DAVIES v Department of Planning, Transport and Infrastructure
[2020] SADC 90
•20 July 2020
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
DAVIES v DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE
[2020] SADC 90
Judgment of Her Honour Judge Deuter
20 July 2020
ADMINISTRATIVE LAW - ADMINISTRATIVE TRIBUNALS - STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO COURTS
The appellant was the holder of accreditation to drive a taxi pursuant to the Passenger Transport Act 1994 (SA). That accreditation was subject to a condition set by the Minister of Transport on 1 December 2010 that he hold a valid clearance to work with children.
The appellant had been convicted of offences committed in Victoria in 1988. The application of the provisions of the Child Safety (Prohibited Persons) Act 2016 (SA) from 1 July 2019 rendered the appellant a person prohibited from working with children. As a result, the appellant's accreditation to work as a taxi driver was revoked by the respondent's Standards Committee on 5 November 2019.
The appellant appeals the decision of the Standards Committee pursuant to s 38 of the Passenger Transport Act 1994 (SA).
Appeal determined pursuant to s42E of the District Court Act 1991 (SA).
Held: The ground of appeal is not made out and there are no cogent reasons to depart from the decision of the respondent. Appeal dismissed.
Passenger Transport Act 1994 (SA) s 28(1), s 30, s 30(3), s 31, s 31(b)(i), s 31(1)(b), s 32(1), s 35A, s 36(2)(b)(ii), s 36(2)(e)(iii), s 36(3)(c)(iv); Passenger Transport Standards Committee; Child Safety (Prohibited Persons) Act 2016 (SA) s 3, s 5, s 6(1)(l), Part 4 s 15, s 15(1)(c), s 41; Children's Protection Act 1993 (SA); District Court Act 1991 (SA) s 42E; Criminal Law Consolidation Act 1935 (SA) Part 3, Division 11; Crimes (Sexual Offences) Act 1980 (Victoria) s44(1), referred to.
Registrar of Firearms v Marksman Training Systems Pty Ltd (No 2) [2016] SASCFC 72, considered.
DAVIES v DEPARTMENT OF PLANNING, TRANSPORT AND INFRASTRUCTURE
[2020] SADC 90Introduction
Robert Geoffrey Davies (‘the Appellant’) brings an appeal pursuant to s 38 of the Passenger Transport Act 1994 (SA) (‘Passenger Transport Act’) against the decision of the Passenger Transport Standards Committee (‘the Respondent’), made on 5 November 2019 to revoke his Taxi Driver Accreditation, that was otherwise due to expire on 31 May 2021.
The revocation of the appellant’s Driver Accreditation resulted from a decision that the appellant was now a prohibited person, and therefore could not engage in child related employment, pursuant to s 41(1)(a) of the Child Safety (Prohibited Persons) Act 2016 (SA) (‘the Prohibited Persons Act’). The provisions of that Act relevant to the appellant commenced on 1 July 2019 and created a new legislative scheme that departed from the previous scheme under the Children’s Protection Act 1993 (SA).
The Statutory Scheme:
Passenger Transport Act 1994 (SA)
The Passenger Transport Act regulates the accreditation of drivers who drive a public passenger vehicle for the purposes of a passenger transport service.[1]
[1] s 28(1) of the Public Transport Act 1994 (SA).
The principal purpose of the accreditation of drivers is to ensure that any driver is a person of good repute, and in all other respects is a proper person to be a driver of a public passenger vehicle. An accredited driver must also have sufficient responsibility, skills and aptitude to drive the vehicle to which the accreditation relates.[2] Section 30 of the Passenger Transport Act sets out the procedure for obtaining accreditation:
s 30 – Procedure
(1) An application for accreditation must be made to the Minister in a manner and form determined by the Minister.
(2) The Minister may require an applicant for accreditation: -
(a) to furnish further information specified by the Minister:
(b) to verify, by statutory declaration, information furnished for the purposes of the application.
[2] Ibid s 28(2).
(3) An applicant for accreditation must meet any requirement, standard, criteria, qualification or condition set out in the regulations and must satisfy the Minister as to any matter the Minister considers relevant.
