EB v Director General, Department of Transport

[2002] NSWADT 258

CITATION:	EB -v- Director General, Department of Transport [2002] NSWADT 258
DIVISION:	General Division
PARTIES:	APPLICANT EB RESPONDENT Director General, Department of Transport
FILE NUMBER:	023138
HEARING DATES:	27/09/2002
SUBMISSIONS CLOSED:	09/27/2002
DATE OF DECISION:	12/10/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Criminal Records Act 1991 Passenger Transport Act 1990
CASES CITED:	Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 McDonald v Director General of Social Security (1984) 1 FCR 354 Health Care Complaints Commission v Litchfield matter number CA 40748/96 8 August 1997 aadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Maythisathit v Registrar of Motor Vehicles (1996) ACT 165
REPRESENTATION:	APPLICANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Director-General, Department of Transport to refuse an application by EB for a public passenger vehicle driver's authority is affirrmed.

1 In these reasons, because of the sensitivity of the matter, I have decided not to publish the details which might identify the applicant or his family. The applicant is referred to in these reasons by the pseudonym "EB" and his wife as "Ms EB".

Background

2 On 12 April 2002 Mr EB applied for a public passenger vehicle driver's authority. On 16 April 2002 the Department of Transport ("the Department") issued a Notice to Show Cause in relation to the application and afforded. Mr EB the opportunity to make representations on the issue of whether he is a fit and proper person to hold a public passenger vehicle driver's authority. Mr. EB responded to the Notice to Show Cause and a testimonial was presented on his behalf by his aunt. The decision was subsequently taken by a delegate of the Director General, Department of Transport ("the Director General") to refuse Mr. EB’s application.

3 These proceedings relate to the decision to refuse Mr. EB’s application. Mr. EB was advised of the decision by letter dated 15 May 2002. That letter was signed by Stewart Eldridge, Senior Business Services Officer with the Newcastle Office of the Department of Transport ("the Department"). The reasons for the decision were attached.

4 On 20 May 2002 Mr. EB sought an internal review of the Director General’s decision. He provided several testimonials which attested to his character and his suitability to hold the authority for which he had applied. The internal review was conducted by a delegate of the Director General Ms Lyn Foot, A/Contracts and Operations Manager with the Department. On review the Director General confirmed that the initial decision to refuse Mr. EB’s application was the appropriate course of action. Mr. EB was advised of that decision by letter dated 29 May 2002. Mr. EB brought this application in relation to the internal review decision.

Reviewable decision

5 The reviewable decision is that of the Director General’s delegate confirming the decision to refuse Mr. EB’s application. That decision was advised to Mr. EB by letter dated 29 May 2002.

6 On 27 June 2002 Mr. EB lodged an application with the Tribunal for a review of the Director General's internal review decision. The matter came before the Deputy President of this Tribunal for a Directions Hearing on 22 July 2002. The matter was listed for hearing on 27 September 2002 and proceeded on that day.

Nature of proceedings

7 The Tribunal undertakes a review of the merits of the original decision, with the obligation to reconsider all the material first considered, together with any further relevant material, so as to either confirm the original decision, vary it, or set it aside and substitute another. "The duty of the tribunal is to satisfy itself whether a decision in respect of which an application for review is duly instituted is a decision which in its view was objectively the right one to be made" (Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77).

8 These are not adversarial proceedings in which Mr. EB carries an onus of proof. By making the application, Mr. EB triggers a process of merits review by the Tribunal. Mr. EB does not take on the responsibility of having to prove a case, nor does he cause the Director General to have to prove a case. Mr. EB and the Director General are before the Tribunal as parties by virtue of section 67(2) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

9 Section 63(1) of the ADT Act provides:

"63 Determination of review by Tribunal
(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

10 The Tribunal makes its own decision in place of the Director General’s, and there is no presumption that the decision of the Director General is correct (McDonald v Director General of Social Security (1984) 1 FCR 354 at 357).

11 When there is a fact in issue, the Tribunal must be satisfied as to its existence to the civil standard of proof, that is, on the balance of probabilities (McDonald at 357).

Requirements to be met

12 The issue for this Tribunal is: what is the correct and preferable decision? The Passenger Transport Act 1990 ("the Act") sets out the applicable law. Division 2 in Part 2 of the Act makes provision for Authorities to drive a public passenger vehicle. Section 11(2) of the Act provides:

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

13 Section 12 of the Act states:

"Criteria and procedure
12.(1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them.
(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.
(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations."

