Arps -v- Commissioner of Police, New South Wales Police Service

[2000] NSWADT 35

CITATION:	Arps -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 35
DIVISION:	General Division
PARTIES:	APPLICANT Graeme Alfred Arps RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003077
HEARING DATES:	28/03/2000
SUBMISSIONS CLOSED:	03/28/2000
DATE OF DECISION:	03/31/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Road Transport (General) Act - driver's licence suspension - Driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Road Transport (General) Act 1999
CASES CITED:	Coleman -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 15 (21 February 2000) Baskerville -v-n Martin [1967] SASR 150
REPRESENTATION:	APPLICANT W Pasterfield, solicitor RESPONDENT J Tunks, prosecutor
ORDERS:	1. Decision of Commissioner affirmed.

1 This is an application under section 48 of the Road Transport (General) Act 1999 (the Act). The applicant, Mr Arps, has asked the Tribunal to review a decision of a police officer to suspend his drivers licence.

2 Section 34(1) of the Act states that:

"If a person is charged by a police officer with an offence under section 9(3) or (4), 15(4), 16 or 22(2) of the Road Transport (Safety and Traffic Management) Act 1999, the same or another police officer may, at any time within 48 hours after the person has been charged, give the person a suspension notice."

3 Mr Arps was given a suspension notice on 23 January 2000 after he was breath tested and found to have a blood alcohol concentration of 0.150.

Jurisdiction

4 The Tribunal has jurisdiction to determine this application under s 48 of the Road Transport (General) Act 1999. That section, so far as it is relevant to this case, states that:

(1) A person aggrieved by any of the following decisions made in relation to the person may apply to the Administrative Decisions Tribunal for a review of the decision:
(a) a decision of a police officer under section 34 to suspend the person's driver licence,
(2) An application for a review in respect of a decision referred to in subsection (1) (a) or (b) must be made before the charge that occasioned the suspension has been heard and determined by a court or withdrawn.

What can the Tribunal take into account?

5 Under s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act), the Tribunal can take into account any relevant factual material when making a decision. Section 63(1) states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,

(b) any applicable written or unwritten law.

(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.

6 When deciding whether a decision by a police officer to suspend a person’s drivers licence is the correct and preferable decision, the Tribunal is restricted in relation to the material it can take into account. Section 48(3) of the Act states that:

(3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997 , in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal:
(a) is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and

(b) is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged.

7 Consequently the Tribunal must be satisfied that there are exceptional circumstances, not related to the offence, before varying or setting aside a decision to suspend a driver’s licence.

Findings of facts

8 The applicant in this case was given a notice of suspension and confiscation of driver's licence on 23 January 2000. He is pleading not guilty to the charge and his matter has been listed for hearing in the Local Court on 26 May 2000.

9 Mr Pasterfield, representing Mr Arps, stated that his client is a 46 year old self employed landscape gardener. He uses a vehicle to transport plants and equipment. His wife is recovering from heart surgery and he needs to transport her to doctor’s appointments. He also has three children who need to be transported to and from various activities.

10 Mr Pasterfield submitted that his client’s licence was essential to his employment and that for the last two months he has had to employ a driver at a cost of $300 a week. He cannot afford to continue to do this. Mr Pasterfield’s submission was that these circumstances are exceptional and justify setting aside the decision to suspend his licence.

What constitutes exceptional circumstances not related to the offence?

11 In Coleman -v- Commissioner of Police, New South Wales Police Service [2000] NSWADT 15 (21 February 2000) I set out some principles to guide the Tribunal in considering what constitutes exceptional circumstances. My conclusion, in summary was that:

In the context of the New South Wales legislation the Tribunal is considering whether the decision to suspend a person’s licence prior to hearing is the correct decision. At the time of the suspension the person has not had the opportunity to put their side of the story. In legal terms, they have not been afforded procedural fairness. In my view s 48(3) was designed to avoid a situation where an applicant suffers significant hardship because of the exceptional circumstances which arise through suspension of a licence.

Merely being inconvenienced or out of pocket by having to use public transport or some other means of transport will not generally constitute exceptional circumstances. But where a person cannot undertake some essential requirement of their job or stands to lose their employment or earning capacity prior to a hearing being conducted, the Tribunal may consider it appropriate to intervene. Similarly where the applicant or a third person will suffer hardship because of exceptional personal or domestic circumstances, consideration should be given to reversing the decision to suspend the licence.

