Director of Public Transport v XFJ
[2011] VSCA 302
•11 October 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2010 0106
| DIRECTOR OF PUBLIC TRANSPORT | Appellant |
| v | |
| XFJ | Respondent |
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| JUDGES | MAXWELL P, MANDIE and HARPER JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 11 April 2011 |
| DATE OF JUDGMENT | 11 October 2011 |
| MEDIUM NEUTRAL CITATION | [2011] VSCA 302 |
| JUDGMENT APPEALED FROM | Director of Public Transport v XFJ [2010] VSC 319 (Ross J) |
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OCCUPATIONAL LICENSING – Public transport – Taxi-cab driver – Accreditation – Suitability of applicant – Statutory criteria – ‘Public care objective’ – Applicant acquitted of murder on grounds of insanity – Whether applicant ‘suitable in other respects to provide the service’ – Whether decision-maker bound to consider effect of accreditation decision on public confidence – Whether accreditation decision could affect public confidence – No error of law – Appeal dismissed – Transport Act 1983 (Vic) Part VI, Division 6.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms D S Mortimer SC with | DOT Legal |
| For the Respondent | Mr P Bingham with Mr M D Stanton | Mental Health Legal Centre Inc |
MAXWELL P:
Summary
There are 24,600 accredited taxi drivers in Victoria. Of these, 15,000 are active drivers.[1] This appeal concerns the accreditation of a single driver, the respondent (‘XFJ’).
[1]The Court was told that an active driver was one who had provided services during the past 12 months.
The appellant, the Director of Public Transport (‘Director’), decided in 2008 that XFJ had the necessary technical competence and physical fitness to drive a taxi. The Director was also satisfied that XFJ would meet the ‘public care objective’, that is, he would provide taxi services ‘with safety, comfort, amenity and convenience’.[2]
[2]The decision was made by a delegate of the Director: see [24]–[25] below.
The Director nevertheless decided that XFJ was unsuitable to be a taxi driver because he had killed his wife some 18 years earlier. The Director considered that to accredit as a taxi driver ‘a person who caused the death of another person’ might damage public confidence in the taxi industry, and that XFJ was therefore not ‘suitable in other respects’ to provide the taxi service. This was so notwithstanding that XFJ had been suffering from a severe mental illness at the time of the killing, and the jury at his trial had found him not guilty of murder because of insanity. In short, XFJ was neither legally nor morally responsible for the death of his wife.
XFJ applied to Victorian Civil and Administrative Tribunal (‘Tribunal’) for a review of the Director’s refusal to accredit him.[3] The Tribunal set aside the Director’s decision and ordered that XFJ be accredited to drive taxis for a period of 18 months. The unchallenged psychiatric evidence was (in the Tribunal’s words) ‘emphatically favourable’ to XFJ,[4] showing that he had been free of symptoms for 14 years. The Tribunal concluded that he was suitable in all relevant respects to be a taxi driver.
[3]Transport Act 1983 (Vic) s 169O(1)(a).
[4]See [37]–[39] below.
On appeal by the Director to the Supreme Court on a question of law,[5] Ross J held that there was no error of law in the Tribunal’s decision to accredit XFJ.[6] The Director has appealed from that decision, by leave, to this Court.
[5]Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 (‘VCAT Act’).
[6]Director of Public Transport v XFJ [2010] VSC 319 (‘Reasons’).
The question of law which arises on this appeal is essentially the same as that which Ross J had to decide. It concerns the proper construction of the phrase ‘suitable in other respects to provide the service’ in s 169(1)(b)(ii) of the Transport Act 1983 (Vic) (‘Act’).[7] The Director’s contention is that the Tribunal (which, on review, was ‘standing in the shoes’ of the Director as decision-maker) was bound as a matter of law to consider the effect of a decision to accredit XFJ on community expectations about, and the need to maintain community confidence in, the taxi-driver accreditation system and the provision of taxi services as part of public transport.
[7]The name of the Act has since been changed to Transport (Compliance and Miscellaneous) Act 1983 (Vic): see Transport Integration Act 2010 (Vic) s 199.
In my respectful opinion, Ross J was correct to conclude that the Act did not oblige the decision-maker to consider, as a separate matter, what impact the particular accreditation decision might have on public confidence in the taxi industry. For reasons which follow, I consider that the Tribunal’s approach to the accreditation question was wholly in accordance with the requirements laid down by the Act. I would therefore dismiss the appeal.
By way of introduction, I gratefully adopt Ross J’s description of the factual background.[8]
[8]Reasons, [6]–[16].
The factual background
XFJ came to Australia as a refugee in 1989. He was granted refugee status on the basis of his persecution in both Ethiopia and Egypt. In 1990 he suffered a serious depressive episode, and contemplated suicide.
On 2 August 1990, XFJ killed his wife by repeatedly stabbing her with a knife. He was clinically depressed at the time. He then attempted suicide by hanging, but the attempt failed when the limb of the tree from which he sought to hang himself broke. He was tried for murder in 1992 and found not guilty by reason of insanity. The Supreme Court ordered, pursuant to s 420 of the Crimes Act 1958 (Vic), that he be kept in custody at the Governor’s pleasure. On 5 September 1992, the Governor ordered that he be detained in custody.
On 8 December 1998, the Court varied XFJ’s custodial supervision order to a non-custodial supervision order and on 15 April 2003 that non-custodial supervision order was revoked. In revoking that order, Balmford J took into account that XFJ was living in a stable relationship, had friends and support in the community, was not on medication, intended to continue contact with his treating psychiatric team and was coping with the stresses of ordinary living.
Since his release into the community, XFJ has worked in a number of occupations, including as a kitchen-hand and a carer of the aged. He has also worked for a charity (on both a volunteer and paid basis) which is dedicated to the support of the homeless.
