set it aside and substitute its own decision or send the matter back to the decision-maker for reconsideration (s 29(3) SAT Act).
On the evidence provided by the respondent, I am satisfied that Ms Mason was the Director General’s lawful delegate for the purpose of the decision she made. The first ground of the application is therefore refused.
The third ground is in effect a hardship ground. I am bound by what the Supreme Court of Western Australia has said about the relevance of hardship to applications for review under s 48(4) in the three cases referred to above, which is, as the respondent has submitted, that hardship is not relevant. It is therefore not possible for me to take into account such matters as Mr El Adany's reliance upon his taxi endorsement for his sole source of income and the effect on his family of the suspension of his endorsement.
This leaves the second ground of the application, that the decision was based on a charge of indecent assault laid against the applicant which is denied, and the applicant otherwise asserts he is of good character.
The starting point is s 48(1)(a) itself, which is in terms that the respondent may suspend a licence "where the Director General has reason to believe that…the holder of a driver’s licence is not of good character". The respondent has a discretion to take into account any relevant information regarding the holder of a licence in forming the necessary belief. What information is relevant, and how it might be used, will be informed by what interests the Director General is required or expected to protect in the exercise of his power under s 48(1).
There is no Supreme Court of Western Australia decision providing instruction as to how s 48(1)(a) should apply. In Hargreaves v Department of Planning and Infrastructure (supra), Hogan SM was faced with an application very similar to the present one, where the applicant before her Worship had had his taxi endorsement suspended on the ground that he was not of good character, that decision having been made on the basis of the laying of two charges, under the same provision as here, of unlawful and indecent assault relating to offences allegedly committed in the course of Mr Hargreaves’ occupation as a taxi driver. Hogan SM dismissed the application and expressed her conclusion in the following terms:
"Now the power exercised by the Director General in this case was one exercised in his role regulating the taxi licensing system. The Director General was informed of serious allegations directly arising out of the applicant's work as a taxi driver on two separate occasions. The Director General confirmed that charges had been laid. And I consider that there is no basis to conclude that the Director General's decision was wrong and I do not consider that a review of the decision is justified."
Although pointing out that the decision of the New South Wales Administrative Decisions Tribunal in Farquharson v Director General, Department of Transport (supra) was not binding on her, Hogan SM referred to the decision of O’Connor J in that case as being "very persuasive". According to her Worship, it related "to the taxi licensing system in New South Wales which is not dissimilar to that existing in Western Australia". There are, however, some aspects of the New South Wales system which are not matched, at least precisely, in Western Australia. The relevant power at the time Farquharson v Director General, Department of Transport was decided arose under the Passenger Transport Act 1990 (NSW). Persons authorised to drive taxis held an authority issued under that Act, the statutory purpose of which was "to attest that an authorised person is considered to be of good repute and in all other respects a fit and proper person to drive a public passenger vehicle". The same Act further provided that an authorised person "is considered to have sufficient responsibility to drive a public passenger vehicle in accordance with law and custom". I will address the extent to which any differences between the two systems is of significance shortly.
In Farquharson v Director General, Department of Transport, O’Connor J was concerned with a taxi driver who had been charged with soliciting a person to murder. According to the reported decision the administrator decided to suspend Mr Farquharson's licence because he was no longer in a position to attest to the applicant's character (my emphasis, for reasons which will become apparent). His Honour referred with approval to a decision of McInerney J of the NSW Supreme Court in Commissioner for Motor Transport (NSW) v Leo (1986) 4 MVR 183. The statutory scheme in that case was somewhat different from that at the time of O’Connor J’s decision, and made specific reference to the possibility of suspension action being taken where it was considered desirable in the public interest, and where continued holding of a licence would not be in the interests of public safety. McInerney J in Commissioner for Motor Transport (NSW) v Leo (supra) noted that the magistrate in disallowing a decision suspending a driver’s licence in the matter below had regard to material from the committal proceedings, looked at the circumstances of the accident, and referred to the proposition that a person was innocent until proven guilty. According to O’Connor J’s reasons for decision:
"McInerney J was critical of the approach adopted by the magistrate. His Honour said:
'… I have difficulty in understanding precisely why it was he allowed the appeal. It is probable that what he has done is to decide the facts although he has stated the Court could not determine the facts. He has purported to make findings on what he says are the discrepancies he found disclosed in the evidence and came to the conclusion that those discrepancies were of such a nature that it would be unlikely he would be convicted and therefore the Commissioner in these circumstances should not have suspended the licence.
It is my view what the magistrate had to determine was not the guilt or innocence of the [driver] of the charges of wanton driving against him but whether having regard to the charges preferred against [the driver] the Commissioner was justified in suspending his licence on the grounds he purported to act.'