(4) …..
(5) …..
S 31 Conditions
(1) An accreditation will be subject to –
(a) the condition that the accredited person will observe the relevant code of practice under this Act; and
(b) other conditions (if any): -
(i)imposed by the Minister in relation to the accreditation;
(ii)prescribed by the regulations or otherwise imposed under this Act.
Any accreditation continues for a period prescribed by the regulations or as determined by the Minister. However, an accreditation can be revoked or surrendered during the period of its operation.[3]
[3] s 32(1) Passenger Transport Act 1994 (SA).
Disciplinary powers are granted to the Minister by Division 5 of the Act through the establishment of the Passenger Transport Standards Committee (the Standards Committee).[4]
[4] s 35A Passenger Transport Act 1994 (SA).
The Standards Committee may hold an inquiry for the purpose of determining whether proper cause exists for disciplinary action against a person who is or has been an accredited person under the Act, and this includes action where the holder of the accreditation has failed to meet any standard that relates to that accreditation.[5]
[5] s 36(2)(b)(ii) Passenger Transport Act 1994 (SA).
Section 36(2) of the Passenger Transport Act also provides for disciplinary action against an accredited person:
Section 36 – Disciplinary Powers
(2) There is proper cause for disciplinary action against a respondent if –
...
(e) the respondent –
(i)obtained his or her accreditation improperly; or
(ii)has ceased to be a person of good repute, or in any other respect has ceased to be a fit and proper person to hold accreditation under this Act; or ...
(iii)has ceased to be eligible for any other reason to hold an accreditation under this Act
…
Section 36(3) provides that if the Standards Committee is satisfied that proper cause exists for disciplinary action it may revoke any accreditation held by a driver.
The Minister for Transport has power to impose conditions in relation to accreditation of public passenger vehicle drivers pursuant to s 31(1)(b) of the Passenger Transport Act. On 1 December 2011, the Minister for Transport imposed a condition that to become an accredited driver, a person must have a valid Child Related Employment clearance. That condition that came into effect on 1 January 2011. It provided as follows:[6]
[6] Annexure JMB-7 to the affidavit of Julia Margaret Beauchamp dated 26 February 2020.
TAKE NOTICE that pursuant to s 30(3) of the Passenger Transport Act 1994, an applicant for accreditation (including renewal of an accreditation) must satisfy the Minister as to any matter the Minister considers relevant.
Pursuant to this section, I have determined in regard to criminal history that:
·a person who applies for accreditation as a driver of a public passenger vehicle for the purposes of a passenger transport service must satisfy me that they have:
o a valid National Criminal History check obtained through the Screening Unit, Department for Families and Communities; and
o hold a valid clearance letter to work with children and vulnerable adults from the Screening Unit, Department for Families and Communities.
…
TAKE NOTICE that pursuant to s 31(b)(i) of the Passenger Transport Act 1994, the accreditation of an accredited person will be subject to any conditions imposed by the Minister in relation to the accreditation.
Pursuant to this section I have determined that it is a condition of accreditation for:
·a driver of a public passenger vehicle for the purposes of a passenger transport service to obtain:
o a valid National Criminal History Check; and
o hold a valid clearance letter to work with children and vulnerable adults from the Screening Unit, Department for Families and Community Services
when renewing their accreditation.
A valid National Criminal History and clearance letter to work with children and vulnerable adults is to be facilitated through the Screening Unit, Department for Families and Communities. The Accreditation and Licencing Centre of the Department of Transport, Energy and Infrastructure is approved to submit National Criminal Checks and background screening applications for approval to work with children and vulnerable adults to the Screening Unit, Department for Families and Community Services.
Without a valid National Criminal History Check and a valid clearance letter to work with children and vulnerable adults from the Screening Unit, Department for Families and Communities, an application for driver accreditation will not proceed and an existing accredited driver may be investigated for disciplinary action if they do not satisfy these requirements.
Offences listed on a valid National Criminal History Check or listed on a National Police Certificate may be referred to the Passenger Transport Standards Committee for consideration in regard to a person’s eligibility to hold an accreditation and/or for disciplinary action against a person under the Act.