At the time of the Tribunal proceeding, XFJ was the sole carer of his youngest son, then aged 19 months, who had been diagnosed with leukaemia. XFJ was seeking to work as a taxi driver because that occupation would provide him with sufficient flexibility so that he could combine paid employment with his role as carer for his son.
XFJ applied for accreditation to drive ‘commercial passenger vehicles’ (a category which includes taxis).[9] In November 2007, a delegate of the Director refused XFJ’s application for accreditation, based on the mandatory refusal provision in s 169(2) of the Act. Under that provision, the Director must not issue a driver accreditation if the applicant has been found guilty of a category 1 offence. Murder is a category 1 offence.[10]
[9]Act s 89 (definition of ‘commercial passenger vehicle’).
[10]Category 1 offences are defined in s 86 of the Act and include offences specified in cl 3 of Sch 1 to the Sentencing Act 1991 (Vic).
At the relevant time, ‘guilt’ was defined for the purposes of the Act to include the circumstance in which a finding had been made against a person under s 17(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic) that he or she was not guilty because of mental impairment.[11] Contrary to the delegate’s assumption, however, this extended definition of guilt did not apply to XFJ, as the statutory procedure did not exist at the time of his trial. The jury’s finding that he was insane at the time of the killing was an application of the common law test.
[11]Act s 163.
When XFJ sought an internal review of the decision, a different delegate of the Director recognised that the previous decision-maker had misapplied the mandatory refusal provision. The delegate therefore undertook a reconsideration of XFJ’s application. Before I deal with the decision arrived at on the reconsideration, it is necessary to describe the statutory scheme for accreditation of taxi drivers.
Accrediting suitable drivers
The accreditation regime is contained in Division 6 of Part VI of the Act, which commenced on 1 July 2007. In his Second Reading Speech to the Transport Legislation (Further Amendment) Bill 2006 which introduced the new regime, the then Minister for Transport said that the amendments would provide ‘a more robust process for accrediting persons’. This would ‘remind all drivers of the importance of doing their job responsibly. And it should give more vulnerable people, as well as the community generally, additional confidence in using public transport’.[12]
[12]Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2006, 1567–1568 (Mr Batchelor, Minister for Transport).
The Minister said:
[O]f most concern, the current scheme does not provide sufficient protection for the public – especially the most vulnerable members of our community – from the intrusion into this industry of the most unsuitable people. At present, persons who are unsuitable can be rejected by the exercise of a simple discretion, where the onus lies on the regulator to justify a negative decision.
The bill will handle this in a more robust fashion. In particular, persons with the worst criminal history, such as predatorial sexual offences against children and persons in care, and crimes such as murder, rape and terrorism will be automatically refused accreditation.
This sends an important message to the community, that government will act to protect those who most need protection when using public transport.[13]
[13]Ibid 1567.
The introduction of the new system for driver accreditation was followed by new procedures for accrediting ‘taxi-cab industry participants’. Those procedures are set out in Division 4 of Part VI of the Act, the purpose of which is set out in s 130, as follows:
The purpose of accreditation under this Division is to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations by ensuring that only suitable persons hold taxi-cab licences, operate taxi-cabs or permit them to be operated …
By ensuring ‘that only suitable persons hold taxi-cab licences’, the procedures were intended ‘to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations’.
‘Suitability’ is likewise the touchstone of driver accreditation under Division 6. The requirements of Division 6 give content to the notion of suitability. Under s 169(1), an application for accreditation as a taxi driver may only be granted if the Director is satisfied
(a)that the issuing of accreditation is appropriate having regard to the public care objective; and
(b)that the applicant—
(i)is technically competent and sufficiently fit and healthy to be able to provide the service; and
(ii)is suitable in other respects to provide the service; and
(c)that the applicant has complied with the application requirements under this Division.[14]
[14]Emphasis added.
Before Ross J and again in this Court, the Director’s submissions focused on the phrase ‘suitable in other respects’ in s 169(1)(b)(ii). As the words ‘in other respects’ make clear, the content to be given to this phrase will depend upon the scope of the first two suitability requirements, those in ss 169(1)(a) and (b)(i) respectively.
The first requirement is that the particular accreditation should be consistent with the ‘public care objective’, which is defined in s 164(1) as follows:
The public care objective is the objective that the services provided by drivers of commercial passenger vehicles … —
(a)be provided—
(i)with safety; and
(ii)with comfort, amenity and convenience—
to persons using the services and to other persons, particularly children and other vulnerable persons; and
(b) be carried out in a manner that is not fraudulent or dishonest.
The second requirement – technical competence and sufficiently good health – is self-explanatory.
It was common ground on the appeal that the phrase ‘suitable in other respects to provide the service’ was concerned with any other matter relevant to suitability, being a matter not already considered under either the first or the second requirements.
The Director’s decision
On reconsideration, the Director’s delegate decided that XFJ:
·was technically competent to provide taxi services;
·was sufficiently fit and healthy to provide taxi services; and
·met the ‘public care objective’ in the Act, that is, he would provide taxi services ‘with safety, comfort, amenity and convenience’.
It is important to point out that, in addressing the ‘public care objective’, the delegate concluded that the taxi service which XFJ provided would be safe. That is, his accreditation would meet the legislative objective of protecting passengers, in particular the vulnerable. He said:
My primary concern under the public care objective in your case is the provision of a safe service. Although you were found not guilty of murder because of insanity, you still caused the death of another person and I have considered this incident in determining your application. This is not a matter of imposing a penalty on you for that incident rather it is a consideration of the protection of the public including safety as required by the public care objective. A taxi driver is a person entrusted with the transport of members of the public, including vulnerable persons. Safe conduct by such drivers is required in stressful situations, including misbehaviour by passengers, is a fundamental component of taxi driving and hence I must consider this matter under s 169(l)(a) of the Act.
