Lo v Department of Transport and Main Roads
[2018] QCAT 464
•25 July 2018
QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL
CITATION:
LO v Department of Transport and Main Roads [2018] QCAT 464
PARTIES:
LO
(applicant)v DEPARTMENT OF TRANSPORT AND MAIN ROADS
(respondent)
APPLICATION NO:
GAR072-18
MATTER TYPE:
General administrative review matters
DELIVERED ON:
25 July 2018
HEARING DATE:
On the papers
HEARD AT:
Brisbane
DECISION OF:
Member Bridgman
ORDERS:
The application is dismissed.
CATCHWORDS:
TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – where Department of Transport and Main Roads refused an application for a special needs determination – where applicant under 17 years of age – whether special need established for travel to and from education facility and workplace – whether need to drive a motor vehicle for stated purposes established – whether severe hardship established – meaning of ‘need’ – meaning of ‘severe hardship’
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20
Transport Operations (Road Use Management) Act 1995 (Qld)
Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld), s 9, s 20Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
R (on the application of M) (FC) v Slough Borough Council [2008] UKHL 52
R v Lake (1989) 44 A Crim R 63
Returned Sailors' Soldiers' and Airmen's Imperial League of Australia (Henley and Grange Sub-Branch) Incorporated v Abbott and Abbott [1946] SAStRp 39; [1946] SASR 270
Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31REPRESENTATION:
Applicant:
Self-represented
Respondent:
Self-represented
APPEARANCES:
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
REASONS FOR DECISION
LO made a special need application to the Department of Transport and Main Roads (‘Department’) on 2 January 2018. Approval would have allowed LO to hold a driver licence despite the fact he is not yet 17 years old and has not held a learner licence for the required period.
On 1 February 2018 the Department refused LO’s application. He then applied for this review.
The Tribunal is mindful LO hoped for a favourable determination in time for the school year, but the review was not set down until July 2018. The Tribunal as presently constituted prioritised the review.
LO’s evidence and submissions
LO is 16 years old, turning 17 in October this year. Ordinarily, a driver must be at least 17 years old to hold a driver licence that permits driving unaccompanied, which is what LO wants so he can travel to and from school and work on his own.
He lives with his parents in a rural area, some 35km from the private school he attends.
His special transport need arises from a combination of extra, higher level maths study undertaken before school, commencing at 7.00 am 4 days weekly plus some after school activity.[1]
[1]Letter of LO to Department, 1 December 2017.
The only school bus arrives, he says, some 10 minutes after normal school commencement at 8.25 am. His evidence is that he missed at least 15 minutes of regular classes every school day for 2 years before the special need application.[2]
[2]Ibid.
He submits the additional maths class will benefit him in his academic achievement and future entry to university.
He says he can attend both the maths course and ordinary school hours if allowed to drive himself. While his family is under financial strain, a family friend is willing to provide a motor vehicle.
LO works part-time, 12 hours per week during school term in three shifts after school and up to 8.5 hours daily in school holidays. He had worked for the same business for 14 months at the date of application.[3]
[3]Ibid.
The work place is some 5km from the school. A school bus stop is close to his work giving him a transport option to work on school days. He is reliant on his mother for transport home as there are no buses by the time his work is finished for the day. Her shift work means he often waits for 2 hours or longer after work, including at night.
His father is unable to assist with transport as he works night shifts. Two siblings attend universities, each in different cities, and likewise cannot drive him to school.
LO filed evidence including:
(a)the Department’s decisions and correspondence;
(b)confirmation of his maths course enrolment;
(c)letters from his school, employer, a police officer, and a medical practitioner (confirming matters of his aunt’s health and support needs);
(d)the Tribunal’s appointment of his mother as financial guardian for her sister; and
(e)tertiary enrolment details for his siblings.
LO submits the following about his decision to enrol in the extra maths program:
The applicant accepted the academic activity in the belief he provided to the Department of Transport and Main Roads the essential criteria for the granting of the age concessional license application. The applicant had received no communication from TMR to indicate that the documentation was not adequate until after the start of the school year. Failure of the Department of Transport and Main Roads to reply within an acceptable time frame predisposed the applicant to make the incorrect decision to take on the academic activity.[4]
[4]LO’s submissions pp. 41-42: Statement of response to [Respondent’s] file note, dated 16 February 2018.
