Director General, Department of Transport v Z (No.2) (GD)

[2002] NSWADTAP 37

Appeal Panel

CITATION:	Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37
PARTIES:	APPELLANT Director General, Department of Transport RESPONDENT Z
FILE NUMBER:	029018
HEARING DATES:	20/06/02, 30/08/02
SUBMISSIONS CLOSED:	08/30/2002
DATE OF DECISION:	11/22/2002
DECISION UNDER APPEAL:	Z -v- Director General, Department of Transport [2002] NSWADT 67
BEFORE:	O'Connor K - DCJ (President); Higgins S - Judicial Member; Mapperson K - Member
CATCHWORDS:	leave to extend to the merits - opportunity to be heard - Passenger Transport Act - cancellation of authorities - relevant/irrelevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	013153
DATE OF DECISION UNDER APPEAL:	04/30/2002
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990
CASES CITED:	Director-General, Department of Transport v Z [2002] NSWADTAP 17 Z -v- Director-General, Department of Transport [2000] NSWADT 87 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Goody v Oldhams Press Ltd [1967] 1QB 333 Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39 Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 Hughes and Vale Pty Ltd v New South Wales (1955) 93 CLR 127 Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630
REPRESENTATION:	APPELLANT D Jordan, barrister RESPONDENT In person
ORDERS:	1. Decision under appeal set aside; 2. Determination of Director-General affirmed.

1 On 20 June 2002 the Appeal Panel delivered oral reasons at the close of argument, allowing an appeal by the Director-General, and set aside a decision of the Tribunal restoring to Mr Z a long distance bus driver authority cancelled by the Director-General on 16 March 2000. (The decision set aside was Z -v- Director-General, Department of Transport [2002] NSWADT 67 (30 April 2002) (stay application by Director-General had previously been granted by Appeal Panel, see Director-General, Department of Transport v Z [2002] NSWADTAP 17).)

2 The Director-General applied in the notice of appeal for leave pursuant to s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) to extend the appeal to the merits and that application was granted. The hearing of the merits appeal took place on 30 August 2002. The Panel reviewed the transcript of earlier proceedings, heard some further evidence from the Department on one matter and heard submissions from the Director-General and Mr Z.

3 The reasons which follow consist of expanded written reasons in respect of the error of law appeal; and the Panel’s decision and reasons in respect of the merits appeal.

GENERAL BACKGROUND

4 The matter has a long history, and has already been the subject of: a decision by the General Division of the Tribunal in July 2000 affirming the Director-General’s decision; a successful appeal by Z against the decision, which was set aside by the Appeal Panel on procedural fairness grounds; the further decision by the General Division, on remittal, delivered 30 April 2002; the successful application on 6 May 2002 by the Director-General for a stay of that decision.

Background

5 In summary, Z used to hold three authorities to drive passenger vehicles issued under the Passenger Transport Act 1990 (the Act): an authority to drive long distance and tourist buses, an authority to drive route buses (both first issued to him in the case of this State on 30 August 1999) and an authority to drive a private hire vehicle (issued 31 January 2000).

6 On 16 March 2000, the Director-General decided pursuant to s 14 of the Act to cancel Z’s three authorities. (The Tribunal in its decision of 30 April 2002 restored one authority, the long distance and tourist bus authority, but not the other two.)

7 The cancellation followed advice to the Director-General that Z had been convicted of serious sexual offences, and served substantial gaol sentences. There were also other relatively minor convictions, including ones relating to driving. This history had not been disclosed by Z in his original application. Z’s consistent explanation for not disclosing the history has been that the question on the form did not require him to give the history. The application form had asked whether he had been convicted of any criminal offences within the past ten years. He had ticked the "No" box. He had noted on the application form that he was charged with an offence in another Australian State in 1986. The Director-General did not at that time make any further enquiries in relation to that declaration and the authorities were issued.

8 The power to cancel is conferred by s 14 which provides:

‘Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.’

9 The earlier Tribunal and Appeal decisions in this matter have dealt at length with Z’s criminal history. Z was born in or about 1949. The following history is drawn from the Tribunal’s first decision in this matter: Z -v- Director-General, Department of Transport [2000] NSWADT 87.