14 The decision to be made is whether Mr. EB can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and to have sufficient responsibility and aptitude to drive the vehicle to which the authority relates; in accordance with the conditions under which a public passenger service is operated and in accordance with law and custom such that an authority can attest to that status.

15 It is clear from the correspondence and the Department’s file that the Director General decided that an authority would not attest that Mr. EB is a fit and proper person or that he has sufficient responsibility or aptitude to be the driver of a public passenger vehicle.

Evidence

16 The Department’s file was put in evidence and the Director General relied on the documents contained within that file. The Director General also relied on Mr. EB’s criminal history, and documents contained in files summonsed from the Department of Corrective Services and the District Court Criminal Registry relating to Mr. EB’s convictions, subsequent appeals and imprisonment. The Director General did not call any witnesses in support of his case.

17 Mr. EB gave evidence in support of his case and was subjected to cross-examination by Mr. Wozniak. He also relied on testimonials provided on his behalf. Several testimonials referring to Mr. EB’s character and suitability to hold the authority for which he has applied were lodged with his application for internal review and are contained in the Department’s file. Two witnesses were called to give evidence at the hearing and they were cross-examined by Mr. Wozniak.

Mr. EB’s case and Submissions on his behalf

18 As noted above, Mr. EB gave oral evidence. He also provided an affidavit with respect to his fitness to hold the authority. Two witnesses were called in support of his case - Mr. EB’s father, and Mr James Medgley, a gentleman with whom Mr. EB lived for 13 months after his release from prison.

19 Mr. EB’s evidence is that he has spent three and a half years back in the community since his release from prison. He enjoys a happy family life but has had difficulty in obtaining work. His work has been limited to some carpentry work, lawn mowing and taking orders and collecting payment for Bettaware. His is ineligible to receive social security payments because his wife works. His relaxation time is spent watching videos and fishing with a youth fellowship Minister from his church. Mr. EB attends church regularly and takes part in bible studies.

20 Mr. EB concedes that his past shows him to have been a monster. He stated that he regrets the hurt he has caused by his actions but he can’t undo the past. However, he requested that the Tribunal view him in the present and not the past. It is twelve years since his last offence. He asks that he be viewed through the people who know, live, work and socialise with him. He has a good driving record and has no drug or alcohol problems. Several members of his church are aware of his past. He has obtained testimonials from church leaders. Other testimonials have been provided by bus passengers. Mr. EB states that he has undergone therapy and courses for rehabilitation in the past three and a half years.

21 Mr. EB states that he has no desire to drive school buses or to work on any bus routes involving children. He wishes to drive courtesy buses or long distance buses who’s patrons are 90 - 98% adult. He said that if the Tribunal granted the authority he seeks, he would agree to any restrictions that the Tribunal considered appropriate. The Tribunal should accept that he will not drive where children are involved. He will not put himself in a position of danger and he will protect children by protecting himself.

22 Under cross examination, Mr. EB conceded that if he was granted the authority he seeks he may be in the position where he would have to refuse to carry children waiting at a bus stop. He would then be liable for penalty for refusing a fare. Nevertheless he said he would not carry children even if his employer required that to be done. He argued that he could be considered at low risk of re-offending and would be no danger to passengers. Bus driving is a difficult job. The driver needs to consider not simply the driving but also the traffic, passengers and fares. There would be no time for any child to be in danger if travelling on his bus.

23 Mr Medgley stated that he is a retired Wesley Minister and has known Mr. EB since July 1992 when Mr. EB had attended his church. He is aware of Mr. EB’s past. Mr Medgley visited Mr. EB while he was in prison at Goulburn, Junee and Sydney. Mr. EB lived with Mr Medgley and his wife for about 12 months prior to February 2000. Mr. EB remarried at that time and Mr Medgley conducted the service.

24 Mr Medgley stated that he has observed Mr. EB’s sincere Christian behaviour. He said that Mr. EB is overly conscientious with respect to his restrictions. He is sensitive about where he can go and with whom he can associate. He avoids situations which could result in him falling foul of the law.

25 While he considered that Mr. EB must forever be conscious of his past, Mr Medgley said it is not fair that he be condemned forever. Mr. EB has served his sentence and should be given a chance to participate in the workforce and to develop his self esteem and self worth.

26 Mr EB’s father’s evidence was that Mr. EB is a good person. He said that in the six years he was in prison Mr. EB was brutalized and bashed. He urged the Tribunal to give Mr. EB this opportunity.

