Applicant Or202019 v Commissioner for Fair Trading; Applicant Or202023 v Road Transport Authority (Appeal)
[2021] ACAT 99
•7 June 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
APPLICANT OR202019 v COMMISSIONER FOR FAIR TRADING; APPLICANT OR202023 v ROAD TRANSPORT AUTHORITY (Appeal) [2021] ACAT 99
AA 23/2021 (OR 19/2020)
AA 24/2021 (OR 23/2020)
Catchwords: APPEAL – administrative review – applications for review dismissed as frivolous and vexatious due to no prospects of success – no error by original tribunal – orders for dismissal confirmed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Criminal Code 1995 (Cth) s 474.19
Crimes Act 1900 s 65
Road Transport (General) Act 1999 s 93
Working with Vulnerable People (Background Checking) Act 2011 ss 17, 54, 56A, 57, 58, 59
Subordinate
Legislation cited: Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No 1)
Road Transport (Driver Licensing) Regulation 2000
Cases cited:Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Mansour v Dangar [2017] ACAT 49
V v Elringtons Pty Ltd [2018] ACAT 23
Tribunal:President M-T Daniel
Date of Orders: 7 June 2021
Date of Reasons for Decision: 15 October 2021
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 23/2021
BETWEEN:
APPLICANT OR 202019
Appellant
AND:
COMMISSIONER FOR FAIR TRADING
Respondent
APPEAL TRIBUNAL: President M-T Daniel
DATE:7 June 2021
ORDER
The Tribunal orders that:
The application for appeal is dismissed.
……………Signed………
President M-T Daniel
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 24/2021
BETWEEN:
APPLICANT OR 202019
Appellant
AND:
ROAD TRANSPORT AUTHORITY
Respondent
APPEAL TRIBUNAL: President M-T Daniel
DATE:7 June 2021
ORDER
The Tribunal orders that:
The application for appeal is dismissed.
……………Signed………
President M-T Daniel
REASONS FOR DECISION
On 7 June 2021 I dismissed two applications for appeal brought by the applicant. Following are my reasons for those decisions.
Background
Prior to 2020, the applicant operated a taxi. In order to do so, he possessed both a public vehicle driver licence under the Road Transport (Driver Licensing) Regulation 2000 (Driver Regulation) and a general working with vulnerable people (WWVP) registration under the Working with Vulnerable People (Background Checking) Act 2011 (WWVP Act).
In mid-2018 the applicant uploaded to Facebook a single video file that contained child exploitation material. It is not clear who the video came from. He told the original Tribunal he uploaded the video to “highlight this terrible criminal activity”.
The incident came to the attention of the AFP. He was charged with:
(a)using a carriage service to transmit child pornography material contrary to section 474.19(1)(a)(iii) of the Criminal Code 1995 (Cth); and
(b)possession of child exploitation material contrary to section 65(1) of the Crimes Act 1990.
He entered early guilty pleas, was convicted and sentenced to 12 months imprisonment suspended, an 18-month good behaviour bond, and a Commonwealth Recognisance Order for 15 months. The sentence was at the low end of the range available, because of the unusual circumstances of the case.
In February 2020 the applicant informed the Road Transport Authority (RTA) of these convictions.
In early June 2020, the Commissioner for Fair Trading (Commissioner) also became aware of the convictions. This triggered under section 54 of the WWVP Act in force at that time (the 2020 WWVP Act) the need for a new risk assessment for the applicant. The Commissioner gave the applicant a notice of proposed suspension on 12 June 2020. On 2 July 2020, after consideration of further information from the applicant, the Commissioner in accordance with section 57(2) of the 2020 WWVP Act suspended the applicant’s WWVP registration until the further risk assessment could be undertaken.
Over the following months the procedural requirements of sections 58 and 59 of the 2020 WWVP Act were worked through. The further risk assessment was conducted, leading to a notice of proposed cancellation, further submissions by the applicant and further consideration by the Commissioner.