10 From 1964 to 1988 his convictions included: insufficient means; break bonds; carnal knowledge (with consenting under age girl); larceny; shop break; break with intent; drunk and disorderly behaviour; illegal use of motor vehicle; assault occasioning actual bodily harm and stealing. In 1980 he was convicted in the Supreme Court of another State of kidnapping, four counts of rape and two counts of false pretences, with a further six offences of false pretences taken into account. An unloaded shot gun was used in the commission of these offences. Z was seriously affected by alcohol at the time and, according to the comments of the Supreme Court Justice when sentencing him, Z had a serious drinking problem. The false pretences convictions related to presenting false cheques. Z served three years of a four and a half year prison sentence. In 1988, five years after his release from prison, Z was convicted in the Supreme Court of the same State of rape, and attempted rape. These offences were committed on Z's 14 year old daughter while she was in his custody. Z was sentenced to 9 years imprisonment with a 7 year non-parole period. Z denied and has continued to deny that he committed any of the offences for which he was convicted in 1980 and 1988.

11 Z was on parole for four years (1995-99) following his release from prison. In that time he said that he had worked driving buses in other states as well as New South Wales.

12 The Tribunal in its first decision noted that an interstate Police Service had provided information that Z had been convicted of several traffic offences, namely:

• exceeding the speed limit by between 10 and 14 kilometres an hour on 12 January 1995 and fined $100;
• drive motor vehicle without due care and attention/careless driving on 24 October 1995 for which he was fined $120;
• demerit point suspension, disqualified from driving for three months on 19 February 1996;
• driving while suspended, disqualified for nine months and fined $200 on 26 June 1996;
• not being holder of appropriate valid drivers licence - 2 counts; under fines suspension on 21 January 1998; and
• giving information that he knew to be false/misleading - fined $1500 on 15 March 1999.

13 The Tribunal also referred to information received from a different interstate Police Service advising that while no criminal convictions had been recorded against Z in that state, Police Central Warrants Bureau was holding 5 interstate warrants of apprehension in his name issued on 30 April 1999 and 26 July 1999 for traffic offences.

14 After the hearing by the first Tribunal and while Mr Z’s appeal against that decision was pending in the Appeal Panel, Mr Z was charged on 16 counts of driving a bus without an authority between the dates of 20 November 2000 and 3 January 2001. He was convicted at Parramatta Local Court on 16 July 2001. That decision was among the material considered by the second Tribunal. The Director-General’s challenge to the second Tribunal decision’s mainly relates to the way in which the Tribunal dealt with the Parramatta hearing and convictions.

ERROR OF LAW APPEAL

15 The Director-General objected to the second Tribunal decision on two primary grounds: misapplication of the test as to ‘good repute’ under s 11(2)(a) of the Act; and misapplication of the tests as to whether the applicant was a ‘fit and proper person’ under s 11(2)(a) of the Act. As noted at para [7] above, the power to cancel under s 14 may be exercised having regard to the purpose of the authority. Section 11(2) provides:

‘ 11. Authorities
(1) ....
(2) The purpose of an authority under this Division is to attest:
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:
(i) in accordance with the conditions under which a public passenger service is operated; and
(ii) in accordance with law and custom.
(3) ....’ (emphasis added)

16 The Director-General, as had the Tribunal below, referred to the oft-cited explanation given by Waddell J as to the meaning of ‘good repute’ and how it differs form the requirement to be in all other respects a ‘fit and proper person’: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392.

17 In Re T, a couple had been refused entry into the State adoption register on the basis that the husband was not a person of ‘good repute’. The evidence showed that the man had a number of convictions for offences associated with the consumption of alcohol the last of which was approximately two years before the application for entry on the register. The major countervailing evidence was that over the two years, the man and his wife had cared well for a number of foster children, and the man now led a sober and responsible life. There was also a requirement that a person be a ‘fit and proper person’ to adopt children. In this case the administrator relied solely on the ground that the man was not of ‘good repute’. There was no claim that otherwise he was not a ‘fit and proper person’.

18 Waddell J explained that under the statutory scheme in that case it was necessary to be satisfied that a person was of ‘good repute’ before going on the question of being otherwise ‘fit and proper’ to be permitted to adopt children. The facts of the case highlighted the distinction. There was evidence that the man was quite capable of carrying out the duties connected with adoption. This had been demonstrated by the good appraisals he and his wife had received for their foster care work over the two years. But in this case the concern related solely to whether he could be said to be of good repute because of the history of alcohol-related offences.