Department’s evidence and submissions
The Department is required to help the Tribunal including by providing a statement of reasons and relevant documents.[5] The Department filed extensive materials including Submissions, a statement of reasons and numerous other documents.
[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 21.
LO obtained a learner licence on his 16th birthday in October 2017 and lodged his completed logbook with the Department on 19 January 2018.
The Department argued LO’s review application is misconceived as he does not meet the statutory criteria. It argues the applicant bears the onus of demonstrating the necessary elements but LO had not discharged that onus.
Two earlier Departmental decisions were submitted as suggested precedents.
a.A special needs licence was granted to allow the applicant to transport an adult with cancer and other complex needs for medical treatment. No other person was available and public transport not possible due to heath issues. The applicant was the adult’s “registered carer”.
b.The applicant was the sole financial support for a family living in regional Queensland where no public transport was available. The father was suffering terminal cancer, unable to work. Transport was necessary for the applicant to drive the father to medical appointments.
The Department’s view is that special need provisional licences should be approved only on deliberately narrow grounds because of the public interest in road safety.
Legislation
The Department administers the relevant legislation that allows young drivers with a special need to hold a driver licence.
Holding a driver licence in Queensland is highly regulated by both the Transport Operations (Road Use Management) Act 1995 (Qld) (‘the Act’) and Transport Operations (Road Use Management—Driver Licensing) Regulation 2010 (Qld) (‘the Regulation’). The general scheme is that a young driver must pass through a graduated system of driver licensing,[6] acquiring experience before progressing ultimately to an open license. The graduated scheme is described on the Department’s website.[7] The background and policy justification are described by Dixon (2007).[8]
[6]A young driver being a person under 25 years of age: Regulation s 28.
[7] Dixon, ‘Restrictions on Young Drivers Under the Transport Legislation and Another Act Amendment Act 2007 (Qld)’ (Research Brief No 2007/12, Queensland Parliamentary Library, Parliament of Queensland, 2007).
In the ordinary course, a young driver must be at least 17 years old and have held a learner licence for 12 months to hold a driver licence (among other requirements).[9] The graduated scheme starts with a learner licence, then staged provisional licences. An open licence is ordinarily not available until the young driver is 20 or older, with three years’ successful driving experience.
[9]The Regulation, s 14(1)(a)(iii)(B).
Drivers younger than 17 may be licensed if they have satisfied the chief executive of the Department (the Director-General), on application, of special need for the purpose of ss 9 and 20 of the Regulation.[10]
[10]The age 17 requirements of s 14 of the Regulation also do not apply if a special need application is approved for the driver: s 14(4).
The relevant sections of the Regulation for motor car licenses (class C)[11] are:
9 Minimum age—licence other than class C learner licence
(1)A person is not eligible for a Queensland driver licence, other than a class C learner licence, a P2 type licence or an open licence, unless the person is at least 17 years.
(2) However, subsection (1) does not apply to a class C P1 provisional licence if the chief executive is satisfied under section 20 that the person has a special need for the licence.
[11]Analogous provision is made for motorcycle (class R) licensing.
20 Special need—learner or provisional licence
(1)This section does not apply to a class RE learner licence.[12]
[12]Class RE refers to motor cycle licences with engine size restrictions. See National Transport Commission (Road Transport Legislation—Driver Licensing) Regulations 2006 (Cth), cl 13.
(2)A person has a special need for a learner or provisional licence if—
(a) the person needs to drive a motor vehicle—
(i)to, or from, the person’s place of employment; or
(ii)in the course of the person’s employment; or
(iii)to, or from, an educational institution that the person attends; or
(iv) to get medical treatment for the person or a member of the person’s family; and
(b) there is no other transport reasonably available to the person; and
(c) a refusal to grant the licence would cause severe hardship.
(3)A person claiming a special need must apply to the chief executive.
Note—
See part 16A for requirements about the application.
(4)The application must be accompanied by a signed statement supporting the application from—
(a)for an application under subsection (2)(a)(i) or (ii)—the person’s employer; or
(b)for an application under subsection (2)(a)(iii)—the person in charge of the educational institution; or
(c)for an application under subsection (2)(a)(iv)—a doctor.
