SE & ME v State of Queensland
[2014] QCATA 22
•12 February 2014
| CITATION: | SE & ME v State of Queensland [2014] QCATA 022 |
| PARTIES: | SE ME (Appellant) |
| v | |
| State of Queensland (Respondent) |
| APPLICATION NUMBER: | APL019 -12; APL069 -12 |
| MATTER TYPE: | Appeal |
| HEARING DATE: | 21 May 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Judge Horneman-Wren SC, Deputy President Judicial Member Dodds Senior Member Stilgoe OAM |
| DELIVERED ON: | 12 February 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The appeal is dismissed. 2. The non-publication order made by the Appeals Tribunal on 11 April 2013 shall remain in force. |
| CATCHWORDS: | APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – WHEN APPEAL LIES – ERROR OF LAW – PARTICULAR CASES INVOLVING ERROR OF LAW – DENIAL OF NATURAL JUSTICE – applicants were unprepared and unaware of the format of the hearing – respondent’s cross-examination was lengthy, irrelevant and intrusive – applicants received documents the evening before the hearing and were not able to read the documents before the hearing –respondent wanted to refer to the documents in the hearing – whether the Tribunal’s conduct of the matter is a denial of natural justice HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – applicants were required to get new driver’s licences after they changed their names – required a photograph to be taken for their driver’s licences – refused because their religion does not allow them to pose for photographs – whether the Department treated the applicants less favourably than a person who did not have their religious belief HUMAN RIGHTS – DISCRIMINATION – INDIRECT DISCRIMINATION – applicants were required to get new driver’s licences after they changed their names – required to get a photo for their driver’s licences – refused because their religion does not allow them to pose for photographs – whether the Department’s requirement to have a photograph on a Queensland driver’s licence is reasonable in all the circumstances Anti-Discrimination Act 1991 (Qld) s 5, H v H & HS [2001] QADT 5 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | SE ME (both by telephone) |
RESPONDENT: | Mr C Murdoch instructed by Crown Law |
REASONS FOR DECISION
In 2009, both applicants changed their names. ME sent her daughter, SE, to the Queensland Transport office at Hervey Bay to apply for a drivers licence in her new name. SE held her mother’s power of attorney but Queensland Transport told SE that ME would have to attend in person. Soon after, SE went to the same office to change the name on her licence. She completed the paperwork and she was then asked to pose for a photo that would appear on her new licence. SE refused to pose for a photo. ME and SE both say that the Second Commandment[1] does not allow them to pose for photographs.
[1]The Holy Bible, King James Version (Barbour Publishing Inc, 2006) Exodus 20:4.
The applicants brought a complaint against Queensland Transport for discrimination, both direct and indirect, on the basis of religious belief. A member of the Tribunal dismissed their claim.
The applicants appeal the learned Member’s decision. They say that they were denied natural justice during the hearing. They also say that the learned Member did not correctly interpret the law.
Because the facts are not in dispute, the Appeals Tribunal is not required to consider an issue of fact, or an issue of mixed fact and law. Leave to appeal is not necessary.[2]
Were the applicants denied natural justice?
[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld).
The applicants make a number of complaints about the hearing process. They say that they were not prepared for the hearing and had no idea what format it would take. They thought, wrongly as it turned out, that the hearing would be an informal process.
The applicants say that they were not aware that Crown Law had lodged objections to their material. They say that, despite requests, they had not received the objections, even as late as April 2013.
Crown Law presented two documents to the Tribunal on the morning of the first day of the hearing. The applicants say that this was a tactic designed to be deliberately ‘stressing [them] out to the max’.
The applicants’ main concern, though, is the nature and extent of the State’s cross-examination. They say it was irrelevant, lengthy and intrusive. They say that the questions were ‘grilling’ and leading. They say the questions were not necessary because the Queensland Anti-Discrimination Commission had ‘established’ that their religion was an attribute under the Anti-Discrimination Act 1991 (Qld). They say that Mr Murdoch, counsel for the State of Queensland, was mocking of their beliefs.
The Tribunal has an obligation to take all reasonable steps to ensure that a party understands the practices and procedures of the Tribunal.[3] It takes that obligation seriously and it is normally addressed at the compulsory conference.
[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 29.