19 The Court said at 395:

‘.... A distinction must be drawn between ‘repute’ or ‘reputation’ and ‘character’ or ‘disposition’. The word ‘character’ is sometimes used as meaning a person’s reputation, but ‘reputation’ is not ordinarily used to mean character. ... [various authorities cited] ... In some cases, evidence of a person’s reputation may be admissible as hearsay testimony relevant to his actual character. In other cases, the nature of a person’s reputation is itself, as it is in this case and defamation cases, a question in issue.
... The distinction mentioned is, in my opinion, clearly preserved by [the relevant statutory provision] ... [T]he Court is concerned with two distinct matters, the reputation borne by the applicant or applicants, and his or their suitability to fulfil the responsibilities of a parent. To illustrate, an applicant might be a person of good repute but, unknown to those who hold such an opinion of them, have deficiencies in his moral character which would make him not a fit and proper person to fulfil the responsibilities of a parent. A person might not be of good repute, because of a widespread but mistaken belief that he was dishonest but, in fact, have all the personal qualities necessary to make him fit and proper to fulfil the responsibilities of a parent. In either case, the Court, if so satisfied, would be obliged to refuse an application by him for the adoption of a child.’

20 At 399 Waddell J said:

'This definition [‘reputation’, Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession.’

21 At 401 his Honour referred to the way in which old convictions are dealt with in ascertaining reputation in defamation law, and cited with approval the dicta of Lord Denning MR in Goody v Oldhams Press Ltd[1967] 1QB 333, where he said:

‘[Previous convictions] stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation. ...’

22 In the case Waddell J ultimately concluded, on the basis of additional evidence placed before him that had not been available to the administrator, that the man’s current reputation was, despite his earlier history, now a good one. The appeal was allowed.

23 The Director-General submitted that the Tribunal erred in three ways in its application of the requirement of good repute and character to the facts.

24 One, the Parramatta Local Court proceedings was a matter which could form the basis of an adverse inference as to both reputation and character, and that the Tribunal should have done so. This was a current conviction directly bearing on the regulatory regime.

25 Instead the Tribunal had said at [43] -[45] of its reasons:

‘43 I am aware from the proceedings in Parramatta Local Court that there may be people who work with Mr Z, and with whom he associates in his occupation, who do not hold the same positive view of Mr Z's character. This possibility is merely an inference on my part from the facts of the Local Court proceedings, which I describe in more detail in paragraphs 100-107 below, and from the Magistrate's comments.
44 The facts and findings of the Local Court proceedings raised a question about Mr Z's honesty. People with whom Mr Z associates in his occupation clearly had reason to believe that Mr Z was not, in those particular circumstances, being honest with them. It appears as well that they have become aware, at some stage and to some extent, of Mr Z's criminal history, through the newspaper clipping if not otherwise.
45 Those people were not called to give evidence before me. Nothing in their evidence to the Magistrate was directed towards an assessment of Mr Z's character. I do not know and cannot from any of the material before me reasonably infer what any of them would say if asked their opinion of Mr Z's character. It is possible that despite their dealings with Mr Z giving rise to the Local Court proceedings they regard him as being of good character. I don't know, and I have no relevant evidence before me.’

26 Two, the Director-General submitted that evidence of a serious criminal history might be enough, on its own, to foreclose any assessment of the general character of an applicant. A history might be so serious as to establish clearly that a person is not of ‘good repute’. In that case it is not necessary to go on and consider whether the person is of good character ‘in all other respects’. That inquiry only becomes necessary where the person is considered to be of ‘good repute’.

27 Three, the Director-General argued that the views held by co-workers do not provide a sufficient basis upon which to reach a conclusion as to ‘good repute’ or as to ‘fitness and propriety’.

28 There were other objections. Four, the Director-General submitted that the Tribunal had denied the Director-General procedural fairness in splitting its decision as between the three classes of authority that had been cancelled. It had, in effect, given Mr Z one back (the one he most wanted, the long distance bus authority) and reaffirmed the Director-General’s decision in relation to the other two (the regular bus driver, and private hire car authorities). The Director-General says that he was not placed on notice, or given any opportunity to bring forward evidence, on a critical finding made by the Tribunal in [94] of its reasons. At [94] the Tribunal said:

‘94 My understanding of the circumstances of driving long distance and tourist coaches is that Mr Z would at all times be with groups of people, and on occasions with a co-driver. Mr Z would not, as a driver of a long distance and tourist coach, be in close quarters or private places with individuals. The nature of the work is that it provides few if any opportunities for Mr Z to have "unsupervised access to potential victims".’