Ultimately on 23 September 2020 the Commissioner cancelled the applicant’s general WWVP registration under section 59 of the 2020 WWVP Act. In the notice of this decision, the delegate of the Commissioner explained that after considering all of the information and undertaking the risk assessment:
… it has been assessed that you pose an unacceptable risk of harm to vulnerable people whilst engaging in a regulated activity or service; and
No suitable condition has been identified that would sufficiently mitigate the type and level of risk identified in the risk assessment.[1]
[1] OR 19/2020 T documents page 14
The cancellation, it seems, was mandated by section 57(3) as a consequence of the Commissioner not being satisfied as to the applicant’s suitability.[2]
[2] The relevant excerpts of sections 54, 57, 58 and 59 of the 2020 WWVP Act are attached as Appendix A to this decision.
On 8 October 2020 the applicant applied to the tribunal for review of that decision.
While these actions were underway on the part of the Commissioner, the RTA had separately been considering the impact of the convictions on the applicant’s public vehicle driver licence.
On 30 October 2020 the RTA cancelled the applicant’s public vehicle driver licence, under section 87(3)(a) of the Driver Regulation. In its notice of decision, the RTA explained that:
(a)section 90A(1)(b) of the Regulation enabled the Minister to make guidelines for the exercise of functions under section 87;
(b)the Minister had made the Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No 1) (the Guidelines);
(c)under the Guidelines a ‘registrable offender’ who holds a public vehicle drivers licence must have that licence cancelled; and
(d)the applicant fell within the definition of a ‘registrable offender’.[3]
[3] The relevant excerpts of the legislation are at Appendix C of this decision.
The RTA wrote:
5. In assessing your suitability to hold a public vehicle driver licence, Access Canberra had regard to the Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No 1) (‘the Guideline’) made by the Minister under section 90A of the RT Driver Licence Regulation.
6. The Guideline cover a range of relevant conviction categories which must or may be considered in deciding whether a person’s public vehicle licence should be cancelled. Relevantly, Part A (sexual offences) of the Guideline advises that ‘sexual offences against children’ are considered offences that are relevant to whether a person should hold a public vehicle licence.
7. Part A(i) of the Guideline provide that if a person is a ‘registrable offender’ as defined under the Crimes (Child Sex Offenders) Act 2005 (‘the Crimes CSO Act’) the person is not a suitable person to hold a public vehicle licence authorising the person to drive a taxi. The Guideline states:
‘if a holder of public vehicle licence authorising the person to drive a taxi becomes a registrable offender, the person’s public vehicle driver licence must be cancelled.’
8. Section 8 of the Crimes CSO Act indicates that a person is a registrable offender if the person is sentenced by a court for a ‘registrable offence’, is the subject of a child sex offender registration order, or is a prescribed corresponding offender.
9. Section 10 of the Crimes CSO Act provides that a registrable offence means, among other things, a class 1 offence, a class 2 offence. Class 1 and 2 offences are outlined in Schedule 1 (class 1) and Schedule 2 (class 2) of the Crimes CSO Act.
10. On 3 February 2020, you were convicted of possessing child exploitation material pursuant to section 65(1) of the Crimes Act 1990 (ACT), and using a carriage service for child pornography material pursuant to section 474.19 of the Criminal Code ACT 1995 (Cwth). These offences are considered class 2 registrable offences under the Crimes CSO Act.
11. Therefore, through the operation of section 8 of the Crimes CSO Act, and Part A(i) of the Guidelines, you are considered a registrable offender and your public vehicle driver licence must be cancelled.
On 4 November 2020 the applicant sought internal review of that decision. On 15 December 2020 the RTA conducted an internal review, pursuant to section 93 of the Road Transport (General) Act 1999 and confirmed the original decision.
On 21 December 2020 the applicant applied to the tribunal for external review of the cancellation of his public vehicle driver licence.
The proceedings before the original tribunal
The two applications for review were heard together. The applicant represented himself in each matter and both respondents were represented by the same firm of solicitors.
Rather than the matters proceeding to a full merits review, the respondent on each matter filed an application pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) seeking that the application for review be dismissed on the basis that it was frivolous and vexatious.
Section 32 of the ACAT Act provides:
32 Dismissing or striking out applications
(1) This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2) The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
NoteIf the application is for review of a decision under the Heritage Act2004, the Planning and Development Act 2007or the Tree Protection Act 2005, the tribunal may also order the applicant to pay costs (see s 48 (2) (d)).
