Fletcher v Chief Executive, Department of Transport and Main Roads
[2011] QCAT 201
•5 May 2011
| CITATION: | Fletcher v Chief Executive, Department of Transport and Main Roads [2011] QCAT 201 |
| PARTIES: | Mr Gareth David Charles Fletcher |
| v | |
| Chief Executive, Department of Transport and Main Roads |
| APPLICATION NUMBER: | GAR220-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 29 November 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Bridget Cullen Mandikos, Member |
| DELIVERED ON: | 5 May 2011 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | [1] The decision of the Department cancelling Mr Fletcher’s Queensland driver’s licence is set aside. [2] Pursuant to s 24(1)(c) of the QCAT Act, the Department is invited to reconsider its 3 June 2010 decision of the Respondent, reconfirming its 5 May 2010 decision cancelling the Applicant’s Queensland driver’s licence. In reconsidering its decision, the Department must consider the discretion afforded to it by the Drivers Licensing Regulations, in line with the considerations outlined in these reasons. |
| CATCHWORDS: | REVIEW OF ADMINISTRATIVE DECISION – Department of Transport – Cancellation of driver’s licence – interstate DUI offence – Department has discretion to consider private interests balanced against public interests – Department’s failure to consider its discretion in making decision amounts to legal error Transport Operations (Road Use Management) Act 1995 (Qld), s 87 Road Safety Act 1986 (Vic), s 89A Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 Attorney-General (NSW) v Quin (1990) 170 CLR 1 DPP v Croaker [2001] VSC 342 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Gareth David Charles Fletcher represented by Ms Carol Fletcher, Solicitor |
| RESPONDENT: | Chief Executive, Department of Transport and Main Roads represented by LC Ling, Crown Solicitor |
REASONS FOR DECISION
Background Summary
The Applicant, Mr Gareth Charles Fletcher (“Mr Fletcher”) seeks to review a decision made on the 3rd June 2010 by the Respondent, the Chief Executive, Department of Transport and Main Roads (“the Department”), cancelling Mr Fletcher’s Queensland driver’s licence effective 11 May 2010.
The cancellation arose out of events that transpired on the evening of 24 January 2010, in Melbourne. Having attended the Australian Open Tennis Championships, Mr Fletcher was pulled over around 10.00 pm whilst driving home, for a random breath test (“RBT”). The resulting RBT reading was .071, following which Mr Fletcher received a Victorian Traffic Infringement Notice. There were no passengers in Mr Fletcher’s car, nor were there any other offences involved. Mr Fletcher was disqualified from driving in Victoria for 6 months from 22 February 2010. However, as Mr Fletcher did not have a Victorian driver’s licence, there was no licence for the Victorian authorities to cancel.
On 29 March 2010, the Department issued a show cause notice to Mr Fletcher as to why his Queensland licence should not be cancelled, having received information from the Victorian authorities relating to the events that transpired there. Thereafter, on 5 May 2010, the Department made the decision to cancel Mr Fletcher’s Queensland driver’s licence, effective from 11 May 2010.
Mr Fletcher requested reconsideration of the Department’s 5 May 2010 decision. On 3 June 2010, the Department reconfirmed its 5 May 2010 decision, which Mr Fletcher now seeks review of.
Legal Framework
The Department’s reconsidered decision of 3 June 2010 is a decision that is reviewable by QCAT: s 38 Transport Operations (Road Use Management – Driver Licensing) Regulation 1999 (Qld) (repealed reprint 06D) (“Driver Licensing Regulations”).
When considering a reviewable decision, QCAT has the following functions, as set out in s 24 of the Queensland Civil and Administrative Tribunal Act 2009 (“QCAT Act”):
24 Functions for review jurisdiction
(1) In a proceeding for a review of a reviewable decision, the tribunal may--(a) confirm or amend the decision; or
(b) set aside the decision and substitute its own decision; or
(c) set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.
