BASLEY and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
[2008] WASAT 186
•19 AUGUST 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: ROAD TRAFFIC ACT 1974 (WA)
CITATION: BASLEY and DEPARTMENT FOR PLANNING AND INFRASTRUCTURE [2008] WASAT 186
MEMBER: MR T CAREY (MEMBER)
HEARD: 23 JULY 2008. FURTHER WRITTEN SUBMISSIONS PROVIDED 7 AUGUST 2008
DELIVERED : 19 AUGUST 2008
FILE NO/S: CC 812 of 2008
BETWEEN: LAURIE SYLVESTER BASLEY
Applicant
AND
DEPARTMENT FOR PLANNING AND INFRASTRUCTURE
Respondent
Catchwords:
Administrative law - Road traffic - Review of cancellation of endorsement class "T" - Effect of legislative amendments to licensing scheme - Significance of convictions to question of good character
Legislation:
Censorship Act 1996 (WA)
Misuse of Drugs Act 1981 (WA)
Road Traffic (Authorisation to Drive) Regulations 2008 (WA), reg 12(7), reg 25, reg 28(4), reg 41
Road Traffic Act 1974 (WA), s 48
State Administrative Tribunal Act 2004 (WA), Div 3, Pt 4, s 27(2), s 29(1)
Result:
Application successful
Decision set aside
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Mr N Fox (Acting as Agent)
Solicitors:
Applicant: Self-represented
Respondent: Department for Planning and Infrastructure
Case(s) referred to in decision(s):
Doyle and Department for Planning and Infrastructure [2008] WASAT 157
Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant's driver's licence endorsement permitting him to drive taxis was cancelled on the basis of convictions for cultivation of a prohibited plant and sale of prohibited materials. The applicant sought review in the State Administrative Tribunal.
The Tribunal referred to recent legislative amendment to the scheme regulating the licensing of drivers and noted the effect of changes to the cancellation of taxi endorsements. It also set out the factors to be considered to determine the significance of convictions to the question of whether or not a person should be regarded to be of good character. On assessing all factors, it concluded that the convictions were not such that the cancellation of the applicant's taxi endorsement should stand.
Introduction ‑ change of statutory scheme
The applicant sought review under s 48(4) of the Road Traffic Act 1974 (WA) (RT Act) of a decision of the respondent's delegate made on 9 April 2008 and notified on 13 April 2008 to cancel a driver's licence T endorsement permitting him to drive a taxi (decision).
The application was filed on 15 May 2008. On 1 July 2008, the scheme for licensing of drivers was removed from the RT Act and made the subject of regulation. The Road Traffic (Authorisation to Drive) Regulations 2008 (WA) (ATD Regulations) are now the repository for the licensing scheme and review to the State Administrative Tribunal (Tribunal). As the matter before the Tribunal is a de novo review, it is necessary to have regard to the provisions of the scheme as they now exist subsequent to the legislative amendments to which I have referred, and if the application is successful, it will be necessary to structure the relief on the basis of the new regime.
The decision was made by a delegate of the Director General of the Department for Planning and Infrastructure. It was made under the former s 48(1) of the RT Act, on the ground appearing as subparagraph (a) of that subsection that the applicant "is not of good character". Under the new legislation, the renamed "extension T" may be endorsed on a licence if the Director General is satisfied that, amongst other things, an applicant is of good character: reg 12(7) of the ATD Regulations. Under the ADT Regulations, the cancellation of any authorisation under a licence, such as that provided by an extension T endorsement, is regarded as a variation of the licence. By reg 28(4) of the ATD Regulations, before such a variation can occur, the Director General must have regard to the principles applying to the cancellation or suspension of a driver's licence, those principles appearing in reg 41 of the ATD Regulations. The relevant portion of reg 41(1) for current purposes states:
(1)The Director General may, by notice in writing given to the licence holder ‑
(a)suspend a person’s driver’s licence if the Director General has reason to suspect that there are grounds on which the Director General could, if then considering whether to grant the driver’s licence, refuse under regulation 25 to grant it; or
(b)suspend or cancel a person’s driver’s licence if ‑
(i)the Director General has reason to believe that there are grounds on which the Director General could, if then considering whether to grant the driver’s licence, refuse under regulation 25 to grant it; or
(ii)the Director General is no longer satisfied of each of the matters referred to in regulation 24.
The relevant portion of reg 25 states:
The Director General may refuse to grant a driver’s licence to a person if the Director General has reason to believe that the person ‑
(a)is not of good character; or …
The effect of these provisions is that, in considering the exercise of the discretion to cancel taxi endorsements, the Director General should apply the same thought processes as would apply in considering the cancellation of driver's licences, particularly where, as here, the identical precondition to holding the endorsement/licence is in issue. What is being alleged against the applicant is that he is no longer of good character, which might, if a new application for an extension T endorsement was being considered, represent a proper basis not to make the endorsement. Were the scenario to concern the applicant's driver's licence, the same allegation, provided it was at the level of "reason to believe" under reg 41(1)(b)(i), would be sufficient basis to cancel the licence in accordance with reg 41 of the ADT Regulations. Therefore, on the same proviso, the allegation would constitute a proper ground to cancel the applicant's extension T endorsement.