29 The Director-General says that at no point in the original hearing was the possibility raised of taking a segregated approach to the restoration of the various authorities. The Director-General said that no evidence had been provided as to the different operational characteristics of the three authorities. The Tribunal should not have proceeded in the way that it apparently did, of drawing on its own understandings of the operational environment of the different authorities so as to reach a view as to issues of risk. In fact, it had led the Director-General to believe from a comment in the course of hearing (transcript 78:52) that it would need evidence to understand the distinction between the various authorities.

30 Five, the Director-General objected to the Tribunal’s reasoning in respect of the risk of reoffending by way of further sexual violence. The Tribunal surveyed the material on this issue, and concluded at [87]:

‘87 These considerations all support a judgment that Mr Z is likely not to re-offend, and are consistent with his being in a group for which the risk of re-offending is less than 50%.’

31 The Director-General submits that the Tribunal’s approach to this question was too inexact. Given the nature and gravity of the offences under notice in this case, it would be sufficient, he submitted, to form an adverse view of the person’s character were there only a low risk of reoffence. The Director-General submitted that the proper approach was to have regard to the nature of the offences, the gravity of their consequences if committed again and then form a view as to the degree of likelihood of their recurrence. The Director-General also noted that there had been an opportunistic character to those offences (a matter to which we refer in our merits decision later in these reasons), the fact that the offences were perpetrated against a person who had been a willing companion of Z (said to be a prostitute) or in his care (his 14 year old daughter).

32 As to these five objections, we were satisfied at the error of law hearing on 20 June 2002 that two were clearly established (point one and point four), involving failure to have regard to relevant considerations and lack of procedural fairness.

33 On 20 June 2002 the Appeal Panel dealt ex tempore with the error of law appeal, as follows.

PRESIDENT: ‘There were two primary grounds and there were three points under one ground and two points under the other and for convenience I am calling them points 1 to 5 in these reasons.

