GOODALL and DEPARTMENT OF TRANSPORT
[2021] WASAT 125
•15 SEPTEMBER 2021
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (ADMINISTRATION) ACT 2008 (WA)
CITATION: GOODALL and DEPARTMENT OF TRANSPORT [2021] WASAT 125
MEMBER: MS KY LOH, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 15 SEPTEMBER 2021
FILE NO/S: CC 532 of 2021
BETWEEN: ANNA ELIZABETH GOODALL
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Preliminary issue - Jurisdiction - Is restart of alcohol interlock restricted driving period a 'decision' - Is requirement to participate in alcohol assessment and treatment a 'reviewable decision'
Legislation:
Road Traffic (Administration) Regulations 2014 (WA), Pt 9, reg 32, reg 32(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 5A
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), Pt 5A, reg 3, reg 33, reg 34, reg 69A, reg 69D, reg 69D(1), reg 69N, reg 69O, reg 69O(1), reg 69Q, reg 70, reg 70(c), reg 70(e), Sch 7
Road Traffic Act 1974 (WA), s 63(1)(a)
Road Traffic Amendment (Alcohol Interlocks and Other Matters) Act 2015 (WA)
State Administrative Tribunal Act 2004 (WA), s 13(1), s 14, s 15(1), s 17, s17(1), s 47, s 47(2), s 60(2)
Result:
Preliminary issue determined
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | N/A |
Case(s) referred to in decision(s):
Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 7 March 2017, Ms Anne Goodall (the driver) was convicted of driving under the influence of alcohol resulting in the cancellation of her driver's licence.
When she was granted a driver's licence on 7 August 2020, the licence was subject to 'condition I' which requires the installation and operation of an approved alcohol interlock in her vehicle.
An alcohol interlock is a device that is fitted in a vehicle which allows a driver to be monitored from timetotime by requiring a breath sample to measure his or her blood alcohol content (BAC).
Upon recording four failed breath tests on 27 February 2021, the Department of Transport (Department) informed the driver that the alcohol interlock scheme mandated the termination and immediate restart of her restricted driving period, and that she needed to participate in alcohol assessment and treatment.
The driver considers that 'decision' to be unreasonable and unjustified.
For reasons set out below, I find that the termination and restart of the driver's restricted driving period did not involve any decision by the Chief Executive Officer of the Department (CEO), and thus the Tribunal has no jurisdiction to determine the application.
Further, the only decision made by the CEO - to require the driver to participate in alcohol assessment and treatment - is not a 'reviewable decision' falling within the Tribunal's review jurisdiction.
Preliminary issue
The preliminary issue for determination on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) is 'Is the decision which is the subject of this application a reviewable decision for the purposes of s 17 of the State Administrative Tribunal Act 2004 (WA)?'.
In addressing the issue, one of the questions is whether an action which occurs by operation of statute qualifies as a 'decision' for the purpose of reg 70 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (Authorisation Regulations).
Background
Facts
The following facts are not in dispute.
On 7 March 2017, the driver was convicted of driving under the influence of alcohol under s 63(1)(a) of the Road Traffic Act 1974 (WA) (Road Traffic Act). The consequence of her conviction was that her driver's licence was cancelled and she was disqualified from holding or obtaining a driver's licence for 18 months.
Following the expiry of other periods of disqualification, the driver applied for a driver's licence, which was granted on 7 August 2020. The licence was granted subject to 'condition I', which provided that the driver could only drive the vehicle with an approved operational alcohol interlock.
On 1 September 2020, an approved alcohol interlock device was installed in the driver's vehicle.
On 27 February 2021, the alcohol interlock installed in the driver's vehicle recorded triggers on four occasions by the provision of breath specimen containing a BAC greater than 0.02 grams of alcohol per 100 millilitres of blood.
At the date of those triggers, the driver's restricted driving period was 178 days.
The record of those triggers were reported to the CEO on 2 March 2021.
On 3 March 2021, the CEO's delegate advised that, as a result of the breach of the conditions of the alcohol interlock scheme, the driver's restricted driving period had been terminated and restarted, and that the driver was required to participate in alcohol assessment and treatment.
On 17 March 2021, the driver sent an email to the Department seeking an interview to discuss the 'department[']s decision (including 6 mandatory alcohol intervention sessions)', which she considered 'unreasonable [and] unjustified given the circumstances [that is, that four violations took place in the space of 2 hours and 10 minutes, approximately two days before the end of the alcohol interlock scheme]'.
