Bragg v Chief Executive, Department of Transport and Main Roads
[2013] QCAT 440
| CITATION: | Bragg v Chief Executive, Department of Transport and Main Roads [2013] QCAT 440 |
| PARTIES: | Jake Bragg (Applicant) |
| V | |
| Chief Executive, Department of Transport and Main Roads (Respondent) |
| APPLICATION NUMBER: | GAR099-13 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 31 July 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr B Cullen, Member |
| DELIVERED ON: | 22 August 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The 20 February 2013 decision of the Department refusing to grant Corporal Bragg an interlock exemption is set aside. 2. Pursuant to s24(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009, the Department is invited to reconsider its 20 February 2013 decision. In reconsidering its decision, the Department must consider that inability to continue service in the Australian Defence Force as a factor that would create “severe hardship” for Corporal Bragg, in line with the considerations outlined in these reasons. |
| CATCHWORDS: | REVIEW OF ADMINISTRATIVE DECISION – Department of Transport – Refusal to grant exemption from interlock program – Applicant in Australian Defence Force – risks termination of service if exemption not granted – consideration of severe hardship factors – ADF policy should have been considered by the Department in decision making process. Commonwealth Defence Act 1903, ss 5, 123(1)(b). Defence Force Road Transport Exemption Framework 2005 (Cth). Queensland Civil and Administrative Tribunal Act 2009, ss 20(1), 24. Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld), s 63K, Schedule 9 – Dictionary. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Self represented |
| RESPONDENT: | Department of Transport and Main Roads, represented by M Skinner |
REASONS FOR DECISION
Corporal Bragg’s Problem
Jake Bragg is a 26-year old Corporal in the Australian Regular Army. For the past eight years he has been an Army Transport Driver, and is thereby required to drive various categories of large, military transport vehicles. During his service, Corporal Bragg has been deployed overseas, and has also been called out by the Army in aid of the civilian powers, performing flood recovery work during the 2011 Queensland Floods. He supports his wife financially.
By both inclination and temperament, Corporal Bragg describes himself as a ‘career soldier’. He says that he is the type of person who responds well to the structure and discipline inherent to the Australian Defence Force (ADF), and if required to leave the ADF, Corporal Bragg readily admits that he is unlikely to thrive, and he thinks that he would significantly struggle to find comparable employment with the additional benefits that military personnel enjoy in return for their hard, and often dangerous, work. Corporate Bragg is candid enough to admit that he is uneducated, and from a modest background.
Corporal Bragg now finds himself caught within a legislative and policy conundrum, all as a consequence of his own irresponsible actions in driving whilst under the influence of alcohol. Prior to having been charged, and sentenced for drink driving, Corporal Bragg had an unblemished driving record. He no longer owns a car, having sold it to pay expenses.
It is not disputed that because Corporal Bragg was convicted of a drink driving offence and has been disqualified from holding a licence for a period, that s 91J(1) of the Transport Operations (Road Use Management) Act 1995 (Qld) applies. The Queensland Legislation is aimed at promoting road safety, and requires drivers to whom it applies to install an ‘interlock’ device. Before the driver can start the engine, they must first exhale into the interlock device. If the blood alcohol concentration of their breath is higher than the interlock device permits, then the engine cannot be started.
Australian Defence Force policy
Unsurprisingly, the ADF is in complete control of deciding whom may drive its vehicles, and in what circumstances. Because the ADF is constituted under the defence power within the Commonwealth Constitution, legislative control of the ADF is traceable to the Commonwealth Defence Act 1903, and the Commonwealth legislation ‘covers the field’ in terms of proscribing military activities, which include, in this instance, military driving. It is not an ADF requirement for a soldier to possess a civilian licence, and if it wishes, the ADF can permit personnel with cancelled or suspended licences to drive its vehicles, including even on State Roads, notwithstanding their being ineligible to drive on those same roads as civilians when off duty.[1] One would think then that Corporal Bragg’s employment in the ADF is not in peril as a consequence of his irresponsible behaviour. This however is not the case, because of extant military policy.
[1] Defence Act 1903 (Cth) s 123(1)(b); Defence Force Road Transport Exemption Framework (DRTEF) 2005 (Cth).
It is ADF policy that:
“if an ADF member has their civilian licence ‘cancelled or suspended (including any restrictions imposed on its use)’ then their ADF licence is also cancelled”.[2]
[2] Email dated 29 July 2013 from LTCOL David Thomas, Deputy Director National Logistics (Land), Department of Defence, Canberra to Michael Skinner, Manager (Licensing) Queensland Transport Regulation Branch.
Although Corporal Bragg no longer drives a civilian car, because of the aforementioned policy, he still needs to obtain an exemption from the requirement to have an interlock device, in order to possess an unrestricted Queensland State licence, and therefore be able to continue to hold his ADF licence and fulfil his military service obligations.
The relevant portion of the Queensland Act[3] provides that the Chief Executive can only grant an interlock exemption if satisfied “of another matter prescribed under a regulation for this subsection”. It is possible to obtain an interlock exemption on grounds of “severe hardship”. The relevant Regulations[4] provide:
(7) The chief executive may grant the applicant an interlock exemption if—
(a) a refusal to grant the exemption would cause severe hardship to the applicant in a way other than by—
(i) preventing the applicant from driving in the course of the applicant's employment, or to or from the applicant's place of employment; or
(ii) preventing the applicant from driving to or from an educational institution the applicant attends; and
(b) there is no other transport reasonably available to the applicant.