(2) The tribunal's decision under subsection (1)(a) or (b) for a reviewable decision--
(a) is taken to be a decision of the decision-maker for the reviewable decision except for the tribunal's review jurisdiction or an appeal under part 8; and
(b) subject to any contrary order of the tribunal, has effect from when the reviewable decision takes or took effect.
(3) The tribunal may make, to the chief executive of the entity in which the reviewable decision was made, written recommendations about the policies, practices and procedures applying to reviewable decisions of the same kind.
(4) If the tribunal makes written recommendations under subsection (3) and the chief executive is not the decision-maker for the reviewable decision, the tribunal must give a copy of the recommendations to the decision-maker.
(5) In this section--
chief executive includes chief executive officer.
The Driver Licensing Regulations contain several considerations that pertain to the cancellation of a Queensland driver’s license. Relevantly, s 32(d) provides that grounds for amending, suspending or cancelling a license exist if:
the licensee has been disqualified from holding or obtaining a driver licence in another State or another country.
The Department relies upon s 32(d) in support of its cancelling Mr Fletcher’s Queensland license, arguing that his Victorian license disqualification provides grounds. It was not in dispute that these grounds for cancellation existed.
The only real question in this review before QCAT is the extent to which the Department had discretion in deciding whether to issue a show cause notice pursuant to s 33(1) of the Driver Licensing Regulations, in circumstances where it was clear that a ground for amending, suspending or cancelling a license existed. If the Department had discretion, Mr Fletcher argues that it should have been exercised in his favour, in deciding not to issue a show cause notice to him.
[10] Section 33(1) of the Driver Licensing Regulations is drafted in the following terms (my emphasis added):
If the chief executive considers a ground exists to amend, suspend or cancel a person’s Queensland driver licence (the proposed action), the chief executive may give the person a written notice (the show cause notice).
[11] In circumstances where a show cause notice is issued, s 33(4) of the Driver Licensing Regulations then provides that (my emphasis added):
If, after considering any personal or written representations made within the time specified or allowed, the chief executive still considers a ground exists to take the proposed action, the chief executive may –
amend, suspend or cancel the licence.
[12] Mr Fletcher argues that inclusion of the term “may” within the sections of the Driver Licensing Regulations outlined above evinces intent on the part of the Legislature to afford the Department the discretion not to issue a show cause notice in the first instance, or amend, suspend or cancel the license.
The Drivers Licensing Regulations provide the Department with discretion
[13] I agree with Mr Fletcher that the use of the word “may” as opposed to “must” should be interpreted to mean that the Department has the discretion to take no action against a driver, in appropriate circumstances.
[14] This existence of this discretion is made quite clear by the applicable provisions in the Acts Interpretation Act 1954 (Qld):
Section 32CA Meaning of may and must etc.
(1) In an Act, the word may, or a similar word or expression, used in relation to a power indicates that the power may be exercised or not exercised, at discretion.
(2) In an Act, the word must, or a similar word or expression, used in relation to a power indicates that the power is required to be exercised.
(3) To remove any doubt, it is declared that this section applies to an Act passed after 1 January 1992 despite any presumption or rule of interpretation.
The Department did not consider whether it should exercise its discretion
[15] Having heard the evidence of the Department at the hearing, it was clear that the Department did not consider that it had any discretion to do anything other than cancel Mr Fletcher’s Queensland driver’s licence.
[16] Mr Eddie Ohl, the Department officer responsible for the 3 June 2010 decision reconfirming the 5 May 2010 decision by the Department, gave evidence at the hearing. Mr Ohl was straightforward in admitting that it was his view that he did not have any discretion in this matter. Mr Fletcher also makes submissions that Mr Ohl did not have all of the relevant material in front of him when he reconsidered the Department’s decision. However, having heard Mr Ohl’s evidence, even if he did have all of Mr Fletcher’s submissions at hand, it appears that his decision would have been the same. Mr Ohl also gave evidence that he had never, in considering Applications for Reconsideration of the same nature as Mr Fletcher’s, overturned or changed a decision to cancel a licence resulting from an interstate disqualification.
