Director of Public Transport v XFJ

IN THE SUPREME COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 10333 of 2008

DIRECTOR OF PUBLIC TRANSPORT	Appellant
v
XFJ	Respondent
and
VICTORIAN EQUAL OPPORTUNITY AND HUMAN RIGHTS COMMISSION	Intervener

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JUDGE:	ROSS J
WHERE HELD:	Melbourne
DATES OF HEARING:	19 and 20 November 2009; further written submissions filed 30 March, 1 April and 12 April 2010
DATE OF JUDGMENT	29 July 2010
CASE MAY BE CITED AS:	Director of Public Transport v XFJ
MEDIUM NEUTRAL CITATION:	[2010] VSC 319

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Appeal pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) – driver accreditation under the Transport Act1983 (Vic) – proper construction of ‘suitable in other respects to provide the service’ – section 169(1)(b)(ii) – what was the Tribunal bound to take into account – Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1985-1986) 162 CLR 24 – section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) - Tribunal not bound to have regard to community expectations and the maintenance of public confidence – no error of law – not persuaded that the Tribunal failed to take such matters into account – appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D.S. Mortimer SC and Mr C.P. Young	DOT Legal
For the Respondent:	Mr P. Bingham and Mr M.D. Stanton	Mental Health Legal Centre Inc.
For the Intervener:	Ms K. Walker	Victorian Equal Opportunity and Human Rights Commission

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HIS HONOUR:

In proceeding B253 of 2008 a Deputy President of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) granted XFJ a “driver accreditation” under section 166 of the Transport Act1983 (Vic) (‘the Act’). The accreditation in question was to drive a “commercial passenger vehicle”, which includes a metropolitan taxi.[1] The order specified that the accreditation was for a term of 18 months from the date of issue.[2]
[1]See section 86 of the Transport Act 1983 (Vic) (‘the Act’).
[2]By reason of a stay granted by Daly AsJ on 16 April 2009, and a further stay granted by Cavanough J on 5 June 2008, no accreditation has been issued to XFJ and hence the 18 months period of accreditation has not started to run.

The Director of Public Transport (‘the Director’) appealed the Tribunal’s order pursuant to section 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’).[3]
[3]Leave to appeal was granted by Cavanough J on 4 June 2009.

An appeal under section 148 is limited to a “question of law” and is in the nature of judicial review.[4] On such an appeal the court is confined to the examination of legal error; section 148 does not confer a general appellate function.[5] As the High Court observed in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria:[6]

“Section 148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s 148 uses the word “appeal”, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review … [I]t is important to recognise that the essential character of s 148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.”[7]

[4]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue of the State of Victoria (2001) 207 CLR 72, 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ).

[5]Ovidio Carrideo Nominees Pty Ltd v The Dog Depot Pty Ltd [2006] VSCA 6 (Unreported, Chernov, Nettle and Ashley JJA, 8 February 2006) [59] (Ashley JA).

[6](2001) 207 CLR 72.

[7]Ibid 79 [15] (Gaudron, Gummow, Hayne and Callinan JJ).

The questions of law said to arise in this appeal turn on the proper construction of the requirement in section 169(1)(b)(ii) of the Act that an applicant for driver accreditation be “suitable in other respects to provide the service”. The Director submitted that the Tribunal failed to properly construe section 169(1)(b)(ii) and as a result failed to take into account relevant considerations when making its decision.

It is convenient to first set out some of the factual background and the Tribunal’s decision before turning to the legislative framework and the submissions about the proper construction of section 169(1)(b)(ii).

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.[8] He then attempted suicide by hanging, but the attempt failed when the limb on 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.[9] The Supreme Court ordered, pursuant to section 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.[10]
[8]Courtbook of the Proceeding, Director of Public Transport v XFJ (Supreme Court of Victoria, Ross J, 19 – 20 November 2009) (‘CB’) 138 [4].
[9]CB 138 [4].
[10]CB 139 [4].

On 8 December 1998, the Court varied XFJ’s custodial supervision order to a non-custodial supervision order[11] and on 15 April 2003 that non-custodial supervision order was revoked.[12] 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.[13]
[11]CB 139 [5].
[12]CB 132.
[13]CB 145 [21]-[23].

Since his release in 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.

On 5 October 2007 XFJ applied for an accreditation to drive commercial passenger vehicles.[14]
[14]CB 172.

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 a carer for his son.

On 27 November 2007, a delegate of the Director refused XFJ’s application for accreditation based on the mandatory refusal provision in section 169(2) of the Act.[15]
[15]CB 184-185.

Section 169(2) provides that 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.[16] The statutory concept of ‘guilt’ for the purpose of the Act is set out in section 163. That section defines ‘guilty’ to include the circumstance in which a finding has been made against a person under section 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.
[16]Category 1 offences are defined in section 86 of the Act and include offences specified in clause 3 of Schedule 1 to the Sentencing Act 1991 (Vic).

Of course the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) only came into operation some years after XFJ’s trial. It follows that the finding that XFJ was not guilty by reason of insanity does not equate to the statutory concept of guilty in section 163 of the Act.

XFJ sought a review of the decision of 27 November 2007.[17] On 11 June 2008, a delegate of the Director decided that the decision of 27 November 2007 was invalid because the delegate had misunderstood and misapplied the mandatory refusal provisions. Accordingly, the delegate undertook a reconsideration of the application and then decided to refuse XFJ’s application for accreditation.[18]
[17]CB 188-189.
[18]CB 248. For convenience I refer to this decision as the second decision.

In making that decision, the delegate said:

“Nonetheless, under section 169(1)(b)(ii) I must also be satisfied that you are suitable in other respects to provide the service. …
After considering all of the information described above, I am of the opinion, for reasons explained below, that you are not suitable in other respects to provide the service.
Due to the construction of section 169(1)(b)(ii) and its’ relationship to section 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. …
Your suitability must include consideration by me of the circumstances of the criminal charges for which you were tried on 20 May 1992. …
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 affect to public and passenger confidence in the taxi industry and taxi drivers in general. …
Accordingly, pursuant to section 169(1)(b)(ii) of the Act, I refuse your application for driver accreditation.” [19]
[19]CB 251-253 (emphasis added).

The Tribunal’s decision

On 9 July 2008 XFJ applied to the Tribunal to review the second decision referred to above[20] and the two applications for review were dealt with together.[21] The Tribunal eventually dismissed the earlier application for lack of jurisdiction[22] and hence the application which proceeded for review was the application lodged on 9 July 2008.
[20]CB 254.
[21]CB 264.
[22]CB 289.

