Saal v Department of Transport and Main Roads - [2022] QCAT 329

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Saal v Department of Transport and Main Roads [2022] QCAT 329

PARTIES:

sean james saal

(applicant)

v

Department of Transport and Main Roads

(respondent)

APPLICATION NO/S:

GAR620-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

23 August 2022

HEARING DATE:

22 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member King-Scott

ORDERS:

1. The decision of the Chief Executive of the Department of Transport and Main Roads to refuse the applicant’s application for an interlock exemption is confirmed.

2. The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – review of decision by respondent to refuse an exemption from alcohol interlock program under the Transport Operations (Road Use Management) Act 1995 (Qld)

Transport Operations (Road Use Management) Act 1995 (Qld)

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

S Leigh delegate for Chief Executive

REASONS FOR DECISION

Prior to the night of 9 October 2021, the Applicant was permanently employed as a long-haul truck driver. Celebrating that night, he made the mistake of driving after consuming alcohol. He was charged under section 79 of the Transport Operations (Road Use Management) Act 1995 (TOA) with a middle range alcohol limit offence and convicted on 26 October 2021. He was disqualified from driving for 10 months but was successful in obtaining a restricted licence under section 87 TOA with conditions (work licence).
Because of the conviction and disqualification period, the applicant’s restricted licence, during and after the disqualification period ends, was subject to an interlock condition.[1]
[1]Section 91K (2) TOA.
An interlock condition restricted the applicant to driving only vehicles fitted with an interlock ignition. Essentially, an interlock device fitted to a vehicle prevents the vehicle from being operated until the driver provides a legal breath sample to the device.[2]
[2]TOA Part 3B.
A disqualified driver can apply to the Chief Executive of the respondent for an interlock exemption.[3] The applicant made such an application which was refused. An internal review confirmed that decision. The applicant now applies to the tribunal for a review of that decision.[4]
[3]TOA Part 3B Division 3.
[4]Section 65A TOA.
The chief executive’s powers to grant an exemption is limited under section 91Q of TOA to the following grounds:
(3) The chief executive may only grant an interlock exemption if the chief executive is satisfied—
(a)that one of the following applies in relation to the applicant’s principal place of residence (the applicant’s residence)—
(i)the shortest reasonable distance, or shortest reasonable travelling time, using a motor vehicle, between the applicant’s residence and the nearest place of business of a prescribed interlock installer (the nearest place of business) is greater than the distance or time prescribed under a regulation;
(ii)the applicant’s residence is at a location, prescribed under a regulation, from which the nearest place of business is not reasonably accessible using a motor vehicle; or
(iii) the applicant’s residence is outside both of the following—
(A)a radius prescribed under a regulation from the nearest place of business;
(B)an area in which a prescribed interlock installer provides or operates a mobile service for the installation of interlocks; or
(b)that, as evidenced by a doctor’s certificate provided to the chief executive, the applicant has a medical condition preventing the applicant from providing a sufficient breath sample to operate an approved interlock; or
(c) of another matter prescribed under a regulation for this subsection.
Regulations proclaimed under the TOA relating to exemptions, inter alia, provides:
346 Other severe hardship
(1) …
(2) The chief executive may grant an interlock exemption to the applicant if satisfied that—
(a)a refusal to grant the exemption would cause severe hardship to the applicant in a way other than by preventing the applicant from driving—
(i)to or from, or in the course of, the applicant’s employment; or
(ii)to or from an educational institution the applicant attends; and
(b) there is no other transport reasonably available to the applicant.
(3) Also, the chief executive may grant an interlock exemption to the applicant if satisfied that—
(a)a refusal to grant the exemption would cause severe hardship to a family member of the applicant in a way other than by preventing the applicant from driving the family member—
(i) to or from the family member’s place of employment; or
(ii)to or from an educational institution the family member attends; and
(b)there is no other transport reasonably available to the family member.
(4) This section applies subject to section 347.
The basis of the applicant’s application for exemption, made on 26 October 2021, was that he would suffer severe hardship as he would lose his job. His wife had a medical condition at the time and could not drive. They had two young children. He stated that he would lose his job because his employer would not connect an interlock device to a truck in their fleet. Ultimately, he lost his job.
Further consequences of losing his job were that the applicant had to sell his car and he and his family had to leave Bowen and move in with his wife’s parents on the Gold Coast. There he was successful in obtaining employment as a dogman, but his driving restrictions further impacted on this employment as well. Finally, he was able to get a traineeship on a local railway line in Bowen. His employment involves late night and early morning shifts which create difficulties in getting to and from work. He earns about $1,000.00 net per week which is 80% of what he was earning before the conviction.
The regulation as presently drafted prohibits the Chief Executive from considering the circumstances that the applicant found himself in. As driving ‘in the course of (his) employment’ is not a relevant consideration. This seems to be contrary to the policy of the legislation that, on the one hand, allows a court to grant restricted licences for employment purposes but then prohibits the Chief Executive from considering a situation, such as existed here, where driving was the sole basis of the applicant’s employment. I note that as a long haulage driver the applicant was required to drive with a 0% alcohol level.
The alcohol interlock exemption legislation was introduced in 2010 to target high level alcohol related driving offences and repeat offenders. It was extended to mid-level alcohol driving offences in 2019. The delegated legislation leaves no room for discretion to exempt a person from the alcohol interlock program on the basis of the person’s employment. The respondent was unable to direct me to any decision where the tribunal had been asked to review an application under the exemption regulations.
Nevertheless, the applicant’s evidence did not fall within the exemption grounds of severe hardship. At the time of the application, I would have been satisfied that there was severe hardship, but, because of the exception, I would still be required to dismiss the application. Since he made his application there has been an improvement in his financial situation and the ground of severe hardship would not be substantiated.
I confirm the decision of the Chief Executive to refuse the applicant’s application for exemption. I dismiss the application.