Jackson v The Department of Transport and Main Roads
[2014] QCAT 527
•21 October 2014
| CITATION: | Jackson v The Department of Transport and Main Roads [2014] QCAT 527 |
| PARTIES: | Craig Anthony Jackson (Applicant) |
| v | |
| The Department of Transport and Main Roads (Respondent) |
| APPLICATION NUMBER: | GAR130-14 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 15 August 2014 |
| HEARD AT: | Brisbane |
| DECISION OF: | Dr Cullen, Member |
| DELIVERED ON: | 21 October 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Respondent’s 22 July 2014 decision to cancel the Applicant’s tow truck driver’s certificate with immediate effect is confirmed. |
| CATCHWORDS: | OCCUPATION REGULATION – TOW TRUCK OPERATOR’S DRIVER’S CERTIFICATE – cancellation by Department for conviction of riot – decision confirmed Tow Truck Act 1973 (Qld), s 21, s 28 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Jackson was self-represented |
| RESPONDENT: | Ms Stacia Flann, Crown Law, for the Respondent Department of Transport and Main Roads |
REASONS FOR DECISION
Background
The Applicant, Craig Jackson, was the holder of tow truck operator driver’s certificate pursuant to the Tow Truck Act 1973 (Qld).
On 13 June 2014, the Respondent, the Department of Transport and Main Roads (DTMR) wrote to Mr Jackson and informed him that it had grounds to either suspend or cancel his driver’s certificate. This was for the reason that the Queensland Police Service had advised the DTMR that Mr Jackson pleaded guilty to one count of riot in the Southport Magistrates Court on 13 December 2013. He was sentenced to six months in prison, with the term suspended after serving a period of two months.
Mr Jackson was invited to show cause as to why his driver’s certificate should not be cancelled. On 11 July 2014, the DTMR advised Mr Jackson that his driver’s certificate was cancelled in accordance with s 21A of the Tow Truck Act 1973, taking into consideration s 21 of the Act, which relates to considerations of public interest.
Mr Jackson then sought an internal review of the DTMR’s 11 July 2014 decision, in accordance with s 28 of the Act. The grounds for review were:
a) Financial hardship;
b) His wife and minor son depend upon his income;
c) He has no other qualifications that would enable him to seek work other than as a tow truck driver; and
d) He has been a tow truck driver for 20-years and the conviction of riot is his only criminal offence.
On 22 July 2014, the DTMR advised Mr Jackson that it had reviewed the 11 July 2014 decision, which it confirmed. Although Mr Jackson remains employed by a tow truck service provider, he is unable to perform many of the duties that he was permitted to perform whilst he held a driver’s certificate. For example, his driver’s certificate authorised him to attend the scene of an accident, and to tow vehicles that had been seized by police.[1]
[1]Tow Truck Act 1973 (Qld) s 12.
Mr Jackson seeks review by the Tribunal of the DTMR’s 22 July 2014 decision cancel his tow truck driver’s certificate with immediate effect.
Disqualifying Act
Section 2 of the Act defines the term ‘disqualifying offence’ in the same terms as those set out in the Transport Operations (Road Use Management) Act 1995 (Qld) Schedule 4:
(b)otherwise—means an offence against—
(i)the Criminal Code; or
(ii)a law of another jurisdiction, including a jurisdiction outside Australia, that substantially corresponds to an offence against the Criminal Code.
Mr Jackson’s conviction for riot under s 61(1) of the Queensland Criminal Code is a disqualifying offence. This fact is not in dispute. As such, it is open to the DTMR to cancel or suspend Mr Jackson’s driver’s certificate under the Act.
The issue for determination by the Tribunal is whether the DTMR properly exercised its discretion in considering the public interest objectives of the legislation.
Decision
The DTMR raises public interest considerations in support of its decision to cancel Mr Jackson’s tow truck driver’s certificate. Section 21 of the Tow Truck Act 1973 provides the following guidance in relation to the public interest:
21Consideration of public interest for pt 4
(1)When considering whether it is in the public interest to cancel, suspend or immediately suspend an authority holder’s authority, regard must be had to the following—
(a)the need to ensure that the reputation of the tow truck industry is not affected by the involvement in the industry of persons likely to adversely affect the industry’s reputation;
(b)the legitimate expectation members of the public, particularly vulnerable members of the public, have that they will not be subject to assaults or aggressive, coercive or otherwise inappropriate behaviour from persons involved in the tow truck industry.
Examples for subsection (1)—
1It may be in the public interest to cancel or suspend, or if authorised under section 21B, immediately suspend a tow truck driver’s or an operator’s authority because the person is charged with possessing a weapon in contravention of the Weapons Act 1990 or a dangerous drug in contravention of the Drugs Misuse Act 1986 and the offence was committed while performing activities under the authority.
2It may be in the public interest to cancel or suspend, or if authorised under section 21B, immediately suspend a tow truck driver’s or an operator’s authority because the person is charged with a number of offences of obstructing a police officer in the performance of the officer’s duties and the alleged offences happened while the person was not performing activities under the authority.