The review was made pursuant to section 169O of the Act and was heard and determined by the Tribunal on 31 October 2008.[23]
[23]CB 346.

The expert psychiatric evidence before the Tribunal consisted of the reports and oral evidence of Drs Carroll and Kenny.

Dr Carroll, a consultant psychiatrist, was called on behalf of XFJ. Dr Carroll was previously XFJ’s treating psychiatrist at Forensicare between 2000 and 2004. In his report Dr Carroll says:

“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.”[24]

[24]CB 224-226.

Dr Carroll 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 then 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 …”[25]

[25]CB 225.

Dr Carroll gave oral evidence before the Tribunal[26] and in doing so agreed with the proposition that XFJ had to be particularly careful of stress “because of his previous depressive illness, he does have a lifelong vulnerability”.[27]
[26]CB 404-416.
[27]CB 414, lines 45-47.

Dr Kenny is a consultant psychiatrist with considerable experience in forensic psychiatric medicine.[28] After interviewing XFJ Dr Kenny produced a report in which he said:
[28]CB 232-234.

“… this 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 yeas 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 Section 164(1)(a) of the Act.”[29]

[29]CB 237-246.

Dr Kenny gave oral evidence before the Tribunal, but did not depart from the opinion expressed in his report.[30] He did observe that in preparing the report he was mindful of the fact that taxi driving can be highly stressful, involving difficult passengers.[31]
[30]CB 372-378.
[31]CB 378.

In his reasons for decision the learned Deputy President summarised the psychiatric evidence and observed that:

“One might think that these psychiatric opinions are about as favourable as in the circumstances one would expect. And it would not be an exaggeration to refer to them as emphatically favourable to the applicant.”[32]

[32]XFJ v Director of Public Transport (Unreported, Victorian Civil and Administrative Tribunal, Deputy President Macnamara, 31 October 2008) [13].

On appeal there was no challenge to the Deputy President’s characterisation of the psychiatric evidence.

The Deputy President’s reasons then deal with the “public care objective” in section 164(1):[33]
[33]The public care objective is set out at paragraph 42 of this judgment.

“… clearly, the events of 1990 raise a very significant safety issue with regard to passengers in a taxi cab which might be driven by XFJ.

The safety issue really turns upon whether there is an appreciable risk, or a risk special to XFJ putting him in a category different from other members of the community, that some violent outburst, such as occurred in 1990, would recur and would be directed against the passengers. I note that an apprehension of a violent attack upon a passenger in a taxicab is a significantly different scenario from the one which occurred in 1990. There, the victim of the attack was a very close personal family member, namely an estranged wife. This is a significantly different event from violence directed indiscriminately to strangers, or relative strangers, which passengers in the taxicab would be.

… the emphatic psychiatric opinion, which I quoted earlier in these reasons, leaves me to conclude that there is no serious safety issue. Needless to say, neither of the psychiatrists could offer any cast iron assurances as to what XFJ might do in the future, any more than they could offer any cast iron assurances as to what I might do, or what either of the learned members of counsel who appeared in this proceeding before me might do. The strongest concession was the reference to a lifelong vulnerability to depression. I note, however, that XFJ has been living in the community for some 10 years, and upon all indications, has kept good psychiatric health through that period without the support of medication.”[34]

[34]Ibid [17-19].

The Deputy President then put the issue of safety to one side and turned to the question of ‘public apprehension or discomfort’ in response to submissions made by the Director’s counsel, Ms McKenzie.

Ms McKenzie had submitted that the reference to ‘comfort’ in the context of the public care objective included ‘ease of mind’. It was submitted that passengers or potential passengers would not have ease of mind if they were being driven by a person with the history of XFJ.[35]
[35]The Director’s submissions to the Tribunal on this issue are at CB 290-316.

The Deputy President dealt with these submissions in the following terms:

“… there 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 Section 164(1) is intended to be directed to the concept of east 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 section 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 …”[36]

[36]XFJ v Director of Public Transport (Unreported, Victorian Civil and Administrative Tribunal, Deputy President Macnamara, 31 October 2008) [20 – 23].

Having disposed of the Director’s objections based on the public care objective the Deputy President turned to consider whether XFJ was “suitable in other respects”, within the meaning of section 169(1)(b)(ii):

“It is notable that the statutory criterion here is not the familiar requirement that the applicant for licensing, accreditation or whatever, should be a fit and proper person. Ms McKenzie, on behalf of the Director, submitted however that the same general approach which courts and tribunals have taken to the concept of whether a person is fit and proper or not should be applied to the somewhat different words that we find in Section 169(1)(b)(ii) …

It can be seen that these arguments [about whether the respondent was suitable in other respects to provide the service] raised the same issues fundamentally as were urged by Ms McKenzie with regard to the public care objective, namely the objective risk that the applicant, XFJ, would engage in further serious violence, and the subjective possibility that members of the community would be apprehensive, were he to be their taxi driver. In the case, In re Davis (1947) 75 CLR 409, dealing with an application for admission by a barrister, Sir John Latham CJ said at page 416:
A man may be guilty of grave wrongdoing and may subsequently become a man of good character.

If that is correct, I cannot see why a man who has engaged in serious violence, albeit in circumstances where he bears no legal responsibility for those matters, may not establish himself as a suitable person, almost 20 years later, to be a taxicab driver. In my view, in the circumstances before me, XFJ has established that he is suitable in the relevant respects. I note for instance that he has had experience in working with the elderly and those suffering dementia. His evidence on this score was not challenged in cross-examination. Both consultant psychiatrists conceded that work as a taxi driver may be quite stressful, because it is necessary for drivers to deal with intoxicated passengers, and passengers who, in good faith, or in bad faith, want to argue about fares, allege that they have been taken on unduly circuitous journeys, rather than by the most direct route to their objective and so forth.”[37] [emphasis added]

[37]Ibid [24], [26] – [27].

Against this factual background I now turn to consider the relevant legislative framework and the proper construction of section 169(1)(b)(ii).

The Legislative Framework

The accreditation regime in Division 6 of Part VI of the Act commenced on 1 July 2007. In the Second Reading Speech to the Transport Legislation (Further Amendment) Bill, which led to the introduction of the new regime, the Minister for Transport referred to the amendments as providing “a more robust process for accrediting persons” who can drive commercial passenger vehicles. The Minister observed that:-

“... 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.”[38]

[38]Victoria, Parliamentary Debates, Legislative Assembly, 1 June 2006, 1568 (Mr Batchelor, Minister for Transport).