McInerney J concluded:
'[The driver] was operating his taxi cab at the time, conveying paying passengers and serious allegations have arisen out of this driving. His vehicle is said to have been at least partly responsible for a serious road accident in which three persons were killed. It was then for the magistrate to determine whether in those circumstances the charges themselves being of such a serious nature whether the Commissioner was entitled to suspend the licence on the grounds he purported to act.
It is my opinion, doing the best I can, the magistrate has not addressed himself to that particular matter and has attempted to determine the issues of fact to be determined by a Judge and jury. In my view that was not a matter that the magistrate was asked to determine. The matter he was asked to determine was whether having regard to the charges preferred against [the driver] and the circumstances in which those arose having regard to his utilisation of a taxi driver's licence, whether the Commissioner in the circumstances was entitled to suspend his licence.' "
Hogan SM’s decision analysed the two NSW cases as follows:
"Now this [Leo's case] was also a case involving a taxi driver who had allegedly driven his cab in such a way that certain persons were killed in a serious road accident. Now after referring to McInerney J's approach taken in that case O'Connor J – we're back to Farquharson's case – stated the following in paragraph [20] through to paragraph [22]:
'The Tribunal agrees with the broad thrust of McInerney J's observations. Regulatory schemes which provide for the issuance of licences on the basis of satisfaction as to a licensee's fitness and character usually include as part of their continuing oversight powers a power to suspend the licence for public interest reasons.
While it is the case that a person charged with a criminal offence must be presumed innocent until proven guilty, it does not follow that consequences that lie outside the criminal law may be avoided. Civil consequences typically attach to the laying of criminal charges in various categories of public sector employment. Commonly a public sector employee may be stood down with or without pay, depending on the statutory provisions.
An administrator of a licensing scheme would be expected to respond to advice that a regulated person had been charged with a serious criminal offence, especially one arising out of circumstances that directly bear on the activity in relation to which the licence has been issued.'
And that was the situation in Leo's case. It's also the situation in this case:
'In considering whether to exercise any discretion to suspend or otherwise interfere with the licence an administrator cannot reasonably be expected to inquire into the strength or weakness of the case against the licensee. Similarly, a review tribunal cannot be expected to go beyond the information on which the administrator has relied to the extent of examining the strength and weaknesses of the prosecution case.'
Then at paragraph [27]:
'A taxi driver has a continuing responsibility to ensure that he is of good repute and a fit and proper person. Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character.'
Then at paragraph [35] and paragraph [36] O'Connor J stated:
'This case raises the difficult question of whether situations can arise where an administrator is permitted to form a conclusive negative view as to issues of repute and character based on a single factor.
In exercising its responsibilities for passenger transport regulation the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself.'
Here one could substitute the words 'facing trial on an unlawful and indecent assault charge against a taxi passenger:'
'One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence.'
In that case it was one of violence; in this case it's also one of violence in terms of assault, but more particularly one of indecency. Now his Honour also stated at paragraph [40]:
'A licence confers a right on an individual to pursue a regulated occupation. The considerations relevant to the exercise of an administrator's discretion in that context will be affected by the nature of the statutory scheme, the legislative objectives and the specific terms of statutory powers.' "
As I said earlier, Hogan SM did not regard there as being any appreciable difference between the taxi licensing systems in New South Wales and Western Australia, and therefore felt unconstrained in accepting the reasoning of the judges in the cases mentioned. In Musa Farah and Department for Planning and Infrastructure (supra), Senior Member Raymond cast some doubt on the capacity of the respondent Director General to rely upon that line of reasoning in the exercise of his powers under the Act. There, Mr Raymond was concerned with an application for a stay of the operation of a decision to suspend a taxi endorsement, again in a case involving counts of indecent assault against female passengers. He found that Farquharson v Director General, Department of Transport(supra) did not provide a basis for suspension of a taxi driver’s licence on the ground that the taxi driver is not of good character, and did so by distinguishing the respective legislative schemes. In particular, unlike the New South Wales scheme, under the Western Australian scheme the power of suspension can be exercised only on the forming of a belief that the licence holder is "not of good character", as distinct from "not of good repute". Mr Raymond said that the decision in Farquharson v Director General, Department of Transport recognised this distinction, which is one between a person’s intrinsic characteristics and the way in which a person is regarded (fairly or unfairly) by others in the community. So although a charge of a serious offence might have a deleterious effect on a person’s good reputation, it could not, until proven, have any effect on a person’s good character. The absence of any public interest ground in s 48 of the Act also told against the exercise of the power in a manner designed to protect the public. However, given the reference to the public interest in s 25 SAT Act governing the issue of stay orders, Mr Raymond refused to grant a stay in the public interest and quoted part of the passage from [36] in Farquharson v Director General, Department of Transport (supra) regarding perceptions of the travelling public.