(3) The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
(4) The tribunal may vary or revoke a direction given under subsection(2) (c)—
(a)on its own initiative; or
(b)on application by the person who is the subject of the order.
NoteThe tribunal must observe natural justice and procedural fairness (see s7).
There are a number of cases touching on what is meant by the term ‘frivolous or vexatious’. An oft-quoted statement is found in Attorney-General (NSW) v Wentworth (1988) 14 NSWLR 481 (A-G v Wentworth):
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. [P]roceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought;
2. [T]hey are vexatious if they are brought for collateral purposes, and not for the purposes of having the court adjudicate on the issues to which they give rise;
3. [T]hey are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.[4]
[4] A-G v Wentworth per Roden J page 491
The section 32 applications in these matters fell within the third limb described in A-G v Wentworth.
In its reasons for decision, the original tribunal set out the nature of merits review at paragraphs 15 and 16, and the elements to be considered for the section 32 applications at paragraphs 7-9.
The original tribunal considered the legal framework for the RTA decision and concluded that under the applicable legislation there was effectively no discretion available to the decision-maker to not cancel the applicant’s public vehicle licence. This was because although section 87(1)(a) of the Driver Regulation states that the RTA ‘may’ cancel a licence in certain circumstances, section 90A(3) of the Driver Regulation compels the RTA to comply with the Guidelines issued by the Minister.
Guideline Part A, issued under section 90A, provides:
…
If a person is a registrable offender, the person is not a suitable person to hold a public vehicle licence authorising the person to drive a taxi, and any application for the issue or variation of a public vehicle licence to drive a taxi must be refused. Similarly, if a holder of public vehicle licence authorising the person to drive a taxi becomes a registrable offender, the person’s public vehicle driver licence must be cancelled. [emphasis added]
There was no question that the offences were registrable offences, and the applicant was therefore a registrable offender.
The original tribunal was satisfied that for the RTA driver licence cancellation, a merits review of the decision with a view to changing that decision was bound to fail.[5] The tribunal conducting merits review would have no option but to confirm the decision on internal review, which had confirmed the cancellation decision.
[5] Applicant OR 202019 v Commissioner for Fair Trading; Applicant OR 202023 v Road Transport Authority (ACT Civil and Administrative Tribunal, Presidential Member H Robinson, 19 March 2021) at paragraphs 23 and 24
In relation to the WWVP decision, the situation was more complex. It was clear that at the time of the decision under review on 23 September 2020, the decision to cancel the WWVP registration was a discretionary decision taken by the Commissioner after conducting a risk assessment in which the Commissioner was satisfied that the applicant posed an unacceptable risk to vulnerable people which could not be appropriately mitigated by conditions.
However, on 20 February 2021 the WWVP Act changed. Section 56A of the new version of the WWVP Act (the 2021 WWVP Act) now provided that if a registered person stopped being eligible under section 17(1)(A), their registration must be cancelled. The original tribunal commenced its consideration by concluding that under the 2021 WWVP Act, cancellation of the applicant’s WWVP registration was both mandatory and not reviewable.[6]
[6] Relevant excerpts of the 2021 WWVP Act are at Appendix B of this decision.
The original tribunal then gave much consideration to the question of whether the activity of driving a taxi was a regulated activity involving children, and a condition could be placed upon the applicant’s WWVP registration that he not carry children in his taxi:
37. The fact of the applicant’s conviction is not in contest. Hence, there is no doubt that the applicant is not eligible for registration to engage in a regulated activity involving children. Accordingly, the Tribunal cannot be satisfied that the applicant is eligible to be registered in a ‘regulated activity involving children’. This is the case no matter what the ameliorating factors of his offence or his personal circumstances. Additionally, even were the Tribunal able to order the applicant’s registration to engage in a regulated activity involving children, the registration would have to be automatically cancelled under section 56A of the WWVP. The operation of section 56A is not reviewable by the Tribunal (i.e. it is not a decision listed in Schedule 2 of the WWVP Act).
