INGHAM and DEPARTMENT OF TRANSPORT
[2023] WASAT 62
•7 JULY 2023
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: ROAD TRAFFIC (ADMINISTRATION) REGULATIONS 2014 (WA)
CITATION: INGHAM and DEPARTMENT OF TRANSPORT [2023] WASAT 62
MEMBER: MS A KING, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 7 JULY 2023
FILE NO/S: CC 245 of 2023
BETWEEN: TARYN INGHAM
Applicant
AND
DEPARTMENT OF TRANSPORT
Respondent
Catchwords:
Determination of preliminary issue as to whether the Tribunal has jurisdiction - Reviewable decision - Practical driving assessment - Meaning of undue hardship - Tribunal does not have jurisdiction to review a practical driving assessment
Legislation:
Interpretation Act 1984 (WA), s 56(1)
Road Traffic (Administration) Act 2008 (WA), Pt 8
Road Traffic (Administration) Regulations 2014 (WA), reg 32(1), Pt 9
Road Traffic (Authorisation to Drive) Regulations 2014 (WA), reg 7, reg 16(1), reg 16A, reg 16B, reg 16C, reg 16D, reg 20, reg 20(1), reg 20(2), reg 21, reg 22, reg 22(5), reg 39(1), reg 39(3), reg 70, reg 72, reg 72(5)(b)(ii), Pt 6, Pt 9
Road Traffic (Authorisation to Drive) Act 2008 (WA), s 4
State Administrative Tribunal Act 2004 (WA), s 17, s 17(1), s 18(1), s 29(1), s 60(2), s 83
Result:
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):
Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 [1990] HCA 33
Cheatley v R (1972) 127 CLR 291
Liberian Shipping Corporation v A King & Sons Limited 1967 2 QB 86
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
Taryn Ingham (applicant) was first issued with a Western Australian driver's licence on 14 May 1987.[1] The applicant's driver's licence expired on 29 October 2010. On 8 June 2022, she applied for and was issued with a C-Class learner's permit. The applicant is seeking to be issued with a driver's licence by the Department of Transport (respondent).
[1] Letter of Department of Transport dated 21 March 2023.
On 18 August 2022 the applicant failed a competency based practical driving assessment (PDA). On 29 August 2022 the respondent advised that, as a result, she did not meet the requisite standard to be issued a driver's licence.[2]
[2] Email of Noel Chambers of Department of Transport dated 29 August 2022.
The applicant seeks a review of the respondent's decision not to grant her a driver's licence on the following grounds:
1)the respondent erred in its assessment of her PDA, and
2)on the ground of undue hardship.
Procedural history
The matter was listed for a direction hearing on 10 March 2023 at which time the Tribunal ordered:
1.The following issue is to be determined by the Tribunal as a preliminary issue: Does the Tribunal have jurisdiction to review the respondent's decision to refuse to grant the applicant a driver's license?
At hearing, Senior Member O'Sullivan also made programming orders (which were amended on 20 March 2023 pursuant to s 83 of the State Administrative Tribunal Act 2004 (WA)) (SAT Act).
The respondent was ordered to lodge with the Tribunal written submissions and a copy of all decided cases on which the respondent wished to rely upon in relation to the preliminary issue by 17 March 2023.
The applicant was ordered to lodge with the Tribunal written submissions in relation to the preliminary issue by 31 March 2023.
Pursuant to s 60(2) of the SAT Act, the Senior Member ordered that the matter be determined entirely on the papers.
The respondent lodged its written submissions with the Tribunal on 17 March 2023.
The applicant lodged her written submissions with the Tribunal on 31 March 2023 and set out a second ground of review which referred to reg 22 of the Road Traffic (Authorisation to Drive) Regulations 2014 (WA) (RT Authorisation Regulations), 'Waiving certain requirements in special cases', in particular subsection (5), 'Seeking a waiver on the ground of undue hardship'.
The respondent did not address the applicant's second ground of review and as the Tribunal could not be satisfied that the respondent had notice of the additional ground, the matter was listed for further directions on 1 June 2023.
On 1 June 2023 the further directions hearing was adjourned, to enable the parties to participate in a mediation, which failed to resolve their dispute.
At the reconvened hearing on the same day, the applicant and the respondent agreed that the matter be decided without further hearing. The parties were provided with a further opportunity to lodge any documents and written submissions before the matter was to be finally decided.