[3] Section 91Q(3)(c) Transport Operations (Road Use Management) Act 1995 (Qld).
[4]Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) s 63K.
The Department refused to grant an interlock exemption
On 20 February 2013, Corporal Bragg was advised that the Department of Transport and Main Roads had reconsidered, and confirmed, its decision refusing to grant him an interlock exemption. It is this reconsidered decision that is now under review by the Tribunal.
In its Statement of Reasons, the Department advised that Corporal Bragg’s Application was refused because he could not demonstrate hardship in a way “other than by preventing [him] from driving in the course of [his] employment, or to and from [his] place of employment.” The Department further advised that it had considered the request to drive ADF work vehicles but that the Queensland Act “clearly states that the criteria for an exemption of this type does not provide for an interlock exemption to be granted on the grounds of employment or financial considerations.”
This statement by the Department is not entirely correct. Whilst I accept that a need to drive in one’s employment, and to and from employment, is not a relevant factor supporting an exemption under the Queensland Act, I disagree with the Department’s interpretation of what it refers to as “financial considerations”. Nor do I agree that it is correct to describe military service as employment.
Section 63K(9) of the Queensland Regulations provides that an exemption cannot be provided “merely because the applicant can not afford the cost of fitting (if any) a prescribed interlock to, or maintaining the interlock in, a motor vehicle”. However, there is nothing in the Queensland Act or Regulations that prohibits the Department from considering financial detriment in a broader sense. In fact, the term “severe hardship” is defined in the Dictionary to the relevant Queensland Regulations[5] as meaning severe hardship suffered by—
(a) the applicant; or
(b) the applicant's family because the applicant has taken on a role of special responsibility in relation to the applicant's family.
[5]Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 Qld) Schedule 9 – Dictionary.
Corporal Bragg is enlisted, not employed, in the ADF
I also disagree with the Department that Corporal Bragg is “employed”. There exists Commonwealth legislation to the effect that ADF personnel are either “appointed” (commissioned officers) or “enlisted” (non-commissioned personnel).[6] The difference between the concepts is more semantic and upon even limited analysis should be readily apparent – there is a loss of personal freedom associated with being either “appointed” or “enlisted” in the military that does not apply in the private sphere of “employment”. Young men and women looking to enlist or become officers in the ADF must consider the risks that service may pose to their personal safety, possibly to their lives, and from which they cannot readily extract themselves in the same manner as would be the case if they were merely employed by the ADF. The risks that are posed to leaving a civilian employer early are, perhaps, breach of contract.
[6] Defence Act 1903 (Cth) s 5.
The Respondent Department has not appreciated this important distinction in considering this application for an interlock exemption. In Corporal Bragg’s case, the hardship he will face is not being unable to drive for an “employer”; rather is his being unable to fulfil his service obligations as an enlisted ADF member. Presumably, employment in the context of the Queensland legislation must be construed to mean civilian employment.
There will be severe hardship to Corporal Bragg, and his wife, if an exemption is not granted
Corporal Bragg is exposed to possible termination by the ADF, for the reason that his actions in driving under the influence have caused “disrepute to the Australian Army”.[7] If he is not able to obtain an interlock exemption, and therefore satisfy the ADF policy (drafted prior to the implementation of Queensland’s interlock program), it is highly likely that he will be terminated from the ADF.[8]
[7] 23 May 2013 Statement of Kelly Hammant, Warrant Officer Class Two, 9th Force Support Battalion.
[8] Ibid.
Termination, or possible termination, from a service role with the ADF would, to my mind, constitute severe hardship as defined in the Queensland Act and Regulations. This is not the same thing as a loss of “employment,” but rather could be described as the cessation of his ability to serve Australia as part of the Defence Force. With this inability to serve would flow corresponding dire economic consequences, which would also create downstream hardship for Corporal Bragg’s wife, who is dependent upon him for economic support.
In a review of this type, it is for the Tribunal to “produce the correct and preferable decision”.[9] It is well beyond the jurisdiction of the Tribunal to suggest that the ADF amend its own policy to take into account the predicament that Corporal Bragg finds himself in.
[9] Queensland Civil and Administrative Tribunal Act 2009 s 20(1).
It is preferable, in my view, to take into account the existence of the ADF policy, and the peril that Corporal Bragg finds himself in as a result of being unable to perform his particular service requirements, in assessing severe hardship. These are factors that should have been given considerable weight by the Department. Had the Department recognised that Corporal Bragg is not an employee of the ADF, but rather, is a serving defence member, it may well have reached a different result in its decision making process.
Orders
The 20 February 2013 decision of the Department refusing to grant Corporal Bragg an interlock exemption is set aside.
Pursuant to s 24(1)(c) of the QCAT Act, the Department is invited to reconsider its 20 February 2013 decision. In reconsidering its decision, the Department must consider that inability to continue service in the Australian Defence Force as a factor that would create “severe hardship” for Corporal Bragg, in line with the considerations outlined in these reasons.
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