(5)In deciding whether to approve the application, the chief executive must consider—
(a)the times of day when the person must travel; and
(b)how often the person must travel; and
(c)the distance the person must travel; and
(d)the person’s traffic history.
There are cumulative requirements to show special need:
(a)one or more specific transport purposes;[13]
(b)the applicant needs to drive a motor vehicle for the transport purpose;[14]
(c)no other transport is reasonably available;[15]
(d)severe hardship.[16]
[13]The Regulation, s 20(2)(a)(i)-(iv): travel to and from employment; travel in the course of employment; travel to and from education; and travel for medical treatment.
[14]Ibid.
[15]Ibid s 20(2)(b).
[16]Ibid s 20(2)(c).
The Department rejected the application because it found LO had not demonstrated severe hardship and (at least for his work) alternative transport was available.
Effect of decision
The decision on a special need application is not to grant a licence, but that the person is eligible for licence. A special need decision is permissive, allowing an applicant to seek a licence if otherwise qualified, for example by passing prescribed tests.
The decision to grant a licence is a completely different decision. The language of
s 20(2)(c) – ‘a refusal to grant the licence would cause severe hardship’ – does not speak directly to the effect of refusal of a special need application.
Special need approval grants eligibility for a driving licence but a licence might be refused regardless if, for example, the person failed a driving skills or road rules test.
Refusal of a special needs application for a person under 17 would inevitably result in refusal to grant a driver licence on separate application because of ineligibility.
The test should be construed so that severe hardship would be caused by refusal to approve the special need application meaning grant of a licence would be refused on eligibility grounds. Such a construction gives proper effect to the intention of the legislation.[17]
[17]Acts Interpretation Act 1954 (Qld), s 14A; Project Blue Sky v ABA [1998] HCA 28; 194 CLR 355.
Need and purpose
The requirements of s 20 are cumulative and particular. The first in s 20(2)(a) is that ‘the person needs to drive a motor vehicle’ (emphasis added) for one or more stated purpose about employment, education or health.
Establishing a purpose does not establish need. A purpose can be shown but the need to drive a motor vehicle for the purpose is different.
‘Need’ is an ordinary English word, undefined in the legislation. The Macquarie Dictionary definition is:
1. a case or instance in which some necessity or want exists …
2. urgent want, as of something requisite …
3. necessity arising from the circumstances of the case …
Need must be assessed objectively, in contrast to subjective wants or preferences, and need will turn on the factual circumstances of the case. In this context, need is more like necessity than preference or want.
An applicant must show a need to drive a motor vehicle for the stated purpose, in the sense that it is necessary to drive a motor vehicle for that purpose. But need does not mean impossibility,[18] such that without being able to drive, the applicant would not for example be able to attend his school or go to work.
[18]R (on the application of M) (FC) v Slough Borough Council [2008] UKHL 52, [54] (Lord Neuberger of Abbotsbury).
Is ‘need’ independent of alternative transport?
Section 20(2)(b) separately requires that no other transport is reasonably available. In my opinion, need is not separate from the alternative transport question: there may be no need to drive because other transport is reasonably available; and there may be a need despite other transport.
Does LO need to drive a motor vehicle to or from his school?
LO’s main argument is that the elective maths course requires attendance before and possibly normal school hours. He says early attendance cannot be achieved by public transport. His evidence is that in the past, the school bus has met his transport needs even if arrival times have been a problem.[19]
[19]The Tribunal notes that the online timetable (as at the hearing date) has the school bus arriving almost 20 minutes earlier than his evidence suggests. It is accepted that actual arrival may be later.
An alternative to the school bus is needed if LO is to attend the elective classes, but his ordinary school attendance need can be met by public transport as it has in the past.
An applicant cannot become eligible for a driving licence as a special need merely by making choices.
LO does not need to drive a motor vehicle to and from his school even though without being able to drive he might not be able to attend the elective classes.
Does LO need to drive a motor vehicle to or from work?
On his employment, he managed to travel to work and then home for the 14 months up to the application without driving: he does not need to drive a motor vehicle to and from his place of employment, even if to drive would be convenient for him and his family.
Severe hardship
‘Severe hardship’ is defined self-referentially in schedule 9 of the Regulation:
severe hardship means severe hardship suffered by—
(a) the applicant; or
(b) the applicant’s family because the applicant has taken on a role of special responsibility in relation to the applicant’s family.
