J v Director General, Department of Transport

[2001] NSWADT 178

CITATION:	J -v- Director General, Department of Transport [2001] NSWADT 178
DIVISION:	General Division
PARTIES:	APPLICANT J RESPONDENT J -v- Director General, Department of Transport
FILE NUMBER:	013159
HEARING DATES:	20/08/2001
SUBMISSIONS CLOSED:	08/20/2001
DATE OF DECISION:	08/20/2001
BEFORE:	O'Connor K - DCJ (President)
APPLICATION:	Bus driver - suspension of authority - Passenger Transport Act - bus driver - suspension of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 Re T v Director of Youth and Community Services (1980) 1 NSWLR 392 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
REPRESENTATION:	APPLICANT S Collins, solicitor RESPONDENT A Wozniak, solicitor
ORDERS:	Order made 20 August 2001: Decision under review affirmed.

1 The application is for review of a decision to suspend a regular passenger bus authority [number removed] issued to the applicant. The notice of suspension was issued on 5 June 2001 and is appended to the application for review and there is a short statement of reasons attached to the notice of suspension.

2 The ground of suspension is that the applicant [then a part-time Education Department employee] has admitted to improper conduct of a sexual nature towards a final Year 12 student and the Director-General has suspended the licence or authority as he is entitled to do under s 14 of the Passenger Transport Act 1990. He is no longer satisfied that the applicant 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: see s 11(2)(a) of the Act.

3 Today we have heard evidence from Mr J at some length as to the circumstances which gave rise to the suspension and we also have extensive material before us filed by the Department which contains material from the Department of Education by way of statements made at interviews conducted with [J]; and other relevant papers including an Incident Report dated 19 June 2000, given by the teacher who brought the incident to the attention of the principal at the school.

4 The incident occurred on Friday 16 June 2000 and involved the applicant engaging in what I understood him to concede was inappropriate conduct towards a Year 12 student [name removed] which occurred in the art room.

5 The detail of the incident is a matter of some dispute. What is admitted by the applicant is that he made two requests to the female student to touch her breasts and that those requests occurred at about the same time as he passed behind her and touched her by placing his arms on her shoulders.

6 According to his statements made in the various interviews and again repeated today, she refused his requests and did so by words and also by folding her arms in a manner which suggested he was not to touch her; and he then did not proceed to touch her.

7 On the other hand there is material in the papers that have been filed from the Department of Transport to suggest that there may have been actual touching in that there appear to be statements made by the girl herself to her mother as reported by her mother to the authorities which carry that connotation.

8 On the other hand we have had no evidence here today from the female student [name removed] or from her mother about what her daughter said to the mother, so it is not possible I think to reach any conclusion by way of a finding as to whether or not touching of the breasts occurred.

9 There was also during this incident a remark made by [J], the applicant, which appears to be best recorded at page 7 of the interview dated 5 October 2000, but it is found in other places and it appears that after he had been refused twice, he said words to the effect that “I am just POQ’d with people touching [name removed]’s breasts”, which is acknowledged to be a reference to incidents which apparently have occurred in the past where the applicant’s wife’s breasts have been touched in public in his presence by at least one other man if not other men.

10 Mr Wozniak suggested in his questions on behalf of the department to the applicant that these words amounted possibly to a third invitation, that is an attempt on the applicant’s part to convey to the female student who was seventeen at the time that in a sense it was okay for men to touch women’s breasts.

11 On the other hand, [J] said that what these words were meant to convey was his dissatisfaction with what had occurred to his wife in the past in this regard and his solicitor Mr Collins suggested in summing up that it was a way of whinging about his ‘luck’ compared with other men’s ‘luck’ in this regard.

12 The words actually used by the applicant do appear on their face to carry the connotation of dissatisfaction; but it does seem to me that Mr Wozniak’s suggestion is also open to be made as to the possible purpose and intent of those words at the time.

13 I do not propose to reach a finding on the matter. It does seem to me that it is the kind of material that would be more suited to analysis by someone trained in understanding of human sexual behaviour in circumstances of this kind. It seems to me that on the face it could admit of both interpretations but it may also point to deeper psychological matters that would be revealed through appropriate questioning.