Both of the primary grounds challenge the reasoning process of the Tribunal, in addition there was a specific objection to do with procedural fairness. This matter has now been dealt with twice at first instance in the Tribunal and now for the second time at the appeal level. Substantial material has been before the Tribunal on both occasions that the matter has been considered at first instance.
On the second such occasion, being the decision made by Judicial Member Rice there was a major piece of new evidence relied upon by the Department being the content of the proceedings, the findings and the convictions of Mr Z that occurred at the Local Court at Parramatta. Those proceedings related to alleged offences under the Passenger Transport Act .
The question that has been for determination, now for so long I acknowledge, in the Tribunal has been whether the Director-General made the correct and preferable decision when he proceeded to cancel all three authorities held by Mr Z. Initially the Director-General did that relying on Mr Z's serious criminal record, his traffic history and what the Director-General saw as a misleading answer to a question in his New South Wales application.
At the second hearing the Director-General relied in addition on the Parramatta proceedings which, as I've said, resulted from charges being laid against Mr Z and those charges related to allegations that he drove while unlicensed. Now, I acknowledge that Mr Z has given the explanation at Parramatta and again today that he had done that as a result of misleading advice and that matter in turn was considered closely by the Magistrate at Parramatta.
The Director-General's discretion is governed by section 11(2) of the Passenger Transport Act which states that:
‘The purpose of the authority issued by the Director-General is to attest that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.’
Then the discretion goes on to look at questions as to being of sufficient responsibility and aptitude to drive the vehicles to which the authority relates and that part of the discretion has not been in issue, as I understand it, at any time in these proceedings. The proceedings have concerned the first two issues of good repute and whether the person is in all other respects a fit and proper person, both being matters that are addressed by section 11(2)(a).
The Director-General says that the Tribunal erred in its interpretation of the meaning to be given to the two requirements to which I have referred, good repute and fit and proper person. Then the Tribunal erred in the way in which the test that it adopted were applied to the facts before it.
As I have already indicated three errors were said to have arisen in relation to looking at the question of ‘repute’ and two in relation to the ‘fit and proper person’ test. The Tribunal as Mr Z would be aware and certainly the Department is aware has accepted on many occasions that the distinction drawn in relation to the meaning to be attached to those two different elements as laid down in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 is an appropriate one and the dicta of Waddell J in that case has been applied in the Tribunal on many occasions.
I will deal with in turn, the five objections.
The first objection is the objection that relates to the text of paragraph 45 of the decision. In that regard we are satisfied that the Tribunal erred in law in concluding that the Parramatta proceedings did not allow any [positive or negative] inference to be drawn relevant to the good reputation of Mr Z or indeed the question of fitness which is the second element of the test in 11(2)(a).
We saw this objection as the most fundamental objection and one that did affect the Tribunal's reasoning in respect of both sides of 11(2)(a), both the fitness issue and the character issue. The findings of the Magistrate at Parramatta were grave ones in the circumstances. The convictions related to the regulatory environment to the Director-General. They could not, in our view, be excluded from consideration by the Tribunal. They needed to be appraised. To fail to have regard to them was an error of law.
The next question is whether that error of law was sufficiently material to warrant setting aside the decision of the Tribunal. We are fully satisfied in that regard that the error was of such materiality that the decision below cannot stand. In light of that conclusion it's not necessary to consider in detail the other objections but we make the following brief comments and will give fuller reasons later.
As to objection two, we accept that there may be extreme circumstances where the criminal record itself is sufficient to provide the entire basis for a conclusion as to reputation. Reputation for this purpose being an objective assessment of a person's reputation as it's likely to be regarded in the eyes of the community.
We have not formed a concluded view at this point as to whether the Tribunal failed to consider that possibility, that is, that there may be circumstances in which the criminal record itself is sufficient to provide the entire basis for a conclusion on that matter and we will deal further with this issue in our fuller reasons.
As to objection three, we have not at this point reached a final view as to whether there was an error of law. The matter we are referring to at the moment is the way in which the Tribunal took account of the testimonials from Mr Z’s relatives and associates. Even if there was an error of law in that regard we are not presently satisfied that viewed in isolation it would have amounted to a material error.
We should observe at this point that the question of reputation is one that must always be assessed in an objective way by an administrator and the Tribunal, no doubt informed by information which is often quite subjective. The opinions of friends and co-workers are important but in our view would not be conclusive as to the way in which the objective task is carried out.
The fourth point which is the first point under the second primary ground, the fourth point relates to the issue of procedural fairness. The Tribunal it would seem may have misled the Director-General at least as to whether the Tribunal would inform itself as to the differences that might exist between one authority and another when looking at questions of fitness. We might interpose there that there must be circumstances in the environment of specialist tribunals where it is reasonable for the Tribunal to inform itself as to matters within its special competence. ...
We acknowledge Mr Z's point that all that Mr Z ever wanted back was his long distance authority but our present view that an issue of procedural fairness has arisen and it is an error of law which leads in turn to the necessary conclusion that there was no independent evidence to support the distinction drawn.
In this regard we should also indicate that we do regard it as permissible for different decisions to be made as between the various licences that are held by a person but it is important that the possibility that the Tribunal might make a differential decision be made clearly known especially to the administrator who will often have taken a global approach and the application for review will have come forward as though the global approach is the issue before the Tribunal.
The fifth objection goes to the question of whether the Tribunal must make a finding in relation to the possibility of re-offence on the part of the licence holder where a criminal history that is significant has been taken into account in the exercise of discretion.
Our present view, examining the reasons of the Tribunal and to the extent that it's been possible for us to do so the underlying transcript, is that the Tribunal did have regard to the seriousness of the criminal history and the gravity of its consequences if there was a recurrence of that conduct and did have regard to how that might impact on the community. We are satisfied that the Tribunal did consider this issue. We doubt whether a Tribunal engaged in the exercise of a broad discretionary judgment needs to go so far as to make specific findings on matters of this kind.
We are not presently disposed to the view [in respect of the fifth objection] that the discretion of the Tribunal miscarried to such a degree as to give rise to legal error. We are conscious of the oft repeated authorities from the higher courts to the effect that appellate bodies should not lightly interfere with he balances struck by primary Tribunals in matters of discretion where they have had the benefit of hearing directly from the parties and having tested all the relevant evidence. It is not enough that others may disagree, a legal error needs to be shown. We're not satisfied that that was the case in respect of this point.
We are influenced in that regard by our own knowledge of the history of these proceedings. It has been apparent as we see it throughout the entire course of these proceedings that the recidivism issue was seen as very important and received close attention … in the first decision and again in the second decision.’

