MNO v Chief Executive of Department of Transport and Main Roads
[2017] QCAT 27
•2 February 2017
CITATION: | MNO v Chief Executive of Department of Transport and Main Roads and another [2017] QCAT 27 |
PARTIES: | MNO |
| v | |
| Chief Executive of Department of Transport and Main Roads (First Respondent) | |
APPLICATION NUMBER: | GAR004-16 |
MATTER TYPE: | General administrative review matters |
| HEARING DATES: | 1 August 2016; 16 January 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Gardiner |
DELIVERED ON: | 2 February 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The decision of Chief Executive of Department of Transport and Main Roads dated 21 December 2015 that MNO’s Driver Authorisation be suspended, is set aside. 2. The following decision is substituted: The decision is made not to suspend MNO’s Driver Authorisation. |
CATCHWORDS: | OCCUPATIONAL LICENCE REGULATION – TAXI DRIVER AUTHORISATION – immediate suspension of driver authorisation – where driver charged with arranging removal of child from State for the purposes of female genital mutilation – where charges not finally deposed of – where driver denies charges and gives contrary uncontradicted and unchallenged evidence – whether driver authorisation should be suspended Transport Operations (Passenger Transport) Act 1994 (Qld), ss 23, 33A |
APPEARANCES: | |
APPLICANT: | MNO appeared in person |
FIRST RESPONDENT: | Chief Executive of Department of Transport and Main Roads represented by Mr N. Weatherhead, Manager (Passenger Operations) |
SECOND RESPONDENT: | The Chief Executive Officer, Public Safety Business Agency represented by Mr J.Thompson, In-House Legal Officer |
REASONS FOR DECISION
MNO, is a taxi driver. He has been charged with arranging for two of his daughters, who are minors, to be taken from Queensland with the intention of having female genital mutilation performed on them. MNO denies the charges, which have not yet been heard.
As a consequence of the charges, a delegate of the Chief Executive of the Department of Transport and Main Roads (DTMR) suspended MNO’s driver authorisation.
MNO has applied to the Tribunal for review of DTMR’s decision. We have decided that MNO’s driver authorisation should not be suspended.
The statutory framework
Taxi drivers must, under Queensland law, have a “driver authorisation” issued by DTMR.[1]
[1]Transport Operations (Passenger Transport) Act 1994 (Qld), s 24.
Under the Transport Operations (Passenger Transport) Regulation 2005[2] (Qld), DTMR “may immediately suspend a person’s driver authorisation if” the person has been charged with certain serious offences and the charge has not been finally disposed of.
[2]Ibid, s 30(2)(b).
Such offences include[3] an offence under s 323B of the Criminal Code (Qld), which reads:
[3]Ibid, Sch 3, “driver disqualifying offence”.
(1) Any person who takes a child from the State, or arranges for a child to be taken from the State, with the intention of having female genital mutilation performed on the child is guilty of a crime.
Maximum penalty – 14 years imprisonment
(2) In the absence of proof to the contrary, it is to be presumed that a person took a child, or arranged for a child to be taken, from the State with the intention of having female genital mutilation performed on the child if it is proved—(a) the person took the child, or arranged for the child to be taken, from the State; and
(b) female genital mutilation was performed on the child while outside the State.(3) In this section –
child means a person under 18 years.
female genital mutilation see section 323A.[4]
[4]Section 323A defines “female genital mutilation” to include clitoridectomy and excision of any other part of, or any other mutilation of, the female genitalia.
Where DTMR decides to immediately suspend a driver authorisation, the driver may seek an internal review. If the decision is confirmed on internal review, the driver may apply to the Tribunal for review of the “reviewed decision” i.e. DTMR’s decision on the internal review. [5]
[5]Transport Operations (Passenger Transport) Act 1994 (Qld), Chapter 10; Transport Planning and Coordination Act 1994, part 5, division 2.
The purpose of the review is to produce the correct and preferable decision. The review is determined by way of a fresh hearing on the merits[6] by reference to the requirements of the Transport Operations (Passenger Transport) Act 1994 (Qld) and the regulations made under that Act.
[6] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20.
Section 24 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) sets out the function of this Tribunal on review. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return the matter to the decision maker for reconsideration with directions if appropriate.[7]
[7]QCAT Act, s 24(1).
Section 23(4) of the Transport Operations (Passenger Transport) Act 1994 (Qld) provides that DTMR (and therefore the Tribunal now standing in DTMR’s shoes), in deciding whether to suspend a person’s driver authorisation, “must” take into consideration certain factors. It will be necessary to return to these factors later in these reasons.
