McGinness v Road Transport Authority (Administrative Review)
[2023] ACAT 79
•30 October 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
MCGINNESS v ROAD TRANSPORT AUTHORITY (Administrative Review) [2023] ACAT 79
AT 59/2023
Catchwords: ADMINISTRATIVE REVIEW – review of decision requiring applicant to undertake a medical assessment prior to renewal of driver licence – whether the respondent is to bear the costs of medical assessment – whether the respondent erroneously relied on administrative policies – whether the applicant should be required to put forward reasons that a policy should not be applied – application of policy leaves no room for discretion and is arbitrary – in considering the correct and preferable decision, the respondent is obliged to consider a policy and the applicant’s individual situation – when considering whether to exercise its discretion, the decision maker must consider the cost of the test and the impact on the income earning ability of the applicant if deprived of his license – decision maker must balance the public risk against an individual right – decision set aside
Subordinate
Legislation cited: Road Transport (Driver Licensing Regulation 2000 ss 11, 78
Cases cited:Re Minister for Resources: Ex parte Cazaly Iron Pty Ltd [2007] WASC 175
BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation [2007] FCA 1528
Drake v Minster for Immigration & Ethnic Affairs (No 2) (1979) 2 ALD 634
List of
Texts/Papers cited: Austroads, Assessing fitness to drive for commercial and private vehicle drivers (2022 edition)
Tribunal:Senior Member S Lancken
Date of Orders: 30 October 2023
Date of Reasons for Decision: 11 December 2023
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 59/2023
BETWEEN:
PETER MCGINNESS
Applicant
AND:
ROAD TRANSPORT AUTHORITY
Respondent
TRIBUNAL:Senior Member S Lancken
DATE:11 December 2023
ORDER
The Tribunal orders that:
The decision of the respondent of 26 April 2023 to require the applicant to provide a passed driver assessment under regulation 78(2) (a) of the Road Transport (Driver Licensing) Regulation2000 is set aside.
……………………………
Senior Member S Lancken
REASONS FOR DECISION
Background
Mr McGinness, the applicant in these proceedings, was born on 10 April 1950 and is 73 years old. He turned 70 on 10 April 2020.
The applicant has held a motor vehicle licence in the ACT since 1967.
Since 22 November 2016, the applicant’s licence has included condition D allowing him to drive a “rideshare vehicle”.[1]
[1] See Road Transport (Driver Licensing Regulation 2000 s 11, Table 11
The applicant relies on his conditional license to drive for rideshare company “Uber”.
On 28 March 2023, the applicant was notified by the respondent that he was required to undertake a medical assessment prior to the renewal of his Public Vehicle Driver Licence (PVDL).[2] The applicant subsequently undertook the assessment, known as a Commercial Drivers Health Assessment (CDHA). The medical practitioner who completed the CDHA concluded that, at that time, Mr McGinness met “the relevant criteria for an unconditional licence”.[3]
[2] Document 4 – ‘Commercial Drivers Health Assessment Completed by Dr Yeung’ dated 28 March 2023 of Tribunal documents filed 14 August 2023, page T13
[3] Document 4, page T14
On 26 April 2023, the respondent issued a notice to the applicant requiring that he provide a “passed PVDL or TISC driver assessment certificate” (the Notice).[4] To provide such a certificate, the applicant needed to be assessed by one of the establishments referred to in the Notice, who are authorised to test and issue such a certificate.
[4] Document 3 – ‘Request for Public Vehicle Driver Licence Driving Assessment Letter’ dated 26 April 2023 to Tribunal documents filed 14 August 2023, page T10
To be assessed and have a driver assessment certificate issued, the applicant would have to pay one of the establishments to carry out the test and issue the certificate.
The Notice was issued by the respondent under regulation 78 (2)(a) of the Road Transport (Driver Licensing) Regulation 2000 (the Driver Licensing Regulation), which reads:
78(2) The road transport authority may, by written notice given to a person who is the holder of a driver licence or an exempt driver, require the person, within the reasonable time stated in the notice, to do 1 or more of the following:
(a)undergo tests or assessments, or provide other evidence, of the person’s driving ability or knowledge of safe driving practices or road law …
The decision to issue the Notice is reviewable by the Tribunal.
On 8th May 2023, the applicant requested reasons for the issue of the Notice,[5] to which the respondent replied:
As per our policy, an annual medical examination and TISC/PVDL assessment is required for all holders of a commercial licence at the age of 70 and above. Therefore, there is no relation between the outcome of your medical assessment and the requirement for you to provide a TISC/PVDL assessment as it is just a standard for all commercial licence holders.[6]
[5] Document 2 – ‘Internal Review Request’ dated 23 May 2023 of Tribunal documents filed 14 August 2023, page T8
[6] Document 2, page T7
On 23 May 2023, the applicant sought an internal review of the decision to issue the Notice.
