Picton v Director General, Department of Transport
[2002] NSWADT 90
•05/31/2002
CITATION: Picton v Director General, Department of Transport [2002] NSWADT 90 DIVISION: General Division PARTIES: APPLICANT
Mark John Picton
RESPONDENT
Director General, Department of TransportFILE NUMBER: 013270 HEARING DATES: 01/02/2002 SUBMISSIONS CLOSED: 02/01/2002 DATE OF DECISION:
05/31/2002BEFORE: Higgins S - Judicial Member APPLICATION: Passenger Transport Act - passenger vehicle - grant of authority - Passenger vehicle - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Passenger Transport Act 1990
Social Security Act 1991 (Cth)CASES CITED: Re T and the Director of Youth and Community Services [1980] 1NSWLR 392
Australian Broadcasting Tribunal v Bond (1990) 170CLR 321
Z v Director General, Department of Transport [2000] NSWADT 87
Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127
Bedi v The Director General of Transport [1999] NSWADT 51
Winicka v Commissioner of Police, New South Wales Police Service [2001] NSW ADT 8REPRESENTATION: APPLICANT
In person
RESPONDENT
C Ludlow, solicitorORDERS: 1 The Director General's decision to refuse Mr Picton's application for an authority to drive a passenger vehicle under the Passenger Transport Act is set aside; 2 In substitution the decision is made to grant Mr Picton his application under s 12(1) of the Passenger Transport Act for an authority to drive a passenger vehicle
BACKGROUND1 Mr Picton lodged an application with the Administrative Decisions Tribunal (“the Tribunal”) on 14 November 2001 for review of a decision made by a delegate of the Director-General of the NSW Department of Transport (“the Director-General”) to refuse his application for an authority under the Passenger Transport Act 1990 to drive a public passenger vehicle.
2 The Tribuna1’s jurisdiction derives from s.52(1) of the Passenger Transport Act 1990 and s.38 of the Administrative Decisions Tribunal Act 1997.
3 The grounds on which the Director-General refused Mr Picton’s application was a criminal conviction for offences under s.1347 of the Social Security Act 1991 on 12 May 2000 together with his failure to declare this criminal conviction in his application for an authority under the Passenger Transport Act 1990.
THE RELEVANT LAW
4 S.12 of the Passenger Transport Act1990 (“the PT Act”) sets out the criteria and procedure for granting a driver’s authority. Subsection 12(1) states that “having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them”.
5 Subsection 11(2) sets out the purpose of an authority issued under the PT Act in the following terms:
6 Section 4 of the PT Act sets out the objectives of the Act which includes:
“11(2) The purpose of an authority under this division is to attest :
(3) The regulations may create categories or grades of authority” (emphasis added)
(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and
(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicles to which the authority relates; and
(i) in accordance with the conditions under which a public passenger service is operated;
(ii) in accordance with the law and custom.ISSUES
“(e) To encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services”.
7 The issue in this case is whether, given Mr Picton’s criminal conviction and failure to disclose that conviction in his application form, it can be “attested” that he is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.
8 There is no dispute that in all other respects Mr Picton is regarded as having sufficient responsibility and aptitude to drive passenger vehicles as required under s.11(2)(b) of the PT Act.
EVIDENCE
9 At the hearing the Director-General relied on material from its files which it filed and which was marked Exhibit A. It also relied on material, which had been produced to the Tribunal pursuant to a Summons to Produce Documents issued by the Tribunal to the proper officer of the Newcastle Local Court. The documents that were produced pursuant to the Summons were marked Exhibit B.
10 At the hearing Mr Picton gave oral evidence and tendered into evidence references from Ron Broadbent, Catherine Bradley, Stuart England and Reverent Mark Cooper. These references were marked Exhibit 1.
11 Mr Picton also called Mark Butler to give evidence on his behalf.
CRIMINAL CONVICTIONS
12 It is not disputed that on 12 May 2000, Mr Picton pleaded guilty to 10 charges of contravening s.1347 of the Social Security Act1991. Nine of those charges alleged that Mr Picton did knowingly obtain payment of a New Start Allowance, which was only payable in part because he was employed and in receipt of income from another source. The remaining charge alleged that he did knowingly obtain payment of a New Start Allowance to which he was not entitled because he was employed and in receipt of income from another source.
13 The charges related to a two year period from 21 July 1997 to about 27 August 1999 and involved an overpayment of $9,079.09.
14 Mr Picton was convicted of the offences charged and sentenced to a community service order to perform community service work for a period of 75 hours. The Local Court also imposed a reparation order under s.21B of the Crimes Act 1914 for the sum of $8,701.90 being the amount that remained outstanding as Mr Picton had already repaid some of it.
15 Mr Picton is 30 years of age and the offences occurred at a time he was doing casual work for an employer in his local area. In a letter to the presiding magistrate Mr Picton stated that he was “truly embarrassed” that he had allowed the over payments to occur and he stated that he would never let the situation occur again in the future.