We note that, in their submissions to the learned Member, the applicants say that the Member who conducted the compulsory conference advised them to consider legal representation and suggested ways in which they might frame their statement. The directions from the compulsory conference set out that the applicants had to file and serve statements of evidence and any documents on which they wanted to rely. The directions also required the parties to nominate which witnesses would be required for cross-examination. The directions also record that the matter was set down for a three-day hearing. Correspondence on the registry file between the applicants and the registry shows that they were aware that a hearing was different from a conference.[4]
[4]Email from ME to Elisa Robbins dated 19 October 2010; letter from the applicants to the Tribunal dated 2 October 2011.
The Tribunal website provides some information about what parties can expect at a hearing.[5] Although not comprehensive, the website does show that that the hearing is a formal process, that parties may be required to give evidence, be cross-examined and make submissions.
5Department of Justice and Attorney-General, Queensland Government, Hearings – On the Day (17 May 2012) Queensland and Administrative Tribunal < type="1">
At the hearing, when the applicants announced[6] that they did not understand the hearing process, the learned Member took time[7] to explain the process to them.
[6]Transcript part 1 at 24:13.
[7]Transcript part 1 from 24:13 to 52:00.
We are satisfied that the Tribunal met its obligation to take reasonable steps to ensure that the applicants understood the practices and procedures of the Tribunal.
To a lawyer, the State’s objections to the applicants’ material are not surprising. The objections simply identify what is a factual statement and what is a submission, and what is, or is not, relevant. The applicants have not been disadvantaged in not receiving a copy at the time, or receiving an incomplete copy, or by them not understanding the effect of the document. They compiled their case thoroughly and diligently. The learned Member specifically noted[8] that he considered their material and understood their case, even though he considered large parts of their material were not relevant to the dispute. If the learned Member had accepted the State’s submissions, he would have removed the objectionable material from the record, not read it and not referred to it.
[8]Reasons of the learned Member at [33].
The State did present two documents to the learned Member on the first morning of the hearing. One of the documents was an Investigation into VicRoads driver licensing arrangements December 2007 prepared by the Ombudsman Victoria.[9] The applicants received both of those documents by email the previous evening.
[9] Exhibit R3.
The learned Member told the applicants that he would not see them disadvantaged.[10] The applicants identified the documents, and the contents of the documents, but told the learned Member that they wanted to make some submissions about them.[11] He asked the applicants if they needed time to read the documents.[12] ME told the learned Member she would need the better part of a day to do that. The learned Member said that he did not want to adjourn the hearing and asked ME if she could read the documents overnight. ME replied, ‘probably’.
[10] Transcript part 1 at 7:30.
[11] Transcript part 1 from 7:40 to 9:54.
[12] Transcript part 1 from 12:23 to 13:27.
At the end of the first day, the learned Member told the applicants that, if it was really necessary, he would start the next day’s hearing at 10.00 am, not 9.30 am. He provided his mobile telephone number so that the parties could let him know if that was necessary.[13] The transcript of the following day does not suggest that the hearing started late.
[13] Transcript part 2 from 4:24 to 4:43.
In the hearing the next day, the learned Member asked the applicants if they had read the Ombudsman’s report. ME told the learned Member that they had not and that she felt they had been disadvantaged.[14] ME said she could not understand why the State submitted the documents so late.
[14] Transcript part 3 at 29:14.
The learned Member confirmed with Mr Murdoch that the State wanted to refer the learned Member to certain parts of the documents. The learned Member had previously referred to the applicants as ‘intelligent lay people’ so he asked Mr Murdoch how long it would take an intelligent layperson to read and understand the relevant sections of the ombudsman’s report.[15] Mr Murdoch told the learned Member it would take half an hour to an hour. The learned Member advised the applicants that he would give them up to an hour to read the report. He told them he would recall the State witnesses to answer any questions they wanted to put.[16]
[15] Transcript part 3 at 30:03.
[16] Transcript part 3 from 30:55 to 33:27.
It is regrettable that Crown Law did not deliver this material to the applicants earlier. However, we can find no evidence that the State withheld the material as a deliberate tactic to discomfort the applicants. We are satisfied that the learned Member gave the applicants sufficient time to consider the new documents, recall the State witnesses if they required, and to make submissions about the documents. The applicants were not disadvantaged by the late delivery of the material.