Child Safety (Prohibited Persons) Act 2016
The Prohibited Persons Act sets out a regime for the screening of volunteers and those in child related employment. The principal objects of the Act are to minimise the risk to children posed by persons who work with them, and to provide a framework to stop people who pose an unacceptable risk, from working with children.[7] The Prohibited Persons Act set up a new system for assessing the suitability of a person to work with children. Part 4 of the Act sets out various restrictions for working with children and in particular s 15 provides:
[7] s 3 Prohibited Persons Act.
15 – Prohibited persons not to work with children
(1) The following persons (prohibited persons) are prohibited from working with children:
(a) a person to whom a prohibition notice has been issued;
(b) a person who, under a law of the Commonwealth, or another State or Territory, is prohibited from working with children (however described);
(c) a person who has been found guilty of a ‘prescribed offence’ committed as an adult.
(2) Subsection (1)(c) applies in relation to a prescribed offence –
(a) whether the offence was committed before or after the commencement of this section; and
(b) whether the finding of guilt was made before or after the commencement of this section.
The meaning of ‘prescribed offence’ is defined in s 5 to include:
Prescribed offence means –
(a) an offence against a following provision of the Criminal Law Consolidation Act 1935 where the victim is a child:
….
(iv)Part 3 Division 11 (Rape and other sexual offences)
….
(e) an offence against the law of another state or territory that corresponds to an offence referred to in any of the preceding paragraphs where the victim is a child….
The changes to working with children checks and the other provisions of the Prohibited Persons Act came into force on 1 July 2019 in relation to all persons who work with, or who are to work with children. By s 6(1)(l) of the Act, ‘Transport Services for Children’ is included as being a service or activity which is ‘child related work’.
Background Facts
The appellant is now 62 years of age and by his evidence began driving taxis in Victoria in 1987. He moved to Adelaide in 1996 and obtained accreditation to drive taxis in South Australia through the Passenger Transport Standards Committee.[8]
[8] Para 7 of Affidavit of the Appellant sworn 21.5.2020.
On 3 April 2018, the appellant made a successful application to renew his Taxi Driver Accreditation, with an expiry date of 31 May 2021. In granting this renewal the Department for Communities and Social Inclusion’s Screening Unit issued the appellant with a clearance for child related employment dated 1 June 2018. It was noted in the documentation that the Unit would revoke that clearance if new information indicated that the appellant posed an unacceptable risk to children.
At the time of making his first application for accreditation to the Passenger Transport Standards Committee in South Australia, the appellant made disclosure of his criminal history. This included a conviction on 21 January 1988 in the Sunshine Magistrates Court of Victoria on seventeen charges of Indecent Assault involving a nine-year-old child.[9] Despite this notification, the appellant had his licence to drive a taxi renewed on several occasions from 1996 until it was revoked on 5 November 2019.
[9] Para 7 of Affidavit of the Appellant sworn 21.5.2020, Annexure B.
On 4 November 2019, the appellant was served with a Notice from the Central Assessment Unit of the Department of Human Services stating that pursuant to s 15(1)(c) of the Prohibited Persons Act, he was now prohibited from engaging in child related work, as a result of him having been found guilty of a prescribed offence committed as an adult. The appellant was therefore immediately prohibited from working with children in South Australia, and advised that pursuant to the Act there was no appeal open to him. He was advised that s 15 clearly set out that a person who has been found guilty of a prescribed offence, committed as an adult, cannot work with children.[10]
[10] s 15 Child Safety (Prohibited Persons) Act 2016.
The Central Assessment Unit also emailed the Department of Planning, Transport and Infrastructure on 4 November 2019 to advise them that the appellant was now a prohibited person, and was therefore prohibited from working with children in any position.[11]
[11] Annexure JMB-3 Affidavit of Julia Margaret Beauchamp of 26.2.2020.
