O'Kelly v Commissioner of Police, New South Wales Police Service (No. 2)

[2000] NSWADT 74

CITATION:	O'Kelly v Commissioner of Police, New South Wales Police Service (No. 2) [2000] NSWADT 74
DIVISION:	General Division
PARTIES:	APPLICANT Raymond Patrick O'Kelly RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	003107
HEARING DATES:	26/04/00
SUBMISSIONS CLOSED:	04/26/2000
DATE OF DECISION:	06/15/2000
BEFORE:	Skinner PM - Judicial Member
APPLICATION:	Road Transport (General) Act - driver's licence suspension - Driver's licence suspension
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Road Transport (General) Act 1999
CASES CITED:	Coleman v Commissioner of Police, NSW Police Service [2000] NSWADT 15 Arps v Commissioner of Police, NSW Police Service [2000] NSWADT 35 Tonnett v Commissioner of Police, NSW Police Service [2000] NSWADT 42 Baskerville v Martin [1967] SASR 156 Lawrence v Baskerville [1968] SASR 86
REPRESENTATION:	APPLICANT In person RESPONDENT J Tunks
ORDERS:	1. The reviewable decision is affirmed.

Reasons for Decision

1 Under s 34 of the Road Transport (General) Act 1999 a police officer may suspend the driving licence of a person who, when required to submit to a breath analysis under s 15 of the Road Transport (Safety and Traffic Management) Act 1999 by that or another police officer, refuses to do so contrary to s 15(4) of the Road Transport (Safety and Traffic Management) Act 1999.

2 Mr O’Kelly was driving his motor vehicle on 3 January 2000. He refused a breath test when required to undergo same by a police officer, and subsequently at Mt Druitt Police Station refused to submit to a breath analysis.

3 Mr O’Kelly was then charged with a breach of s 15(4) of the Road Transport (Safety and Traffic Management) Act 1999 and his driving licence was suspended on that day under s 34 of the Road Transport (General) Act 1999.

4 On 28 January 2000 Mr O’Kelly applied to this Tribunal under s 48 of the Road Transport (General) Act 1999 for a review of the decision to suspend his licence.

5 On 1 February 2000 an urgent hearing into Mr O’Kelly’s application was conducted by the Tribunal, constituted by the President, O’Connor J.

6 The Tribunal’s discretion in applications of this nature is governed by subs 48(3) of the Road Transport (General) Act 1999, which is in the following terms:

48 Review by Administrative Decisions Tribunal of certain decisions made under road transport legislation …
(3) Despite anything to the contrary in section 63 of the Administrative Decisions Tribunal Act 1997, in determining an application for a review of a decision referred to in subsection (1) (a) or (b), the Tribunal:
(a) is not to vary or set aside a decision to suspend a driver licence or authority to drive unless it is satisfied that there are exceptional circumstances justifying a lifting or variation of the suspension, and
(b) is not, for the purposes of any such application, to take into account the circumstances of the offence with which the person making the application is charged.

7 The applicant gave sworn evidence before the President who then gave a decision with reasons ex tempore. The President did not regard the evidence before him as sufficient to satisfy him that there were exceptional circumstances justifying a lifting or variation of the suspension.

8 Mr O’Kelly had pleaded not guilty to the charge under s 15(4) of the Road Transport (Safety and Traffic Management) Act 1999, and the case was set for hearing on 5 June 2000. As there was this delay in the finalising of the criminal proceedings his Honour granted liberty to the applicant to re-apply to the Tribunal after two months.

9 Mr O’Kelly took up this liberty extended by Judge O’Connor and after 2 April 2000 re-applied to this Tribunal for a review of the decision.

10 Despite the indication in the reasons for decision of Judge O’Connor that the existing paperwork would be relied upon, the application was re-listed for a further hearing and came before the Tribunal, constituted by me, on 26 April 2000.

11 There was nothing in the circumstances of Mr O’Kelly at 26 April 2000 relevantly different from those of 1 February 2000 as considered by Judge O’Connor, except for the fact of the passage of time.

12 However, there was a hearing conducted in this Tribunal on 26 April 2000, and the application is to be considered afresh by me. In the hearing I allowed Mr O’Kelly to make further submissions, and also took further submissions from counsel for the respondent, Mr Tunks.

13 At the close of the hearing before me on 26 April 2000 I could see nothing to dissuade me from the same conclusion that the President had reached when the application came before him on 1 February 2000, that there were no exceptional circumstances justifying a lifting or variation of the suspension of Mr O’Kelly’s driving licence. A delay in the hearing of a defended matter before the Local Court for the period that Mr O’Kelly faced is certainly not exceptional, assuming to the benefit of Mr O’Kelly (but without wishing to hold that this is a matter always appropriate for the Tribunal to consider in applications of this nature) that this is a matter that I can take into account.

14 However, in the hearing before me Mr Tunks referred me to three decisions of the Tribunal on similar applications published since the decision of the President in this application on 1 February 2000 – Coleman [2000] NSWADT 15; Arps [2000] NSWADT 35; and Tonnet [2000] NSWADT 42.

15 He also referred me to the decisions of Baskerville v Martin [1967] SASR 156 and Lawrence v Baskerville [1968] SASR 86, and to the legislative background to the enactment by Parliament of this right of the police to suspend driver’s licences where breath analysis is refused. Mr Tunks provided to me copies of the report of the Parliamentary Committee, ‘Staysafe 13’, and extracts from Hansards of the relevant debates.

16 In deference to the further submissions of the applicant, and my wish to examine the decisions of the Tribunal since 1 February 2000, at the close of the hearing before me on 26 April 2000 I reserved my decision.

17 I have carefully considered all of the material before me, the submissions of the applicant to me on 26 April 2000 and the reasons for decision of the President on 1 February 2000 including the summary in same of the evidence given by the applicant before him.

18 I can find no reason to depart from a conclusion that I am not satisfied that are exceptional circumstances justifying a lifting or variation of the suspension of Mr O’Kelly’s driving licence.

19 Mr O’Kelly lives in an area poorly serviced by public transport, has limited means for availing himself of taxis, and suffers from severe backache and other medical conditions which substantially impair his mobility and ability to walk any distance. However the remoteness from public transport and the effect upon the mobility of sick or disabled persons of withdrawing their privilege of a driving licence were things that the Staysafe Committee specifically considered, yet it nonetheless recommended to Parliament the enactment of these suspension powers.

20 Indeed, these and other considerations were expressly emphasised by the Committee as adding to the deterrent effect of these measures.

21 Subsequently when enacting these measures, the debates reveal strong bipartisan support in Parliament. Further, Parliament has seen fit by subs 48(3) of the Road Transport (General) Act 1999 to constrain the discretion of the Tribunal in considering these applications to a narrower ambit than that provided by s 63 of the Administrative Decisions Tribunal Act 1997.

22 The intent of Parliament is clear. The power to suspend a driving licence before a full hearing into the circumstances of the alleged offence, and consideration of the merits of various sentencing options if the offence is proved, is deliberately draconian and intended to be a powerful public safety measure and deterrent against drink driving.

23 Further, the discretionary exercise of this power has more limited rights of review attached to it than other acts of administrators in this State.

24 The Police Service used this power granted to it by Parliament against the applicant and there is nothing that I can see in the circumstances of same that, as I approach the facts of the matters for myself and as I consider other decisions of the Tribunal in similar applications, satisfies me to the level required for the applicant to succeed.

25 The reviewable decision is affirmed.