The Act deals with various aspects of transport services, facilities and networks in Victoria. Part VI deals with traffic regulation, registration and licensing. That Part includes provisions about the following matters:

(1) the accreditation of taxi-cab industry participants (Division 4);
(2) the operation and licensing of commercial passenger vehicles (Division 5);
(3)driver accreditation for commercial passenger vehicles and private bus services (Division 6); and

(4) licensing of tow trucks (Division 8).[39]

[39]Division 8 of Part VI has since been repealed: seen section 231 of the Accident Towing Services Act 2007 (Vic), no. 30/2007.

Division 4 of the Act concerns the accreditation of taxi-cab licence holders, taxi-cab operators and providers of taxi-cab network services. The first provision in that Division, section 130, sets out the “[P]urpose of accreditation”:

“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 or provide taxi-cab network services.”

Section 132B provides that (subject to subdivision 3 of Division 4) the licensing authority may approve an application for accreditation if satisfied that the applicant is “suitable to be accredited”.

Division 6 (sections 163-169Z) deals with the accreditation of drivers of commercial passenger vehicles, including taxi-cabs.

Section 165 relevantly provides that it is an offence for a person to drive a commercial passenger vehicle unless that person holds a driver accreditation. The Director is empowered by section 166 of the Act to grant such accreditations. Section 167 enables the Director to require an applicant to pass tests and/or to hold qualifications relating to his or her fitness to drive, medical condition and knowledge of English and Melbourne. Section 168 provides for the term of an accreditation and for its renewal.

Section 169 is central to this appeal. It provides:

“169 Matters to be considered by the Director when issuing or renewing an accreditation
(1)If subsection (2), (3) or (4) does not apply to an applicant for the issue or renewal of a driver accreditation, the Director may grant the application if the Director is satisfied –
(a)that the issuing of the 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.”[40] [emphasis added]

[40]The “application requirements” include those set out in section 166(3) of the Act.

The Director’s power to accredit persons is confined by sub-sections (2), (3) and (4) which provide:

“(2)The Director must not issue or renew a driver accreditation if the Director is aware that the applicant –
(a)does not hold either –
(i) a driver licence or, in certain circumstances, a probationary licence under the Road Safety Act 1986; or …
(b)has been found guilty[41] of a category 1 offence;[42] or
[41]The statutory concept of “guilt” for the purposes of the Act is provided for in section 163 of the Act.
[42]Category 1 offences are defined in section 86 of the Act.
(c)is a person who is subject to –
(i) reporting obligations referred to in section 12(1)(a) of the Working with Children Act 2005; or
(ii) an order referred to in section 12(1)(b) of the Working with Children Act 2005.

(3)The Director must not issue or renew a driver accreditation if the Director is aware that the applicant is the subject of a charge for a category 1 offence or has been found guilty[43] of a category 2 offence[44] 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.[45]
(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[46] of a category 3 offence;[47] or
(b)is the subject to a charge[48] for a category 2 offence or category 3 offence that has not been finally disposed of at the time of considering the application.”

[43]The statutory concept of “guilt” for the purposes of the Act is provided for in section 163 of the Act.

[44]Category 2 offences are defined in section 86 of the Act.

[45]The “public care objective” is set out in section 164 of the Act.

[46]The statutory concept of “guilt” for the purposes of the Act is provided for in section 163 of the Act.

[47]Category 3 offences are defined in section 86 of the Act.

[48]The statutory concepts of “charged” and “not been finally dealt with” are provided for in subsections 163(2)-(3) of the Act.

And, when exercising his discretion under sub-sections (3) and (4), the Director’s task is further defined by sub-sections (5) and (6):

“(5)In making a decision under subsection (3) or (4), the Director may have regard to any matter to which a consideration in section 169C(3)(b) would apply.
(6)The Director must not make a decision under subsection (3) or (4) to issue or renew an accreditation unless the Director is satisfied of the matters set out in subsection (1)(a) to (c).”

The “public care objective” referred to in section 169(1)(a) is set out in section 164(1), in the following terms:

“(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services –
(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 legislative note to s164(1) says that ‘Other vulnerable person include elderly and disabled persons’.]

Section 169O(1)(a) provides that a person affected by a decision of the Director to refuse to issue an accreditation may apply to the Tribunal for a review. Sections 169O(3) and (4) provide that on review the Tribunal must not issue an accreditation unless satisfied:

Ø that the decision is appropriate having regard to the “public care objective”; and

Ø of the matters set out in section 169(1)(b).

As mentioned earlier, the matters set out in section 169(1)(b) are:

“(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.”

I now turn to deal with the submissions.

The Submissions

The Director contended that in determining whether XFJ was “suitable in other respects” the Tribunal was bound to take into account two matters:

(i) community expectations about what kind of people would be suitable for accreditation as taxi drivers; and

(ii) the need to maintain public confidence in the taxi driver accreditation system and the provision of taxi services as part of public transport.[49]

[49]See Appellant’s outline of submissions (25 June 2009) 29 [2].

It was submitted that the Tribunal failed to take these matters into account and in so doing made a legal error.

The ground of failure to take into account a relevant consideration can only be made out if the decision maker failed to take into account a consideration which he or she is bound to take into account in making that decision. As Deane J observed in Sean Investments Pty Ltd v Mackellar:[50]

“In a case such as the present, where relevant considerations are not specified, it is largely for the decision-maker, in the light of matters placed before him by the parties, to determine which matters he regards as relevant and the comparative importance to be accorded to matters which he so regards. The ground of failure to take into account a relevant consideration will only be made good if it is shown that the decision-maker has failed to take into account a consideration which he was, in the circumstances, bound to take into account for there to be a valid exercise of the power to decide.”[51]

[50](1981) 38 ALR 363.

[51]Ibid 375.

The factors which a decision maker is bound to consider in making the decision is determined by construing the statute conferring the discretion, in this case the Act.

As Mason J (with whom Gibbs CJ and Dawson J agreed) said in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (‘Peko-Wallsend’):[52]

“… where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject matter, scope and purpose of the Act.” [53]

[52](1985-1986) 162 CLR 24.

[53]Ibid 40 (Mason J) and 55-56 (Brennan J with whom Deane J was in general agreement). See also Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).

The Act does not expressly state the considerations to be taken into account in determining whether an applicant is “suitable in other respects to provide the service” for which they seek accreditation. Hence the factors which the decision maker is bound to consider must be determined by implication from the subject matter, scope and purpose of the Act.[54]
[54]Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492, 505 (Dixon J).