34 Failure to have regard to relevant considerations: As noted above, we do not agree with the way in which the Tribunal dealt with the Parramatta material at [43] to [45] of its reasons. The Parramatta outcome had significance both as to ‘good repute’ and in relation to ‘character’ generally in three respects at least: the nature of the conviction - an offence against the regulatory regime from which Mr Z seeks an authority; a clear finding that Mr Z had knowingly driven without an authority on 16 occasions; and a clear finding that he had given a misleading answer to the Department’s inspector when asked why he was wearing a driver’s uniform. None of these matters were in our view properly considered by the Tribunal. The outcome at Parramatta clearly pointed towards an adverse inference being raised against Mr Z both as to ‘good repute’ and as to ‘fitness’. For the Tribunal to fail to reach such a conclusion, the Tribunal needed to give a much fuller explanation than it did.

35 Absence of Procedural Fairness: We are satisfied that the Tribunal should not have proceeded to make a distinction between the decision to be taken in respect of the three different classes of authority without putting the Department on notice of that possibility, and inviting submissions and evidence. This is especially so in circumstances where it made the observation during the hearing that it would need evidence before it could draw any distinction between them. The Tribunal appears to have relied on its own general knowledge of long distance bus operations, and what Mr Z had said to it in evidence (repeated before us) as to the physical arrangements that apply to drivers (as to such matters as sharing load with companion driver, not mixing with passengers at required stops and the like). The Director-General, we are satisfied, could have put on evidence on these matters from its operational officers, and did not get the opportunity to do so.

36 We are also satisfied that this was a significant enough error to warrant setting aside the decision.

37 Reliance on Criminal Record Alone: We accept that there may be extreme circumstances where the criminal record itself is sufficient to provide the entire basis for a conclusion as to a person’s reputation in the eyes of the community. In this case the Tribunal saw itself as dealing with a situation where a long history of criminality culminating in crimes of great seriousness appeared to have ended. Since release from prison in 1995, Mr Z’s offences have been, by comparison, relatively minor. There was evidence of a real attempt on his part to put his past behind him. It was open to the Tribunal to form the view that an axiomatic rule of the kind urged by the Director-General should not be applied.

38 Good Repute: The approach to be adopted in considering ‘good repute’ is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. ‘Good repute’ refers to the way reasonably-minded people assess an individual’s current reputation, with reasonably precise knowledge of those matters that put the person’s reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person’s reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the ‘good repute’ requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.

THE MERITS APPEAL

39 Z’s essential submission is that his history of violent behaviour is at an end. He has not had a conviction for violence since 1988, and that conduct related to 1986. He is in a stable marital relationship. He states that he has overcome his drinking problem. It is clear that he very much enjoys work as a long distance bus driver, and that is all that he wants to be permitted to do. He has tendered references in the course of these proceedings from a former coach employer, coach captains with whom he has worked and from his father-in-law, attesting to his competence and the esteem in which he has now held. The value of these testimonials is diminished in that, while the referees had a generalised knowledge that Z had a serious criminal history (including rape convictions), they do not appear to have a detailed knowledge of the relevant circumstances. Z’s wife and her son have both given evidence in support of Z. Her evidence is that he does not drink now, and that he has commendations for his work as a driver from government officials and international travellers. There is no evidence of any complaints against Z from the travelling public during the time he was a coach driver in Western Australia or in this State.

40 Z does not accept that he was fairly convicted in 1980 and 1988. As noted above, the circumstances of these offences were of the utmost seriousness. Both involved the exploitation of situations where the female was in the company of Z willingly. The 1980 conviction arose from the kidnapping by Z and another man of a woman, a prostitute, in which an unloaded gun was used. The 1988 conviction involved Z’s 14 year old daughter.

41 The Tribunal in its two earlier merits decision has examined at length the question of the likelihood of Z sexually reoffending. Close attention has been given to expert evidence provided by Mr Milenkovic, clinical pathologist, Forensic Psychology Services, Sydney. Based on the material canvassed in the earlier decisions, we are satisfied that Z, while he remains in a stable domestic situation and abstains from alcohol, does not present a significant risk (in statistical terms) of committing further sexual offences. But this conclusion does not, in our view, dispose of the issues presented by this case.

42 The question which the Director-General must ask, as we see it, is whether the travelling public would be prepared to place their trust in a driver with Z’s background, and past and recent offence history, even if satisfied that there is no longer a significant risk of sexual reoffence?