Under s 104 of the same Act, because the alleged offences involved children, the Chief Executive of the Public Safety Business Agency is made a party to this proceeding.[8]
[8]Although, as he noted, the section provides no guidance on the role of the Second Respondent, we are grateful for the valued assistance provided by Mr Thompson during the hearing.
Facts that are agreed
We understand that the following facts are agreed by the parties:
(a)Originally from eastern Africa, MNO and his wife, PQR, have lived in Australia for many years.
(b)MNO and PQR have had children together, including their 2 youngest daughters, now aged 10 and 13, to whom the criminal charges relate.
(c)MNO and PQR have been estranged since 2007. They have lived apart for much of that time, but now, for financial reasons, share a house but remain separated.
(d)MNO has held a driver authorisation for over 16 years and has made his living in Australia as a taxi driver.
(e)In April 2015, the two daughters and two of their other children flew with PQR to an east African country.
(f)They were subsequently flown some 2000 kilometres north to another, less stable, African country where female genital mutilation procedures remain culturally acceptable and where it is alleged that female genital mutilation was performed on the two youngest girls.
(g)On 2 December 2015, MNO was charged with 2 counts of an offence under s 323B of the Criminal Code (Qld).
(h)On 4 December 2015, DTMR became aware of the charges and on the same day suspended MNO’s driver authorisation.
(i)On 18 December 2015, MNO sought an internal review of that decision.
(j)On 21 December 2015, DTMR advised MNO that the original decision would be maintained.
(k)On 14 January 2016, MNO applied to the Tribunal for review of the reviewed decision.
(l)MNO intends to plead not guilty to the charges.
(m)MNO does not have a criminal record.
(n)There is no evidence of any other facts that point in favour of suspending MNO’s driver authorisation.
The evidence of MNO
MNO gave evidence that he:
(a)accompanied PQR to the travel agency to book the fares for PQR’s flights to Africa to assist PQR with the booking by translating for her;
(b)did not pay the air fares;
(c)understood that the reason for the trip was to allow the children to spend time with their aging maternal grandmother;
(d)did not know that the children were flown on to the second country to the north and did not hear about this until after it had occurred;
(e)was not involved in arranging any surgical procedure to be performed on his two daughters.
Having observed MNO’s demeanour in giving evidence, and noting that his evidence as to these matters was consistent, uncontradicted and unchallenged, we find accordingly.
Intervention of the Department of Communities, Child Safety and Disability Services
Consistent with the evidence of MNO, material produced by the Department of Communities, Child Safety and Disability Services established that:
(a) the Department temporarily removed the children from MNO and PQR to allow for medical tests to be undertaken at a local hospital (see further below); and
(b) once the tests were completed and the outcome discussed with the examining doctor, the children were returned to their parents and the Department’s intervention ended.
Medical evidence
A paediatric specialist examined the girls and provided written reports in respect of each child. He was not required to give oral evidence.
In each case, the doctor reported that:
“while the signs of lower grades of Female Genital Mutilation can be subtle, . . . I believe that [the child] has most likely had a Type 1 Female Genital Mutilation, i.e. partial removal of the prepuce and/or part of the clitoris.[9] If precise definition of the degree of genital procedure is important for the forensic case, further advice could be sought from other professionals who have specific experience with Female Genital Mutilation . . .”
[9]This description appears to fall within the relevant definition of female genital mutilation: Criminal Code (Qld), s 323A.
The doctor also summarised conversations with the girls, which were consistent with a procedure of some kind involving their genitals having been undertaken.
MNO did not accept that any such procedure had been undertaken. An unsworn written statement by PQR also “categorically denied” that female genital mutilation had been performed on the girls. However, as the statement was unsworn and PQR did not give oral evidence, we give little weight to this evidence.
MNO’s non-acceptance of this medical evidence was not tested but neither did he provide any conclusive evidence to the contrary.
On the medical evidence we have before us and on the balance of probabilities, we find that each child has “most likely” had female genital mutilation performed upon her. A final determination of this issue is a matter for the criminal proceedings yet to occur.
Should MNO’s driver authorisation be suspended?
There is no question that, the charges having been laid but not yet heard, the power to suspend MNO’s driver authorisation is enlivened. The question for determination is whether the correct or preferable decision is to do so.