The Director General’s case

27 The Director General relied on the facts, evidence and material considered in the Internal Review process. In particular he relied on evidence that Mr. EB was dealt with at Newcastle District Court on 19 February 1993 and Court of Criminal Appeal on 12 April 1994 and has convictions for "Aggravated indecent assault, Attempt sexual intercourse without consent and Sexual intercourse without consent". In relation to his conviction for indecent assault Mr. EB was sentenced to imprisonment for a fixed term of 2 years from 19/2/1993. In relation to his conviction for attempt sexual intercourse Mr. EB was sentenced to imprisonment for a fixed term of 4 years. In relation to his conviction for sexual intercourse Mr. EB was sentenced to imprisonment for a minimum term 6 years add term 3 years. He served six years in prison.

28 Mr. EB had a prior conviction for indecently assaulting his step-daughter in 1988. The later offences occurred despite Mr EB's being on a good behaviour bond and participating in individual and family counselling. The offences occurred regularly over a number of years. His victim was very young and vulnerable when the offences began.

29 The Director General argued that nothing contained in any of the documentation before the Tribunal alters the fact that Mr. EB has been convicted of serious offences of a sexual nature.

30 Pursuant to Section 11 of the Act the purpose of an authority is to attest that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle and to have sufficient responsibility and aptitude to drive a public passenger vehicle in accordance with law and custom. The essence of the Director-General’s case is that he could not attest that that a person convicted of such serious offences as "Indecent assault, Attempt sexual intercourse without consent and Sexual intercourse without consent" is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.

31 In support of the Director-General’s case Mr. Wozniak referred to psychological reports prepared in relation to Mr EB. A report dated 14 March 2000 was prepared by Jamie Sims, a Clinical Psychologist with the Department of Corrective Services Forensic Psychology Services Sex Offenders Programme ("the Sims Report"). The Sims Report concluded that at that time Mr EB could be considered at moderate, rather than low, risk of re-offending. It was recommended that Mr EB should not be involved in work or voluntary activities which involve interaction with children under 16.

32 A report dated 13 August 2002 was prepared by Renee Napier, a Clinical Psychologist ("the Napier Report"). The Napier Report was prepared shortly before the hearing and it is apparent that the author considered these proceedings when preparing the report. The Napier Report concluded:

"Mr EB has made some progress around his tendency to deny, minimise and justify his sexual exploitative behaviour. He now reports that he takes responsibility for his actions and understands the negative consequences for his victim.
However there are still strong indications that Mr EB continues with dishonest tendencies. He strongly maintains in testing that he no longer has any interest in sex, with children or otherwise. This is highly unlikely and is strongly indicative of denial and "faking change." He avoided being completely honest in interview failed to disclose significant aspects of his sexual behaviour.
Mr EB's scores on the SORAG indicate a fairly low probability of recidivism. This rate is attributable largely to his increasing age, the close relationship he had with his victim and his personal stability. These positive factors are balanced against his failure to comply with his suspended sentence conditions and recommitting the same offence with the same victim. On balance it would seem unlikely that Mr EB would change his offending behaviour and move to victims outside his family or those in close regular contact. Given the limitations mentioned previously, however, it would seem to be very important to keep Mr EB removed from close and regular contact with children.
If it were possible to issue a limited bus driving licence that only allowed Mr EB to drive adults, this would seem like a reasonable proposition. However, if a bus driving licence allows cart blanch access to all buses, then Mr EB would be allowed to drive school buses. This would be a very dangerous situation, which I would strongly advise against."

33 Mr. Wozniak argued that these proceedings are not about imposing further penalty on Mr EB. The issue under consideration is the protection of the public. The appropriate test is whether a member of the public knowing of Mr EB 's criminal record and what he has done to rehabilitate himself, would object to Mr EB as the driver of the bus.

34 Mr. Wozniak argued that it is not appropriate to grant Mr EB’s application because the authority sought would allow him to drive buses carrying school children. Mr EB has been convicted of serious sex offences. Pursuant to the Criminal Records Act 1991, convictions for sexual offences are not capable of becoming spent in accordance with that Act. Mr. Wozniak referred to the Child Protection (Prohibited Employment) Act 1998 which provides that a person convicted of a serious sex offence is prohibited from undertaking employment on school buses. Because his convictions can never be spent, Mr EB can never drive school buses.

35 Mr. Wozniak further argued that it is not appropriate to grant the authority subject to conditions. He referred to the NSW Court of Appeal decision in Health Care Complaints Commission v Litchfield matter number CA 40748/96 8 August 1997 as authority for the principle that if it is necessary to impose a condition on the grant of an authority then the imposition of the conditions demonstrates that the person who is the subject of the conditions is not fit to hold the authority.