43 In the past, the Tribunal and the Appeal Panel has cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P:

"One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi."'

44 There remain in this Appeal Panel’s view significant obstacles in the way of Z’s application. His recent driving history since release from gaol in 1995 is a poor one and includes an offence of knowingly giving false information in 1999. His inability to admit his guilt for his sex offence crimes weighs heavily against him.

45 As compared to the situation as it stood on 16 March 2000 when the Director-General made his original decision, there is now a further development. As mentioned earlier in these reasons, at Parramatta Local Court on 26 July 2001, Z admitted to 16 counts of driving a public passenger vehicle without an appropriate licence between November 2000 and 3 January 2001. He was convicted and fined $200 in respect of each offence, and ordered to pay costs. At the time the offences were committed, the position was that all Z’s authorities had remained cancelled. This occurred after his application for review had been unsuccessful. That decision had been delivered on 5 July 2000. He had appealed and it was at the directions stage. (The appeal was heard on 23 February 2001 and the decision delivered on 24 May 2001, remitting the matter for a further hearing.) The applicant’s explanation for resuming driving (with Downtown Coaches) was that he had been given advice by a solicitor that he was able to drive pending resolution of the Tribunal proceedings by a solicitor, Mr John Hertz, who was also a director of Downtown Coaches. Mr Hertz denied to the Court that he had given any such advice. The Court expressed some reservations in its reasons for decision over the reliability of Mr Hertz’s evidence.

46 The principal evidence against Z was given by Mr Carl Rasmussen, an operations officer of the Department of Transport in the form of a 2 page statement dated 4 January 2001, which was not the subject of any cross examination by Z.

47 The Court in its reasons for decision refers to the following aspect of Mr Rasmussen’s evidence, referring to his attendance at the premises of Downtown Coaches on 3 January 2001:

‘Mr Rasmussen says that he asked [Z], having observed him dressed in a company uniform, ‘You are dressed in a company uniform. Are you employed by Downtown Limousines Pty Ltd as a driver?’ Mr [Z] answered, ‘No, as a yardman’. Mr Rasmussen went on, ‘I wouldn’t think yardmen would be dressed in a company dress uniform’? Mr [Z] answered, ‘Well I like to look good.’

Mr O’Donnell [for the Department] says in his submission that if indeed Mr [Z] were, at the relevant time, under a misapprehension that he was entitled to drive, there would have been no reason at all for him to tell Mr Rasmussen that he was working not as a driver but as a yardman, it being the case that at the time he was working for the company as a driver. There is considerable force, in my view, in that submission. If one accepts Mr Rasmussen’s evidence, and I do accept Mr Rasmussen’s evidence, it would seem to me that there was no purpose at all in Mr [Z] saying that he was working as a yardman if in fact he was under the misapprehension that he was entitled to drive and if, in fact, he had received legal advice to that effect.’

48 The Court referred to evidence from Mr Steven Gore-Johnson, operations manager with company, and from Mr Mark Hertz, managing director of the company. The Court found that it was established to the relevant standard that Mr Z knew that he was not able to drive at the relevant times.

49 These findings weigh heavily against Mr Z. They go directly to the trust which can be reposed in him. He had turned in his driver authority after it was cancelled on 16 January 2000. He had not obtained a stay of operation of the Director-General’s decision from the Tribunal. He was not as a result in possession of the official card signifying that he was an authorised driver. The Court heard his contention that he had acted under a mistaken belief as to his entitlement, and found against him. In submissions to the Appeal Panel, Mr Z did not acknowledge any culpability in this regard, continuing to lay the blame at the feet of Mr John Hertz, and making numerous derogatory remarks about him.

50 There is a tendency to be dishonest revealed by Mr Z’s past criminal record, which in our view remains. For example, as noted earlier there is an offence on 15 March 1999 in Western Australia where Mr Z was convicted of providing false and misleading information. Moreover, the failure to provide full frank information arose in another licensing environment, that of an application for a security licence. Further, the misleading element was the failure to disclose previous criminal convictions: see transcript 16 October 2001: 45.