It is unusual for a decision with such adverse implications to be able to be made on the basis of an unproven allegation. However, it is clear from the following extract from the relevant second reading speech that this exceptional power was intended to be vested in the DTMR:
“An important feature of this Bill is to ensure that past criminal records and current charges against a person are taken into account in issuing or suspending a driver’s authorisation. This matter has been given careful consideration and it is felt that the public interest would be best served in cases where a person is charged with child molestation or firearm or drug trafficking offences for that person not to be issued with driver authorisation, or have their driver authorisation suspended until the offence has been dealt with by the courts.
The second reading speech then goes on to note that:
“This is a sensitive issue and, obviously must be judged on its merits taking into account the severity of the offence”.
We do not take the reference to “taking into account the severity of the offence” to mean that only the severity of the offence is to be taken into account. So read, the statement would be plainly wrong and could and should not be substituted for the requirements of the legislation itself.
As noted above, section 23(4) of the Transport Operations (Passenger Transport) Act 1994 (Qld) provides that in deciding whether to suspend a person’s driver authorisation certain specified factors “must” be taken into consideration.
Those factors are the purpose of driver authorisation mentioned in
sections 23(1) to (3) and the paramount principle mentioned in s 33A that children and other vulnerable members of the community must be protected.
Purpose of driver authorisation
The purpose of driver authorisation specified in section 23(1) is “to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles”, while sections 23(2) and (3) state certain additional specific inclusions in that purpose.
Mr Weatherhead submitted that the purpose of maximising public confidence in public passenger services pointed in favour of suspending MNO’s authorisation. He particularly pointed to section 23(2)(a), which focuses upon whether drivers are suitable persons to drive passenger vehicles, and section 23(3), which refers to drivers damaging the reputation of public passenger services.
We have no doubt that an overwhelming majority of members of the public in Queensland would find female genital mutilation abhorrent. However, where a charge relates only to children of the driver, in the absence of further indicators of risk to the public, we struggle to see the connection between a charge of arranging the removal of a child from the State for the purpose of such a procedure and public confidence in public passenger services in relation to drivers.
Nevertheless, in formulating the law the Parliament has specifically included charges relating to female genital mutilation in the schedule of charges that enliven the suspension power. We therefore accept that allowing drivers who have been charged with, albeit not convicted of, such offences to retain their driver authorisation may have some impact on public confidence in public passenger services.
It is notable that the statutory purpose is not to optimise but to maximise public confidence in public passenger services. Some members of the public may consider that persons who have been charged with, and may be convicted of, such offences should not be allowed to drive public passenger vehicles while their charges are pending, because of the nature of the charges and because history tells us that many charges result in convictions. We therefore give some weight to this consideration.
However, we think the majority of the public would not share this absolute view and consider that any adverse impact that allowing MNO to maintain his driver authorisation while the charges are pending may have upon “maximising” public confidence in public passenger services would be minimal.
The same may be said of ensuring that drivers do not damage the reputation of public passenger transport[10]. Again, we give some, but limited weight to this factor.
[10]Transport Operations (Passenger Transport) Act 1994 (Qld), s 23(3)
In relation to the section 23(2) inclusions in the statutory purpose of driver authorisation, overall, we do not consider that allowing MNO to maintain his driver authorisation while these charges are pending, in the particular circumstances where the charges relate only to MNO’s children, would impact adversely upon the purpose of maximising public confidence in public passenger services.
Each specific inclusion, and our comments in relation to them, now follow.
The inclusions are the purposes of ensuring that drivers of public passenger vehicles:
(a)“are suitable persons to drive public passenger vehicles having regard to the need to provide for the personal safety of passengers or their property, and the public” (s 23(2)(a))
There is no suggestion that MNO is at risk of using artifice or force or otherwise arranging to remove passengers from the State for the purposes of female genital mutilation, nor any other evidence to suggest that MNO is not a suitable person to drive public passenger vehicles.
(b)“conduct themselves responsibly with passengers and the public”
(s 23(2(b))
There is no evidence to suggest that MNO would not conduct himself in this way.
(c)“are responsible in the act of driving and are capable of safely operating [a taxi]” (s 23(2)(c))
There is no evidence that MNO is not a responsible and capable driver.
(d)“are aware of their customer service responsibilities”
(s 23(2)(d))
There is no evidence to suggest that MNO is not aware of his customer service responsibilities.
(e)“are held accountable for complying with appropriate standards”
(s 23(2)(d))Our attention was not drawn to any particular standard for which MNO’s accountability was said to be at risk as a consequence of the charges, nor have we been able to identify any.
Overall, we consider that, while some weight must be given to the impact of maintaining MNO’s driver authorisation on public confidence in public passenger services, the impact would be minimal.