In using the phrase ‘severe hardship’, the legislative scheme is necessarily referring to something greater than ordinary hardship. ‘Severe’ is defined in the Macquarie Dictionary as:
1. harsh; harshly extreme; …
2. serious; stern …
3. grave …
…
6. hard to endure, perform, fulfil etc …
Severe hardship is used in the Act and Regulations for:
(a)age related special needs licences (as here);
(b)interlock exemptions;[20]
(c)high-powered vehicle exemptions;[21]
(d)late night driving.[22]
[20]The Regulation, s 63K, for the purposes of the Act, s 91Q(3)(c).
[21]The Regulation, s 71(6)(c).
[22]By persons suspended etc: the Regulation, 74(3)(b).
The term is also used in the context of releasing impounded motor vehicles under the Police Powers and Responsibilities Act 2000 (Qld).[23]
[23]See ss 79A, 79B, 79C, 79D, 79F, 79G, 79H, 79K, 79N, and 79O.
The Act and Regulation refer also to:
(a)‘extreme hardship’ in the context of the Court issuing a restricted licence to a disqualified driver;[24]
(b)a Court making a ‘special hardship order’ allowing suspended drivers to drive in stated circumstances.[25] Such orders may be made only where the Court is satisfied as to ‘extreme hardship’;[26] or ‘severe and unusual hardship’.[27]
[24]The Act, s 87(5)(a)(ii): refusal to issue the licence ‘would cause extreme hardship to the applicant or the applicant’s family by depriving the applicant of the applicant’s means of earning the applicant’s livelihood’.
[25]Ibid ss 87(5)(b), 87(5)(f), 150(1)(a); the Regulation pt. 14.
[26]The Regulation, ss 94(1)(c)(i), 111(1)(b)(i).
[27]Ibid ss 94(1)(c)(ii), 111(1)(b)(ii).
President Kirby noted of ‘exceptional hardship’:
In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore that can give rise to the relief under s 5(1)(b)(ii). The provision for relief on that ground must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant.[28]
[28]R v Lake (1989) 44 A Crim R 63 (NSWCCA) 66-67: confiscation of property. See also Frohling v Police [2011] SASC 53: severe financial or physical hardship for vehicle impoundment; DPP (Vic) v Nikolaou [2008] VSC 111 [24]: hardship for confiscation of property used to commit drug offences.
Those comments, made in the context of confiscation laws must be read in context because proportionality to the seriousness of offending is a factor. But the quotation usefully highlights that severe hardship:
(a)is more than ‘ordinary hardship’; and
(b)must be seen in the scheme of the Act being improved safety arising from age and experience requirements.
‘Ordinary hardship’ has a broad meaning determined in each case:
The word “hardship” is capable of being descriptive of adverse repercussions of every kind; on the one hand, mere transient discomfort or inconvenience, something evanescent and causing little disadvantage, although a source of some annoyance, such as the denial of some luxury; and, on the other hand, some permanent and unalterable evil or misfortune, together with all the grades of tribulation between those extremes.[29]
[29]Returned Sailors' Soldiers' and Airmen's Imperial League of Australia (Henley and Grange Sub-Branch) Incorporated v Abbott and Abbott [1946] SAStRp 39; [1946] SASR 270, 273. In the family law context hardship has been interpreted as ‘no less than a substantial detriment’: MacKenzie and MacKenzie [1978] FamCA 72, [40].
Hardship is an elastic concept that must be assessed on the facts of each case. Severe hardship must be something substantial, and more than discomfort or inconvenience.
The context for this review is the graduated driver licence scheme and its intention to assure better the safety of young drivers and other road users, inviting a balancing of the public interest in safety against the consequences of severe hardship for the individual or the individual’s family in limited circumstances. Demonstrating severe hardship will be onerous: higher than ordinary hardship but severe and unusual hardship and extreme hardship are higher still.
Assessment of hardship in this context is only meaningful if the test of severe hardship is objective.
For LO, severe hardship was said to arise from:
(a)Family:
(i) emotional hardship especially to his parents feeling they have let their son down;
(ii) stress on his father who has health issues;
(iii) his mother’s role as guardian for her sister,[30] who is reliant on her for support and including disruption to that support by her having to drive her son.
[30]The relevant QCAT appointment in evidence showed the appointment to be as financial administrator only: Applicant’s materials p. 34.