The respondent confirmed its decision on 23 June 2023, giving the following explanation:
Commercial vehicle drivers generally spend considerable time on the road, increasing the likelihood of a crash. They may also be monitoring various in-vehicle communication and work replated (sic) systems – a further factor that increases the likelihood of an accident occurring. To ensure the risk to the public is similar for private and commercial vehicle drivers, the medical fitness requirements for the commercial vehicle standards must be more stringent.[7]
[7] Document 1 – ‘Internal Review Outcome – Notice of Decision’ dated 20 June 2023 of Tribunal documents filed 14 August 2023, page T3 at [15]
On 31 July 2023, the applicant filed an application with the Tribunal for a review of the decision requiring the applicant to submit a “passed PVDL or TISC driver assessment certificate” (the Assessment Certificate).
The applicant’s grounds for review
The applicant seeks a review of the decision to issue the Notice on two grounds.
Regulation 78(2) requires the respondent bear the costs of assessment
The first ground is that the respondent is not authorised to issue the Notice without paying for, or agreeing to pay for, the Assessment Certificate.
The applicant’s argument in relation to payment for the Assessment Certificate is that regulation 78(2)(c) of the Driver Licensing Regulation explicitly states that, if a medical examination is required, that examination is to be at the cost of the licensee, and that regulation 78(2)(a) is silent as to who bears the costs of a required test or assessment or evidence.
The provision must be interpreted based on its ordinary and clear meaning, the context of the regulation and purpose of the provision.
The words of regulation 78(2)(a) of the Driver Licensing Regulation do not, on their face, make it clear who is to pay the costs of such testing. In the context of the legislation, however, it cannot be that the inclusion of the words “at the person’s own cost” in regulation 78(2)(c) means that the respondent is obliged to pay for testing of the competence to drive of an applicant for a licence that might be required by the respondent. If someone is required to “provide” something, the ordinary meaning is that they must do what is necessary to so provide it. In this case, the applicant must provide an Assessment Certificate, including paying whatever fee or costs are necessary to obtain the certificate.
The context of the request includes:
(a)That every person who applies for a driver’s licence, at some stage, must undergo a test and pay a fee for that test. Those fees are published on the Access Canberra web site.
(b)That all other requirements to obtain a license (for instance, a “Working with Vulnerable People (WWVP)” registration when required) is at the applicant’s cost.
(c)That the license confers a privilege on the licensee, that is to charge people for sharing their vehicle.
Further a failure to pay or agree to pay for a requirement of the Notice does not render the Notice invalid and cannot be a ground to set it aside.
The applicant’s argument that the Tribunal should set aside the Notice because it did not make provision for the respondent to pay the cost of testing therefore fails.
Reliance on the guidelines
The applicant’s second substantive argument is that the respondent’s discretion was not appropriately exercised because it relied on its guideline without evidence as to how the guideline contributed to achieving the intent of the Regulation.
It is indisputable that the intent of the Regulation is to contribute to community safety, which is one of the policy considerations relevant when licencing people to drive motor vehicles.
It is also indisputable that, in providing for public safety, the nature of the use to which a class of license is used is an appropriate matter to be considered in exercising a discretion to issue a notice under regulation 78. In the present case, a rideshare license involves the carriage of the public for a fee and would usually involve the licensee spending “more time on the road” than the holder of an unconditional license.[8] The applicant agreed with these two propositions.
[8] Document 1, page T3 at [15]
It follows that there may be more stringent license conditions placed on the holder of a licence allowing rideshare work than in a “normal” unconditional licence.
The argument of the applicant is that imposing a condition without considering a person’s unique circumstances, or where there is no evidence that the condition will contribute to public safety, can result in a decision that was not the correct and preferrable decision. As this was the case with the decision to issue the Notice, the Tribunal should substitute its own decision for that of the respondent.
The respondent relied on its own policy guidelines, which are published in a document titled “Assessing fitness to drive for commercial and private vehicle drivers. 2022 Edition” (the Guidelines).
In relation to road testing, the Guidelines say that a person applying for a public vehicle driver’s license or for a renewal of such a license, which includes a class D license, must have a road test “at age 70 and annually thereafter”.[9]
[9] Guidelines, page 216
There was no evidence before the tribunal that, at age 70, a person is more or less likely to be competent to drive a motor vehicle. There is no evidence that conducting such a test every year will contribute to public safety.