The fact that the Queensland Anti-Discrimination Commission accepted the applicants’ complaint does not mean that it had ‘established’ they had an attribute under the Anti-Discrimination Act 1991 (Qld). The Commissioner is required to accept or reject complaints.[17] The Commissioner must reject complaints which are frivolous, trivial, vexatious, misconceived, or lacking in substance.[18] The Commissioner may also reject a complaint if there are concurrent proceedings in a court or any tribunal in relation to the act or omission that is the subject of the complaint.[19] If not rejected, the Commissioner accepts the complaint. This acceptance of a complaint is not the same as ‘establishing’ the grounds of the complaint.
[17] Anti-Discrimination Act 1991 (Qld) s 141.
[18] Ibid s 139.
[19] Ibid s 140.
As the State points out, it did not concede the applicants had an attribute within the meaning of the Anti-Discrimination Act 1991 (Qld) or that the alleged discrimination was on the basis of that attribute. It was, therefore, entitled to test the applicants on these points. The cross-examination was relevant and the learned Member was right to allow it.
The cross-examination was not lengthy. Mr Murdoch questioned ME for about 45 minutes.[20] He covered a number of issues over that time. He asked ME how long she had held her beliefs. He explored ME’s understanding of the prohibition on images. Mr Murdoch’s questions were appropriate.
[20] Transcript part 1 from 55:00 to 1:37:34.
Mr Murdoch’s cross-examination of SE was slightly shorter, about 41 minutes.[21] Although Mr Murdoch covered similar issues with SE, he also asked her about her experience at Queensland Transport.
[21] Transcript part 1 from 1:39:30 to 2:18:10.
We have listened to the recording of the cross-examination. Mr Murdoch was respectful and courteous. We can find no evidence of him mocking the applicants’ beliefs.
As the learned Member pointed out during the hearing,[22] Mr Murdoch was entitled to ask leading questions. That is the art of cross-examination. The learned Member also explained that the applicants’ entitlement in response to a leading question, to explain or clarify their answers. At the end of their cross-examination, the learned Member asked the applicants if they wanted to elaborate or clarify any answer.[23]
[22] Transcript part 3 from 41:54 to 42:53.
[23] ME, Transcript part 1 from 1:37:13 to 1:37:30; SE at 2:18:14.
On the second day of the hearing, the applicants complained to the learned Member about their experience in the witness box. They thought they were going to get an opportunity to tell their side of the story.[24] They both wanted to say something else;[25] to explain their version of events.[26] The learned Member carefully explained[27] that their primary evidence was their written statements. He also explained that, if Mr Murdoch didn’t ask them questions about a topic, their evidence on that point was unchallenged.[28]
[24] Transcript part 2 at 2:19:20.
[25] Transcript part 2 at 2:20:14.
[26] Transcript part 2 at 2:20:58.
[27] Transcript part 2 at 2:22:07.
[28] Transcript part 2 at 2:30:00.
Unfortunately, during this exchange, Mr Murdoch made a comment; that it was generous (our emphasis) to call anything (the applicants had filed) a statement.[29] The applicants found the comment offensive. The learned Member told the applicants that it was just a word and that Mr Murdoch did not intend to be offensive.[30] He went on to explain the concept of written evidence.[31] He explained that some of the applicants’ material went beyond the concept of evidence.[32]
[29] Transcript part 2 at 2:26:51.
[30] Transcript part 2 at 2:27:20.
[31] Transcript part 2 from 2:34:30 to 2:36:00.
[32] Transcript part 2 at 2:38:00.
To address the applicants’ complaint that they were not allowed to tell their story from the witness box, the learned Member allowed them to give further evidence.[33] The learned Member discouraged further cross-examination by Mr Murdoch.
[33] SE, transcript part 3 from 41:30 to 45:30; ME from 46:00 to 52:38.
If the Appeals Tribunal had any concerns about the applicants’ treatment in the witness box, which it does not, the learned Member provided procedural fairness by giving the applicants another opportunity to give evidence.
Preliminary issues
It is obvious that the applicants have read the learned Member’s decision carefully. They take issue with comments by the learned Member that, in their view, do not give proper recognition to the validity of their beliefs or the legitimacy of their claims. In their forensic examination of the learned Member’s decision, the applicants have lost sight of, or ignored, the obvious and unimpeachable conclusions of the learned Member which are fatal to their appeal. However, the applicants have devoted considerable time, effort and resources to this appeal. They deserve a specific answer to some of their concerns.