On 18 March 2021, the Department advised that there was 'no provision for an interview nor discretion provided in giving effect to the intent of the [s]cheme'.
On 31 March 2021, the driver made an application under reg 32(1) of the Road Traffic (Administration) Regulations 2014 (WA) (Administration Regulations) for a review of a decision under the Authorisation Regulations.
CEO's case
The CEO contends that there is no reviewable decision which can be the subject of the Tribunal's review jurisdiction under s 17 of the SAT Act.
The termination and restart of the driver's restricted driving period does not involve the making of any decision but operates by force of reg 69O of the Authorisation Regulations.
Further, the decision by the CEO to require the driver to participate in alcohol assessment and treatment is a requirement of participation in the alcohol interlock scheme and not a condition or variation of a driver's licence. As such, it is not a 'reviewable decision' under reg 70 of the Authorisation Regulations.
The driver's case
The driver contends that the four triggers were an 'over-use of the technology' which was 'the mistake made on [her] part which [she] t[ook] full responsibility'. However, 'the punishment of having to restart the entire programme from scratch and mandatory "alcohol intervention sessions" together with the economic burden … all seems unfairly excessive given the breaches took place over 2 hours and 10 minutes'.
She also relies on the Smart Start user guide, which is couched in language that leads a participant of the alcohol interlock scheme to believe that there is potential for some discretion when dealing with breaches. She accepts this is in contradiction to the terms of the Authorisation Regulations.
Legal framework
Tribunal's jurisdiction
As an administrative tribunal, the Tribunal has only the jurisdiction which is conferred on it by the SAT Act, or any other Act which expressly confers jurisdiction upon it: Hartwig v Builders' Registration Board of Western Australia [2009] WASCA 138 at [26].
The Tribunal only has jurisdiction over a matter if a provision of an enabling Act enables an application concerning the matter to be made to the Tribunal: s 13(1) of the SAT Act.
The Tribunal exercises jurisdiction over a matter either in its original jurisdiction or its review jurisdiction: s 14 of the SAT Act.
A matter that expressly or necessarily involves a review of a jurisdiction is a matter that comes within the Tribunal's review jurisdiction (s 17(1) of the SAT Act), whilst a matter that does not involve a review of a decision falls within the Tribunal's original jurisdiction (s 15(1) of the SAT Act).
Under s 47 of the SAT Act, the Tribunal relevantly has power, on its own initiative, to order that the proceeding be dismissed or struck out if it believes that a proceeding is misconceived.
Administration Regulations
Part 9 of the Administration Regulations provides for the right of review of decisions under various road traffic legislation.
Relevantly, reg 32 of the Administration Regulations provides that a person affected by a 'reviewable decision' as defined in reg 70 of the Authorisation Regulations may apply to the Tribunal for a review of the decision.
Authorisation Regulations
Regulation 70 of the Authorisation Regulations defines 'reviewable decision' as a decision of the CEO to:
(a)refuse an application for the grant of a driver's licence;
…
(c)impose a condition when granting a driver's licence; or
(d)vary a driver's licence, whether by imposing or varying a condition, by making, varying, or cancelling any other endorsement on it, or in any other way; or
(e)refuse an application for the variation of a driver's licence; or
(f)suspend or cancel a driver's licence; or
(g)under regulation 62, exclude the person from being authorized by regulation 61 to drive motor vehicle.
Part 5A of the Authorisation Regulations provides for the alcohol interlock scheme, pursuant to s 5A of the Road Traffic (Authorisation to Drive) Act 2008 (WA), which came into operation on 24 October 2016: see Road Traffic Amendment (Alcohol Interlocks and Other Matters) Act 2015 (WA) Commencement Proclamation (No. 2) 2016 (Western Australia, Government Gazette, No 167 (20 September 2016): page 3965).
Under reg 69D of the Authorisation Regulations, if a driver's licence is granted to an 'alcohol offender', the CEO must endorse the licence with condition I.
An 'alcohol offender' is defined in reg 69A of the Authorisation Regulations as including a person who has been convicted of an 'alcohol interlock offence committed on or after the scheme commencement day'.
An 'alcohol interlock offence' is in turn defined under reg 3 of the Authorisation Regulations to include an offence under s 63(1)(a) of the Road Traffic Act.