Absent such evidence, the applicant argued that the implementation of the Guidelines, in so far as his license was concerned, was arbitrary, and that the Tribunal should set aside the decision requiring him to undergo a road test and provide a “passed PVDL or TISC driver assessment certificate”.
Consideration
The respondent is entitled to develop policies that guide it in the exercise of its discretionary power under regulation 78.[10]
[10] Re Minister for Resources: Ex parte Cazaly Iron Pty Ltd [2007] WASC 175
The respondent argues that:
Where the Parliament has conferred wide discretions on an official decision-maker, particularly in relation to high volume decision-making, it is entirely consistent with the legislative intention in conferring such a discretion that its exercise will be guided by administrative policies.[11]
[11] BHP Billiton Direct Reduced Iron Pty Ltd v Duffus, Deputy Commissioner of Taxation [2007] FCA 1528 at [103] (emphasis added)
The evidence in relation to the volume of decision making of this type is that, in the year between 1 October 2022 and 30 September 2023, the respondent made 14 decisions in relation to the renewal of a public vehicle driver’s license of persons “70 and over”.
Fourteen decisions per year is hardly high volume.
The respondent further argues that it is for the applicant to put forward reasons why the policy should not be applied,[12] relying on Drake v Minster for Immigration & Ethnic Affairs (No 2) (Drake).[13]
[12] Respondent’s submissions dated 20 September 2023, page 5 at [23]
[13] (1979) 2 ALD 634
In Drake, Bennan J identifies that the policy or guideline in that case involved a complex range of considerations that were generally set out in a “Ministers Policy Statement.”[14] The Ministers Policy Statement was not proscriptive, rather guiding the making of the decision. The present case is quite different.
[14] Drake, pages 637, 638
In the present case, the requirement for a person of age 70 to provide a “passed PVDL or TISC driver assessment certificate” leaves no room for exercise of discretion and is arbitrary.
Given there was no evidence before the Tribunal about the relative competence of persons aged less than 70 and those who have reached that age, and the fact that the number of decisions made in those circumstances is negligible in any year, the respondent has not demonstrated a cogent reason for requiring additional testing every year of drivers who are aged beyond their 70th birthday.
The decision in Drake does not stand for the proposition that if a guideline or policy is published, those challenging the application of the guideline must put forward reasons and satisfy the Tribunal why the policy “should not be applied in the circumstances of a case.”[15]
[15] Respondent’s submissions dated 20 September 2023, page 5 at [23], citing Drake
Further, the respondent’s submission addresses the lack of any evidence or reasoning behind the guideline. There, the respondent says:
(a)commercial drivers spend considerable time on the road and that creates a higher risk;
(b)the risk is increased by the need to monitor in-vehicle communication and work-related systems, and
(c)the policy ensures medical fitness for commercial vehicle license holders is more stringent for a driver not involved in commercial activities.[16]
[16] Respondent’s submissions dated 20 September 2023, page 5 at [24]
Such reasoning does not address the submission of the applicant that the mere fact that a driver has reached their 70th or 71st birthday, affects a person’s medical fitness to hold such a license.
In considering the correct and preferable decision, the respondent is obliged to consider not just the guideline, which is somewhat arbitrary, but also the applicant’s individual situation, which includes evidence of any driving penalty or conviction since he turned 70, the health assessment, and his driving record and experience.
When considering whether to exercise its discretion, the decision maker must also consider the cost of the test and the impact on the income earning ability of the applicant if deprived of his license.
In other words, to properly exercise its discretion, the decision maker must balance the public risk against an individual right. They did not do so.
In this case, the respondent submitted no evidence of increased public risk, rather the evidence is that the applicant is no more likely to create a risk now than he was three or five or ten years ago.
In this case, the respondent submitted no evidence that the applicant posed an increased risk to the public when compared to any other applicant for such a license, regardless of their age.
Conclusion
The applicant has a good driving record. He has been driving a public vehicle without incident for some time. There is no evidence of the applicant suffering a cognitive or physical disability that might impact on his driving competence.
For these reasons the decision of the respondent should be set aside, and the applicant should not be required to provide to the applicant a “passed PVDL or TISC driver assessment certificate”.
……………………………
Senior Member S Lancken
| Date(s) of hearing: | 30 October 2023 |
| Solicitors for the Applicant: | Self-represented |
| Solicitors for the Respondent: | Mr T Salman, ACT Government Solicitor |
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