14 Now having simply before me the facts as I have perceived them to be admitted, that is the two requests, the touching on the shoulders and the conversation referring to [his wife’s] breasts, we have clearly a situation of inappropriate conduct towards a young woman of a sexual nature.

15 Where does that take us in terms of the Director-General’s authority?

16 The facts are ones it seems to me that would lead an administrator to have concern as to whether a person should be permitted to continue to operate as a bus driver; and would cause an administrator to wish to have regard to broader questions of good repute and fitness and propriety.

17 The administrator has not gone on a general inquiry as to the person’s good repute and as to whether the person is a fit and proper person. The administrator has as I see it, applied it to the test analogous to the one that we have referred to in various decisions, that is, what would a member of the travelling public who is a reasonable member of the travelling public informed of these matters consider to be fit and proper behaviour: Maythisathit and Registrar of Motor Vehicles [1996] ACTAAT 165 at [12]. I think the answer to that is clear: that such a person would be concerned that an individual who had admitted to conduct of the kind that I have outlined should be placed in charge of a public passenger vehicle, at least one where the occupants of the vehicle are exclusively children in secondary school and possibly primary school.

18 So it seems to me that on the face of it, the administrator is approaching the problem in an appropriate way. Now, a point is then reached I think where really the applicant needs to bring forward material that might give a fuller or different understanding of the events than that which the administrator had before him at the time he made his decision to suspend, and in this case we have got some additional material but not a lot.

19 We know from what has been told to us by Mr Collins and not been challenged by the Department that [J] is a long time member of the community around the small town of [name removed] and that he has been an effective contributor to the life of that community through the rugby football club and through the local fire brigade and has received special commendations in respect of his fire brigade work, and also has been regularly involved in coaching junior teams over many years.

20 It is also clear I think from the evidence that [J] gave that he has been a resourceful man who has been able to run different small businesses and has a number of enterprises operating simultaneously at the moment. I think two or three were mentioned and so that all points to someone who is I think making an effective contribution to the life of the community.

21 It is also clear from his evidence that he has a deep sense of shame and remorse over the events that have occurred and he did proceed at an early time to give an apology to the family of the student, and that family clearly has accepted that apology which itself I think speaks as some acknowledgment of the way in which he is seen, at least by that family.

22 The difficulty that he faces in terms of putting together information going to this question of good repute and of being a fit and proper person is the difficulty that I guess any man, faced with not just allegations of this kind but having made admissions of the kind that are before us in this case, will feel in terms of ventilating to others the nature of the conduct in the course of trying to obtain testimonials as to his character.

23 I do not think it is open to the Tribunal in a case as sensitive as this to proceed on the basis that the absence of informed testimonials can be disregarded. This is a case where it is necessary for the person to ventilate what has happened at least to some people on possibly a relatively confidential basis with a view to getting some perception from those people of the view they would now hold as to his good repute, and the appropriateness of regarding him as a fit and proper person to hold a bus authority.

24 This is not a case about whether the applicant is a fit and proper person in a generalised sense. It is a case about whether the applicant is a fit and proper person to hold a licence that involves the carriage of people.

25 The main concern I had listening to the applicant’s evidence was really reflected in the question I asked:

‘Q. [J] have you sought any external professional counselling or assistance of any kind in relation to the incident?
A. No, there was just that lady that came up to [name removed] with the interview with [officer from Department of Education]?
Q. That’s [name removed]?
A. She just came up for, you know—
Q. That’s the only contact you’ve had with someone who might be able to, in a sense, deal with any issues that your conduct might reveal?
A. Yes, that’s—
Q. Yes, alright.
A. She did offer, you know, any assistant (sic) at any time.
Q. Yes, and she’s employed by the Department is that right?
A. I think so, yes.
Q. Yes, so that is sort of awkward in its own right, you getting counselling from a Departmental officer I suppose. That is the only matter I wanted (to) raise with you.
A. Thank you.’

26 While he himself, I have got no doubt, has a deep sense of shame and remorse for what has occurred, one must be left in some doubt as to whether aberrant conduct of this kind might occur again in the future in similar circumstances. Those circumstances were ones of isolation with a female student of seventeen whom the applicant knew relatively well both through having carried her on the bus for several years, and through knowing her family and in circumstances where she had I think stayed overnight as a guest of his family at their home on some occasions. Really we have got no answer to that question. I would certainly suggest to [J] that there would be value in him at least ventilating these events to a trained professional who could possibly deal with such issues as the behaviour that has affected his wife in the past, and the reasons for his conduct on this occasion. While those issues remain unresolved, one can understand that the administrator would not be inclined to permit the applicant to drive the bus again.