38. The fact of the applicant’s conviction for a Class A disqualifying offence is admitted. Therefore, the only question for the Tribunal on review is whether the applicant is engaged in a regulated activity involving children when driving a taxi.
39. While the applicant is clearly engaged in a regulated activity, he argues that such an activity need not involve children. The applicant has suggested he rarely transport children, and that he is prepared to accept a condition on his registration that he collect passengers only from the airport and that he not carry children in his taxi. The Commissioner argues that this not practicable, as it would be impossible to monitor the arrangements.
40. There is no definition of a ‘regulated activity involving children’, nor a definition of ‘involving children’ in the Act.[7]
[7] Applicant OR 202019 v Commissioner for Fair Trading; Applicant OR 202023 v Road Transport Authority (ACT Civil and Administrative Tribunal, Presidential Member H Robinson, 19 March 2021)
The original tribunal concluded that even if such a condition were practicable, and able to be monitored, the applicant would be unable to utilise such a limited registration because he did not and could not have a public vehicle taxi licence. The original Tribunal was satisfied that engaging in the merits review “with a view to obtaining conditional registration in an activity that he is prohibited, at present, from engaging in in any capacity is an exercise in futility.”[8]
[8] Applicant OR 202019 v Commissioner for Fair Trading; Applicant OR 202023 v Road Transport Authority (ACT Civil and Administrative Tribunal, Presidential Member H Robinson, 19 March 2021) at paragraph 46
Accordingly, the original tribunal was satisfied pursuit of a full merits review of each of the reviewable decisions would be frivolous and vexatious. The driver licensing decision could only be confirmed, and the WWVP decision even if successful on review would be of no practical effect.
The original tribunal therefore ordered that each application for review be dismissed.
The appeal
It is these decisions of the original tribunal that the applicant sought to appeal.
The appeal applications came before me on 7 June 2021 for directions hearing, or for hearing if the matter was ready to proceed to hearing at that time. Both parties had filed submissions and were content for me to proceed with the hearing of the appeals on that day.
The principles for an appeal have been addressed in multiple decisions of the tribunal,[9] and do not need repeating in this decision. I advised the parties at the hearing that I would be focussing on the correction of any error in the decision of the original tribunal.
[9] Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4; V v Elringtons Pty Ltd [2018] ACAT 23; Mansour v Dangar [2017] ACAT 49
On the question of error, the applicant’s notice of appeal did not identify any legal or factual errors as such. The grounds contained in the application for appeal were:
It is my humble request to consider my appeal for my poor health and family circumstances because it is my unknown unaware emotional mistake. I have no interest with this bad criminal actions. I need my WWVP card and taxi licence for my family help and my life. Please help me. I hope from you. Thanks. [capitalisation removed]
The applicant’s submissions on the appeal in a similar vein pleaded for leniency in this matter, and reiterated the arguments put to the original tribunal about the circumstances of the offences and the impact of the decisions upon the applicant, his livelihood and his family.
It seemed that the applicant hoped that if he applied to a higher authority than the original decision-makers, he would ultimately come before an entity with the power to grant him a more satisfactory outcome. I tried to explain to the applicant that the original tribunal, and the Appeal Tribunal, each have the same powers and that the Appeal Tribunal, in particular, does not have powers available to it that the original tribunal did not have.
The question before the Appeal Tribunal was not whether the reviewable decisions were correct, but whether the original tribunal was in error in dismissing the applications for review under section 32 of the ACAT Act on the basis that they were each ‘frivolous or vexatious’.
It should be noted at the outset that the bar to satisfy an application under section 32 of the ACAT Act on the grounds of the application being ‘untenable’ or ‘manifestly groundless’ (the third basis described in A-G v Wentworth) is high. The applicant’s case must be taken at its highest. An application on the third basis is unlikely to be appropriate where the matter turns on contested facts, the meaning of the law is uncertain, or there are discretionary elements to the reviewable decision.
In addition, it is sometimes the case that in order to satisfy itself that an application for merits review is frivolous or vexatious on the third basis the Appeal Tribunal must embark on an enquiry as to the merits of the case of such depth and degree as to render any perceived efficiency of the section 32 application nugatory.