The parties agreed to basic facts in relation to the matter and it was agreed that the matter in its entirety, be finally determined by the Tribunal on the documents pursuant to s 60(2) of the SAT Act.
Documents filed on behalf of the applicant
1)Application dated 23 February 2023 and supporting documents.
2)Applicant's written submissions titled 'Preliminary Issue', lodged with the Tribunal on 31 March 2023.
3)Bundle of emails lodged with the Tribunal on 31 March 2023.
4)Letter from Executive Director, Driver and Vehicle Services addressed to Taryn Ingham dated 21 March 2023.
5)Submissions: Undue hardship lodged with the Tribunal on 16 June 2023.
Documents filed on behalf of the respondent
1)Email with attachments from Legal Support Officer, Department of Transport dated 2 March 2023.
2)Transcript of proceedings in matter number CC 898 of 2022.
3)Respondent's written submissions dated 17 March 2023.
4)Respondent's written submissions dated 30 June 2023 in response to applicant's submissions regarding hardship.
Issues for determination
1)Does the Tribunal have jurisdiction to review the respondent's decision to refuse to grant the applicant a driver's licence?
2)If yes, what is the correct and preferable decision?
The regulatory framework, the licensing scheme, and the factual background upon which the consideration of the above issues must be made is set out below.
The regulatory framework
The Road Traffic (Administration) Act 2008 (WA) (RT Administration Act) sets out under Pt 8 - 'Review of decisions under road laws' - various regulations under which applications for review of decisions under road laws may be made.
The applicant made an application pursuant to reg 32(1) under Pt 9 of the Road Traffic (Administration) Regulations 2014 (WA) (RT Administration Regulations), which states:
A person affected by a reviewable decision as defined in the Road Traffic (Authorisation to Drive) Regulations 2014 regulation 70 or a decision made on reconsidering a reviewable decision under regulation 72 of those regulations may apply to the State Administrative Tribunal for a review of the decision[.]
In accordance with Pt 6 of the RT Authorisation Regulations, reg 70:
Term used: reviewable decision
In this Part —
reviewable decision means a decision of the CEO to —
(a)refuse an application for the grant of a driver's licence; or
[(b)deleted][.]
I now turn to the licensing scheme applicable in Western Australia.
The licensing scheme
Section 4 of the Road Traffic (Authorisation to Drive) Act2008 (WA) (RT Authorisation Act) prescribes at subsection (1):
(1)The regulations are, together with this Part, to provide for a driver licensing scheme under which —
(a)the CEO —
(i)grants people licences to drive motor vehicles on roads; and
…
…
(3)The regulations may —
…
(d)provide for schemes for assessing the competency of people to hold drivers' licences[.]
RT Authorisation Regulations, reg 7 provides:
(1)The CEO may grant to a person a licence authorising the person to drive a motor vehicle on a road[.]
Before a person can hold a driver's licence the person must have satisfied the CEO that the person can demonstrate sufficient ability to safely drive motor vehicles.[3]
[3] RT Authorisation Regulations, reg 16(1).
RT Authorisation Regulations, reg 16A regulates a new driver's licence applicant for:
(a)a car licence if the applicant has not reached 25 years of age; or
(b)restricted motorcycle licence.
RT Authorisation Regulations, reg 16B regulates new driver's licence applicant for a car licence for person 25 years of age and over.
RT Authorisation Regulations, reg 16C regulates other driver's licence applicants:
(1)This regulation applies to an applicant for a driver's licence if the applicant is not a new driver's licence applicant.
(2)The applicant may demonstrate sufficient ability to safely drive a motor vehicle as the licence would authorise by —
(a)in the case of a restricted motorcycle licence, a test approved by the CEO and conducted not less than 6 months after the learner's permit was granted in relation to the application, satisfying the CEO that the applicant has sufficient ability to recognise hazards on roads; and
(b)in any case, satisfying the CEO that the applicant is able to control the motor vehicle[.]
In accordance with RT Authorisation Regulations, reg 16D, the CEO must approve a test applicable to an applicant for a car licence.[4]
[4] Regulation 16D inserted: Gazette 19 Oct 2018, p 4141.