The reports of Dr Carroll and Dr Kenny indicate that whilst you have a past history of a psychiatric depressive disorder you have undergone an extensive course of rehabilitation and that the depressive disorder has been in remission for many years. Both medical practitioners have determined you are a low risk of re-offending. Accordingly, the concerns about safety in respect of the above incident have been substantially mitigated by these medical assessments.
Hence I am satisfied that you meet the public care objective.
The delegate decided, nevertheless, that XFJ’s application must be rejected. He was ‘not suitable in other respects to provide the service’. The delegate said:
Due to the construction of s 169(1)(b)(ii) and its relationship to s 169(1)(b)(i) of the Act I have determined that your suitability in ‘other respects’ means whether you [are] suitable in respects other than technical competence and sufficient fitness and health to provide the service as a taxi driver.
On 20 May 1992, … you were found not guilty of one charge of murder (homicide) because of insanity.
Your suitability must include consideration by me of the circumstances of the criminal charges for which you were tried on 20 May 1992. …
There is no dispute you killed your wife in the sense of the commission of the physical act of the criminal charge. Rather the jury determined you were not guilty because it was not proved you had formed the requisite criminal intention to kill because you were mentally impaired or insane at the time of the commission of that physical act.
In considering the circumstances of your life and the matter subject to the criminal charge, I have also considered the improvement in your life since that period including the remission of your medical condition. It is clear that Dr Kenny and Dr Carroll regard you as mostly rehabilitated and no threat to vulnerable persons. Hence, the favourable assessments of your medical condition and course of rehabilitation. There is no doubt that since your release from custodial medical treatment you have done everything to become a valuable member of the Victorian Community. I have given substantial weight to these matters and have considered them as crucial to my determination as to both safety under the public care objective and your suitability to be accredited, respectively.
…
Nonetheless, your conduct for which you were charged is a relevant consideration under s 169(1)(b)(ii) of the Act.
I am not satisfied that a person who cause[s] the death of another person, albeit whilst insane at the time, is suitable to be accredited to drive a commercial passenger vehicle such as a taxi. I am concerned that a person who engages in such conduct is not suitable to be accredited and that if accredited there may be a reduction in confidence in the commercial passenger vehicle accreditation regime system. I have also considered the potential detrimental impact on the reputation of the taxi industry and the potential detrimental effect to public and passenger confidence in the taxi industry and taxi drivers in general. …
Accordingly, pursuant to s 169(1)(b)(ii) of the Act, I refuse your application for driver accreditation.[15]
[15]Emphasis added.
The delegate’s decision thus turned solely on the ‘suitable in other respects’ requirement. Yet, when XFJ applied to the Tribunal for a review of the delegate’s refusal of his application, the Director sought to defend the decision on the additional ground that his accreditation was not ‘appropriate having regard to the public care objective’. This was a somewhat surprising position for the Director to have taken, given that he himself (by his delegate) had come to precisely the opposite conclusion, as appears from paragraph 25 above. I turn to consider the public care objective and the way in which it was addressed in the Tribunal.
The public care objective
In order for the accreditation of a particular driver to be ‘appropriate having regard to the public care objective’, the Director must be satisfied that the accreditation of that person would be (likely to be) conducive to the achievement of the service standards set out in s 164(1). It would need to be established that the applicant was a person who could be relied on to provide taxi services ‘with safety, comfort, amenity and convenience’, both to users of taxi services and to others ‘particularly children and other vulnerable persons’.
It will be recalled that the purpose of Division 4, concerning the accreditation of taxi licence-holders and operators, is to facilitate the provision of taxi services ‘that meet reasonable community expectations’.[16] The standards of driver service specified in the ‘public care objective’ are intended to meet those expectations. As already noted, the Director’s delegate was satisfied that XFJ would be able to provide a service which met those standards.
[16]Act s 130.
There was debate in the Tribunal about what was meant by the reference in the public care objective to the provision of taxi services ‘with comfort’. In his written submission to the Tribunal, the Director argued that the ‘comfort’ of passengers included ‘a state of ease, free from anxiety’:
The public is entitled to know and believe that taxi drivers are accredited in accordance with particular standards which ensure their safety. The Tribunal should not be satisfied that the public would be or feel safe alone in a car with a person who had killed another person in the past. It is not to the point that the applicant was found ‘not guilty’. The facts are that he took the life of his wife.
… [I]t should be noted that at the very least ‘improper conduct’ has occurred; it cannot be assumed that it will not occur (despite medical evidence that the prognosis is good); and the general community cannot have confidence that it will not occur.
The Director’s primary submission before the Tribunal was that, because taxi passengers were likely to be anxious about their safety if they knew that XFJ was the driver, the Tribunal could not be satisfied that accrediting XFJ was appropriate having regard to the public care objective. In the alternative, it was submitted, the Tribunal could not be satisfied that the applicant was ‘suitable in other respects to provide the service’.[17] The Director relied on the same consideration – passenger apprehension about safety – in support of the alternative submission.[18]
[17]See further [40] below.
[18]XFJ v Director of Public Transport (Occupational and Business Regulation) [2008] VCAT 2303, (‘Tribunal reasons’), [26].
The Tribunal was doubtful as to whether the word ‘comfort’ in the public care objective was intended to encompass ease of mind, as distinct from ease of body, but accepted that this was an arguable construction. Even on that broader interpretation, however, the Tribunal judged that XFJ was suitable. The Deputy President said:
[T]here must be a significant risk that these matters would become known, either to the public generally or amongst the community of cab drivers. The question will be asked rhetorically, would you want to ride with a man who stabbed his wife to death in 1990, never mind the circumstances? Would you want one of your children to ride in those circumstances?