The submissions put in support of the Director’s contention that the learned Deputy President failed to properly construe section 169(1)(b)(ii), and as a result failed to take account of matters to which he was bound to have regard, can be reduced to four propositions.

(1) The legislative scheme demonstrates that Parliament considered that persons who have committed certain acts will be unable to meet the statutory criteria to be accredited.[55]
[55]Appellant’s outline of submissions (25 June 2009) [36].

(2) Section 169 is to be construed in a way that recognises that whether a person is “suitable in other respects to provide the service” (section 169(1)(b)(ii)) involves considerations which are distinct from those that relate to the “public care objective” (section 169(1)(a)) and from whether the applicant is “technically competent” and “sufficiently fit and healthy” to provide the service (section 169(1)(b)(i)). It was submitted that the words “in other respects” in section 169(1)(b)(ii) were particularly important in this regard.

(3) When considering ‘suitability’ for the purpose of section 169(1)(b)(ii) the focus is on the activity to be performed. In this case the activity (taxi driving) involves direct interaction with members of the public in circumstances where the driver and passenger are not known to each other and are in a confined space. There is also the potential for the service to be provided at any time of the day or night and to one passenger alone.

(4) The legislative context recognises that the ends served by the accreditation process include the provision of a service that meets reasonable community expectations and gives the general community confidence in using public transport. In this context the Director relied on the purpose set out in section 130 and on an extract from the Minister’s second reading speech, which is set out at paragraph 33 of this judgment.

On the basis of these propositions it was submitted that community expectations and the maintenance of community confidence in taxi services were relevant to the question of whether an applicant was “suitable in other respects to provide the service”.

I will deal with each of these propositions in turn but before doing so it is convenient to deal with the submissions of the Victorian Equal Opportunity and Human Rights Commission (‘the Commission’).

The Commission intervened in the proceeding for the purpose of making submissions about the application of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’). There are two relevant Charter obligations to consider:

(i) the obligation imposed by section 38 on the Tribunal, as a public authority,[56] to give proper consideration to human rights; and

(ii) the obligation imposed by section 32 on the Tribunal to interpret the Act in a way that is compatible with human rights, so far as it is possible to do so consistently with the purpose of the Act.

[56]In exercising its review jurisdiction under the Act the Tribunal stands in the shoes of the Director and hence is a ‘public authority’ for the purpose of section 38 of the Charter.

As to section 38, no party sought to impugn the Tribunal’s decision on the basis that it did not give proper consideration to the Charter. In its reasons the Tribunal referred to the submissions made about the Charter and said that its approach to the Act did not involve “any inconsistency” with the Charter. I am satisfied that the Tribunal gave proper consideration to any relevant human right and did not contravene section 38 of the Charter.

The interpretative obligation in section 32(1) of the Charter provides:

“So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.”

The human rights to which section 32(1) refers are those set out in Part 2 of the Charter.[57] The right which the Commission contended is relevant to the current proceedings is that set out in section 8(3):

“Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.”

[57]See section 3 of the Charter.

“Discrimination” in the context of the Charter means discrimination within the meaning of the Equal Opportunity Act 1995 (Vic) on the basis of an attribute set out in section 6 of that Act. Section 6 of the Equal Opportunity Act 1995 (Vic) lists a number of attributes in respect of which discrimination is prohibited including, relevantly, impairment. Discrimination is defined to mean direct or indirect discrimination on the basis of an attribute.

The Commission contended that acceptance of the Director’s interpretation of section 169(1)(b)(ii) of the Act would have the effect of requiring the Tribunal to take into account XFJ’s disability in a way that contravenes the right to equality and non-discrimination in the Charter. It was submitted that the Charter requires that as between two competing constructions the Court must adopt the construction that least limits rights. In this instance the construction that least limits rights is the construction advanced by XFJ, namely that section 169(1)(b)(ii) does not require the asserted relevant considerations to be taken into account.

The hearing of this appeal preceded the judgment of the Court of Appeal in R v Momcilovic[58] which dealt with, among other things, the interpretative obligation in section 32(1) of the Charter. At the request of the parties leave was given for the filing of supplementary written submissions to address the issues raised in Momcilovic.
[58](2010) 265 ALR 751.

In Momcilovic the Court decided that section 32(1) does not create a ‘special’ rule of interpretation[59] but rather forms part of the body of interpretative rules to be applied in ascertaining the meaning of the provision in question. It is a statutory directive obliging courts and tribunals to carry out their task of statutory interpretation in a particular way. Compliance with section 32(1) means exploring all ‘possible’ interpretations of the provision in question and adopting that interpretation which least infringes Charter rights. What is ‘possible’ is determined by the existing framework of interpretive rules, including the common law presumption that fundamental rights and freedoms cannot be abrogated without “a clear expression of unmistakable and unambiguous intention”.[60]
[59]In so doing the Court decided that section 32(1) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the ‘Charter’) had quite a different character to the interpretive obligation in section 3(1) of the Human Rights Act 1998 (UK) which the House of Lords said in Ghaidan v Godin-Mendoza [2004] 2 AC 557, 571 [30] (Lord Nicholls of Birkenhead) required the court where necessary to “depart from the intention of the Parliament which enacted the legislation”.
[60]Coco v R (1994) 179 CLR 427, 437 (Mason CJ, Brennan, Gaudron and McHugh JJ).

In Electrolux Home Products Pty Ltd v Australian Workers’ Union[61] Gleeson CJ explained the rationale for the principle in these terms:

“The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would “overthrow fundamental principles, infringe rights, or depart from the general system of law” without expressing its intention with “irresistible clearness”. In R v Home Secretary; Ex parte Pierson, Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”[62]

[61](2004) 221 CLR 309.

Ibid 329 [21]. See also R v Secretary of State for the Home Department, Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann); cited with approval by Gleeson CJ in Plaintiff 5157/2002 v The Commonwealth (2003) 211 CLR 476, 492 [30]; Kirby J in Daniels Corporation International Pty Ltd v ACCC [2002] 213 CLR 543, 582 and Vickery J in Nolan v MBF Investments Pty Ltd [2009] VSC 244 (Unreported, Vickery J, 18 June 2009) [182].

In Momcilovic the Court considered that section 32(1) gave statutory expression to this presumption:

“What is significant about s 32(1), in our view, is that parliament has embraced and affirmed this presumption, in emphatic terms. It is no longer merely a creature of the common law but is now an expression of the “collective will” of the legislature. Moreover, the rights which the interpretive rule is to promote are those which the Parliament itself has declared, in the Charter.”[63]

[63](2010) 265 ALR 751, 779 [104] (Maxwell P, Ashley and Neave JJA).