For these reasons, such applications under section 32 are best reserved for cases where the relevant facts are not disputed, the application of the law is clear, and there is little to no discretion available to the original decision-maker.
In relation to the RTA decision, I was satisfied that the legislative scheme operated as summarised by the original tribunal and set out above. The RTA was mandated to cancel the applicant’s public vehicle licence. The application for review of that decision had simply no prospects of success, thus bringing it within the definition of ‘frivolous and vexatious’ and enabling its early dismissal under section 32 of the ACAT Act. There was no error by the original tribunal in taking this path.
In relation to the WWVP decision, as I have noted, the situation was more complicated due to the change in the relevant law. Usually, when conducting administrative review, it is the law at the time of the review which is applied. The original tribunal noted that under the 2021 WWVP Act, cancellation of the applicants WWVP registration was both mandatory and not reviewable. I was satisfied this was correct: the applicant has held general registration since 2014. General registration authorises all regulated activities working with children and thus would have to be cancelled under section 56A. Such a section 56A cancellation decision is not reviewable.
Taking the applicant’s case at its highest, the original tribunal then considered whether an approach could be taken that the old law still applied, and it was thus open to the decision-maker to mitigate the risk posed by the conviction by the imposition of conditions on the WWVP registration. This might result in a condition to only drive a taxi but not to have children as passengers. Even taking this approach, I was satisfied that the original tribunal was correct in concluding that the conduct of a full merits review was futile, because the obtaining of a conditional WWVP registration to drive a taxi would be of no practical effect.
Because I was unable to identify any error by the original tribunal in reaching its decision to dismiss each application for review, I made orders dismissing each appeal.
………………………………..
President M-T Daniel
| Date(s) of hearing | 7 June 2021 |
| Appellant: | In person |
| Solicitors for the Respondents: | Mr M Roberts, ACT Government Solicitor |
Appendix A
Extracts of the 2020 WWVP Act
54 Additional risk assessments
(1) This section applies if the commissioner believes on reasonable grounds that there is new relevant information about a registered person.
Examples—new relevant information
1a registered person is suspected of having committed a relevant offence
2a registered person has been charged with a relevant offence
3a registered person has been convicted or found guilty of a relevant offence
…
(2) The commissioner must—
(a)conduct a risk assessment (an additional risk assessment) for the person taking into account the new relevant information; and
(b)tell the person in writing that the additional risk assessment is being conducted.
NoteIf the commissioner decides to conduct an additional risk assessment for a person, the commissioner may suspend the person’s registration while the assessment is conducted (see s 57 (2)).
(3) If the commissioner conducts an additional risk assessment for the person and is satisfied that the person poses no risk or an acceptable risk of harm to a vulnerable person, the commissioner may—
(a)leave the person’s registration unchanged; or
(b)add a condition to, or amend a condition of, the person’s registration.
(c)remove a condition from the person’s registration.
Note 1Section 43 sets out the commissioner’s obligations if the commissioner intends to register a person conditionally.
Note 2The commissioner must cancel a person’s registration if the commissioner has conducted an additional risk assessment for the person and is satisfied that that the person poses an unacceptable risk of harm to a vulnerable person (see s 57 (3)).
(4) The risk assessment guidelines may provide for what constitutes new relevant information about a registered person.
57 Grounds for suspension or cancellation of registration
(1) The commissioner may suspend or cancel a person’s registration if—
(a)the person’s registration is subject to a condition; and
(b)the person contravenes a requirement of the condition; and
(c)the commissioner believes on reasonable grounds that suspension or cancellation is necessary for this Act.
NoteA person commits an offence if the person contravenes a requirement of a condition—see s 48.
(2) If the commissioner decides to conduct an additional risk assessment for a person, the commissioner may suspend the person’s registration while the assessment is conducted.
NoteThe commissioner must conduct an additional risk assessment for a person under s 54 if the commissioner believes on reasonable grounds that there is new relevant information about the person.
(3) The commissioner must cancel a person’s registration if the commissioner—
(a)has conducted an additional risk assessment for the person; and
(b)is satisfied that the person poses an unacceptable risk of harm to a vulnerable person.