36 Mr. Wozniak urged the Tribunal to conclude that Mr EB cannot be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. He therefore should not be permitted to hold an unrestricted authority and that it is not appropriate to permit him to hold a conditional authority.

Findings

37 I agree that the principal issue for determination is whether Mr EB can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. The Department has identified a number of convictions. Mr. EB must show that in spite of that history he enjoys a good reputation. Mr. EB gave evidence as to his reputation but his reputation is best established by evidence of others, and by inferences from positions he might hold in the community. To that end, he has produced a number of testimonials that attest to his reputation and character. Mr. EB’s father and Mr Medgley appeared and gave evidence to similar effect.

38 Mr. EB does not fail to be of good repute simply because of convictions. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Deputy President of this Tribunal made it clear at paragraphs 14 and 15 that an assessment of repute is a matter for the Tribunal, weighing all the evidence. All the circumstances of the case must be taken into account in assessing a person's suitability to obtain or retain an authority.

39 Repute is what is thought by others. A person's reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession: Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at page 393.

40 Whether a person's history is known in the community will be a factor in assessing what weight to give to the evidence of repute. A positive estimation in spite of knowledge of a blemished history would ordinarily weigh in favour of the person.

41 A witness's opinion of Mr. EB may be accepted as evidence of his repute, although the weight to be given to that evidence will depend on the circumstances in which the witness formed the opinion. Several of the testimonials make reference to the witness’s knowledge of the fact that Mr. EB had spent time in prison but they do not indicate whether they were aware of the circumstances which lead to his imprisonment. Nor do they make any direct reference to these proceedings. Notwithstanding that fact, it is probable that Ms EB, Mr EB’s father, Pastor Chris Ruble, Pastor Hugh F Roose, Ms Miriam Medgley, and Mr EB’s Aunt have some degree of knowledge of those circumstances. It is also probable that Mr. Kevin Wyborn and Mr. Richie Hayne were aware that Mr. EB was seeking to obtain a driver’s authority, but there is nothing to suggest that they are aware of his past. In my view, no weight can be given to either of those two testimonials. Nevertheless, I am satisfied that most of the testimonials can be seen as positive estimations in spite of some knowledge of Mr. EB’s blemished history. It follows that some weight can be given to those testimonials in assessing Mr. EB’s reputation.

42 I agree with Mr. Wozniak’s argument that these proceedings are not about imposing further penalty on Mr EB. The issue under consideration is the protection of the public. The appropriate test is that defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the President applied the test in respect of a person being of fit and proper character to hold a taxi driver's authority. In my view, the test is equally applicable with respect to a person being of fit and proper character to hold a public passenger vehicle driver's authority. In Maythisathit the test as was stated to be:

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

43 I also agree that in the present circumstances that test can appropriately applied with reference to the relevant member of the public travelling in a passenger vehicle driven by Mr. EB. The relevant question is therefore whether the relevant member of the public, knowing of Mr. EB's record, would object to him as the driver of the bus? That question must be answered in light of the whole of the circumstances of the matter.

44 Of most significance, in my opinion, are the views expressed in Napier Report that if a bus driving licence allows cart blanch access to all buses, then Mr EB would be allowed to drive school buses. This would be a very dangerous situation and it was strongly advised against.

45 I accept that if it were possible to issue a limited authority that only allowed Mr EB to drive adults, this would be a reasonable proposition. However, in my opinion, that is not a practical option. It is unrealistic to expect that Mr EB could be monitored to ensure that he did not carry school children on any bus he was driving. It is also unrealistic to expect that he could avoid doing so. I do not accept that it is practicable to issue Mr EB with a conditional authority that would restrict him to carrying adults.

46 I am also persuaded by the views expressed by the NSW Court of Appeal decision in Health Care Complaints Commission v Litchfield to the effect that if it is necessary to impose a condition on the grant of an authority then the need to impose those conditions would demonstrate that Mr EB is not fit to hold the authority.

47 It follows that on the evidence before me, I cannot be satisfied that Mr. EB is a fit and proper person to be the driver of a public passenger vehicle. It also follows in my view that the correct and preferable decision is to refuse his application for a driver's authority. Accordingly I affirm the Director General's decision to refuse Mr. EB’s application.

Orders

48 The decision of the Director General, Department of Transport to refuse an application by EB for a public passenger vehicle driver's authority is affirmed.