El Hayek v Chief Executive of Transport and Main Roads

[2018] QCAT 457

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457

PARTIES:

NAKHLE EL HAYEK

(applicant)

v

CHIEF EXECUTIVE OF TRANSPORT AND MAIN ROADS

(first respondent)

CHIEF EXECUTIVE (EMPLOYMENT SCREENING), DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL

(second respondent)

APPLICATION NO/S:

GAR014-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

Date of orders 5 September 2018

Reasons delivered 30 October 2018

HEARING DATE:

26 July 2018

HEARD AT:

Cairns

DECISION OF:

Member Krebs

ORDERS:

1.  The decision of the Chief Executive of the Department of Transport and Main Roads to refuse the Applicant’s driver authorisation is set aside.

2.  The following decision is substituted: That an exceptional case exists and that it would not harm the best interest of children for the Chief Executive to grant the Applicant a driver’s authorisation and that the Department of Transport and Main Roads is to grant the Applicant a driver’s authorisation forthwith.

CATCHWORDS:

TRAFFIC    LAW    –   LICENSING OF DRIVERS –

QUEENSLAND – GENERALLY – driver disqualifying offence – offence involving children – exceptional case – jurisdiction of QCAT in reviewing decisions of exceptional case where offences involved children – reputation of public passenger transport – criminal history where lapse of time from commission of offence

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 24, s 66, s 90

Transport Operations (Passenger Transport) Act 1994 (Qld), s 23, s 28B, s 33A, s 102, s 103, s 104

Working with Children (Risk Management and Screening) Act 2000 (Qld)

Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR
336

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

First Respondent:

D Zaper, for the Department of Transport and Main Roads

Second Respondent:

A Skipper, legal counsel of the Department of Justice and Attorney General

REASONS FOR DECISION

1. This is an application for review of a decision made by the First Respondent, the Chief Executive of the Department of Transport and Main Roads (‘TMR’), to refuse to issue a Drivers Authorisation under the Transport Operations (Passenger Transport) Act 1994 (Qld) (‘TO(PT)Act’), to the Applicant Mr El Hayek. Mr El Hayek needs the Drivers Authorisation so that he can drive public passenger vehicles such as Taxis and Ubers.

2. The basis of the refusal by TMR is the fact that, due to Mr El Hayek’s criminal history, there are convictions for armed robbery and a child related offence that were committed in NSW in 2000 when Mr El Hayek was 20 years old. Under the legislation, the TMR must refuse to grant a Drivers Authorisation unless an exceptional case exists, and since Mr El Hayek’s criminal history involved a child related offence, the decision of whether an exceptional case exists is referred to the Second Respondent, the Chief Executive (Employment Screening), Department of Justice and Attorney General (‘DJAG’). By operation of section 28B(6) of the TO(PT) Act, a decision on this issue by DJAG is binding on TMR. In this case, DJAG did not find that an exceptional case existed and hence this decision was binding on TMR who then refused to grant Mr El Hayek a Drivers Authorisation. After an internal review, Mr El Hayek has appealed this decision to QCAT.

3. Under the TO(PT) Act section 28B, the chief executive of TMR must refuse to grant a Drivers Authorisation where a person has been convicted of a category B driver disqualifying offence unless the person demonstrates to the chief executive satisfaction that an exceptional case exists. However, in this case, the matter of deciding if an exceptional case exists does not rest with the chief executive of TMR alone, because one of the offences included a serious and disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 (Qld), TMR must refer the question of whether an exceptional case exists to DJAG, which is the

entity which has responsibility under the Working with Children Act. A decision by DJAG on this question is binding on TMR.