[17] In making decisions of this nature, Mr Ohl explained that there were important public policy considerations, including the Department’s responsibilities to improve the safety of the transport system and to publicly address issues of drink driving. In view of these responsibilities, the Department says that reinstatement of Mr Fletcher’s licence is not in the public interest.
[18] Post hearing, the Department has submitted that a further consideration is the Department’s agreement to abide by the “Administrative Guideline-National Driver Licensing and Heavy Vehicle Registration Schemes” cross-jurisdictional agreement. Paragraph 1.17.1.2 of that agreement “Receiving offence information from another authority” states:
If the authority receives information about an offence committed from another driver licensing authority, it must take the action it would have taken if the offence had been committed in this jurisdiction.
[19] The Department has provided me with a hyperlink only to the policy, and has made no further submissions about how the existence of this policy might influence the exercise of discretion by the Department. Regardless, the existence of this policy does not change the clear legislative discretion afforded to the Department by the Driver Licensing Regulations. Any discretion that has been enshrined in subordinate legislation, in the form of the Regulation must trump mere policy. The policy, in turn, may be considered by the Department in the course of deciding whether public interests outweigh private interests, such that its discretion should or should not be exercised.
[20] In Compton v Deputy Commissioner Ian Stewart Queensland Police Service [2010] QCAT 384 (“Compton”), His Honour Justice Thomas discussed the impact of a policy circular relating to drink driving by police officers to the administrative decision making process in police misconduct matters. Although he went on to find the policy circular unobjectionable, Justice Thomas cited the decisions in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, and Attorney-General (NSW) v Quin (1990) 170 CLR 1, per Brennan J at 37, in support of his finding that QCAT “has the right, if it chooses to do so, of declining to follow policy directives of this nature.” Justice Thomas went on to say that:
However there are powerful practical reasons why courts and tribunals are very cautious about intervening in policy formulation. These reasons include the difficulty of policy review in an adjudicative setting, especially an adversarial one. In the present case I think the content of the matrix is completely acceptable, although I consider this would not have been the case had the policy purported to preclude decision-makers from considering each case on its individual merits.
[21] In summary, Compton can be said to support the principles that in administrative review matters, organisational policies are not binding on QCAT and will not be accepted by QCAT without justification. Minimally, the Department should be expected to make submissions that support an argument that the policy it seeks to apply is reasonable and lawful and should be taken into account by QCAT.
[22] I am also concerned that in this case, the “Administrative Guideline-National Driver Licensing and Heavy Vehicle Registration Schemes” cross-jurisdictional agreement does preclude the Department from considering cases such as Mr Fletcher’s on their individual merits, in line with Justice Thomas’s concerns in Compton.
Factors the Department should have considered in deciding whether to exercise its discretion
[23] Mr Fletcher submits that in considering whether to exercise discretion in his favour, the Department should have considered issues of personal and financial hardship, as well as any other matters relevant to his private interests. I agree with Mr Fletcher that these issues should have been considered by the Department, and carefully balanced against the Department’s public interest responsibilities. The Department’s failure to consider the personal and financial hardship Mr Fletcher submits will befall him as a consequence of his Queensland driver’s licence being cancelled amounts to an error of law.
Characterisation of the Victorian Traffic Infringement Notice
[24] Mr Fletcher submits, in support of his argument that the Department should have exercised its discretion in his favour in not cancelling his licence, that the issuance of a traffic infringement notice is a civil, not criminal matter. The Department submits that Mr Fletcher’s Victorian license cancellation is tantamount to a criminal conviction.
[25] In arguing that the traffic infringement notice issued to Mr Fletcher equates to a criminal offence, the Department relies upon s 89A of the Road Safety Act 1986 (Vic):
89A. Effect of drink-driving infringements, drug-driving infringements and excessive speed infringements
(1) Section 89 does not apply to drink-driving infringements, drug-driving infringements or excessive speed infringements.