On 5 November 2019, a letter was forwarded to the appellant by the Department of Planning, Transport and Infrastructure advising him that as he was now prohibited from engaging in child related work, his current Working with Children Check dated 1 June 2018 was invalid, and that he must surrender his personal Accreditation Identification and Taxi Driver Display Identification card within two days. The appellant was also advised that the matter had been referred to the respondent for disciplinary action.[12]
[12] Annexure JMB-3, Affidavit of Julia Margaret Beauchamp of 26.2.2020.
At a hearing on 5 November 2019, the respondent determined that as the appellant was now a prohibited person and therefore prohibited from engaging in child related employment, he no longer held a valid clearance and therefore he ceased to be eligible to hold Driver Accreditation pursuant to s 36(2)(e)(iii) of the Passenger Transport Act. The Committee immediately revoked the appellant’s Driver Accreditation pursuant to s 36(3)(c)(iv) of the Act and determined that he be disqualified from holding Accreditation until further order. The appellant was advised of the respondent’s decision by letter dated 15 November 2019.
Notice of Appeal
On 16 December 2019, the appellant lodged an appeal in this court against the decision of the respondent. That notice set out one ground of Appeal namely that his Accreditation had ‘…been revoked because of a previous misdemeanour regarding my alleged offence conviction. However I have been cleared to carry on with work that may include working with children and I have a clearance certificate dated 1 June 2018 to certify a valid clearance for 3 years. I believe that the cancellation of my Accreditation is totally unjustified’.
Nature of the appeal
Section 42E of the District Court Act 1991 (SA) provides that:
(1) The Court must, on an appeal, examine the decision of the original decision maker on the evidence or the material before the original decision maker but the Court may, as it thinks fit, allow further evidence or material to be presented to it.
(2) The Court on appeal –
(a)is not bound by the rules of evidence but may inform itself as it thinks fit; and
(b)must act according to equity, good conscious and the substantial merits of the case without regard to technicalities and legal forms.
(3) The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it, and not depart from the decision except for cogent reasons.
In Registrar of Firearms v Marksman Training Systems Propriety Ltd (No 2.)[13] ‘cogent’ was defined to mean ‘compelling, convincing, powerful’.
[13] [2016] SASCFC 72 at [315] per Stanley J.
The appellant in this matter asked the Court to overturn the decision of the respondent upon the basis that he has worked as a taxi driver since 1996, with accreditation in circumstances where he has been honest and fulsome in relation to his prior criminal conviction. The appellant told the Court in submissions that he was in the process of applying to the Sunshine Magistrates Court in Victoria to have his conviction overturned, as he had not committed the offence. No evidence of that was provided. He did not dispute that the conviction involved offending against a child, when he was an adult.
The respondent’s submissions were that the statutory framework is clear. As a result of the new legislative scheme created by the Prohibited Persons Act, which came into force on 1 July 2019, the appellant became a prohibited person as a result of his conviction. Pursuant to s 15(1)(c) of the Act he was then prohibited from working with children. There is no discretion to argue otherwise.
The appellant had been found guilty of committing a prescribed offence. Section 5 of the Prescribed Persons Act defines a prescribed offence as including an offence against Part 3, Division 11 of the Criminal Law Consolidation Act 1935 (SA) where the victim is a child; or an offence against the law of another state that corresponds to such an offence. The crime which the Appellant was convicted of was Indecent Assault of a child pursuant to s 44(1) of the Crimes (Sexual Offences) Act 1958 (Victoria). Indecent Assault is an offence pursuant to s 56, of the Criminal Law Consolidation Act 1935 (SA), being within Part 3, Division 11. The respondent submits that an offence under s 44(1) of the Crimes (Sexual Offences) Act 1980 (Victoria) as it applied when the appellant was convicted on 22 January 1988, is a ‘prescribed offence’ within the meaning of the Prohibited Persons Act.
The respondent submits that s 15(1)(c) is a self-executing provision in that once a person becomes a ‘prohibited person’ as a result of a conviction for a prescribed offence, they are prohibited from working with children. The appellant is now a ‘prohibited person’ as he is a person who has committed a prescribed offence.