The relief sought
The applicants say that the learned Member failed to apply the correct law because he misinterpreted the relief sought. They rely on the learned Member’s comments at [7] and [13] of his decision where he focussed on the refusal to issue a licence without a photo. The applicants say that the true question for the learned Member’s decision was whether, in exercising its licensing function, the Department discriminated against them.
The distinction is a fine one. The refusal to issue a licence was the ultimate act performed by the Department in which any discrimination was manifested. The learned Member accepted the Department’s concession that issuing a driver’s licence is the performance of a function of a power under a Queensland law.[34] He set out section 101 of the Anti-Discrimination Act 1991 (Qld) in full.
[34] Reasons of the learned Member at [82].
He set out the definitions of ‘direct discrimination’[35] and ‘indirect discrimination’.[36] He noted that to prove direct discrimination the applicants had to establish that they had been treated less favourably than a person without their belief would have been treated in circumstance that are the same or not materially different.[37] He noted the three criteria that apply for a finding of indirect discrimination.[38] We are satisfied that the learned Member identified the tests for discrimination correctly. We do not accept that the learned Member’s expression of the issues in [7] or [13] led him into error.
[35] Ibid [84].
[36] Ibid [97].
[37] Ibid [84].
[38] Ibid [98].
Characterisation of the attribute
The applicants take issue with the learned Member’s statement that SE did not characterise her belief as a religion.[39] In that paragraph, the learned Member was summarising SE’s evidence, not making findings of fact. Later in his reasons, the learned Member accepted that the applicants were claiming discrimination on the grounds of religious belief and that they had established that belief to his satisfaction.[40] Once the applicants’ religious belief was accepted as genuine by the Member, as it was, it was given its full effect. It was not in any way diminished because others may not understand or agree with it.
[39] Ibid [29].
[40] Ibid [79].
Victimisation
The applicants submit that the learned Member erred in failing to acknowledge that they were victimised by the Department’s actions. The relevant action is a letter from Ms Oswin dated 12 June 2009. The applicants’ complaint to the Anti-Discrimination Commission Queensland does not refer to this document as being an example of victimisation. Their statements of contentions do not refer to Ms Oswin’s letter. It is part of the applicants’ voluminous material but it understandable that the learned Member did turn his attention to it.
The sections of the letter of which the applicants complain respond to ME’s advice, in a letter dated 14 April 2009, that she suffered a medical condition that prevented her from visiting the Department’s registry. Ms Oswin’s comments may have been gratuitous but we are not persuaded that they amount to victimisation. The comments cannot, in any way, be construed as a threat. It is noteworthy that Ms Oswin provided a copy of that letter to the Commissioner at the same time as she provided it to the applicants.
Breach of privacy
The applicants submit that the learned Member should have taken issue with Mr Skinner accessing their licensing records for this proceeding. The Administrative Guideline incorporates the Information Privacy Principles.[41] Privacy Principle 10 permits the use of information for a purpose required or authorised by law or if the purpose for which the information is used is directly related to the purpose for which the information was obtained. Mr Skinner accessed and published the applicants’ licensing history as part of the factual matrix on which their complaint was based. It was a permissible use of the information and the learned Member was right not to take Mr Skinner to task.
[41] Part 1.7.2.
Deliberate obstruction
The applicants submit that the learned Member erred in failing to address the fact that the Department had confiscated SE’s licence, even though it had not expired. The Administrative Guideline requires[42] that the holder of a driver licence must notify of a change of name. The applicants accept this; otherwise they would not have approached the Department in the first place. The Administrative Guideline also requires that a driver licence must show the name of the holder, a photo of the holder and the holder’s signature.[43] If SE’s licence did not show her correct name or signature, then it is incorrect. An incorrect licence is liable to be cancelled.[44]
[42] Part 1.9.1.
[43] Part 1.6.2.1.
[44] Administrative Guideline Part 1.13.1.7.
The Department may not have complied with the procedure for cancellation[45] but that is a very different proposition from the applicants’ submission to the learned Member that the Department was being deliberately obstructive.
[45] Administrative Guideline Part 1.13.3.
Hardship
There is no doubt that the applicants will suffer inconvenience if they do not have driver licences. They say that inconvenience amounts to hardship and that the learned Member failed to consider their hardship when making his decision.