58 Notice of proposed suspension or cancellation of registration
(1) The commissioner must give written notice of an intention to suspend or cancel a person’s registration to the person.
NoteFor how documents may be given, see the Legislation Act, pt 19.5.
(2) A notice of intention to suspend or cancel a person’s registration must—
(a)set out the ground for suspension or cancellation; and
(b)state that the person may, within 10 working days after the day the commissioner gives the person the notice, give reasons why the person considers that the registration should not be suspended or cancelled.
59 Suspension or cancellation of registration
(1) The commissioner must suspend or cancel a person’s registration if the commissioner—
(a)has given written notice to the person of an intention to suspend or cancel the registration; and
(b)has considered any reasons given by the person in accordance with the notice; and
(c)is satisfied that the ground for suspension or cancellation under section 57 exists.
NoteThe commissioner’s decision to suspend or cancel a person’s registration is reviewable (see s 61).
(2) The commissioner must—
(a)tell the person in writing—
(i)that the person’s registration is suspended or cancelled; and
(ii)the ground for suspension or cancellation; and
…
NoteThe commissioner must also give the person a reviewable decision notice in relation to the decision to suspend or cancel the person’s registration (see s 62).
(b)tell the person’s employer (if any) in writing that the person’s registration has been suspended or cancelled.
(3) For subsection (2) (b), the commissioner must not tell the person’s employer the ground for suspension or cancellation.
(4) The suspension or cancellation takes effect—
(a)on the day after the day the commissioner tells the person in writing that the person’s registration is suspended or cancelled; or
(b)if a later date is stated in the notice of suspension or cancellation—on the later date.
(5) To remove any doubt, a person whose registration is suspended does not have a registration allowing the person to engage in a regulated activity.
NoteA person engaging in a regulated activity for which the person is required to be registered commits an offence under s 13 if the person’s registration is suspended or cancelled and the person continues to engage in the activity.
Appendix B
Extracts of 2021 WWVP Act
56AAutomatic cancellation—class A disqualifying offence
(1)A person’s registration is automatically cancelled if—
(a) the person is registered to engage in—
(i)a regulated activity involving children; or
(ii)an NDIS activity; and
(b) the person is not eligible, or stops being eligible, under section17(2) to be registered to engage in the activity.
NoteUnder s 17(2), a person is not eligible to be registered to engage in a regulated activity involving children or an NDIS activity if the person has an adult conviction or finding of guilt for a class A disqualifying offence.
(2) As soon as the commissioner becomes aware of the person’s ineligibility, the commissioner must—
(a)tell the person, in writing, that their registration is cancelled; and
(b)tell the person’s employer, in writing, that the person’s registration is cancelled.
NoteA registered person must tell the commissioner if they are charged with, or convicted or found guilty of, a disqualifying offence (see s 55).
(3) For subsection (2) (b), the commissioner must not, without the person’s consent, tell the person’s employer the ground for suspension or cancellation.
17 Application for registration
(1) A person may apply to the commissioner for registration under this Act, other than registration to engage in a regulated activity for which the person is not eligible to be registered.
NoteA fee may be determined under s 68 for this provision.
(2) A person who has an adult conviction or finding of guilt for a class A disqualifying offence is not eligible to be registered to engage in—
(a)a regulated activity involving children; or
(b)an NDIS activity.
NoteIf the person is registered to engage in another regulated activity, the registration is subject to the condition that the person not engage in a regulated activity involving children or an NDIS activity (sees42A).
(3) A registered person may apply to the commissioner, not later than the day the person’s registration expires, to renew the person’s registration.
(4) If a person applies to renew their registration, the person’s registration remains in force until the application is decided.
(5) This section is subject to section 22.
11A Meaning of relevant offence
In this Act:
relevant offence means any of the following offences (whether committed in the ACT or elsewhere):
(a) a sexual offence;
(b) an offence against the person;
(c) an offence involving violence;
(d) an offence involving dishonesty or fraud;
(e) an offence relating to property;
(f) an offence involving possession of, or trafficking in, a drug of dependence or controlled drug;
(g) an offence against an animal;
(h) a driving offence;
(i) a disqualifying offence.