12 Mr Tunks, on behalf of the Police Service, submitted that the decision in Coleman did not take into account relevant extrinsic material including the Second Reading Speech and any relevant report of a committee of Parliament before the provisions were enacted. Mr Tunks is right about that. I did not take those matters into account in that decision and I agree that they are relevant. Consequently I intend to consider those matters and decide whether they make any difference to the conclusions I reached in Coleman.

As Mr Tunks pointed out in his submission, s 34 of the Interpretation Act 1987 allows the Tribunal to take extrinsic material into account in certain circumstances. Section 34, so far as it is relevant, states that:

(1) In the interpretation of a provision of an Act or statutory rule, if any material not forming part of the Act or statutory rule is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material:
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision (taking into account its context in the Act or statutory rule and the purpose or object underlying the Act or statutory rule and, in the case of a statutory rule, the purpose or object underlying the Act under which the rule was made), or
(2) Without limiting the effect of subsection (1), the material that may be considered in the interpretation of a provision of an Act, or a statutory rule made under the Act, includes:
(c) any relevant report of a committee of Parliament or of either House of Parliament before the provision was enacted or made,

(f) the speech made to a House of Parliament by a Minister or other member of Parliament on the occasion of the moving by that Minister or member of a motion that the Bill for the Act be read a second time in that House,

13 On the basis of these provisions the Tribunal can take into account the Second Reading Speech and any relevant report of a committee of Parliament before the provision was enacted to ascertain the meaning of that provision.

14 The findings of the Staysafe 13 Committee were referred to in the Second Reading Speech of the Traffic (Road Safety) Amendment Bill in the Legislative Assembly on the 21 November 1989. Section 34 of the Road Transport (General) Act 1999 was transferred, virtually unchanged from the Traffic (Road Safety) Act.

15 In April 1989, the Staysafe 13 Committee published a report entitled Immediate and Certain Loss of Licence for Extreme Drink Driving. This report related to a proposal that motorists having 0.15 gms of alcohol/100ml of blood should be immediately prohibited from driving. The targets for the proposed automatic suspension were those people who drink alcohol extremely heavily and then drive. This measure was subsequently enacted and extended to mid range offences of between .08 and 0.15. In the Staysafe 13 Report at 4.19- 4.20 the following comments were made:

The committee considers that those for whom a licence is specially important have a special obligation to drive in accordance with drink drive laws.

Loss of employment has been claimed as an exceptionally harsh penalty for those dependent on licences for their livelihood, but a US report (Wells-Parker and Cosby, 1988) indicates that unemployment does not significantly increase for those losing licences for drink-driving offences.

16 Loss of employment, convenience in commuting for those in remote areas or performing shift work and transporting people who are sick or disabled were not considered by the Committee to be exceptional circumstances. Unfortunately, STAYSAFE did not elaborate on what would, in their view, constitute exceptional circumstances. Neither was this issue specifically addressed in the Second Reading speech.

17 Mr Tunks submitted that the Tribunal should apply the meaning of “special reason” set out in Baskerville v Martin [1967] SASR 150 at 156:

Nothing which is a common or usual factor in the ordinary typical case can constitute a special reason. There must be something extraordinary, unusual or atypical . . . there must be something 'clearly distinguishable from the general run of cases that Parliament had in mind’ . .

18 However, in this case, neither the STAYSAFE committee nor Parliament appeared to have in mind the “general run of cases.” The example used by the Committee at 4.17 of a motorist being stranded hundreds of kilometres from home when picked up for drink driving or of a person needing to transport another person in a life and death situation do not seem to me to be “the general run of cases”. However, on the basis of material in the STAYSAFE report, I now agree that loss of employment should not be regarded as an exceptional circumstance. It is quite common for people to rely on their vehicles to earn a living, either because they need it to perform their job or because they cannot reach their place of employment by public transport.

19 Mr Arps has not made out a case of exceptional circumstances in relation to his employment or in relation to the need to transport his wife to the doctor. There was no evidence that this was exceptional in any way. I would be more reluctant to come to the same view in circumstances where a person needed a licence to transport a person with a severe or unpredictable medical condition. Transporting children to and from activities is not an exceptional circumstance.

20 These considerations lead me to find that the Commissioner made the correct decision in suspending Mr Arp’s licence and that decision is affirmed.