The RT Authorisation Regulations, reg 20 states as follows:
20.Demonstrating knowledge of traffic laws and safe driving techniques
(1)Before a person can hold a driver's licence the person must have satisfied the CEO that the person can demonstrate a reasonable knowledge of the traffic laws of the State and of safe driving techniques unless under regulation 22(5) the CEO has waived the requirement to be able to demonstrate that knowledge.
(2)The CEO may require the person to demonstrate that knowledge by completing a theory test, by producing evidence of knowledge accepted under the traffic laws of another jurisdiction that the CEO accepts as being sufficiently similar to those of this State, or in any other way the CEO considers acceptable.
In accordance with reg 22(5):
The CEO may in a particular case waive the requirement in regulation 20(1) that before a person can hold a driver's licence the person can demonstrate a reasonable knowledge of the traffic laws of the State and of safe driving techniques if denial of a licence would occasion undue hardship.
Factual background agreed between the parties
The key facts were agreed by the parties at the directions hearing of the Tribunal on 1 June 2023. I make the following findings of fact (in date order where relevant but otherwise in no order of importance) relevant to the issues to be determined in the proceedings:
1)The applicant's driver's licence, after it was first issued, was renewed until it expired in October 2010. The applicant has not held a licence since that date.
2)After obtaining her learner's permit, the applicant underwent a PDA at the Shire of Mukinbudin on 18 August 2022.
3)The applicant was advised that she had not met the requisite standard and sought an internal review of that decision.
4)On 22 August 2022, the applicant received a telephone call from the respondent, advising that, after review and in accordance with the 'Driving Techniques for Safer Drivers' booklet,[5] the assessor was deemed correct in the result of the assessment of her PDA. The reason advanced was that she failed to check a blind spot (head check error).[6]
5)On 5 September 2022, the applicant notified the respondent that she suffered undue hardship. She lodged a review of the decision not to grant her a driver's licence with the Tribunal on 23 February 2023.
[5] 'Driving techniques for Safer Drivers' booklet, Department of Transport WA, pages 53 - 58.
[6] Practical Driving Assessment result, Licence/Permit number 3462216 dated 18 August 2022.
Main contentions
Summary of the applicant's main contentions advanced in her written submissions may be summarised as follows:
The applicant's driver's licence expired without renewal as she did not have a residential address due to homelessness. In 2021, her father passed away resulting in her receiving an inheritance. She purchased a property in Koorda, Western Australia, where she now resides. She is now seeking to reinstate her driver's licence.
The applicant accepted that, given the length of time she was unlicensed, she would need to complete an application form and first obtain a learner's permit which she successfully obtained in June 2022.
She attended the Perth City West office of the Department of Transport in relation to undertaking a PDA and contacted a driving school to book a vehicle for her to use. Coordinating an available vehicle and booking a time for a PDA proved difficult and she was unable to rent a vehicle. She decided to purchase a vehicle and paid a deposit, intending to finalise the purchase simultaneously with settlement of her property.
After collecting the vehicle with her brother, who had limited availability to assist her, she returned to Koorda where the vehicle remains stored in a shed. She has concerns abouts its general maintenance as its not being driven.[7] She communicated with the local police about her situation and the lack of services available locally and booked a PDA at the Shire of Mukinbudin on 18 August 2022. It was not possible to arrange a PDA in Koorda.[8]
[7] Applicant's submissions filed 16 June 2023, para 1 under heading 'personal'.
[8] Applicant's Submissions filed 16 June 2023, para 6.
Upon completion of the PDA, she was advised that she had not met the requisite standard as she had 'failed to signal and check her blind spot before she moved forwards during a manoeuvre where she turned around using a driveway'.[9]
[9] Applicant's Submissions filed 31 March 2023, para 40.
The applicant submits that, in the circumstances, she was under no obligation to check her blind spot and otherwise disagrees with the assessment result of her PDA.
On 17 September 2022, the applicant raised with the respondent that they:[10]
… 'have the power to look at the issue of undue hardship' which I say is a factor in my case[.]
[10] Applicant's Submissions filed 31 March 2023, para 74.
On 23 September 2022, she suggested strategies to the respondent which she might employ if she was required to sit another PDA, such as speaking about a driving procedure as she was physically performing it, specifically for an audio recording of the assessment.