The paramount principle
Section 33A applies when making decisions about driver authorisation where
“because . . . the holder of, driver authorisation has been charged with . . . a driver disqualifying offence or for any other reason, the safety of children or other vulnerable members of the community becomes relevant.”
It provides that in those cases “the paramount principle is that children and other vulnerable members of the community must be protected”.
Section 33A applies where the safety of children or other vulnerable members of the community becomes relevant “because” a driver has been charged with a relevant offence.
In its terms, it is not altogether clear whether section 33A is intended to operate such that the safety of children or other vulnerable members of the community is taken to be relevant wherever such a charge has been laid or only where, in the particular circumstances, the safety of such persons has become relevant because of a charge being laid. However, having regard to the breadth of the list of driver disqualifying offences,[11] some of which have no connection with personal safety, we take the latter to be the required approach.
[11]Transport Operations (Passenger Transport) Act 1994 (Qld), s 24.
[11]Ibid, Sch 3, “driver disqualifying offence”.
Taking that approach, we consider that section 33A does not apply in this case. This is because, even though the charges relate to children, there is no connection between the charges and the safety of children for whom MNO might provide passenger services. There is no evidence of children being at risk as a consequence of MNO providing passenger services, nor any evidence from which such an inference might be drawn. Therefore this is not a case where the safety of children “becomes relevant” because of the charges.
However, in case we are wrong, either in concluding that the safety of children has not become relevant in this case, or because we are required by section 33A to take as our starting point that the safety of children has become relevant, we have also considered the application of the paramount principle.
A paramount principle must prevail over all other principles. However, that does not mean that it is the only consideration. In this case, we have taken into account the paramount principle but, being unable to identify a risk to children or other vulnerable people because of the pending charges, consider that it does not point in favour of suspension of MNO’s driver authorisation.
Other factors
Section 23 specifies what a decision-maker must take into account in deciding whether to suspend a person’s driver authorisation. However, we do not take the mandatory requirement to consider these factors as detracting from the usual administrative law requirement, in exercising a statutory power, to take into such other relevant factors as the context and evident policy and object of the provisions may require. We consider that we must take into account all relevant factors.
We have taken into account that MNO, having limited English skills and having worked his entire time in Australia as a taxi driver, would be denied his livelihood if his driver authorisation is suspended. We accept that this factor would yield to the safety of children but as we have noted we have not been able to identify a risk to children if MNO’s authorisation is maintained.
We have also taken into account that, on the basis of the evidence before the Tribunal, MNO was not involved in arranging the removal of the children for the purpose of female genital mutilation.
We appreciate that the ultimate determination of MNO’s guilt or innocence is a matter for the criminal justice system. However, where the uncontradicted and unchallenged evidence before the Tribunal is inconsistent with guilt, we consider that is a relevant factor for the decision-maker to take into account.
Conclusion on whether MNO’s driver authorisation should be suspended
While we have taken into account the potential for an adverse impact on the confidence of some members of the public in public passenger services of MNO’s driver authorisation being maintained while the charges are pending, we consider that potential impact to be minimal. Weighed against the devastating impact of removing MNO’s livelihood, and the absence of any identifiable risk to children, we consider that the correct and preferable decision is to set aside DTMR’s decision and substitute a decision that MNO’s driver authorisation not be suspended.
Although it was not argued before us, for completeness we note that
section 30(2)(d) also authorises DTMR to suspend a person’s driver authorisation where the Chief Executive “considers it necessary in the public interest having regard to the purpose of driver authorisation as stated in section 23 of the Act, including taking into consideration matters mentioned in section 23(4) of the Act”.
We have considered section 30(2)(d) and concluded that, for the same reasons indicated above in relation to section 30(2)(b), suspension of MNO’s driver authorisation is not necessary in the public interest. We are unable to identify any additional public interest consideration against MNO maintaining his driver authorisation, let alone one that would make it necessary for his driver authorisation to be suspended.
Recommendations about policies of the Chief Executive of the DTMR
It is evident from the submissions made on behalf of DTMR in this case that the policy of the Chief Executive is to immediately suspend a person’s driver authorisation if the person is charged with a driver disqualifying offence, apparently on the basis that the severity of the charge in itself warrants that action.
That policy is, with respect, inconsistent with the legal duty of the decision-maker.
Pursuant to section 24(3) of the QCAT Act, we recommend that this policy be amended and appropriate steps taken to ensure that delegates making these decisions exercise the power properly according to law by considering each matter on its merits taking into account the mandatory statutory considerations and other relevant facts.
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