51 Counsel for the Director-General referred in his submissions to Hughes and Vale Pty Ltd v New South Wales (1955) 93 CLR 127. In that case the officer with equivalent powers under the legislation of that time to those exercised by the Director-General in this case could refuse a licence for a public motor vehicle (such as a delivery van) if the applicant was not a fit and proper person to hold such a licence. One of the questions that the High Court considered was the nature of the administrative discretion. At 156-57 Dixon CJ, McTiernan and Webb JJ said:

‘The expression ‘fit and proper person’ is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their purpose is to give the widest scope for judgment and indeed for rejection. ‘Fit’ (or ‘idoneus’) with respect to an office is said to involve three things, honesty knowledge and ability ... . It is evident that the commissioner is invested with an authority to accept or reject an applicant the exercise of which depends on no certain or reliable criteria and which in truth involves a very wide discretion.’

52 There was evidence given at the hearing on the merits by Ms Wilhelmina Hickey, Manager, Business Services, Contracts and Compliance in the Department on the degree to which long distance bus drivers find themselves alone with passengers. She referred to practices that are followed in long distance bus driving especially on overnight bus routes. In our view, she drew on her personal experience as a private passenger, rather than say from general experience as a driver, a bus company manager or from regulatory work as an inspector. Her evidence was of limited value. We accept nonetheless that there must, inevitably, be situations in long haul, night driving, and at rest stops where some opportunity may be present for a driver to perpetrate violence on passengers. The risk, it seems to us, would be at its highest where there were very few passengers on the bus, as distinct from on busy, well patronised runs. The likelihood of a bus driver avoiding detection would be very low, which would militate, it seems to us, against misconduct of this kind on the part of the driver.

53 Her evidence was of greater value on the question of the practicability or otherwise of allowing Mr Z to drive coaches subject to conditions (for example, that there be no work involving minors or female minors). Ms Hickey referred to the variety of coach settings that might significantly or only involve transport of minors. We accept that any conditional approach to restoration would be impractical; and in any case would not be appropriate to consider in this case. See also Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630.

54 Ms Hickey also sought to give evidence on her feelings as a parent towards the possibility of someone with Mr Z’s criminal record driving a bus with her teenage daughter on board. We have disregarded this material. In our view it is not appropriate for departmental witnesses to give evidence of this kind. They present in an official capacity. The judgment as to the likely perception of passengers is one for the Tribunal (or the administrator) to make in the objective way we have described earlier in these reasons, based on the whole of the material.

55 Counsel for the Department submitted that the policy reflected in the recently enacted Child Protection (Prohibited Employment) Act 1998 was relevant. There the Parliament has established a scheme to prohibit persons with serious sexual offences from engaging in child-related employment. Bus driving is not covered by that legislation. We do not consider it necessary to express a final view on this submission on this occasion. Care must be shown, we consider, in cross-applying policies governing a different scheme of regulation.

56 In our view, it is clear that Mr Z, despite the significant progress that he was made in overcoming his alcoholism, and in establishing a stable and loving family life, is not fit to be entrusted with an authority to drive public passenger transport of any kind. The driving history since release from gaol is less than satisfactory. Mr Z’s continued inability to acknowledge his guilt for the crimes for which he was convicted in 1980 and 1988 remains, in our view, a significant shortcoming in his character. We are also concerned that it remains his way of dealing with wrongdoing on his part. He now asserts that he is not to blame for the situation that he found himself in, driving for Downtown Coaches, when his licence was cancelled. The Magistrate did not accept his explanation. Mr Z gave, as we see it, and we agree respectfully with the Magistrate, a dishonest explanation when confronted by the Department’s inspector. There is a tendency to dishonesty in his recent history. We refer in particular to the filling in of the Western Australian form, his statement to the inspector and his conviction at Parramatta. This is not the conduct of a person who can be regarded as trustworthy.

57 It may be that in his private life away from work, Mr Z is now a trustworthy individual. Throughout these hearings he manifested, in our view, a negative attitude to authority, and frequently referred to what he saw as situations where he had been singled out when other breaches of the law by others were said to have been let go. He has, we consider, a predilection to blame others for the difficulties that he encounters; and a profound distrust of authority and those responsible for law enforcement. A regulator has to be able to trust those that are regulated to obey strictly regulatory requirements. The regulator can not, to take the present example, have an inspector every day at every bus location checking that the rules are complied with. It is this aspect of being entrusted with a licence that the words of the High Court in Hughes and Vale speak to.

58 Accordingly, the Director-General’s decision is affirmed.

ORDERS

1. Decision under appeal set aside.

2. Determination of Director-General affirmed.