(2) Subject to section 89B and despite Division 5 of Part 2 of the Infringements Act 2006, a traffic infringement notice that is issued in respect of a drink-driving infringement, drug-driving infringement or excessive speed infringement takes effect, 28 days after the date of the notice, as a conviction for the offence specified in the notice, unless within that time the person to whom the notice was issued-
(a) objects, in accordance with this section, to the infringement notice; or
(b) in the case of a traffic infringement notice issued in respect of an excessive speed infringement, gives a statement under section 84BE to an enforcement official within the meaning of Part 6AA10.
(3) Despite subsection (2), if an infringement notice is withdrawn under subsection (7)(c) the person to whom the notice was issued must for all purposes be taken not to have been convicted of the offence specified in the notice.
[26] Mr Fletcher argues that the Victorian system does not regard his traffic infringement notice as a criminal matter. On this point, I agree with the Department that, as Mr Fletcher did not object to the traffic infringement notice within 28-days, the effect of s 89A of the Road Safety Act 1986 (Vic) is to make the offence a “conviction”. The obvious connotation of the term “conviction” is criminal, not civil in nature. The Macquarie Dictionary defines conviction, as that term is used in law, to mean, “a finding that an accused is guilty of the crime charged.”
[27] In coming to this view, I have also been guided by the decision of Justice Bongiorno in the Victorian Supreme Court matter of DPP v Croaker [2001] VSC 342. In Croaker, the Magistrate that first heard the matter treated the offence by Mr Croaker as a first offence for the purposes of sentencing. The Magistrate did so on the basis that an earlier traffic infringement notice issued to Mr Croaker did not result in the recording of a conviction by a Court. The DPP appealed the Magistrate’s decision to the Victorian Supreme Court, where the matter came before Justice Bongiorno, who held on appeal that a traffic infringement notice did amount to a prior offence for the purpose of determining the minimum disqualification period. The Court in Croaker characterised the TIN as a statutory finding of guilt once the 28 day period (for objection to the traffic infringement notice) had expired.
Educational and employment prospects
[28] Mr Fletcher has made submissions that the cancellation of his Queensland license is highly prejudicial to his employment prospects, as he is presently studying to be a pilot. As part of this training, he is required to attend 200 hours of flight training. Attending this training has proven problematic, as there is not adequate public transportation to enable Mr Fletcher to get to the training location. Interestingly, because Mr Fletcher’s offence happened in Victoria he is not eligible to apply for a “work licence” under s 87 of the Transport Operations (Road Use Management) Act 1995 (Qld), nor was he eligible to apply in Victoria for the reason that he did not possess a Victorian licence. This strikes me as a most unjust lacuna, and a factor that should have been carefully considered by the Department in deciding whether to exercise its discretion in Mr Fletcher’s favour.
[29] An application for a “work licence” must be made at the time the conviction is recorded and before the court makes an order disqualifying the driver from holding a licence. If Mr Fletcher had been eligible to apply, the Magistrate considering his application would have considered several factors, including the following:
- The Applicant holds a current Queensland provisional or open driver's licence;
- The blood alcohol level was less than 0.15%;
- The Applicant was not driving under a work licence at the time of the offence;
- The Applicant was not driving under a licence that required a nil alcohol reading;
- The Applicant has not been convicted anywhere of drink driving or dangerous driving, or had a licence suspended or cancelled in the last 5 years; and
- The Applicant can demonstrate that failure to obtain a work licence will result in extreme financial hardship.
[30] On the evidence before QCAT, Mr Fletcher satisfies all of these factors. If Mr Fletcher is unable to attend pilot training, and is ultimately unable to obtain work as a pilot as a consequence of having to declare that his Queensland licence has been cancelled, he will have invested some $90,000.00 in HECS fees that result in no occupational trajectory. Mr Fletcher gave evidence that applications for employment as a pilot, as well as Civil Aviation Safety Authority forms, require a declaration as to whether the applicant has had a licence cancelled. As he did not have a licence in Victoria, Mr Fletcher submits he will not have to make a declaration in that respect, and it is the Queensland cancellation only that will be problematic for him. The Department endeavoured to challenge Mr Fletcher’s evidence relating to the pilot application process at hearing, and in post-hearing submissions, arguing that there was no evidence capable of establishing that the cancellation of Mr Fletcher’s Queensland driver’s licence would have an adverse impact on his employment prospects as a pilot.