Condition I can only effectively be revoked where a driver has demonstrated 'the separation of drinking and driving behaviour' under reg 69Q of the Authorisation Regulations; relevantly, where every period of disqualification has ended, a driver has completed a 'restricted driving period' for at least 180 days, and participated in any alcohol assessment and treatment required by the CEO.
A 'restricted driving period' terminates and immediately restarts on the occurrence of certain events, including where the interlock has been triggered on three or more occasions: reg 69O of the Authorisation Regulations.
In particular, where the interlock has been recorded as being triggered on three or more occasions, and the recorded details are reported to the CEO, a driver's restricted driving period terminates and immediately restarts on the occurrence of that event with effect from the recorded date of the last occasion on which the interlock was triggered: reg 69O(1) and the table to reg 69O(1) of the Authorisation Regulations.
Regulation 69N of the Authorisation Regulations relevantly allows the CEO the discretion to require a driver, with notice, to participate in alcohol assessment and treatment if the CEO reasonably believes that the alcohol interlock has been triggered on three or more occasions.
Consideration - Is the decision a reviewable decision?
It is not in contest that condition I was properly imposed on the driver's licence of the driver.
I agree with the CEO's submission that the putative decision to terminate and restart the driver's restricted driving period is not a decision at all, but rather is an effect of the alcohol interlock scheme under Pt 5A of the Authorisation Regulations, in particular, reg 69O(1) of the Authorisation Regulations.
There is simply no power or duty exercised by the CEO upon the recording of three or more triggers on the alcohol interlock; reg 69O(1) of the Authorisation Regulations requires the restricted driving period to be terminated and restarted. This is an effect of participating in the alcohol interlock scheme, the participation of which is a mandatory condition imposed on the driver's licence of the driver upon her application for the grant of that licence and her status as an 'alcohol offender' under reg 69D(1) of the Authorisation Regulations.
Further, I agree with the CEO's submission that the decision to require the driver to participate in alcohol assessment and treatment, whilst an exercise of power, is not a 'reviewable decision' within the meaning of reg 70 of the Authorisation Regulations.
Whilst the term 'condition' is not specifically defined in the Authorisation Regulations, regs 33 and 34 of the Authorisation Regulations make clear that any condition imposed on a driver's licence is only effective when the licence holder is given notice of the effect, and full details, of the condition, and the condition is recorded on the licence document.
The only condition recorded on the driver's licence of the driver is condition I, denoting that the authorisation to drive a motor vehicle applies only if an approved alcohol interlock is installed in the vehicle and is in operation: Sch 7 of the Authorisation Regulations. As stated in [35] above, this is a mandatory condition.
The driver's objection on 17 March 2021 cannot properly be characterised as an objection to the exercise of the CEO's decision to impose condition I, because that condition was imposed back on 7 August 2020 and is a necessary condition of the grant of a driver's licence to her. Further the driver's objection is not to the requirement for the installation of the alcohol interlock, but to the effect of the alcohol interlock scheme.
To the extent that her objection (and subsequent application for review) is not in respect of the requirement for the installation of the alcohol interlock but to the terms of the scheme, that is not a challenge to a decision to impose a condition when granting a driver's licence under reg 70(c) of the Authorisation Regulations.
Further, as the driver did not seek a variation of condition I of her driver's licence, I agree with the CEO that there is no 'reviewable decision' within the meaning of reg 70(e) of the Authorisation Regulations.
I am satisfied that there is no jurisdiction to deal with the driver's application. Further, I consider that her application is misconceived in the sense that there has been a misunderstanding that there is a reviewable decision within the meaning of the Authorisation Regulations over which the Tribunal has jurisdiction.
In light of my findings above that the Tribunal has no jurisdiction to review any decision of the CEO, I consider that the application should be dismissed as misconceived under s 47(2) of the SAT Act, and will accordingly make an order dismissing the proceedings.
Conclusion
For the reasons stated above, I find that there is no jurisdiction to determine the driver's application and will dismiss the application under s 47(2) of the SAT Act.
Orders
The Tribunal orders:
1.The preliminary question 'Is the decision which is the subject of this application a reviewable decision for the purposes of s 17 of the State Administrative Tribunal Act 2004 (WA)?' is answered in the negative.
2.The driver's application is dismissed as misconceived under s 47(2) of the State Administrative Tribunal Act 2004 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS K Y Loh, MEMBER
15 SEPTEMBER 2021
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