It seems to me doubtful that the word ‘comfort’, when used in s 164(1) is intended to be directed to the concept of ease of mind, as distinct from ease of body, relative to proper upholstery, proper ventilation in taxicabs, proper cooling and heating and so forth. I concede, however, that it is arguable that ease of mind is included in the concept of the word ‘comfort’. In my view, Parliament must, in establishing such a criterion, and if it has established it, be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice. It would not be proper, for instance, to deny accreditation to a gay taxi driver, because some people in the community, perhaps a large number, feel uncomfortable with the concept of homosexuality, or with homosexuals.
Nor would it be appropriate to deny accreditation to an AIDS sufferer who was in remission with antiretroviral medication because some members of the community would feel uncomfortable, and not at ease in their minds, with such a person in the same car as themselves. In broad terms, I accept that the ordinary man in the street would probably say, ‘I would prefer not to have as a taxi driver somebody who has killed in whatever circumstances, except perhaps in self defence or as a soldier.’ On the other hand, the decision that I have to make, and I believe the decision the Director had to make, must be based upon more than mere prejudice, and here the psychiatric evidence, and the apparently blameless life that XFJ has lived since 1990 is the more important and should, for a reasonable person, outweigh any unease of mind which his history would raise for them.
Accordingly, in my view there is nothing in the public care objective which would indicate that XFJ is not a suitable person for accreditation. He is, in a technical sense, qualified, and there is no reason to believe that he would be other than a safe driver. Again, it was not suggested on behalf of the Director that in terms of s 169(1)(d)(i) that there was some concern as to whether XFJ was fit and healthy enough to perform duties as an accredited taxicab driver.[19]
[19]Ibid [20]–[23].
There was no challenge on the appeal to this conclusion or to the reasoning which supported it. This was not surprising. The analysis was clear and compelling, and the interpretation of the Act plainly correct, in my respectful opinion. What is of particular importance for present purposes is the Deputy President’s statement that, to the extent that Parliament contemplated that the ‘ease of mind’ of passengers would be a relevant consideration, ‘Parliament must … be treated as being concerned with the ease of mind of reasonable persons, as distinct from simply wild prejudice’.
On appeal to this Court, senior counsel for the Director accepted that this was a correct statement of the test. She further accepted that, in view of the unanimous psychiatric evidence, there was no reasonable basis for any taxi passenger who was aware of XFJ’s history to be apprehensive about being driven by him.
As a result, the Director did not challenge on the appeal the Tribunal’s conclusion that the accreditation of XFJ was ‘appropriate having regard to the public care objective’. (In this, he reverted to his earlier view.[20]) Instead, the Director’s submissions concentrated solely on the third requirement, that is, that the applicant for accreditation be ‘suitable in other respects to provide the service’.
[20]See [25] above.
Before I turn to consider the Director’s submissions on that issue, it is necessary to set out what the expert psychiatric evidence showed about the state of XFJ’s mental health.
The psychiatric evidence
Before the Tribunal, expert psychiatric evidence was given by Drs Carroll and Kenny. Dr Carroll, a consultant psychiatrist, was called on behalf of XFJ. He had been XFJ’s treating psychiatrist at Forensicare between 2000 and 2004. In his report, Dr Carroll said:
He has a past history of depressive disorder although throughout the time I treated him this was completely in remission. He has not required psychiatric medication of any kind for many years. Prior to his discharge into the community he had spent several years in a hospital setting for treatment and rehabilitation following an incident which resulted in the death of his wife. He was found not guilty on grounds of insanity (now known as mental impairment), because of his psychiatric disorder, of homicide. At the time of the event he was extremely unwell with a severe depressive disorder which had adversely affected his judgment and behaviour.
I have been involved in several hearings at the Supreme Court in relation to his case and hence have carried out a very thorough file review in his case. Both hospital and community files reflect the fact that while he has suffered a past history of depression he is of sound character with no evidence at all of any personality disorder or alcohol or drug use problems. Throughout his time with Forensicare he was honest and straightforward in all of his dealings with us.
It is a reflection of the excellent progress that he made that in 2003 the Supreme Court lifted all restrictions and cancelled the Supervision Order to which he was previously subjected.
I previously assessed him for the purposes of providing a letter to the Victorian Taxi Directorate in April 2006. At that time he remained in remission and was continuing to do well in the community.
Dr Carroll had reassessed XFJ for the purpose of producing his report. He noted that, since their last meeting, XFJ had been subject to various major life stressors, namely, a breakdown of his relationship with his de facto; his youngest son being diagnosed with leukaemia, with an uncertain prognosis; and financial pressures. Dr Carroll expressed the following opinion:
1.Based on a careful consideration of both his history and his current risk factors, in my view the likelihood of any future criminal offending in this case is very low indeed …
2. Currently he is free of any mental health symptoms, notwithstanding the major stressors which he has undergone over the past year or so.
3. From a psychiatric perspective his prognosis remains excellent. He has been in remission now for many years without the need for any medication. He has demonstrated an ability to cope appropriately with major life stressors …
In oral evidence, Dr Carroll agreed that XFJ had to be particularly careful of stress. ‘Because of his previous depressive illness, he does have a lifelong vulnerability’.
Dr Kenny is a consultant psychiatrist with considerable experience in forensic psychiatric medicine. After interviewing XFJ, Dr Kenny produced a report in which he said:
[T]his man has really had one severe and relatively prolonged episode of depression in his life which may well have been precipitated by circumstances, and was so depressed that he killed his wife and tried to kill himself.
Other than that one episode of depression he has not given evidence of any significant psychiatric disturbance, despite the traumas in his life, despite having had other relationships and other setbacks …
So for the last 14 years he has been symptom free.