The net effect is that the Director General must act, in relation to the discretion to cancel an extension T, within the same limitations as existed under the old statutory regime, albeit by reference to a different, more elongated, set of provisions. That being so, the applicant is neither prejudiced nor advantaged by the change in the law.
Reason for the decision and the issue for determination
The decision was made in light of the applicant's criminal convictions, and, in particular, convictions on 3 December 2007 for cultivating a prohibited plant (cannabis) under the Misuse of Drugs Act 1981 (WA) (MD Act) and selling an unclassified, RC‑rated or X‑rated film under the Censorship Act 1996 (WA) (Censorship Act). Although the applicant has earlier convictions, the respondent did and does not rely upon them, no doubt due to their age and minor nature.
The issue for the Tribunal is whether, by reason of his convictions, it has reason to believe that the applicant is not of good character to the extent that an extension T endorsement could have been refused under reg 12(7) of the ATD Regulations had the applicant now been applying for it.
Relevance of convictions and their circumstances to the requirement of good character
I recently had cause to consider this question in the context of a decision by the Director General to refuse the issue of what was then an endorsement class "F" (now an extension F endorsement) in Doyle and Department for Planning and Infrastructure [2008] WASAT 157. The following extract from the decision in that matter is apposite here:
I have taken guidance in my consideration of the significance of the applicant's convictions to the question of whether or not he is of good character for the purpose of s 48 of the RT Act from a discussion by Wheeler J in Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996) (Tavelli), at pages 6 ‑ 7. Her Honour was concerned with a statutory fit and proper person test, but in my view the observations to which I am about to refer can apply equally to the good character concept given the high degree of commonality between the two and Wheeler J's explicit references to "character" and "good character" in her discussion.
After emphasising that the discretion falls to be exercised anew in the circumstances of each application in the light of the statutory framework and no inflexible rules exist in so doing. (stet.) Wheeler J said that prior convictions might be regarded as more serious if they occurred in the course of, or relate to the carrying out of, the particular occupation for which the licence is required; if they are offences of dishonesty, broadly understood; if they occurred while the person is the holder of the licence in question; or they are otherwise so serious, whether in themselves or as representing a course of disregard for the law, as to reflect particularly adversely on the character of the person committing them. The significance of any element of dishonesty may vary according to the nature of the particular licence under consideration - in the case of a licence entitling a person to provide services for fee-paying passengers, it might be expected that the person's honesty in the broad sense to which her Honour referred should not be seriously compromised.
Wheeler J then noted that a person may still be of good character and a fit and proper person notwithstanding previous convictions. Factors which might lead to that result were:
"(1)where the person convicted demonstrates genuine remorse and contrition, true insight and understanding of the earlier turpitudes. See Good v Medical Board of WA; (Unreported; SCt of WA; Library No 940678; 6 December 1994) at 31 and the cases there cited. The understanding demonstrated will generally carry more weight if it can be shown that it is demonstrated by the person's actions as well as by the person's words;
(2)if the offences were committed a substantial time ago. I would not suggest, however, that any set period will result in the expunging of the effect of previous convictions on character and much will depend on additional factors I list and, in appropriate cases, on others;
(3)any change in the person's circumstances from the time of the commission of the offences which indicates that the factors giving rise to the offences have been eliminated;
(4)a person's character generally since his commission of the offences including his lack of offending, age, family support, paid and voluntary work and character references. As to character references, I would caution that they will often be of more value if it appears from their terms that they were made in full knowledge of the fact of the commission of the offences."
It is therefore necessary to engage in a broader assessment than simply considering a person's criminal conviction history, even where that consideration encompasses circumstances of the convictions. The assessment should be directed to identifying whether the nature of the offences indicates a particular unsuitability of the person to hold the licence in question, any underlying factors which contributed to their commission, and whether those underlying factors remain or have been diminished or extinguished.
Circumstances of the applicant's convictions
The applicant, who is 53 years of age, pleaded guilty to both offences. The MD Act offence involved the cultivation of two cannabis plants from seed in the back yard of the applicant's Kalgoorlie residence. One of the plants was 35 cm – 40 cm in height, the other about 10 cm high. The plants were discovered by the police on 1 November 2007 in the course of executing a search warrant. The applicant was fined $350 against a maximum penalty of $2000, two years' jail or both. The applicant asserted to the Magistrate, and before the Tribunal, that he had had the seeds for some three years, and "out of intrigue", decided to plant them. He said that he had no intent to sell or supply the drug to anyone, and the respondent made no suggestion to the contrary. The applicant also said to the Magistrate, and before the Tribunal, that he had never used illicit drugs, and that prior to planting the seeds, he had upon inquiry gained the mistaken impression that it was legal to grow two plants. Again, the respondent did not challenge either assertion.