It is true, as Mr Raymond said in Musa Farah and Department for Planning and Infrastructure (supra) that in Farquharson v Director General, Department of Transport, O’Connor J drew a distinction between the two elements, "good repute" and "fit and proper person" (which his Honour equated with "fit and proper character") both of which were found in the legislation which applied in that case. For example, in [29], O’Connor J suggested that the serious charges laid against the applicant may properly be regarded as affecting his "good repute", although "judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict". However, as one reads the rest of his Honour’s reasons, it becomes evident that in the context of a licensing scheme such as that applicable to taxi drivers, decisions by the administrator of the scheme should not depend on fine distinctions as to whether a particular circumstance is likely to affect the licence holder’s reputation, or character, or both. As indicated earlier, O'Connor J regarded the decision of the administrator in the case before him as having been based on a perceived inability, by reason solely of the criminal charge against Mr Farquharson, to attest to his "character". The pertinent question for his Honour was whether a member of the travelling public would be concerned to know that the driver of his or her taxi is facing trial on the charge or charges in question.
As O’Connor J correctly, with respect, pointed out in Farquharson v Director General, Department of Transport at [40], the matters which the administrator of a licensing scheme is required to take into account in exercising powers of suspension and the like will be affected by the nature of the scheme, the legislative objectives and the specific statutory provisions. What must be borne in mind in relation to the Act is that (unlike the NSW legislation) it is concerned with the regulation of all road traffic in the State. One important area of regulation is the administration by the respondent Director General of a system of licensing road users through the issue of driver’s licences of various types, for both private and business purposes. The Director General has power in the cases referred to in s 48(1) to refuse the issue of, or to cancel, suspend or refuse to renew a licence. A reference in this context to "licence" includes a reference to an endorsement on a licence, such as a "T" class, or taxi, endorsement. Therefore, as part of his responsibilities under the Act, the Director General has responsibility for allowing or disallowing persons wishing to do so to operate as taxi drivers. It seems to me that, even in the absence of a specific "public policy provision", it does not strain the language of the Act unduly to regard the Director General in exercising his powers in respect of taxi drivers as having a duty to do so in a manner which will have regard to the interests of members of the public who might want to use taxis, and in particular their physical safety. In my view, the question whether a paying passenger of a taxi‑driver would be concerned to know the driver is facing a particular charge is relevant in the exercise of those powers.
Given the wide scope of the respondent’s powers and duties under the Act, it is unsurprising that the degree of particularity which existed in the Passenger Transport Act 1990 (NSW) regarding the purpose of an authority to drive taxis under that Act is not found in the Act. Section 48(1)(a), by its terms, limits the inquiry the respondent may make to whether a person "is not of good character". For reasons canvassed above, I do not believe that the omission of a reference to "good repute" is significant in light of the reasoning of O’Connor J in Farquharson v Director General, Department of Transport(supra). The "good character" requirement can be adapted according to context. A person who holds a driver's licence for domestic use may not be regarded as lacking good character for the purpose of the provision when faced with the same charge as that faced by the applicant. It is the use to which the applicant puts his "T" class endorsement which is of significance, and the Director General's discretion must in my view be regarded as sufficiently flexible to bring to bear the more specific considerations which the evidence suggests founded his delegate's decision in this case. I also note that "character" is defined by the Macquarie Dictionary (Moore A, (ed) "Macquarie Concise Dictionary" Macquarie University Library, Sydney, 2004) as "the aggregate of qualities that distinguishes one person or thing from another", "moral constitution of a person", "reputation" and "good repute", the latter two definitions providing support for the adaptability of the concept.
The contrary view, that a mere charge before conviction is not something which the respondent can take into account when deciding whether or not to take action in relation to a taxi endorsement, would logically apply, provided the licence holder maintained his innocence, regardless of the nature of the charge. It would apply in the actual case in Farquharson v Director General, Department of Transport (supra) of soliciting a person to commit murder, as it would in a case of an accused murderer (in which case the accused person is unlikely to be granted bail, but the principle remains). Such outcomes in my view cannot have been intended by the legislature.
I therefore find myself in agreement with those parts of the reasons of Hogan SM in Hargreaves v Department of Planning and Infrastructure (supra) reproduced in paragraphs [30] and [34] of these reasons. I adopt those reasons in the closely similar circumstances of this case. In my view, the decision of the respondent's delegate remains the correct and preferable decision in all the circumstances.
Order
The decision of the respondent made 10 May 2005 to suspend the applicant’s driver’s licence endorsement class "T" is affirmed.
I certify that this and the preceding [41] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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