The Court went on to say that in circumstances where it is contended that a statutory provision infringed a Charter right the correct methodology is as follows:

Step 1: Ascertain the meaning of the relevant provision by applying section 32(1) of the Charter in conjunction with common law principles of statutory interpretation and the Interpretation of Legislation Act1984 (Vic).

Step 2: Consider whether, so interpreted, the relevant provision breaches a human right protected by the Charter.

Step 3: If so, apply section 7(2) of the Charter to determine whether the limit imposed on the right is justified.

The reasoning in Momcilovic presupposes that at least one of the possible interpretations of a statutory provision infringes a Charter right.[64]
[64]Also see Director of Housing v Sudi [2010] VCAT 328 (Unreported, Bell J, 31 March 2010) [90].

The contention that the interpretation urged by the Director infringed the equality right is not without some complexity.

The Commission contended that in determining the scope of the equality right the approach of the majority of the High Court in Purvis v State of New South Wales(Department of Education and Training)[65] to the identification of an appropriate comparator in relation to disability discrimination, is inappropriate and should not be adopted.
[65](2003) 217 CLR 92 (Gleeson CJ, Gummow, Hayne and Heydon JJ).

Purvis concerned disability discrimination under the Disability Discrimination Act 1992 (Cth) and it was submitted that it is distinguishable on two bases:

(i) Purvis concerned a different statutory regime and one that contained a significant drafting anomaly; and

(ii) interpretation of the Charter requires consideration of general human rights standards and jurisprudence, not simply the application of domestic cases concerning different statutory regimes. International human rights law and comparative jurisprudence supports a different, more flexible, approach to disability discrimination than that adopted by the majority in Purvis.

There is considerable force in the Commission’s submissions about the majority judgments in Purvis in the context of the Charter. It is appropriate that the equality right, like other rights protected by the Charter, should be construed broadly.[66] There is also considerable support in the international jurisprudence for the adoption of a flexible approach to the question of the appropriate comparator in the context of the equality right.[67]
[66]Re an Application under the Major Crimes (Investigative Powers) Act 2004 [2009] VSC 381 (Unreported, Warren CJ, 7 September 2009) [80].
[67]Nova Scotia (Workers’ Compensation Board) v Martin [2003] 2 SCR 504.

However, for reasons which will become apparent it is unnecessary for me to determine these issues as I am not persuaded to adopt the construction of the Act contended for by the Director. A final determination as to the application in the Victorian statutory context of the majority view in Purvis must await an appropriate case. I now turn to deal with the propositions advanced on behalf of the Director.

As to proposition one, the essence of the Director’s submission is that in considering a case such as this the Tribunal was obliged to have regard to the seriousness of the applicant’s past conduct.[68] The fact that the applicant killed his wife, albeit that he was insane at the time, was a relevant consideration in determining whether he was suitable in other respects.[69] It was said that the Tribunal failed to consider this legislative policy.
[68]Transcript of Proceedings, Director of Public Transport v XFJ (Supreme Court of Victoria, Ross J, 19 – 20 November 2009) (“TN”) 135, lines 1-9.
[69]TN 18, lines 30-31, 19 lines 1-7.

In support of these contentions it was argued that because section 169(2)(b) provides that the Director must not issue an accreditation to a person who has been found guilty of a category 1 offence (which includes murder) and section 163(1)(d) provides that a person falls within that category if he or she has been found not guilty of such an offence on the grounds of mental impairment, there is a clear legislative policy that persons who:

(i) have committed the physical elements of a category 1 offence; and

(ii) have been found not guilty on the grounds of insanity;

will not meet the statutory criteria to provide the service and thus to be accredited.

I note that the Director was not suggesting that XFJ must be considered a category 1 offender by the Director such that his application must be refused nor was it said that section 169N (dealing with the Tribunal’s jurisdiction in respect of category 1 offenders) was applicable.

Section 163 expands the concept of “found guilty” to include persons who have in fact been found guilty thereby focusing on the conduct constituting the physical elements of a category 1 offence.

Counsel for XFJ submitted that sections 169(2), (3) and (4) constituted an exhaustive definition of the circumstances in which the Director must refuse an application for accreditation. Counsel also submitted that the only conclusion that could be drawn about the intent of Parliament is that it did not intend a person in the circumstances of XFJ to be treated as a guilty person. Counsel also observed that the concept of “acts constituting the physical elements of a category 1 offence” appears nowhere in the Act.

I generally accept the Director’s argument with respect to the legislative policy underpinning the Act. It seems to me that the Act regards category 1 offenders as being prima facie unsuitable to provide taxi services. The legislative scheme reveals that Parliament intended that it will be more difficult, and indeed not possible at first instance, for people who have engaged in that kind of conduct to secure accreditation to drive taxis. This is evident from section 169(2)(b) which provides that the Director must refuse such applications.

There is also some force in the Director’s contention that for the purposes of the review proceedings XFJ should be regarded in the same manner as a category 1 offender, though for reasons which will become apparent it is unnecessary for me to decide the point. I am not suggesting (and nor is the Director) that the review should have been conducted under section 169N. A person found not guilty by reason of insanity does not satisfy the statutory definition of guilt and so XFJ is not a category 1 offender. Two points support the application of the legislative policy in respect of category 1 offenders to XFJ.

First, the failure in section 163(1)(d) to refer to a not guilty finding under section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act1997 (Vic)[70] was plainly a legislative oversight, which was corrected in 2008.[71] Second, to rely upon the fact that the Act did not expressly refer to the pre 1997 common law regime would be to erect a distinction between the regimes under which persons were found not guilty where there is no distinction in the nature and quality of their physical conduct – namely (relevantly) killing another person but not possessing the necessary mens rea to justify a finding of guilty.
[70]The provision dealing with not guilty by reason of insanity.
[71]See section 9 of the Transport Legislation Amendment (Driver and Industry Standards) Act2008 (Vic).

A consequence of applying the legislative policy contended by the Director to XFJ is that it would be appropriate to assess his application with, as counsel for the Director put it, “a heightened degree of scrutiny” in light of the fact that XFJ fell within a category of persons that Parliament has determined as prima facie unsuitable to be a taxi driver.

It is important to recognise that even if the Director’s submission as to the legislative policy were accepted, it is only a prima facie position. The Act provides for a review to the Tribunal from a mandatory refusal to grant accreditation. It necessarily follows that the legislature clearly contemplated that there would be circumstances in which a category 1 offender would be suitable to be a taxi driver.