Considering the whole picture he is probably no more likely to have another episode of depression than is anybody else in the community.
He also has insight into the nature of his condition by now and can see that he was depressed leading up to this incident, and so has insight into the nature of his condition and of the warning signs thereof.
So I would agree with Dr Carroll that he is most unlikely to have a further episode and I would also add that he understands the implications of the condition now and would be in a position to act accordingly before he got seriously depressed.
But I reiterate that in general I would see him as being no more likely or little more likely to have a further episode of depression than would anybody else in the community who had not been depressed before.
I see him as an intelligent and insightful man without personality disturbance, disorder or dysfunction; without any continuing psychiatric problem; with the minimal possibility of recurrence of depression and a good understanding of the nature of depression anyway.
I would have no doubt but that he satisfies the public care objective and can satisfy the matter set out in s 164(1)(a) of the Act.
In oral evidence, Dr Kenny said that he had been mindful of the fact that taxi driving can be highly stressful, involving difficult passengers.
‘Suitable in other respects’
According to the Director’s submission, the requirement to be satisfied that an applicant is ‘suitable in other respects to provide the service’ means that, in making a decision on the particular application for accreditation, the decision-maker must take into account ‘the maintenance of public confidence and the meeting of community expectations’. On this view, so it was submitted, the Tribunal (standing in the Director’s shoes)
was obliged, when considering the question whether [XFJ] was ‘suitable in other respects to provide the services’, to consider community expectations about the grant of accreditation to such a person and whether the community would have confidence in an accreditation system that endorsed such a person as suitable to provide public transport services.
As senior counsel for the Director confirmed in argument, this would mean in practice that the decision-maker must – in respect of every application for accreditation – ask a question along the following lines:
What impact is the accreditation of this person to drive taxis likely to have on public confidence in the system of accreditation and/or in the taxi service generally?
Although the written submission and much of the oral argument focused on the likely effect on confidence in the accreditation system, senior counsel for the Director acknowledged that the Director’s overriding concern was that the public should have confidence in the taxi service as a form of public transport.
The Director’s submission sought to distinguish between, on the one hand, the perspective of ‘the person getting into the taxi’ and, on the other, what was said to be the broader perspective of the ‘community as a whole’. As noted earlier, the Director accepted that the ‘passenger perspective’ was dealt with exhaustively for this purpose by the second requirement, concerning the public care objective.[21] The ‘community perspective’ was to be addressed under the third requirement, concerning whether the applicant was ‘suitable in other respects to provide the service’.
[21]See [34]–[35] above.
When asked to state in what ‘other respects’ an applicant’s suitability was to be assessed, senior counsel for the Director was unable to specify any affirmative criteria of suitability beyond those set out in the first two requirements. Instead, it was submitted that the decision-maker had to make a ‘value judgment about the nature of the conduct engaged in’. To determine whether public confidence in the taxi system would be adversely affected by a particular accreditation decision
does involve a value judgment about what people have done and why they have done it and the circumstances in which they have done it.
In other words, the decision-maker had to make a judgment as to whether the applicant was ‘the kind of person’ the State should authorise to provide a taxi service.
As this submission highlighted, a state of satisfaction that an applicant is ‘suitable in other respects’ is the same, in this statutory context, as a state of satisfaction that he/she is ‘not unsuitable in any other relevant respect’. In my view, construing the phrase in this way gives the third requirement ample scope, enabling a decision-maker to take into account any aspect of the applicant’s past conduct or character (being a matter not already considered under the first or second requirements) which might be thought to render him/her unsuitable to provide taxi services. As Ross J correctly held, it would be inconsistent with the evident purpose of this ‘catch-all’ provision to adopt an interpretation which would prescribe the matters which had to be taken into account.[22]
[22]Reasons, [105].
Senior counsel for the Director resisted this construction of the provision, pointing out that the statutory language required an affirmative state of satisfaction as to the applicant’s suitability. There being no affirmative criteria specified, however, and the Director being unable to specify any, this construction seems to me to give full effect to the legislative intention while doing no violence to the language used.
A value judgment about the applicant’s prior conduct
The Director pointed out that, with the exception of the most serious (category 1) offences,[23] the accreditation scheme does not treat a prior conviction as an automatic disqualification. Rather, the focus is on ‘the conduct engaged in’. As it was expressed in argument, the decision-maker has to be satisfied
that it is appropriate, notwithstanding the kind of conduct, for a person to be endorsed to drive taxis.
[23]To which the mandatory refusal provision applies – s 169(2)(b).
Counsel for XFJ drew attention to ss 169(3) and (4)(a), which confer a discretion to grant accreditation where an applicant has been found guilty of a category 2 or category 3 offence:
(3)The Director must not issue or renew a driver accreditation if the Director is aware that the applicant has been found guilty of a category 2 offence unless the Director is satisfied that the applicant has demonstrated that the issue or renewal of accreditation is appropriate having regard to the public care objective.
(4)The Director may refuse to issue or renew a driver accreditation if the Director is aware that the applicant—
(a) has been found guilty of a category 3 offence;
…
In deciding whether or not to issue an accreditation in such cases, the Director is authorised (but not required) by s 169(3) to ‘have regard to any matter to which a consideration [set out below] would apply’:
(i)the nature and gravity of the offence and its relevance to the service to be provided by the applicant; and
(ii) the period of time since the applicant committed the offence; and
(iii) whether a finding of guilt or conviction was recorded; and
(iv) the sentence imposed for the offence; and
(v)the age of the applicant when the offence was committed; and
(vi) in relation to any sexual offence, the age of any victim; and
(vii)whether or not the conduct that constituted the offence has been decriminalised since the offence was committed; and
(viii) the applicant's behaviour since committing the offence; and
(ix)the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person; and
(x) any information given by the applicant; and
(xi) any other matter the Director considers relevant.[24]
[24]These matters are set out in s 169C(3)(b), in relation to the exercise of the Director’s related power to disqualify a person from seeking accreditation.