Jurisdiction

1. This is a matter where the Tribunal is exercising its review jurisdiction under section 19 of the Queensland Civil and Administrative Review Tribunal Act 2009 (Qld) (‘QCAT Act’). In exercising its review function under section 20 of the QCAT Act, the Tribunal is required to produce the correct and preferable decision by way of a fresh hearing on the merits. In a matter such as this, the tribunal can confirm or amend the decision or set aside the decision and substitute its own decision. In effect, the tribunal stands in the shoes of the original decision maker when making a decision. In this case, the Tribunal is standing in the shoes of both TMR and DJAG in reviewing their decisions.

2. A question is raised that if the TMR under section 28B of the TO(PT) Act is bound by the decision of DJAG on the question of whether an exceptional case exists, is the Tribunal also bound by that decision since in effect the Tribunal is standing in the shoes of TMR? DJAG submits that this is the case, and accordingly, they submit that the only decision the Tribunal can make in this case is to confirm the decision of TMR in refusing to grant the Driver’s Authorisation.

3. I do not accept that this is the case. While it may be the case that the decision of DJAG is binding on TMR by operation of section 28B of the TO(PT) Act, there is no such provision which clearly binds the Tribunal on this issue when performing its review function under the Act.

4. Another reason for not accepting that QCAT does not have jurisdiction is the fact that section 103 of the TO(PT) Act provides that the Applicant can apply to QCAT for a review of the review decision. Furthermore, section 104 of the TO(PT) Act provides that DJAG is a party to the QCAT proceedings if a disqualifying offence involving a child is concerned. It would seem that section 104 would not be necessary if the DJAG decision on whether an exceptional case exists was final and binding on the Tribunal.

5. In this case, I find that in the absence of a clear and plain intention in the legislation to exclude the Tribunal from reviewing the question of whether an exceptional case exists, that the Tribunal does have the power to review the decision of DJAG on this question and hence the resulting decision of TMR to refuse the issue of a Drivers Authorisation to the Applicant.

6. The Tribunal has proceeded on the basis that it is reviewing a decision of both TMR and DJAG in the issue of the Drivers Authorisation to Mr El Hayek.

The hearing

1. This matter proceeded as a hearing.

2. The Applicant and his witness Ms Melanie Kelleher both gave evidence and were cross-examined by Ms Skipper for DJAG. The Applicant also relied upon material filed with the Tribunal which included personal references from friends, family and employers as well as reports including risk assessment reports from the NSW Department of Corrective services.

1. Both TMR and DJAG did not call any witnesses, and relied upon the documents and submissions filed with the Tribunal.

2. There was an application under section 66 of the QCAT Act for a non-publication order by Mr El Hayek but the application was not pressed at the hearing and the application was refused and the matter was heard in public pursuant to section 90 of the QCAT Act.

3. The criminal history and other documents filed with the Tribunal show that Mr El Hayek was convicted of two counts of armed robbery and one count of sexual intercourse with a person over 14 years but under 16 years in the Sydney District Court in NSW. The offences were all committed in one week of July 2000. Mr El Hayek was sentenced to full-time custody and was released from prison in July 2008 after serving 5 years and 8 months in gaol. Prior to these offences, Mr El Hayek had no criminal history and since his release from gaol has had no criminal convictions recorded.

4. The Applicant Mr El Hayek gave evidence that he was born on 1 December 1979 and is currently 38 years old. He came to Australia as a young child with his family and grew up in Western Sydney in the suburbs of Guildford and Granville. He left school part way through year 12 to commence work.

5. Regarding the offences, Mr El Hayek stated that he was 20 years of age at the time; fell into what he called ‘the party scene’ of nightclubs and the bad company of the Middle Eastern criminal gangs and started to use illicit drugs.

6. This all came to a head during a 6-day period from 22 to 28 July 2000 when the offences were committed. Mr El Hayek and the other two older co-offenders committed the armed robbery offences, which involved the use of a firearm, and the sexual offence involved a child aged 15 years and 9 months in a hotel room in Parramatta and the use of illicit drugs.