The applicant contends that on 9 January 2023 Jaci Hills-Wright, the Executive Director of Driver Vehicles Services of the respondent wrote to the applicant confirming that her complaint fell within the regulations and the decision by the respondent could be reviewed by the Tribunal.[11]
[11] Applicant's Submissions filed 31 March 2023, para 92.
The applicant refers to RT Authorisation Regulations, reg 20 and submits that whilst the successful completion of a PDA is a prerequisite for being granted a driver's licence, in accordance with reg 22(5), this requirement can be waived by the CEO in a particular case 'if denial of a licence would cause undue hardship'.
In summary, in addition to submitting that the respondent erred in failing her PDA, the applicant seeks to waive the need to sit another PDA on the ground of undue hardship.
The applicant submits that she resides in a regional town with few services, she does not have anyone to act as a supervising driver[12], and may need to travel to Perth or surrounds on necessary business, or in an emergency, or for personal reason.[13]
Summary of the respondent's main contentions as follows:
[12] Applicant's Submissions filed 16 June 2023, para 1.
[13] Application form - why should the order(s) be made, page 2.
The Tribunal has jurisdiction to review certain administrative decisions.[14] The respondent contends that for the review jurisdiction to be enlivened, a final decision by the decision-maker in first instance must have been made. A decision to refuse the applicant a driver's licence has not been made, as the applicant is able to undertake further attempts at successfully completing a PDA. It is submitted that as no final decision has been made, the Tribunal does not have jurisdiction to hear and determine the matter.
[14] Respondent's Submissions dated 17 March 2023, para 12.
Further, the administrative nature or character of the decision is essential in triggering the jurisdiction of the Tribunal. Conducting a PDA is not administrative in nature and the decision made (that the applicant did not pass the PDA) is not open to review. The Tribunal is not qualified, equipped or otherwise able to substitute the assessment of the PDA for that of its own and the application must fail.[15]
[15] Ibid [28].
As to the applicable licensing scheme, the respondent noted the applicant is not a novice driver and explained the scheme as follows:
… If a person who previously held a driver's licence applies to renew the licence within the period of 6 months after the driver's licence expires, the CEO may, when granting the drivers licence be wholly or partly satisfied that the person can demonstrate the ability referred to in regulation 16 to safely drive motor vehicles as the licence would authorise, and can demonstrate knowledge of the traffic laws and safe driving techniques as required by regulation 20.[16]
[16] Ibid [20] quoting RT Authorisation Regulations, reg 39(1) and reg 39(3).
On the facts, more than 13 years has elapsed since the applicant last held a licence. The respondent contends that, on this basis it cannot be satisfied that the applicant meets the requirements for the grant of a driver's licence and consequently the applicant must:
1)obtain a learner's permit;
2)learn to drive;
3)pass a PDA, and
4)have a photo taken and pay for the licence.
The PDA is only one of several steps in the process of obtaining a licence and each step does not constitute a 'reviewable decision' within the meaning of the Act.
The respondent relies on the decision in Ellis and Department of Transport[17] in which Tribunal Member Haigh held:
… a practical driving assessment does not, in my view, constitute a decision to refuse to grant a motorcycle licence, nor does it constitute a decision to refuse an application for a variation of the driver's licence. I find that the respondent, the Department of Transport, did not refuse to grant Mr Ellis a motorcycle licence[.][18]
… for a decision to be reviewable it needs to be final, and that is not the case here. In considering the licensing scheme that I have just outlined, I bear in mind that in respect of this Tribunal's jurisdiction, the administrative nature of the decision is essential in triggering the jurisdiction of the Tribunal[.][19]
[17] Ellis and Department of Transport, CC 898 of 2022.
[18] Ibid, page 19.
[19] Ibid, page 20.
In summary, the respondent submits that in conducting review proceedings, the Tribunal must be able to stand in the shoes of the original decision-maker to arrive at the correct and preferable decision. Conducting a practical driving assessment is not an administrative decision as the Tribunal has no ability to stand in the shoes of the original decision-maker.
The Tribunal does not have jurisdiction to review the decision. The respondent seeks orders that the application be dismissed.
Consideration by the Tribunal
Issue 1
Does the Tribunal have jurisdiction to hear and determine the matter?
In accordance with s 17 of the SAT Act, if an enabling Act gives the Tribunal jurisdiction to deal with a matter that expressly or necessarily involves a review of a decision, the matter comes within the Tribunal's review jurisdiction.[20]
[20] SAT Act, s 17(1).