3It may be in the public interest to cancel or suspend, or if authorised under section 21B, immediately suspend a tow truck driver’s authority if the driver assaults a person at a crash scene.
(2)Subsection (1) does not limit what may be considered in deciding the public interest for the purposes of this Act.
Purpose of enactment of the Tow Truck Act 1973
It is appropriate to look at the legislative purposes and objectives of the Act. According to the DTMR’s website,[2] the Tow Truck Act 1973 was enacted to assist in the management of, and set standards for, the crash related towing industry within regulated areas. The Transport and Other Legislation Amendment Bill 2008 Explanatory Notes states that the 2008 amendments were enacted with an intent to strengthen the process of criminal history checking of relevant persons in relation to certain approvals under the Act.
[2]
It is noteworthy that from 1 July 2014, the Queensland Government has introduced further measures in relation to criminal activity – specifically in relation to organised criminal organisations. The following extract is taken from the DTMR’s homepage, and evidences a clear intent to exclude persons who are known active members of criminal organisations as a matter of public policy:
The Queensland Government has introduced measures to disrupt and dismantle criminal organisations and their enterprises in Queensland. The changes prohibit known active members of criminal organisations from working in selected industries. One of those industries is the regulated tow truck industry.
From 1 July 2014, those involved in the regulated towing industry—that is, Tow Truck Licence holders, Tow Truck Drivers and Tow Truck Assistants—cannot be a member or associate of a criminal organisation. When lodging a new application or renewing an existing accreditation/licence, a criminal organisation check will be undertaken with the Queensland Police Service (QPS), to establish if the applicant is a member or associate of a criminal organisation.
The outcome of the criminal organisation check will influence the decision about the application lodged. Ongoing criminal organisation checks will also be conducted during the term of the accreditation/licence.
The offence of riot occurs when a group of persons use, or threaten to use, violence and such conduct would cause a person in the vicinity to reasonably fear for their safety. Although Mr Jackson gave evidence at the Tribunal hearing that he was merely standing at the door of the restaurant where the ultimate riot unfolded, the Tribunal must assume that the elements under the Criminal Code were established, in view of his conviction.
The Tribunal has not had the benefit of a sentencing transcript in relation to Mr Jackson’s conviction. Mr Jackson has declined to provide the transcript on the basis that he could not afford to order a copy of the transcript from Auscript. This is unfortunate, as it leaves the Tribunal in a position where it is unable to consider any comments made by the sentencing judge that may have been favourable to Mr Jackson.
Mr Jackson has given evidence that the DTMR’s decision will result in some financial hardship for himself, and also his wife, and his son. The Tribunal accepts that this is the case, but considers that the financial hardship is attributable to Mr Jackson’s conviction in the first instance, and not to the DTMR’s decision in isolation.
Mr Jackson has given evidence during cross-examination by the DTMR that he is both a former Bandidos M.C. member (a criminal organisation in Queensland) and also that the riot he was involved in was the now notorious Gold Coast riot that inspired the Queensland Government to enact anti-gang legislation. With this backdrop, it is clear that the DTMR has properly exercised its discretion that it would be contrary to public interest for Mr Jackson to, at this present juncture (which is close in time to both his conviction and abandonment of club colours) to possess a driver’s certificate under the Act.
Mr Jackson asks the Tribunal to consider that in circumstances where he attended the scene of an accident previously, if it was a serious accident where people were likely to be distressed, there would most likely be a police presence. Given the likely police presence, Mr Jackson asserts that there is little practical ability for him to interact with distressed persons at the scene of an accident.
The public policy rationale behind the Act takes policy concerns a step further than this, however. The post 1 July 2014 changes in relation to the DTMR’s processing of applications involving members or associates of criminal organisations indicate that the government is concerned as a matter of legitimate public policy to avoid exposing vulnerable members of the public to possible standover tactics by drivers who might pressure them to use their services. Similarly, there is obvious concern by the government that tow truck drivers are in a position to facilitate the ease of transport of stolen vehicles.
There is no evidence to suggest that Mr Jackson has himself been involved in these activities. Rather, I raise these matters in response to his argument that the public is not at risk, given the police presence at serious accidents. Mr Jackson’s argument is not responsive to the scope of concerns that the Queensland Government has in relation to public policy.
The Act’s public policy objectives in ensuring public confidence in the tow truck industry are met where the DTMR excludes an applicant who has been convicted of an offence that would undermine public confidence in the good standing and perceived safety of the industry. Given the inability of the Tribunal to consider the sentencing remarks that Mr Jackson has been unable to supply, and given the elements of the offence of ‘riot’ as set out in the Criminal Code, the Tribunal finds that that the DTMR properly applied the Act in cancelling Mr Jackson’s tow truck driver’s certificate with immediate effect.
Orders
The DTMR’s 22 July 2014 decision to cancel Mr Jackson’s tow truck driver’s certificate with immediate effect is confirmed.
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