As I have noted, the Director contended that the Tribunal failed to consider this legislative policy in that it did not assess XFJ’s application with the “heightened degree of scrutiny” required. I do not agree. It is evident from the Deputy President’s reasons that he did give effect to what the Director contended is the legislative policy and regarded the fact that XFJ had killed his wife as a central consideration. The following extracts from the Deputy President’s reasons illustrate this point:

“… clearly, the events of 1990 raise a very significant safety issue with regard to passengers in a taxi cab that might be driven by XFJ.”[72]

“The next question is the question of public apprehension or discomfort. Since, as XFJs account indicated, his co-workers in other occupations have become aware of the events of 1990, there 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?”[73]

[72]XFJ v Director of Public Transport (Unreported, Victorian Civil and Administrative Tribunal, Deputy President Macnamara, 31 October 2008) [17].

[73]Ibid [20].

It is convenient to deal with the second and third of the Director’s propositions together.

As to the suggested construction of section 169, I accept that the Tribunal must not make a decision to issue an accreditation unless it is satisfied that the decision is appropriate having regard to the public care objective and it is satisfied of the matters set out in section 169(1)(b). There are two paragraphs in section 169(1)(b). The first (section 169(1)(b)(i)) deals with the applicant’s technical competence, fitness and health to undertake the service. The second matter (section 169(1)(b)(ii)) is that the applicant is “suitable in other respects to provide the service” [emphasis added].

The use of the words “other respects” in section 169(1)(b)(ii) and the structure of section 169(1)(b) leads me to conclude the provision is intended to refer to the applicant’s suitability by reference to matters other than technical competence, fitness and health.

I also agree with the Director’s contention that in assessing suitability in the context of section 169(1)(b)(ii) the focus is on the activity to be performed.

It is also relevant that section 169O deals with the Tribunal’s satisfaction in relation to the public care objective and the matters in section 169(1)(b), in separate paragraphs. The structure of section 169O makes it clear that the assessment of whether an applicant is “suitable in other respects” is a distinct task and separate from the question of whether it is appropriate to issue an accreditation having regard to the public care objective.

But the fact that these are two separate tasks does not mean that the considerations which are relevant to the public care objective are necessarily irrelevant to the question of whether an applicant is suitable in other respects. Indeed the Director acknowledged that there is inevitably some commonality in respect of the facts that bear upon each consideration, though each has a different focal point.[74]
[74]Appellant’s reply submissions (6 October 2009) [21].

It seems to me that the matters set out in the public care objective and whether an applicant is “suitable in other respects” both deal with the suitability of an applicant to provide the relevant service. The focus of the public care objective is on matters such as safety, comfort, convenience and honesty; whereas section 169(1)(b)(ii) looks at the broader question of “suitable in other respects”.

The Director submitted that the Tribunal fell into error by conflating the considerations relevant to the public care objective with the considerations relevant to whether a person is “suitable in other respects”. This error is said to be disclosed in paragraph 26 of the Tribunal’s reasons, [75] where the Tribunal saw the two concepts as involving the same considerations.
[75]Set out at paragraph 78 below.

I am not persuaded that there is any substance in this submission. It is apparent from the reasons for the decision that the Tribunal gave separate consideration to the public care objective and to the question of whether XFJ was suitable in other respects. At paragraph 23 the Deputy President says:

“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 section 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. So I put that to one side. This then brings me to the final criterion that needs to be considered, and that is whether he is suitable in other respects to provide the service.” [76] [emphasis added]

[76]XFJ v Director of Public Transport (Unreported, Victorian Civil and Administrative Tribunal, Deputy President Macnamara, 31 October 2008) [23].

It can be clearly seen from this passage that having disposed of the submissions in respect of the public care objective, the learned Deputy President turned to the matters in section 169(1)(d). The matters in section 169(1)(d)(i) had not been raised as a barrier to accreditation and so he put them to one side and turned to the final criterion to be considered – whether XFJ was suitable in other respects to provide the service. It is clear from the structure of the Tribunal’s reasons, and paragraph 23 in particular, that careful consideration was given to each statutory criterion which had to be considered.

In terms of whether XFJ was “suitable in other respects” the learned Deputy President first dealt with a submission put on behalf of the Director to the effect that in deciding the question the Tribunal should take the same general approach that courts and tribunals have taken to the concept of whether a person is a “fit and proper person”. In that context the reasons for decision set out a number of authorities to which Ms McKenzie had referred in her submissions.

On appeal the Director contended that the erroneous conflation of the considerations relevant to the public care objective with considerations relevant to whether a person is “suitable in other respects”, is manifest in paragraph 26 of the reasons. Paragraph 26 states:

“Ms McKenzie then took me to a passage in the judgment of McHugh J in Melbourne v R [(1999)] 198 CLR 1, at paragraphs 33, where his Honour distinguished between character and disposition. And at paragraph 52, where his Honour repudiated the suggestion that a person had a good character merely because he did not have a criminal conviction. It can be seen that these arguments raised the same issues fundamentally as were urged by Ms McKenzie with regard to the public care objective, namely the objective risk that the applicant, XFJ, would engage in further serious violence, and the subjective possibility that members of the community would be apprehensive were he to be their taxi driver …[77] [emphasis added]

[77]Ibid [26].

I am not persuaded that this paragraph discloses any error of the type suggested by the Director. It is apparent from the underlined section that the same issues were raised by counsel for the Director in respect of both the public care objective and the matter in section 169(1)(b)(ii). In the passage quoted the learned Deputy President was simply responding to the submissions put by the Director. There is no error in this.

The fact that the same or similar issues may arise under both the public care objective and the question of suitable in other respects is unremarkable – particularly given the meaning the Director sought to ascribe to the word ‘comfort’ in the context of the public care objective. It will be recalled that before the Tribunal the Director had submitted that ‘comfort’ included a reference to ease of mind. The Director then argued that passengers or potential passengers would not have ease of mind if they were being driven by a person in the situation and with the history of XFJ.

I now turn to proposition four.

The Director contended that because the ends served by the legislative scheme partly relate to the maintenance of public confidence and meeting community expectations, the assessment of whether an applicant is “suitable in other respects” obliged the Tribunal to consider the following matters:

(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.

It was submitted that the only matters considered by the Tribunal on the question of whether XFJ was “suitable in other respects” were whether he was of good character and whether he in fact posed a risk to members of the public. It was argued that in confining its considerations to these matters the Tribunal fell into error as it failed to take into account the effect on public confidence in granting the accreditation and whether the grant would meet community expectations in light of XFJ’s past conduct.