16 The material produced on the summons also included 5 references from people who knew Mr Picton and had been made aware of the charges laid against him. Each person stated that in their opinion Mr Picton was highly regarded by those who knew him and that the charges were out of character.
17 At the hearing before the Tribunal Mr Picton explained that he was not legally represented at the hearing of the criminal charges at the Newcastle Local Court. He stated that he had found it to be a very stressful experience. He said that he sought the advice of the Legal Aid officer who was in attendance on that particular day. That officer advised him that the best tactic was for him to plead guilty.
18 As stated above, the material produced by the Newcastle Local Court made reference to the fact that Mr Picton had made an effort to repay some of the money that had been overpaid, prior to the hearing on the charges. During the course of the hearing before the Tribunal Mr Picton again stated that he wanted to seek full-time employment so that he could continue to make payments to reduce his debt to the Department of Social Security.
APPLICATION FOR AN AUTHORITY TO DRIVE PUBLIC PASSENGER VEHICLES
19 Mr Picton gave evidence that he had applied for a position with State Transit some time prior to August 2000. That position required Mr Picton to have an authority under the PT Act to drive a passenger vehicle. Accordingly, even though he had not secured the position, Mr Picton undertook a driver authority course. Having completed the course in early August 2000, Mr Picton visited the department with his trainer in respect of an application for an authority to be issued. At that time he had not completed or submitted an application form. However, it would appear that Stuart Eldridge, a customer service supervisor with the Department, made an application for a criminal record check with the NSW Police Service Central Names Index (CNI). The Tribunal was informed that it was usual procedure for a person to request a CNI check prior to applying for an authority to drive a public passenger vehicle. However, such a request is also usually made prior to the applicant actually undertaking a training course.
20 From the material filed by the Department, it would appear that as a result of Stuart Eldridge’s request on 3 August 2000 the NSW Police Services provided it with a criminal history for Mr Picton, which disclosed his conviction for the social security offences referred to above.
21 It is noted that on the criminal history there are handwritten words which state: “obtain application then show cause”, which appears to have Stuart Eldridge’s signature underneath it and is dated “9/8/00”.
22 Also included in the material filed by the Department is a letter to Mr Picton dated 9 August 200 thanking him for supplying his personal details in order for the department to undertake the CNI check and advising him of what he needed to do in order for the department to proceed further with his application. Mr Picton stated that he received this letter but did not proceed with lodging an application as he had not been successful in securing a position with State Transit.
23 On 31 July 2001, Mr Picton was advised that he had successfully secured a position with State Transit. As a result of this he lodged a standard form application for a regular passenger service driver authority on or about 10 August 2001.
24 In that application in response to question 14, which asked “Have you been convicted of any criminal offences within the past ten (10) years?”, and he ticked the NO box.
25 There is no question that Mr Picton’s response to this question was incorrect. During cross-examination, in response to questions of why he ticked the NO box to question 14 on the application form he stated:
26 As stated above, Mr Picton explained that his time at the Newcastle Local Court in May 2000 was very stressful and he did not really concentrate on everything that was said and done on this particular day. In addition he said that following his attendance at the Department in early August 2000 and the receipt of the letter dated 9 August 2000 he was under the impression that his social security charges were not convictions as he knew that the CNI check would identify any convictions that existed.
“It was my understanding at the time that no conviction had been recorded.”
27 When shown a document entitled “community service order” which was contained in the documents produced by the Newcastle Local Court, Mr Picton agreed that the signature at the bottom of that document was his signature and that he signed it on the date stated thereon, being 12 May 2000. This particular document specifically states “BE IT REMEMBERED that the Defendant is convicted of the above offence and is ordered to perform community service work in the following terms…”.
28 On further questioning Mr Picton agreed that on hindsight he should have ticked the YES box on his application in respect of question 14. However, he was emphatic that at the time he completed the particular application form he had answered the question on what he understood the position to be at that particular time.
EVIDENCE GENERALLY
29 Mr Picton gave evidence that he had recently entered into a stable relationship and that his personal life had become less erratic and more organised. This evidence was supported by the evidence of Mr Butler who has known Mr Picton for about 7 years in a personal capacity.
30 Each of the references tendered by Mr Picton at the hearing before the Tribunal state that in the opinion of the person giving the reference, Mr Picton is an honest, helpful and hardworking and that his social security convictions were totally out of character.
SUBMISSIONS
31 Ms Ludlow for the Director-General submitted that Mr Picton’s offences, which occurred over a two year period, together with his failure to declare his convictions in his application were of sufficient seriousness for the Director-General not being able to attest that Mr Picton is considered to be a person of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. She also argued that there was no question that Mr Picton knew he had been in Court on 12 May 2000 for a hearing on criminal charges. She also pointed out that Mr Picton admitted that in hindsight he should have declared the conviction in his application. This evidence she submitted was sufficient to affirm the Director-General’s decision as being the correct and proper decision.
32 Mr Picton submitted that he had demonstrated that he deeply regretted his conduct which resulted in his convictions and that he has not engaged in any similar conduct since that time. He submitted that he had been sentenced for the offences and he had served that sentence and was repaying the amounts overpaid. He also submitted that on the evidence before the Tribunal he honestly believed at the time he completed his application that no conviction had been recorded against him.