Although the Director is not obliged to address any of these matters, the legislative intention is perfectly clear. Where these provisions are engaged, the Director is to treat the finding of guilt of a relevant offence as the beginning, not the end, of the consideration of the applicant’s suitability to be a taxi driver. Hence the first in the list of considerations is ‘the nature and gravity of the offence and its relevance to the service to be provided by the applicant’. Also made relevant is the length of time since the offence was committed, how old the applicant was at the time, whether a conviction was recorded and what the sentence was. The latter consideration naturally draws attention to the sentencing court’s assessment of the seriousness of the relevant conduct and of the offender’s culpability for it.
Parliament clearly contemplated that the decision-maker in such a case would examine all of the relevant circumstances of the offending, for the purposes of deciding whether and to what extent the offending conduct had a bearing on the applicant’s suitability – as at the date of the application for accreditation – to drive taxis. These provisions expressly anticipate that, if there has been any significant lapse of time between the offending and the making of the application, it will be relevant to consider the applicant’s behaviour since that time and the likelihood of his/her committing another such offence in the future.
Given that the statutory task is to assess the applicant’s present suitability to be accredited, the position could hardly be otherwise. No conclusion could be arrived at about the implications of a past finding of guilt for an applicant’s present suitability without an investigation of the nature and circumstances of the offence and, in particular, of the applicant’s moral culpability and the presence or absence of aggravating and mitigating circumstances. As this Court said in a comparable context in Medical Practitioners Board v Lal:[25]
With almost every offence, there are so many factual situations that could give rise to a finding of guilt, ranging from the minor to the very serious, that the offender’s suitability … could not sensibly be assessed by reference to the finding of guilt alone.
[25](2009) 23 VR 702, 715 [48] (‘Lal’).
The present case did not, of course, engage the statutory discretions under ss 169(3) and (4), as XFJ had been charged with a category 1 offence, and found not guilty. But, as counsel for the respondent submitted, there is an obvious parallel between the decision which the Director had to make about XFJ’s suitability and the kind of decision to which these discretionary considerations are directed. It might have been expected, therefore, that the Director would regard a similar examination of all of the circumstances – both at the time of and since the killing – as essential before any conclusion could reasonably be arrived at about XFJ’s suitability. Surprisingly, however, the Director’s submission before Ross J, and again in this Court, was that XFJ’s conduct was to be viewed simply as an act of killing, divorced from its factual and legal context.
‘Should a killer be allowed to drive taxis?’
According to the Director’s submission, all that mattered for this purpose was that XFJ had killed someone. As the delegate expressed the point,[26] what rendered XFJ unsuitable was that he had ‘caused the death of another person’.
[26]See [26] above.
The Director submitted to the trial judge, and again in this Court, that in assessing whether XFJ was ‘suitable in other respects’ to drive taxis, the Tribunal was obliged to ask itself the following questions:
(1)whether members of the public would expect a person who had killed another person to be accredited by the State to drive taxis;
(2)whether members of the public would have confidence in an accreditation system that granted an accreditation to a person who had killed another person;
(3)whether members of the public would have confidence using a taxi service in which a person who had killed another person was permitted to drive the taxi; and
(4)whether members of the public would perceive (with or without foundation in fact) there to be a risk to passengers’ safety when travelling in a taxi with a driver who had killed another person.[27]
[27]Reasons, [98] (emphasis added).
The Director did not seek to justify this characterisation of XFJ as ‘a person who had killed another person’ on the basis that members of the public would be unlikely to know more about XFJ than that bare fact. Rather, it was submitted that it was both appropriate and necessary under the Act for the decision-maker to pose questions in that bald form.
That submission must be rejected. In my view, questions thus formulated are both wholly inappropriate and contrary to the Act. They are but thinly-disguised variations on a single, crude question:
Would the public be happy if a killer was allowed to drive a taxi?
No answer to a question couched in such terms could possibly assist in the statutory enquiry into an applicant’s suitability. Adapting the Tribunal’s analysis – which the Director accepted[28] – posing such a question would, impermissibly, make the accreditation decision depend on ‘wild prejudice’ rather than reasoned judgment.
[28]See [33]–[34] above.
As will appear, I agree with Ross J that the statutory accreditation regime does not require any separate consideration of ‘public confidence’. The service standards on which public confidence depends are dealt with explicitly by the first two requirements. But, even assuming that such a generalised question could be posed, it would need to embody all of the relevant information about the circumstances in which the killing had occurred, and about XFJ’s history since that time. In the present case, of course, that information would reveal that XFJ bore neither legal nor moral responsibility for the killing and that he now presented no risk to the safety of taxi passengers.
If, contrary to my view, a separate question about public confidence had to be asked in the present case, it would have had to be formulated along these lines:
This applicant for accreditation as a taxi driver suffered from a very serious mental illness 15 years ago. While suffering from that illness, he killed his wife. He was acquitted of a charge of murder on the ground that he was insane at the time. This means that he was neither legally nor morally responsible for her death. Following that incident, he was hospitalised and received psychiatric treatment. He has been symptom free for 15 years and his treating psychiatrists are unanimous that there is no risk of relapse.
He has otherwise satisfied the requirements for accreditation as a taxi driver. That is, I am satisfied that he is technically competent and healthy. I am also satisfied that he is the kind of person who can be relied upon to provide taxi services with safety, comfort, amenity and convenience.
Would his accreditation have an adverse impact on public confidence in the accreditation system or in the taxi service?