It was common ground that the Tribunal was bound to consider whether XFJ was “suitable in other respects” to be accredited. The central issue is whether the Tribunal correctly decided what that phrase means in the context of the Act and gave consideration to matters it was bound to consider in deciding whether to grant accreditation.

The essence of the Director’s contention is that the question of whether XFJ was “suitable in other respects” to be accredited required the Tribunal to take into account community expectations about what kind of people will be suitable for accreditation as taxi drivers and the impact on public confidence in the accreditation process and the public transport system.[78]
[78]TN 3, lines 11-22. The second element to the Director’s submissions – the alleged failure to have regard to the legislative policy revealed by the Act – is dealt with at paragraphs 72-82.

It was submitted that this contention is supported by the ends served by the legislative scheme, namely the maintenance of public confidence and meeting community expectations. Reliance was placed on the purpose of accreditation set out in section 130 and the use of the verb “accredit” in the Act. It was submitted that in this context “to accredit” means to accredit a person as worthy of public confidence.

I am not persuaded that the Tribunal was bound to take the maintenance of community confidence and meeting community expectations into account in the manner contended by the Director.

It is appropriate to begin with the words of section 169(1)(b)(ii). The plain wording of this provision focuses on the suitability of XFJ to provide the service. It is unlikely that it was intended to require the relevant decision maker to have regard to subjective assessments of matters such as ‘community confidence’.

The words “suitable in other respects” are words of wide import. As counsel for the Director acknowledged: “[T]he concept of ‘suitable’ is not susceptible to easy or closed definition by the substitution of other words”.[79] The very purpose of these words is to give the widest scope for judgment and in that regard are comparable to the expression “fit and proper person”.[80] In my view it would be inconsistent with the purpose of section 169(1)(b)(ii) to adopt an interpretation which would prescribe matters which the Tribunal was bound to take into account. The maintenance of public confidence and the meeting of community expectations are matters which may be taken into account in determining whether an applicant is “suitable in other respects” but I am not persuaded that the Tribunal is bound to take such matters into account.[81]
[79]Appellant’s outline of submissions (25 June 2009) [50].
[80]See Hughes & Vale Propriety Limited v The State of New South Wales (No 2) (1995) 93 CLR 127, 156 (Dixon CJ, McTiernon and Webb JJ).
[81]See Medical Practitioners Board of Victoria v Lal [2009] VSCA 109 (Unreported, Maxwell P, Weinberg JA and Kyrou AJA, 21 May 2009) [63].

The concepts of ‘community expectations’ and ‘public confidence’ are inherently vague and subjective. In her reply submission counsel for the Director made the following additional points about the assessment of community expectations and public confidence:

(1) the decision-maker was not required to ascertain what the actual expectation of the community would be in a given case. It is not envisaged that evidence would be gathered on the subject of the community’s expectations;[82]
[82] Bukvic v Minister for Immigration and Multicultural Affairs (2001) 110 FCR 554, 559 [17] (Finn J).

(2) the decision-maker was required to make his or her own judgment as a matter of opinion. In making that judgment, the decision-maker was being asked to do no more than bring to bear his or her own knowledge and experience;[83]

(3) the drawing of a conclusion by the decision-maker required the exercise of a value judgment;[84]

(4) the assessment ultimately required an impressionistic conclusion about the significance of a range of relevant considerations.[85]

[83]Ibid.

[84]Irving v Minister for Immigration, Local Government and Ethnic Affairs (1996) 68 FCR 422, 428 (Davies J).

[85]Re Darwich and Minister for Immigration and Citizenship (2007) 99 ALD 410, 420 [41] (Senior Member P W Talyor).

The Director acknowledged that ‘community expectations’ and ‘public confidence’ are “concepts involving perceptions, rather than objective, provable facts”[86] and noted that:

“The subjectivity of those assessments means that applicant’s suitability might be measured in a way that some members of the community might consider, in ordinary parlance, to be ‘unfair’ – - for example, because the measurement is not compassionate enough to a particular individual.”[87]

[86]Appellant’s outline of submissions (25 June 2009) [46].

[87]Ibid [50].

The vagueness and subjectivity associated with these concepts tells against the implication that the Tribunal is bound to consider such matters.

Nor do the subject matter, scope and purpose of the Act support the proposition that the Tribunal was bound to take the matters contended for into account. Indeed the legislative context strongly suggests the contrary. The public care objective and the matters in section 169(1)(b)(i) illustrate this point.

By section 169O(3) the Tribunal must not issue a driver accreditation unless satisfied that it is appropriate to do so having regard to the public care objective. The public care objective is set out in section 164. As we have seen, it makes specific reference to the objective that services provided by (relevantly) taxi drivers are provided with safety comfort and convenience to those using the service and are carried out in a manner that is not fraudulent or dishonest.

If the legislature regarded matters such as community expectations and public confidence as matters that decision makers were bound to take into account then it is likely that such matters would have been specifically mentioned in the public care objective given it is central to the accreditation scheme in relation to drivers of commercial passenger vehicles. The Explanatory Memorandum to the bill which inserted the accreditation scheme says:

“The new driver accreditation scheme will be built around a ‘public care objective’ which is primarily concerned with the safety and the comfort, amenity and convenience of the public, especially children and other vulnerable persons. This principle will govern the entire accreditation cycle. In addition, the provisions regarding applications for accreditation and the taking of disciplinary action in relation to accredited drivers will make it very difficult for the most unsuitable persons to perform this important work.”[88]

[88]Explanatory Memorandum, Transport Legislation (Further Amendment) Bill 2006 (Vic) 1. See also in oral argument counsel for the Director conceded that the public care objective is a ‘very core and important component’ of the accreditation scheme in Division 6 of Part VI of the Act. See also TN 23, lines 20-25.

The public care objective makes specific reference to the particular matters which are to be taken into account in deciding applications for driver accreditation. A similar level of specificity is provided in section 169(1)(b)(i). By section 169O(4) the Tribunal must not issue a driver accreditation unless satisfied of the matters set out in section 169(1)(b). The matters referred to in section 169(1)(b)(i) go to the applicant’s technical competence and that he or she is sufficiently fit and healthy to provide the service.

The Act is generally explicit about the matters relevant to the grant of accreditation. In such a context it is unlikely that matters such as community expectations would be left to implication. The specificity of the relevant matters set out in section 169(1)(b)(i) and in the public care objective tell against the implication of particular matters into the general assessment of suitability required by section 169(1)(b)(ii). Had the legislature intended that in assessing suitability for the purpose of section 169(1)(b)(ii) the decision maker was bound to have regard to matters of community confidence and expectations then it would have been a simple matter to have so provided.