FINDINGS AND REASONING
33 The meaning of “good repute” has been canvassed in several cases. Wattle J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393 said that:
34 The Tribunal has also considered the meaning of a “fit and proper person” on numerous occasions and has followed the reasoning of Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63] where he stated:
“A person’s reputation, in fact and in law, is to be found in the estimate of his moral character entertained by some specific group of people, such as those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation or profession… Evidence of conviction for a criminal offence is, however, admissible as evidence, indeed, most cogent evidence of bad reputation”.
35 As stated by Deputy President Hennessy in Z v Director General, Department of Transport [2000] NSWADT 87 at paragraph 36 the cases recognise that a person can:
“The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose witness and propriety are under consideration”.
36 The discretion to issue a licence or authority must be exercised keeping in mind the activities in which the person will be engaged if an authority is granted (see Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 at 156 and Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321). In this case the activities in which Mr Picton will be engaged if an authority is granted is to drive a passenger vehicle and Parliament has expressly stated what the objectives of regulating such activities are. These objectives are those set out in s.4 of the Act, including paragraph (e).
“…either expressly or impliedly, … can live down their bad reputation and reform their bad character. All the circumstances of a case must be taken into account, including the time since the conviction was recorded, in assessing a person’s reputation and character”.
37 In Z v Director General, Department of Transport at paragraph 38 Deputy President Hennessy stated the following in respect of this objective so far as it relates to bus drivers:
38 She went on the cite the following passage from the decision of O’Connor J in Bedi v The Director General of Transport [1999] NSWADT 51 at [36]:
“In this case the relevant circumstances include community expectations of bus and hire car drivers to provide safe, reliable and efficient passenger transport services”.
39 In accordance with these cases and other relevant authorities, in my opinion, the relevant factors in this case include the following:
“As noted, bus transport is less intimate. Drivers are required to follow prescribed routes with numerous stops. A less stringent approach to the application of the character standard in this setting is appropriate. Counsel for the Administrator noted in submissions that not all forms of driving for reward require special authorities that attest to character (for example, parcel vehicles, courier vans). Nonetheless, in this case, the applicant held a taxi authority for many years. While it would be premature to restore the applicant’s taxi authority, a more considered approach might be taken in relation to the restoration of a bus authority (subject to medical clearance)”.
40 Mr Picton’s criminal history extends over a period of 2 years. This history relates to a single course of criminal conduct involving obtaining a benefit from the Commonwealth to which he was not entitled. In all but one instance he was entitled to some benefit but not to the extent he had claimed. In Winicka v Commissioner of Police , New South Wales Police Service [2001] NSW ADT 8 the Deputy President found that an offence under s.1347 of the Social Security Act 1991 (Cth) was an offence involving dishonesty as an element of the offence was that the offender obtained the payment knowing that he or she was not eligible for it. On all accounts such an offence is a serious offence.
(a) the nature and extent of Mr Picton’s criminal record;
(b) the time since his last conviction;
(c) the likelihood of re-offending having regard to any evidence of contrition and good character; and
(d) the nature of the duties he is required to perform as a bus driver.41 However, Mr Picton was convicted of this offence two years ago and the offending conduct ceased about 3 years ago. There is no evidence to suggest that Mr Picton has previously or since that time engaged in any dishonest conduct. Mr Picton’s referees at the hearing before the Magistrate of the Newcastle Local Court and before the Tribunal all state that the conduct for which he was convicted was totally out of character.
42 What is alleged, is that Mr Picton’s failure to disclose his criminal conviction in his application form was a further act of dishonesty.
43 In my opinion, even though Mr Picton’s application was false in that he placed a tick in the NO box to question 14 in the application, which was factually false, this does not necessarily mean that Mr Picton was deliberately dishonest in ticking that box at the time he made his application.
44 The question of whether Mr Picton was deliberately dishonest must be determined as at the time the application was completed and from all the material that is before the Tribunal.
45 In my opinion having regard to the circumstances in which Mr Picton completed the application form, I accept his explanation of what his state of mind was at the time he completed his form.
46 Mr Picton is not legally trained, he pleaded guilty to the charges under the Social Security Act, and was ordered to undertake community service as a sentence. However, the receipt of the letter from the department dated 9 August 2000, would to my mind lead him to believe that no criminal conviction had been recorded against him. How the Department could forward such a letter without any reference to having been informed about the criminal charges is difficult to understand.
47 Finally, in my opinion, the circumstances giving rise to the convictions are unrelated to any activity that Mr Picton would be required to undertake as a driver of passenger vehicles, which would relate to the communities expectation for a safe, reliable and efficient transport service.
48 Accordingly, in my opinion the Director-General’s decision to refuse Mr Picton’s application for an authority to drive a passenger vehicle under the PT Act is not the correct and preferred decision and should be set aside and in substitution thereof Mr Picton should be granted his application for an authority to drive a passenger vehicle under s.12(1) of the PT Act.
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