7. Mr El Hayek and the co-offenders were arrested by Police a short time later. After a trial in the Sydney District Court, Mr El Hayek was sentenced to full-time imprisonment on 8 November 2002 and was granted early release from prison for good behaviour in July 2008.

8. Prior to this, Mr El Hayek had no criminal history and on sentencing, Judge Solomon DCJ said that the offences were out of character for Mr El Hayek.

9. During his time in custody, Mr El Hayek was a model prisoner with the prison authorities appointing him to be a Manager, Industry Clerk within the prison system which is a position of trust. It was during this time that he stopped using drugs and has not used them since. He also successfully completed various vocational courses.

10. After his release from prison, Mr El Hayek found employment in a number of positions such as a Restaurant Manager, Real Estate Manager, a security guard and a local laws officer with the council.

11. He was also granted, a general security and an aviation security licences from the appropriate authorities all of whom were aware of his criminal history.

1. It is now over 10 years since Mr El Hayek was released from gaol and some 18 years since he committed the offences. He has not committed any criminal offence since his release and he has a good driving record.

2. In his evidence, Mr El Hayek stated that he is now older and wiser and avoids trouble at all costs. When cross-examined about the offences, he said that he is remorseful about the impact of the offences. He said that he has turned his life around and does not associate with the people from his past. He stated that he was the youngest of the three co-offenders at the time was easily led and was quite fearful of them. This he said affected his co-operation with the authorities after his arrest. He said that during this time, people were being killed if they did not do what they were told to do by gang members or if it was thought that they were co-operating with the Police.

3. Regarding the offence of sexual intercourse with a child under 16 years, Mr El Hayek said that the child was there of her own free will. He thought that she was the same age as her friend who he knew to be 17 years old. The child he now knows was 15 years and 9 months old at the time of the offence. The matter went to trial which resulted in a hung jury. Before the second trial was to commence, Mr El Hayek, upon advice, instructed his lawyers to enter a guilty plea to the indictment. He was convicted and sentenced initially to 2 years and 6 months imprisonment that was reduced on appeal to 2 years imprisonment.

4. Mr El Hayek called Ms Melanie Kelleher as a witness in the Applicant’s case. She gave evidence that she first met Mr El Hayek in 2014 when they were both working at the store called DFS Gallerie in Cairns where he was a security guard. They were in a personal relationship for some time, however they are now just friends. Ms Kelleher has two daughters now aged 11 and 18 years. She described Mr El Hayek as a gentleman and a good role model for her children. She said that he was very much anti-drugs and a person she trusts. She was aware of his criminal history and stated that he very much keeps to himself and avoids any trouble.

5. Both Mr El Hayek and Ms Kelleher came across as credible and truthful witnesses. In particular, Mr El Hayek at times was somewhat reluctant to discuss the offences, no doubt due to the shame and embarrassment that he now feels. Having observed Mr El Hayek in giving evidence, I am satisfied that he has left his offending past well behind him. With the passage of time, Mr El Hayek has demonstrated that he can live a productive and lawful life and avoids any trouble. Mr El Hayek also said that with his history he has to be very careful to avoid any infraction of the law.

Exceptional case

1. Having been convicted of a category B driver disqualifying offence, it is for Mr El Hayek to convince the Tribunal on the balance of probabilities that an exceptional case exists. That is, that the Tribunal must be satisfied on the balance of probabilities, bearing in mind the gravity of the consequences involved, that there is an exceptional case, in which it would not harm the best interests of children for Mr El Hayek to be granted a Driver Authorisation (Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.)

2. The term ‘exceptional case’ as used in section 28 B(2) of the TO(PT) Act is not defined in the legislation as such.

1. In the case of Commissioner for Children and Young People and Child Guardian v Maher & Anor [2004] QCA 492, Phillippides J held at [34]:

   I would endorse the approach of Fullagar J in Re Imperial Chemical Industries Ltd Patent Extension Petitions [1983] VicRpl; [1983] VR 1, in adopting the warning of Luxmore J in Perry and Browns Patents (1930) 48 RPC 200, that “It would be most unwise to lay down any general rule with regard to what is an exceptional case […] All these matters are matters of discretion.” (emphasis added)

I do not consider that the tribunal proceeded on the basis of any error as to what was required as a matter of law to be demonstrated by way of exceptional case under the Act (Maher’s case).