[31] The Department argues that any adverse impact on Mr Fletcher’s employment prospects is a result of the DUI offence in Victoria, and not the Queensland licence cancellation. I agree that the Victorian DUI offence may well prove problematic for Mr Fletcher, for reasons discussed above relating to the characterisation of the offence as criminal, rather than civil in nature. Regardless, it is patently obvious that a cancellation of Mr Fletcher’s Queensland licence will compound any difficulties he faces, and I accept Mr Fletcher’s evidence on this point.
Mr Fletcher’s character
[32] In Tuaimau v Commissioner of Police, NSW Police Service [2003] NSWADT 240 (7 November 2003), the New South Wales Administrative Decisions Tribunal reviewed the refusal to grant a security licence based on the view that it was not in the public interest. Amongst other factors, the Tribunal in Tuaimau considered issues relating to the applicant’s character in deciding to set aside the decision of the Commissioner and issue the applicant therein with a security licence. Here, Mr Fletcher has provided QCAT with statements signed by witnesses attesting to his good character[1], including a reference from the Youth Ministry Team Leader at his church. I consider these references to be relevant to a consideration as to whether the public would accept that Mr Fletcher is a person that the Department should exercise its discretion in favour of, in deciding not to cancel his Queensland driver’s licence.
[1] Letter dated 20 August 2008 from Geoff Snook, Youth Ministry Team Leader at Southport Church of Christ; Letter dated 25 August 2008 from John and Judy Bradford, Affidavit of Jonnie Gurell dated 18 November 2010.
[33] Two of these letters (those of Mr Snook and Mr and Mrs Bradford) pre-date Mr Fletcher’s Victorian driving offence. While it would have been preferable for the letters to acknowledge the Victorian conduct, the letters do indicate that Mr Fletcher is a young man who has engaged with his community in a meaningful way. The third reference consists of an affidavit from Mr Fletcher’s domestic partner, swearing that at the time of the Victorian offence, Mr Fletcher was experiencing some personal distress and further that the Victorian drink driving conduct falls outside the normal parameters of Mr Fletcher’s behaviour. It is my view that the Department is obliged to ask itself whether Mr Fletcher is a person with the characteristics that would satisfy the public that it is not in the broader public interests to cancel his licence.
Decision
[34] Mr Fletcher is a young man with no prior history of drink driving offences. He has invested considerable time and energy, not to mention financial resources, in pursuing studies to become a pilot. He has been penalised by ceasing to drive from 4th May 2010 to 23rd August 2010 and having to pay a $350.00 fine.
[35] The Department did not consider exercising the discretion afforded to it by the Drivers Licensing Regulations and it should have done so. The Department is required to balance the obvious public interest in discouraging drink driving against the detriment to Mr Fletcher in having his Queensland driver’s license cancelled. In making a decision, the Department should minimally have considered the quantum of the HECS debt Mr Fletcher must repay in the event that he cannot obtain employment in his chosen field, the detrimental effect that a declaration of licence cancellation would have upon Mr Fletcher’s employment prospects as a pilot, and further that Mr Fletcher has no prior drink driving history.
Orders
[36] The decision of the Department cancelling Mr Fletcher’s Queensland driver’s licence is set aside.
[37] Pursuant to s 24(1)(c) of the QCAT Act, the Department is invited to reconsider its 3 June 2010 decision of the Respondent, reconfirming its 5 May 2010 decision cancelling the Applicant’s Queensland driver’s licence. In reconsidering its decision, the Department must consider the discretion afforded to it by the Drivers Licensing Regulations, in line with the considerations outlined in these reasons.
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