(b)Education and employment:
(i) loss of educational opportunity and advancement by not being able to study the higher-level maths course at school before normal hours and loss of school contact because of late school bus arrivals;
(ii) having to wait, sometimes for hours, while his mother completes her shift, including waiting until after 10.30 pm some nights;
(c)Transport and finance:
(i) the financial burden from having to use taxis, said to be between $315 and $504.07 weekly to attend school and work.
Family
LO has not assumed a role of special responsibility in his family.
His mother’s support and guardianship for her sister is not referable to LO and cannot satisfy the requirement.
It follows that LO must establish that refusal to grant a special needs licence would cause personal severe hardship to him.[31]
[31]The Regulation, 74(3)(b).
Personal hardship for the applicant may include family emotional toll and parental stress, but there is no evidence that allows the Tribunal to conclude these factors as asserted amount to ‘severe hardship’ for LO.
Education and work
The Tribunal notes that LO places importance on the extra maths course and other educational activity and that working enables him to make a financial contribution.
On the evidence, the late arrival of the bus has resulted in missing some time in ordinary classes since 2016. There is no evidence that this has compromised his learning or performance or been historically severe hardship.
LO’s evidence is that he elected to undertake the extra maths program to benefit his academic record and university entry. That he misapprehended the Department’s position and acted on assumptions about approval and timing cannot amount to severe hardship. To his credit he acknowledges this in characterising his decision as ‘incorrect’.
The difficulty arising from the 7.00 am start is a hardship, but not severe hardship. He is not compromised in reasonable education by taking a particular elective.
Transport and finance
LO asserts, without further evidence, that travel by taxi would cost between $315 and $504.07 weekly to attend school and work. No details of taxi travel need is given and no explanation when non-taxi travel might be used. The evidence is insufficient to support a finding of severe hardship.
LO is reliant on his mother for his journey from work to home because there is no public transport. He must wait for her to complete her shift work. This has apparently been the case for 14 months before the application. While this is inconvenient, it does not amount to severe hardship.
Conclusion on hardship
The hardships LO suggests are not severe hardship, singly or together.
Other considerations in s 20
The second requirement in s 20(2)(b), alternative transport, is a question of fact. The Department says alternative transport is available for LO’s work. That is also his evidence. In the past other transport was reasonably available, a combination of public transport and parental assistance.
While the Tribunal finds there is no reasonable other transport for the early morning elective, as discussed above, there is reasonable other transport for ordinary school attendance.
The findings about need and hardship obviate the need to consider the s 20(5) factors.
Policy
The Department urged on the Tribunal a policy that special needs applications should be considered narrowly. The Tribunal may take policies into account but must consider each case on its merits.[32] In the end, the statutory requirements of both the need to drive and severe hardship mean licence eligibility for under-17s with special needs will be narrow as a matter of correct interpretation of the law.
[32]For example, Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589-590 (Brennan J).
Conclusion
The Department argued:
There is no basis for the Tribunal to consider that the decision of TMR was incorrect or made without due consideration.[33]
[33]Submissions by the Respondent, [14].
The argument is misconceived.
This Tribunal is required in a review to produce the correct and preferable decision by way of fresh hearing on the merits.[34] This is not an appeal and the Department is not defending its decision. The Tribunal must make a fresh decision on the materials before it and “stands in the shoes” of the original decision maker,[35] even though the determination might be to confirm or amend the decision.[36]
[34]QCAT Act, s 20.
[35]Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31, [40], [66] (Kirby J); [134] (Kiefel J).
[36]QCAT Act, s 24.
There was ample material provided by both the applicant and the Department to ensure the Tribunal could arrive at the correct and preferable decision on the papers. In the end, that decision is confirmed.
The Tribunal was satisfied on the evidence that: LO has serious transport challenges getting to and from both his school and his workplace, his school bus does not suit his schooling timetable for the elective, and family transport support was limited by his parents’ working hours and other circumstances. But, he has not established that he needs to drive a motor vehicle for education and work attendance. Nor has he demonstrated that severe hardship would arise from his application not being approved.
The Tribunal confirms the decision to reject the application for a special needs determination for sections 9 and 20 of the Transport Operations (Road Use Management) Regulation 2010 (Qld).
The application for review is dismissed.
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