Our community does not attribute responsibility for criminal acts to those who, at the time of the commission of those acts, are unable to appreciate that what they are doing is wrong. Nor, as counsel for the respondent pointed out, are persons held criminally responsible for deaths caused in war-time or in the performance of duty as a police officer or in self-defence. These examples simply illustrate how unfair it would be to judge a person by reference merely to a physical act, without considering all of the surrounding circumstances.
Public confidence in the taxi industry
The taxi service is a vital part of public transport in Victoria. The need to maintain public confidence in the taxi industry is obvious. First, for taxis to provide an effective form of public transport, potential passengers must have confidence that the service will be satisfactory. Hence Parliament has laid down the public care objective, specifying the standards of service by reference to which driver accreditation decisions must be made. The second reason for maintaining public confidence is that the provision of a satisfactory service to the public depends on the taxi industry being commercially viable, which in turn depends on the maintenance of reasonable levels of patronage.
The undoubted importance of maintaining public confidence in the taxi industry does not, however, mean that the ‘public confidence’ question must be addressed separately when individual applications for accreditation are being considered. The Act itself makes no mention of public confidence. This is hardly surprising, since the informing principle of the entire accreditation scheme – as applied both to drivers and to industry participants – is the need to establish and maintain public confidence.
As pointed out earlier, s 130 of the Act explicitly assumes that the provision of ‘safe, reliable and efficient taxi-cab services’ will meet reasonable community expectations. In this way, public confidence will be maintained and improved. The criteria of driver suitability specified in s 169(1) – in particular, the ability to meet the public care objective – are expressly directed at the provision of safe, reliable and efficient services and, hence, the promotion of public confidence. In short, once the decision-maker is satisfied that the applicant is suitable in all relevant respects to provide the service, there is no occasion for separate consideration of public confidence.
It is notable in this regard that the Director’s submission to the Tribunal about public confidence was based directly on passenger perceptions of safety. The Director’s counsel said:
[I]f the applicant is accredited it will have the effect of eroding the confidence the community should have in relation to the taxi industry, and it’s not a question of saying, well, who will know, or who will know whether he’s driving them in a particular circumstance. Whether their judgment may be unfair or prejudiced, those are not the sorts of questions that are relevant. But the community is entitled not only be safe in a taxi or commercial passenger vehicle, but to feel safe.
As noted earlier, the Director accepted in this Court that safety, and perceptions of safety, were dealt with exhaustively under the public care objective and, moreover, that there was no reasonable basis for any passenger to be apprehensive about safety if XFJ were the driver. I therefore reject the Director’s contention that ‘suitable in other respects’ requires separate consideration of whether the accreditation of the particular applicant would damage public confidence.
Senior counsel for the Director relied on what Finn J said in Bukvic v Minister for Immigration and Multicultural Affairs,[29] concerning visa cancellation decisions. Such decisions were subject to a Ministerial direction under the Migration Act 1958 (Cth), requiring decision-makers to consider ‘the expectations of the Australian community’. His Honour said:
The provision does not require the decision-maker to ascertain what the actual expectation of the Australian community would or would be likely to be in relation to a given case – an impossible task in any event. Against a stated standard, and having regard (a) to the character of the offences in question and (b) to a view the Government has of ‘community expectations’ about the appropriateness of the offender being removed from Australia where offences are of a particular nature, the decision-maker is required to make his or her own judgment as a matter of opinion as to whether the offences are of that nature. In making that judgment the decision-maker is being asked to do no more than bring to bear his or her own knowledge and experience. The provision clearly does not envisage the gathering of evidence on the subject of the community’s expectations in the given case. Rather it requires a judgment to be formed on the offences having regard to the stated criteria.
[29](2001) 110 FCR 554, 559 [17] (emphasis added).
Far from justifying the approach embodied in the Director’s ‘public confidence’ questions, however, what Finn J said emphasises that it is for the decision-maker ‘to make his or her own judgment as a matter of opinion’ as to the relevance of the offending conduct to the statutory power which falls to be exercised. And that judgment will be – can only be – made on the basis of all relevant information, in precisely the way the Director’s delegate decided that no reasonable person would feel apprehensive about being driven by XFJ.[30]
[30]See [25] above.
The same point is illustrated by another immigration case cited in the Director’s submissions, Irving v Minister for Immigration, Local Government and Ethnic Affairs.[31] The question for the decision-maker in that case was whether the visa applicant was or was not of ‘good character’. Davies J (with whom Nicholson J agreed) said:
[T]he issue for decision was an issue of fact, the determination of which Parliament reposed in the Minister and his delegates. It is not the task of this Court to come to its own view of that fact. The drawing of a conclusion by a decision-maker as to whether he or she is satisfied that an applicant for a visa is of ‘good character’ requires the exercise of a value judgment. There are no precise parameters which distinguish ‘good character’ from ‘bad character’. Although, in general, ‘good character’ can be readily recognised, in a particular case views may differ. It is for the administrative decision-maker, in whom Parliament has reposed the function of making that assessment, to arrive at a decision. Once the decision has been made, it matters not that another decision-maker may have concluded differently. The decision will stand unless an error of law is established, eg that the decision was such that no reasonable decision-maker could have arrived at it.[32]
[31](1996) 68 FCR 422.
[32]Ibid 427–8.
Even if, contrary to my view, the effect on public confidence was a separate consideration at the accreditation stage, the proposition that it must be considered in every case is unsustainable. First, as Mandie JA pointed out in argument, in the vast majority of accreditation decisions there will be no ‘other’ matter relevant to suitability once an applicant has satisfied the affirmative requirements in ss 169(1)(a) and (b)(i). Secondly, even supposing that a particular accreditation decision might have a material impact on public confidence, it would not be possible for a decision-maker to make any meaningful assessment of such potential impact. As French CJ remarked recently in a different context, the effect upon public confidence ‘is a criterion which is hard to define, let alone apply by reference to any useful methodology’.[33]
[33]South Australia v Totani (2010) 242 CLR 1, 49 [73]. See also Wainohu v New South Wales [2011] HCA 24, [174] (Heydon J).