The facts regarding the Censorship Act conviction were that on 1 November 2007, the applicant placed an advertisement in the local paper advertising for sale "Mixture Adult theme DVD's". In his written submission to the Magistrate, the applicant said that the DVDs in question were the property of a person who had been staying with the applicant who absconded without paying a debt to the applicant and his friend, and the proposed sale of the DVDs was an attempt to recoup some of the debts. The submission again pleaded ignorance of any illegality. Before me, the applicant said that the Magistrate "accepted" the submission. Again, the applicant's assertions in mitigation were not contested by the respondent. Of 33 DVDs seized on executing a search warrant at the applicant's house, only five were regarded as breaching the legislation and the remainder were returned. The applicant was fined $750 against a maximum of $15,000 or 18 months' imprisonment.
My consideration
The matter comes within the review jurisdiction of the Tribunal which is the subject of Div 3 of Pt 4 of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Relevantly for present purposes, 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) of the 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) of the 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) of the SAT Act).
As has been indicated in previous decisions of the Tribunal, a person's character, for the purposes of the exercise of a statutory discretion to grant or withhold a licence or other authorisation, is to be assessed having regard to the nature of the legislative scheme, its objectives and the specific statutory provisions. In exercising its discretion in this case, the Director General is required to have regard to the interests of fee‑paying customers who might avail themselves of the applicant's services as the holder of an extension T endorsed licence.
According to the respondent's statement of issues, facts and contentions filed in this proceeding, the integrity of taxi drivers is of paramount concern to the Director General, consistent with its duty to ensure the safety of the public and public confidence in the taxi industry. By inference arising from that statement, and expressly in the oral submissions by the respondent's counsel at the hearing, it was the respondent's submission that the applicant by his actions has forfeited the trust upon which the grant of an extension T endorsement is based. This was so by reason of the very nature of the drug conviction, as falling outside the boundaries of conduct which the Director General regards is being consistent with "good character". In relation to the Censorship Act conviction, the respondent's counsel referred to the possibility that the continuance of the T extension would allow the applicant the opportunity to facilitate the sale of the contraband material. As to that, the applicant denied ever having done so, and pointed to the lack of evidence of any such attempt.
On the required assessment of the applicant, guided by the principles enunciated by Wheeler J in Tavelli v Johnson (Unreported; WASC, Library No 960693, 25 November 1996) (Tavelli), I have come to the conclusion that, despite his criminal convictions, the applicant can and should now be regarded as a person of good character for the relevant purpose.
The offences did not occur in the course of, nor relate to the carrying out of, the occupation in which a holder of the licence in question is able to engage (despite the respondent's suggestion, unsupported by any evidence, to the contrary in the case of the Censorship Act offence). One of the applicant's primary submissions was that his performance as a taxi driver was being assessed by reference to activities in his private life in the absence of any connection between the two. I am persuaded that there is a deal of substance to this submission. The convictions are not offences of dishonesty. They do suggest a moral culpability, but one which might easily be exaggerated. There is no evidence that the applicant is a trafficker nor an habitual cultivator or user of illegal drugs; nor a peddler of pornographic films, as distinct from the position as asserted by the applicant of a one-off attempt to sell some DVDs which had been left at the applicant's house by someone else. The applicant expresses remorse for both offences. It seems likely he has learnt his lesson. As for the seriousness of the two offences, perhaps the most objective test which is available is provided by the large discrepancy in each case between the maximum penalty available and the penalty imposed. It is also the case that the offences were disparate, motivated by completely different factors, and not indicative of the applicant having undertaken a course of disregard for the law.
The offences occurred within the last year, which is a negative under the Tavelli principles. The applicant filed nine character references. While some of the references are from old friends and are to be discounted to some extent on that account, a number of them refer to the applicant's generosity in terms of opening his home to strangers with urgent need for accommodation, either on a short-term voluntary basis or as tenant, who often have become his friends. Some of the references are from people in that category. The references are consistently glowing in terms of the kindheartedness extended by the applicant. Even accepting that they make no reference to the convictions, the references constitute a positive factor. The applicant is almost 54 years old, has been in the taxi industry for almost 20 years, and apart from the convictions relied upon by the respondent, has an uneventful conviction history (crime and traffic), certainly for the best part of the past 15 years. There are good grounds in my view for the belief that the applicant does not represent a threat to the welfare of the fee-paying public by reviving his authorisation to drive a taxi.
Conclusion and orders
For the above reasons, I am of the view that, despite the applicant's conviction record, he is, as of today, a person of good character for the purpose of ascertaining his suitability for an extension T endorsement on his driver's licence.
The Tribunal orders as follows:
1.The application is upheld.
2.The decision of the respondent's delegate to cancel the T class endorsement is set aside.
3.The respondent shall forthwith endorse the applicant's driver's licence with an extension T.
I certify that this and the preceding [21] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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