The respondent submits that the notification to the appellant on 15 November 2019 that his Accreditation had been revoked was no more than advice informing him that he was a prohibited person, and that he would commit an offence if he continued to work with children. The appellant’s status as a prohibited person arises as a result of the operation of the Prohibited Persons Act, rather than any proactive decision being made on the part of the respondent. Once a person has been found guilty of a prescribed offence, s 15(1)(c) by the use of the words ‘are prohibited’, automatically operates to stop a person working with children.
Once a person is prohibited from working with children, the Department of Human Services’ Central Assessment Unit must take reasonable steps to notify an employer of that person that he/she is prohibited from working with children.[14] This notification can be by electronic communication. This is what the Central Assessment Unit did on 4 November 2019 in notifying the Department of Planning, Transport and Infrastructure that the appellant was a prohibited person under the Prohibited Persons Act. The respondent then had no discretion, and was compelled to revoke the appellant’s Driver Accreditation. This was a decision that was correct in law.
[14] Section 41 of the Child Safety (Prohibited Persons) Act 2016.
Discussion and conclusion
I accept the appellant’s evidence that at all times in applying for Accreditation under the Passenger Transport Act to work as a taxi driver, he has been open and frank regarding his conviction in 1988 of 17 charges of Indecent Assault involving a child. I also accept that until November 2019 he had been issued a clearance for child related employment by the Department for Communities and Social Inclusion’s Screening Unit, with his last clearance being dated 1 June 2018.
However, the regime for the assessment of persons who could work with children changed when the Prohibited Persons Act was proclaimed to commence operation on 1 July 2019.[15] That Act created a different framework from the previous Children’s Protection Act 1993 (SA) and in particular set up a regulatory framework which identified persons as ‘prohibited persons’ who could not work with children. By the Prohibited Persons Act any discretion on the part of a regulating or accreditation body was removed. If a person meets the definition of being a prohibited person, then they cannot work with children. This includes providing transport services for children. The determination that the appellant was a prohibited person under the Prohibited Persons Act was not made by the respondent. It was made by the Central Assessment Unit of the Department of Human Services pursuant to s 41(1)(a) of the Act. That determination has not been appealed by the appellant. This is despite the appellant having also received a notice on 4 November 2019 from the Central Assessment Unit advising him that he was prohibited from working with children in South Australia pursuant to s 15(1)(c) of the Prohibited Persons Act as he had been found guilty of a prescribed offence committed as an adult.
[15] Proclamation made by Governor on 17.01.2019 and Gazetted on 17.01.2019.
As a result of the appellant becoming a prohibited person and not being able to work with children, the appellant was in breach of the Determination of the Minister for Transport of 1 December 2010 that a condition of Accreditation for the driver of a public passenger vehicle for the purposes of a passenger transport services, is that they must hold a valid Clearance letter to work with children and vulnerable adults from the Screening Unit of the Department for Families and Communities. The Minister’s determination states that ‘without a valid National Criminal History Check and a valid clearance letter to work with children and vulnerable adults from the Screening Unit of the Department for Families and Communities, an application for driver accreditation will not proceed and an existing accredited driver may be investigated for disciplinary action if they do not satisfy these requirements’.
Although I find that the process for determining a valid clearance to work with children and vulnerable adults changed in 2019, the condition set by the Minister is clear. Without a clearance to work with children and vulnerable persons a person cannot be accredited as a driver of a public passenger vehicle for the purposes of a passenger transport services.
The appellant has previously been able to obtain the required clearance pursuant to the condition of the Minister. From 1 July 2019, he could not. He became a prohibited person. It was determined he could not work with children.
I find it was not necessary for the Department of Planning, Transport and Infrastructure to in fact refer the appellant for disciplinary action as by the terms of the Prohibited Persons Act the appellant could not continue to work as a taxi driver. However, the appellant was referred to the respondent to ensure accreditation revocation occurred. Pursuant to s 36(2)(e)(iii) of the Passenger Transport Act the Appellant was no longer eligible to hold Accreditation under that Act. As a result, the decision to revoke Accreditation was a valid and proper one pursuant to s 36(3)(c)(iv) of the Passenger Transport Act.
In all the circumstances, I find that the appellant’s Appeal is not made out and that there are no cogent reasons to depart from the decision of the respondent.
I dismiss the Appeal.
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