27 I have not referred to the numerous cases that Mr Wozniak referred to today but I think I should indicate at least for the benefit of those that do not have regular association with this jurisdiction that the Tribunal has cited repeatedly the cases of Re T v Director of Youth and Community Services (1980) 1 NSWLR 392 and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 that goes to this question of fit and proper character. We have accepted in the Tribunal that the concept of good repute stands to a degree separately from the concept of a fit and proper person.

28 I should indicate however, that to be of ‘good repute in the eyes in the community’, is a standard that should not be taken too far. There can be circumstances, it seems to me, where the community’s perceptions, as assessed possibly by a polling organisation, as to good repute are so extreme as to not warrant being upheld in the context of a tribunal or a government agency seeking to maintain a rational approach to decision making. So I am saying that there may be such a degree of irrationality connected with the public’s notion of good repute that in certain extreme circumstances it should not be implemented. I am not suggesting that a case of this kind is of that sort; but it is probably concerns of that kind that lie behind the degree of care which is shown in the handling of sexual misconduct allegations.

29 I do note that [J] has been cooperative with the authorities in this process. I do not accept what he said about the circumstances of his resignation from the Department of Education. I essentially accept what Mr Wozniak said that the incident and the likelihood of facing an adverse breach of discipline finding would, on any reasonable view, have contributed to his decision to leave his position as an Ag assistant with the Department.

30 As my comments during the course of the proceedings indicated, I was interested in this question of whether there might be some possibility of preserving the applicant’s ability to drive buses in circumstances where there might not be contact with children, but I accept what Mr Wozniak says that at the moment the two types of bus authorities that exist are a regular bus authority and a long distance bus authority, that the regular bus authority does not within its own terms, discriminate between school bus driving and other bus driving and that it is probably impractical to seek to impose such a limitation in the real world of the driving of buses in the community. There will be circumstances in the case of any public passenger bus when children will be on board and children may be on board in isolation, so it does not seem to be practical to seek to deal with the case in that way.

31 As matters stand the decision is a decision to suspend.

32 I raised the question of why the decision is formulated as a suspension rather than a cancellation. Mr Wozniak explained that that probably occurred during a time when some investigations were still proceeding in relation to the matter.

33 I am disinclined I must say sitting as the Tribunal to increase the level of administrator’s decisions in relation to conduct of concern, so my decision is to affirm the suspension.

34 I propose to affirm the suspension. Clearly it is a situation where the Department may be minded, having perused these reasons and the transcript of today’s proceedings, to move to cancellation. Obviously it is open to the applicant to then file an application for review in respect of the cancellation. But I would hope that, if it is not me sitting, that any other member of the Tribunal who has cause to look at this matter takes into account what has been said on this occasion.

35 I would make the observation that whether the Department now moves to cancel or not, it should give consideration to the question of whether it may be appropriate to restore the authority at a point at which it is satisfied that the conduct which has given rise to its decision on this occasion is highly unlikely to be repeated again. I would expect that it could only reach any such conclusion on the basis of appropriate advice from appropriately qualified professionals.

36 Now just finally, as to this question of suspension versus cancellation as a mode of administrative decision, I agree basically with what Mr Wozniak had to say that suspension connotes an exercise of power in circumstances where there is some doubt I guess as to whether the final decision should be one of withdrawal of the suspension, that is restoration or outright cancellation.

37 It is meant to be (I think as we all understand) a form of interim control of a situation and it would follow I think from the observations that I have made today that certainly one ought not to be surprised if the administrator now moved from suspension to cancellation.

38 It seems not to be in the public interest to have suspensions which themselves are not time limited, so if no action is taken in respect of the suspension, my view would be that it ought to be regarded as having expired within say another three months.

39 I am not quite sure how one formulates that as an order but I would be really saying to the Department that it needs to make a decision one way or the other in respect of the matters as they have been canvassed today.

Order

40 Decision under review affirmed.