What counts decisively against the Director’s argument, however, is the sheer implausibility of the proposition that a decision to accredit one taxi driver could have any material effect on public confidence in the taxi industry. (It is not to be forgotten that, on the Director’s argument, this issue will only arise where an applicant for accreditation has already satisfied the first two requirements of suitability – health and technical competence, and the capacity to meet the public care objective.)
What this Court said in Lal about public confidence in the medical profession applies with equal force to public confidence in the taxi industry:
Like the goodwill which attaches to a business, however, public confidence in
the medical profession is not turned on and off like a switch. Public confidence is won – or lost – gradually, as the cumulative effect of the experiences of thousands of individuals in their dealings with medical practitioners over many years. The decision to register a particular person to practise medicine is unlikely, in our view, to have any material or lasting effect on the established reputation of the medical profession as a whole.[34]
[34](2009) 23 VR 702, 717 [59].
Conclusion
Much of the reporting which surrounded the Tribunal’s decision, and Ross J’s dismissal of the Director’s appeal, carried headlines of the ‘Killer allowed to drive taxis’ and ‘Wife-killer cabbie’ variety. Misleading publicity of that kind is not conducive to public confidence in the industry.
It is to be hoped that the Director will now be able to inform the public that the decision to accredit XFJ is perfectly consistent with the Act. As both the Director and the Tribunal found, he is technically competent, and in good health, and he is capable of meeting reasonable community expectations by complying with the standards of service specified in the public care objective.
There is no other matter which renders him unsuitable. The killing of his wife occurred long ago, and was attributable to a mental illness which is not expected to recur. XFJ has been symptom-free for more than 15 years. Finally, and most importantly, there is no risk to passenger safety in any taxi which he drives, as the Director himself decided more than three years ago.
MANDIE JA:
The power of accreditation of taxi drivers is vested in the Director of Public Transport and the power to review the Director’s decision is vested in the Victorian Civil and Administrative Tribunal. An appeal to the Supreme Court from the Tribunal’s decision is available only on a question of law. I agree, for the reasons stated by Maxwell P, that there was no error by the judge in the Trial Division who
heard the appeal in this case (Ross J) when he dismissed that appeal. Specifically, I agree with Maxwell P, in relation to the question of law raised on this appeal, that ‘the effect of granting an accreditation on community expectations about, and the need to maintain community confidence in, the taxi driver accreditation system and the provision of taxi services as part of public transport’ is not a relevant consideration in deciding whether an applicant is ‘suitable in other respects to provide the service’ within the meaning of s 169(1)(b)(ii) of the Transport Act 1983.
Under s 169(1)(b)(ii) the Director, or the Tribunal, must be satisfied that the applicant is not unsuitable in any relevant respect other than those respects already dealt with under the rubric of the public care objective (s 169(1)(a)) or with regard to the applicant being technically competent and sufficiently fit and healthy to be able to provide the service (s 169(1)(b)(i)). In the present case, the appellant has failed to make out the contention that there was an error of law made by the Tribunal in reaching its decision as to the suitability of XFJ.
I agree that the appeal must be dismissed.
HARPER JA:
I too agree, for the reasons given by Maxwell P, that there was no error of law in the judgment below. I therefore agree that the appeal must be dismissed.
In his judgment, Mandie JA expressed his specific agreement with the proposition that ‘the effect of granting an accreditation on community expectations about, and the need to maintain community confidence in, the taxi driver accreditation system and the provision of taxi services as part of public transport’ is not a relevant consideration in deciding whether an applicant is ‘suitable in other respects to provide the service’ within the meaning of s 169(1)(b)(ii) of the Transport Act 1983. I also wish to specifically associate myself with this proposition.
This is not to be taken as any indication of judicial disrespect for either
community expectations or community confidence. On the contrary, as the President has noted, the purpose of the accreditation system is to facilitate the provision of safe, reliable and efficient taxi cab services that meet reasonable community expectations – one of which is, necessarily, that the public have justifiable confidence in the safety, comfort, amenity and convenience of those services. Consistently with this, an applicant for accreditation as a taxi driver must satisfy the Director of Public Transport that he or she can be relied upon to provide taxi services which are safe, comfortable and convenient, both to users of taxi services and to others, particularly children and other vulnerable persons.
As the President explained, it is only if – and when – an applicant has satisfied those criteria that the Director, in considering the application, is to ask whether the applicant is ‘suitable in other respects to provide the service’.
In this case, there was clear evidence that the only possible impediment to accreditation of the respondent was the fact that in August 1990 he killed his wife. But, as a jury subsequently found, he was not thereby guilty of any crime. His then current mental illness had the result that he was neither legally or morally responsible for the tragedy of his wife’s death.
Of course he was not fit at that time for accreditation to drive a taxi. All the psychiatric evidence available to the Director, and since to the Tribunal and the Court, however, is that now, 22 years later, the respondent presents no greater danger to users of the taxi service than someone who, being otherwise fit for accreditation, has never suffered from a mental illness.
It may be that perceptions of community expectations about, and the need to maintain community confidence in, the taxi driver accreditation system, will be coloured by fear generated by media headlines. Headlines designed to attract the public’s interest rather than the public benefit might reasonably be expected to follow the success of the respondent’s application. Such headlines, if they occur, will improperly play upon the fear of mental illness and its consequences. But a decision maker’s apprehension of misleading headlines should never stand in the way of decisions otherwise properly reached.
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