1. Maher’s case also accepted the approach of what was then the Children Services Tribunal in considering relevant risk and protective factors in deciding whether a particular case is exceptional.

2. Applying the same approach in this case, the Tribunal finds the following:

Risk factors:

(a)The Applicant’s offending involved serious criminal offences, which included the use of a firearm, and a sexual offence against a child.

(b)The Applicant’s offending involved providing the child with illicit drugs.

(c)The Applicant was sentenced to a period of full-time imprisonment.

Protective factors:

(a)The Applicant has not committed any offence since his release from gaol over 10 years ago.

(b)The Applicant has a good driving record.

(c)Prior to the offences in July 2000, the Applicant had no criminal history.

(d)The offences were committed during a brief 6-day period, which the sentencing Judge said were out of character for the Applicant.

(e)The Applicant was a relatively young man (20 years old) at the time the offences were committed, and was in the company of older, more influential co- offenders.

(f)The Applicant whilst in custody proved to be a model prisoner and was appointed to a position of trust within the prison system and undertook courses and counselling to further his rehabilitation.

(g)The Applicant’s release report in March 2007 states that he is at low risk of re- offending and has good prospects of rehabilitation.

(h)The Applicant has obtained security and other licences, including an aviation security clearance from the appropriate authorities who were aware of his criminal history.

(i)The Applicant has been in full-time employment since being released from custody including being employed in positions of trust.

(j)The Applicant has the support of family and friends.

(k)The Applicant acknowledges that his offending was serious, however he states he has through his own efforts and hard work has turned his life around and wants to live a law-abiding life.

(l)The Applicant states that he wants a driver authorisation so that he can drive taxis or Uber for the general public, and not for any particular purpose to do with children.

1. Taking all these matters into consideration, and the paramount principle in section 33A of the TO(PT) Act that, when it comes to the issue of driver authorisation, children and other vulnerable members of the community must be protected, the Tribunal finds that an exceptional case does exist and that Mr El Hayek should be granted a driver authorisation.

2. The Second Respondent submits that the fact that Mr El Hayek has kept out of trouble and is now living a law-abiding life after release from gaol is not an exceptional case, but what the community expects. In general, this is true. However, Mr El Hayek has demonstrated a determination to get his life back on track by being a productive member of the community in a way, which in my opinion exceeds what the community would expect from a person with Mr El Hayek’s history.

Reputation of public passenger transport

1. Another matter of consideration was whether in the circumstances, that it would damage the reputation of public passenger transport if Mr El Hayek was to be granted a driver authorisation as set out in section 23(3) of the TO(PT) Act.

2. Apart from his criminal history, there is no other reason submitted to the Tribunal of how the grant of a driver authorisation to Mr El Hayek could damage the reputation of public passenger transport. He has a good driving record and apart from his criminal history, there is no suggestion that his behaviour or any other factor would bring the reputation of public passenger transport into disrepute.

3. It would seem remarkable in the circumstances that Mr El Hayek with his history, can obtain authorisation as a security guard, local laws officer and obtain an aviation security licence as well as hold positions of responsibility and trust, but could not get an authorisation to drive a taxi or Uber.

4. Taking into consideration the matters above, and with the passage of time since committing the offences, the Tribunal finds that it would not damage the reputation of public passenger transport if Mr El Hayek were granted a driver authorisation.

Conclusion

1. I am satisfied on the evidence and on the material before the Tribunal that Mr El Hayek has demonstrated that his is an exceptional case and that the correct and preferable decision is to grant a driver authorisation to him.