In exercising its review jurisdiction, the Tribunal is to deal with a matter in accordance with the SAT Act and the enabling Act.[21]
[21] SAT Act, s 18(1).
The powers of the Tribunal upon a review are the same functions and discretions as those exercisable by the original decision-maker.[22]
[22] SAT Act, s 29(1).
A 'reviewable decision' as defined in the RT Authorisation Regulations includes a decision of the CEO to –
(a)refuse an application for the grant of a driver's licence.[23]
[23] RT Authorisation Regulations, reg 70.
The Tribunal accepts, as a general proposition, that the Tribunal has jurisdiction to review a decision of the CEO to refuse an application for the grant of a driver's licence.
The licencing scheme (as described) allows for both internal[24] and external[25] review of 'reviewable decisions'. Upon completion of an internal review by the CEO of the Department, the CEO must advise that the person may apply to the Tribunal for a review of the relevant decision made upon reconsideration.[26] It was not in dispute, and I accept, that the applicant was advised that she could apply for a review of the respondent's decision by the Tribunal.
[24] RT Authorisation Regulations, reg 72.
[25] RT Authorisation Regulations, reg 72(5)(b)(ii).
[26] RT Authorisation Regulations, reg 72(5)(b)(ii).
The respondent contends that its decision is not reviewable as it is not a final decision and is not administrative in nature.
Guidance in relation to the meaning of 'reviewable decision' may be gleaned from Australian Broadcasting Tribunal v Bond and Others[27] in which Mason CJ said:
32.… a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.
…
34.If "decision" were to embrace procedural determinations, then there would be little scope for review of "conduct", a concept which appears to be essentially procedural in character. To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality[.]
[27] Australian Broadcasting Tribunal v Bond and Others (1990) 170 CLR 321 [1990] HCA 33 at [32]-[35].
It was not in dispute that the applicant may undertake another PDA which, if successful, and if all the other criteria necessary for the grant of a driver's licence are satisfied, would likely result in her being granted a driver's licence. In the present circumstances, the decision not to grant her a driver's licence at this time is to be understood as an intermediate decision.
In circumstances where the applicant is refusing or is unable to undertake a further PDA the respondent is, in effect, saying that consideration of her application for a driver's licence cannot be advanced, as the applicant has not successfully completed all the requisite steps.
I am satisfied that the sum of the communications by the respondent to the applicant is that, following an internal review, the respondent upheld its decision to fail her PDA, which is a step required in the grant of a driver's licence.
For the aforementioned reasons, I am satisfied that the decision lacks the quality of a final decision as explained by the High Court in Bond.[28]
[28] Ibid at para 29.
The applicant advances two grounds for seeking review in her written submissions. Firstly, she asserts that the assessor erred in failing her PDA. Secondly, she asserts undue hardship in accordance with RT Authorisation Regulations, reg 22(5).
The applicant provided a 'Driving Techniques for Safer Drivers' booklet and a copy of her failed PDA, as well as various attachments of 'safe driving techniques' referencing the Road Traffic Code 2000 (WA) (Code). She complains that the assessor erred in its interpretation of the rules relating to the need to conduct a head check in the circumstances of her driving assessment as it is not set out in the booklet.
I accept that a PDA was undertaken in real time, and it is difficult to comprehend the type of evidence that would enable the Tribunal to review a PDA with reference to the Code. In the present circumstances, on the evidence provided the Tribunal is unable to evaluate the respondent's decision to fail her PDA retrospectively.
I am not satisfied that the Tribunal is able to 'stand in the shoes' of the assessor and make findings as to the circumstances that existed at the relevant time. I have no hesitation in accepting the respondent's submissions that various factors exist at any point in time during a PDA that affect a person's reaction and the demonstration of safe driving techniques. I am satisfied that it is the assessor during the assessment who is best placed to determine whether the applicant can control a motor vehicle safely.[29]
[29] Respondent's Submissions dated 17 March 2023, paras 14 - 28.
The Tribunal confirms the reasoning in Ellis[30] that the respondent's decision to fail her PDA is not a decision that is administrative in nature.
[30] Ibid at para 14.
I am satisfied that the application for review on the ground that the assessor erred in failing her PDA must fail.