In support of the Director’s contention counsel relied on the purpose of accreditation set out in section 130 and the use of the verb “to accredit” in the Act. It was submitted that section 130 is relevant to the proper construction of Division 6 in general and section 169(1) in particular.

Section 130 appears in Division 4 of the Act and is in the following terms:

“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 or provide taxi-cab network services.” [emphasis added]

Division 4 is concerned with the accreditation of taxi cab licence holders, taxi cab operators and providers of taxi cab network services. It is not concerned with the accreditation of taxi cab drivers. The provisions with which we are primarily concerned (section 169 and section 169O) are in Division 6, not Division 4.

Section 130 is expressly confined to accreditation under Division 4. It has no application to Division 6. The confined nature of the provision is reinforced by the reference to “persons [who] hold taxi cab licences, operate taxi cabs or permit them to be operated or provide taxi cab network services”. There is no reference to persons who drive taxi cabs.

Indeed rather than supporting the Director’s contentions section 130 tells against them. The equivalent statement of purpose in Division 6 is the public care objective in section 164(1). Unlike section 130 the public care objective makes no mention of meeting “reasonable community expectations”. Similarly section 228AA of the Act expresses the objective of Division 4A of Part VII in relation to authorised officer management systems of passenger transport companies. Section 228AA is similar (but not the same) terms as the public care objective:

“The objective of this Division is that the authorised officer management systems provided by passenger transport companies, bus companies and the Bus Association Victoria be provided in a manner that promotes the safety, comfort, amenity and convenience of persons using the services provided by the bodies and other persons, particularly children and other vulnerable persons.”

The choice of different formulations in the same Act suggests that the legislature had different objects in mind.[89]
[89]Scott v Commercial Hotel Merbein Pty Ltd [1930] VLR 25.

But even if I am wrong and section 130 is relevant to the construction of section 169(1), I am not persuaded that it supports the Director’s contention.

Section 130 is in two parts – the first states the purpose of accreditation and the second sets out the means by which that purpose is to be given effect (ie. by ensuring that only suitable persons hold the relevant accreditation). The purpose of accreditation is “to facilitate the provision of safe, reliable and efficient taxi-cab services that meet reasonable community expectations”. This is a composite expression in that the reasonable community expectations that are to be met concern safety, reliability and efficiency. The stated purpose is not to meet reasonable community expectations in some global sense but rather to meet community expectations in relation to the specific matters of safety, reliability and efficiency. This section 130 identifies the limits of reasonable public expectations – safety, reliability and efficiency. Such a construction does not support the Director’s submission about the matters which a decision maker is bound to take into account in assessing whether an applicant is suitable in other respects.

Nor does the use of the verb ‘to accredit’ assist the Director. In support of the proposition that ‘to accredit’ in the context of the Act means to accredit a person as worthy of public confidence, the Director referred to the judgment of Isaacs J in Incorporated Law Institute of New South Wales v Meagher.[90]
[90](1909) 9 CLR 655, 681.

The Macquarie Dictionary defines accredit to mean “to furnish (an officially recognised agent) with credentials … to certify as meeting official requirements”. [91] In my view that is the meaning to be given to the verb ‘to accredit’ in the context of the Act.
[91](4^th ed, 2005) 9.

The ordinary meaning of ‘to accredit’ does not suggest that the person being accredited must be worthy of public confidence. Nor does Meagher’s case assist the Director. That case concerned a legal practitioner and it was in that context that Isaacs J said:

“There is therefore a serious responsibility on the Court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential.”[92]

[92](1909) 9 CLR 655, 681.

The context with which we are presently concerned is quite different from the context in Meagher’s case and it is of no assistance.

For the reasons given I am not persuaded that the Tribunal was bound to have regard to the matters of community confidence and expectation to which the Director referred.

But even if I am wrong as to the proper construction of section 169(1)(b)(ii) and the Tribunal was bound to have regard to such matters, I am not persuaded that the learned Deputy President failed to take them into account.

These matters were raised in argument before the Tribunal. In written submissions the Director said:

“… the applicant’s past conduct is relevant to his suitability for accreditation in the light inter alia of community expectations …

Further, the reputation of, and public confidence in, the taxi industry and the Director’s regulation of it, is a relevant factor. If the applicant is accredited it will have the effect of ‘eroding the confidence the community should have’ in relation to the taxi industry. It is not to the point that not all passengers will know of the applicant’s identity or past. The decision of the Tribunal will be publicly available.”[93]

[93]CB 312, [27] and [30].

Further, in oral argument Ms McKenzie submitted:

“… if the applicant is accredited it will have the effect of eroding the confidence the community should have in relation to the taxi industry.”[94]

[94]CB 486.

It is apparent from paragraphs 20-22 of the reasons for decision that the Tribunal took account of questions of public apprehension or discomfort:

“… The next question is the question of public apprehension or discomfort. Since, as XFJs account indicated, his co-workers in other occupations have become aware of the events of 1990, there 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 Section 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 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.”[95] [emphasis added]

[95]XFJ v Director of Public Transport (Unreported, Victorian Civil and Administrative Tribunal, Deputy President Macnamara, 31 October 2008) [20] – [23].

These observations were made in the context of the Deputy President’s consideration of the public care objective; but he considered the same issues in the context of deciding whether XFJ was “suitable in other respects”, for the purpose of section 169(1)(b)(ii). This is made clear in paragraphs 26-27:

“It can be seen that these arguments [ie. the arguments put by the Director as to subsection 169(1)(b)(ii)] raised the same issues fundamentally as were urged by Ms McKenzie with regard to the public care objective, namely the objective risk that the applicant, XFJ, would engage in further serious violence, and the subjective possibility that members of the community would be apprehensive, were he to be their taxi driver …

I cannot see why a man who has engaged in serious violence, albeit in circumstances where he bears no legal responsibility for those matters, may not establish himself as a suitable person, almost 20 years later, to be a taxicab driver. In my view, in the circumstances before me, XFJ has established that he is suitable in the relevant respects.”[96]

[96]Ibid [26] – [27].

It is clear from the above extracts from the learned Deputy President’s reasons that he did in fact have regard to the matters which the Director contended he was bound to consider. The learned Deputy President positively adverted to the issues of suitability under section 169(1)(b)(ii) of the Act, considered the evidence before him and submissions from both parties, and was positively satisfied that XFJ was suitable in other respects to provide the service.

It follows that even if I am wrong about the proper construction of section 169(1) the Director has failed to establish an error of law and the appeal must be dismissed.

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29 July 2010