NoteA reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).
Appendix C
Extracts of Road Transport (Driver Licensing) Regulation 2000, and Guidelines
Road Transport (Driver Licensing) Regulation 2000
87When authority may vary, suspend or cancel driver licences
(1)The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that—
(a) the person is not eligible to apply for, or be issued with, a class or kind of driver licence held by the person; or
(b) the person does not have sufficient driving ability or knowledge of safe driving practices or road law to hold a driver licence or a driver licence of the class or kind applied for; or
(c) the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person; or
…
(2)…
(3)Without limiting subsection (1) (c), the road transport authority may suspend or cancel a person’s public vehicle licence under section 88 because the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person if—
(a) the person has been convicted or found guilty of an offence that the road transport authority considers is relevant to the person’s suitability to hold the licence or the class or kind of licence; or
NoteThe road transport authority must comply with any guidelines approved by the Minister under s 90A (Public vehicle licence guidelines—relevant offences).
(c) the person has contravened the Road Transport (Public Passenger Services) Act 2001.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(4)…
(5)…
…
90APublic vehicle licence guidelines—relevant offences
(1)The Minister may approve guidelines about the exercise of the road transport authority’s functions under the following sections:
(a) section 70 (3) (a) (When applications for issue and certain variations of driver licences can be refused);
(b) section 87 (3) (a) (When authority may vary, suspend or cancel driver licences).
(2)Without limiting subsection (1), the guidelines may make provision about—
(a) the offences that are relevant in relation to—
(i)an application for a public vehicle licence; and
(ii)the suitability of a person to continue to hold a public vehicle licence; and
(b) the matters or circumstances that may or must be considered, in deciding whether—
(i)an application for a public vehicle licence may or must be refused; or
(ii)a public vehicle licence may or must be suspended or cancelled.
Examples for par (b)
1whether a person has been convicted for a single offence or multiple offences and the nature and seriousness of the offence
2the age of the person when the offence was committed
3the time elapsed since the offence was committed
(3) The road transport authority must comply with any guidelines approved under this section.
(4) Approved guidelines are a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No.1)
The Road Transport (Driver Licensing) Regulation 2000 provides that the Road Transport Authority may suspend or cancel a person’s public vehicle licence or refuse an application for the issue or certain variations of a public vehicle licence because the person is not a suitable person.
The Road Transport Authority may conclude that a person is not suitable to hold a public vehicle licence if the person has been convicted or found guilty of an offence that is relevant to the application.
The Road Transport (Driver Licensing) Public Vehicle Licence Guidelines 2006 (No.1) (the Guidelines) set out the principles to be applied in considering whether a person’s disclosable convictions provide reasonable grounds for considering the applicant as being unsuitable to hold a public vehicle licence.
The Guidelines cover a range of relevant conviction categories which must or may be considered in deciding whether a person’s application for the issue of public vehicle licence will be approved or not, or whether a person’s public vehicle licence should be suspended or cancelled. The conviction categories include:
·sexual offences;
·offences against the person;
·offences of dishonesty;
·driving offences;
·drug offences;
·other offences; and
·multiples of various offences.
PART A Sexual Offences
Sexual offences against children
Under section 126 of the Crimes (Child Sex Offenders) Act 2005 (the Act), a person who is a registrable offender is prohibited from applying for
child-related employment. Section 124(1) of the Act provides that a registrable offender is prohibited from, among other things, providing public or private transport services for the transport of children.
A registrable offender is defined in the Act as a person who has been sentenced by a court for a registrable offence, is the subject of a child sex offender registration order, or is a prescribed corresponding offender. A registrable offence is defined as being any class 1 or class 2 offence, as outlined in table 1 or table 2 of the Act.
If a person is a registrable offender, the person is not a suitable person to hold a public vehicle licence authorising the person to drive a taxi, and any application for the issue or variation of a public vehicle licence to drive a taxi must be refused. Similarly, if a holder of public vehicle licence authorising the person to drive a taxi becomes a registrable offender, the person’s public vehicle driver licence must be cancelled.
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