Second ground - undue hardship
The applicant provides a history of having previously held a driver's licence for many years. She contends that she failed her PDA on only one ground. She purchased a vehicle which she presently cannot drive.
The applicant has experienced difficulties with access to services as she resides in a regional town. She does not have a supervising driver. She may need to travel to Perth or surrounds on necessary business, emergency, or for personal reasons, for which she requires a driver's licence.
The applicant is concerned about the condition of her vehicle and a 5year warranty which she purchased, as she is unable to drive the vehicle. In addition to practical difficulties and financial and personal issues, she wishes to undertake renovations at her property and not having a vehicle is slowing her progress.
Neither the RT Authorisation Act or the RT Authorisation Regulations define the meaning of 'undue hardship', however the term was explained in Re Wilson and Minister for Territories[31] as hardship that is 'excessive in the circumstances' and referring to Lord Denning in Liberian Shipping v King:[32]
"Undue" simply means excessive. That is, greater hardship than the circumstances warrant[.]
[31] Re Wilson and Minister for Territories (1985) 7 ALD 225, page 9.
[32] Liberian Shipping Corporation v A King & Sons Limited 1967 2 QB 86 at [6].
The Australian Oxford Dictionary[33] defines 'undue' as meaning 'unwarranted or inappropriate ... excessive or disproportionate' and 'hardship' as 'severe suffering or privation'.
[33] Australian Oxford Dictionary, 2nd edition, Oxford University Press 2004.
The Tribunal takes note of publicly available information that Koorda is about 251.5 km from Perth.[34] The Tribunal is satisfied that Koorda is a regional town with a small population and few services.
[34] www//:google.com/maps/place/Koorda.
The applicant failed to provide any supporting evidence of having suffered actual hardship, although the Tribunal accepts that because of the distance and lack of services the applicant is inconvenienced because of not having been granted a driver's licence. I am not satisfied on the evidence that the difficulties advanced by the applicant amount to excessive, disproportionate or severe suffering.
The respondent submits that the requirement under reg 20(1) of the RT Authorisation Regulations refers to a computerised theory test on the road rules and that the test consists of 30 multiple choice questions. Further, the respondent submits that reg 22(5) should not be interpreted as providing for a waiver of the need to successfully complete a PDA on the basis of hardship. The Tribunal accepts those submissions.
The Tribunal refers to ordinary rules of statutory interpretation, that no word or part of an act 'can be considered in isolation from its context - the whole must be considered'. In interpretating a provision of an Act, a construction that promotes the purpose of the Act shall be preferred.[35]
[35] Cheatley v R (1972) 127 CLR 291, page 296.
The heading to reg 20 states that it concerns itself with 'Demonstrating knowledge of traffic laws and safe driving techniques'. Regulation 20(1) of the RT Authorisation Regulations refers to the need to be able to demonstrate a reasonable knowledge of traffic laws and of safe driving techniques. Regulation 20(2) requires the person to complete a theory test. Regulation 21 sets out prerequisites for a driver's licence to drive particular vehicles.
Applying principles of statutory interpretation as set out above, the waiving of the requirement in reg 20(1) as referred to in reg 22(5) must be read and understood in context.
The purpose of the RT Authorisation Act is set out on page 1 as 'An Act to make provision for the authorisation of persons to drive motor vehicles and related matters'. It sets out a licensing scheme to be understood in conjunction with the RT Authorisation Regulations. It is evident from the relevant provision that the purpose is to ensure that road users have demonstrated knowledge of applicable road rules and of safe driving techniques.
Further, subsection 56(1) of the Interpretation Act 1984 (WA) provides:
Where in a written law the word may is used in conferring a power, such word shall be interpreted to imply that the power so conferred may be exercised or not, at discretion.
Any exercise of discretion in reg 22(5) of the RT Authorisation Regulations would have to avoid undermining the purpose of the RT Authorisation Act and the regulations.
Conclusion
I am satisfied that the Tribunal does not have jurisdiction to hear and determine a review of the Respondent's decision to fail a PDA.
In any event, I am not satisfied that the applicant suffers undue hardship, or that reg 22(5) of the RT Authorisation Regulations applies in the circumstances.
Accordingly, I will dismiss the matter.
Orders
The Tribunal orders that:
1.The application for review is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS A King, MEMBER
7 JULY 2023
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