The applicants point to Anti-Discrimination Act 1991 (Qld) s 5. That provides a definition for ‘unjustifiable hardship’ but the principle does not have general application. Unjustifiable hardship is relevant to the provision of single sex accommodation,[46] the provision of special services for a person with an impairment,[47] in education,[48] to children,[49] in accommodation[50] or club membership.[51] The concept of unjustifiable hardship is in the nature of a defence to discrimination, it is not an additional reason for the Tribunal to find that the imposition of a condition is not reasonable.
[46] Anti-Discrimination Act 1991 (Qld) ss 30(2), 36.
[47] Ibid s 35.
[48] Ibid s 44.
[49] Ibid s 51.
[50] Ibid s 92.
[51] Ibid s 100.
Area of discrimination
It does not matter whether the act of discrimination fell within s 46 – the supply of goods and services – or s 101 – administration of State laws and programs.
The learned member recorded in his reasons that each of the following matters had been conceded by the State:
a) That the State had imposed a requirement that in order for a person to change their name on their driver licence, that person is required to be issued with a new driver licence containing a new photograph and new signature of that person;
b) That despite previous photographic licences having been issued to the applicants, they were unable to comply with the requirement; and
c) That the requirement would be able to be complied with by a majority of other persons, without the applicants’ religious beliefs, who were seeking to change their name on their driver licence.[52]
[52] Reasons of the learned Member at [100] – [101].
Once the learned Member accepted those matters the focus of his decision was necessarily upon whether the imposition of the condition was reasonable. It follows, therefore, that the learned Member’s failure to refer specifically to s 101(b) does not mean that his decision is in error.
Human rights
The applicants have provided detailed submissions about their fundamental human rights. The right to liberty of movement does not imply the right to drive a vehicle. The ability to drive on the roads is subject to a number of conditions, including the requirement to hold a licence. It is a privilege, not a right.
The right to freedom of religion is, and must be, tempered by the needs, and protection, of society. That is why there are exemptions in the Anti-Discrimination Act 1991 (Qld). The applicants acknowledge that society may legitimately place limitations on the freedom of religion. In their view, however, restrictions are only appropriate for ‘dangerous’ religions, not those that are practised peacefully. The Department is not seeking to limit the applicants’ observance of their religious beliefs. It is a consequence of the licensing regime that there is a conflict between that regime and the applicants’ observance of their religious beliefs.
Identity fraud
The applicants have also devoted significant energy to disproving the concept that photo licences will combat identity fraud. The Department’s evidence and submissions about reducing identity fraud are directed at the introduction of the data card and a recognition of the limitation of the then current paper/photo licence.[53] That identity fraud may still be perpetrated is not to the point. It does not mean that the requirement for there to be a photograph on a driver licence is unreasonable.
Direct discrimination
[53] See, for example, Exhibit MS-5 to the statement of Michael John Skinner.
The applicants submit that the learned Member incorrectly applied the test for direct discrimination because he separated the attribute (religious belief) from the characteristic (the inability to pose for a photograph). They also submit that the learned Member did not compare their attribute with members of the general public without their attribute. They submit that the learned Member merged the tests for direct and indirect discrimination into one test. They submit that the learned Member misstated the test at [89] of the reasons.
As we have already identified, the learned Member stated the test for direct discrimination: were the applicants treated less favourably than a person who did not have their attribute (their particular religious belief) in circumstances that were the same or not materially different. In other words, if a member of the public without the applicants’ religious belief applied for a change of details on a licence but refused (for whatever reason) to be photographed for the new licence would they, too, be refused a licence?
That is the question that the learned Member posed at [88] of his reasons for decision. The refusal to be photographed is the circumstance which must be considered when applying the test of whether or not the treatment would be different. It is not the fact of the attribute, as the applicants contend. Nor is the refusal to be photographed to be excluded from the consideration of comparative treatment because it is connected to the applicants’ religious beliefs.[54]
[54]Purvis v New South Wales (2003) 217 CLR 92, at [223] – [224] per Gummow, Hayne and Heydon JJ.
The learned Member posed the correct question. He found that the answer to the question was ‘yes’. The evidence overwhelmingly supported that finding.
Indirect discrimination
The applicants’ primary submission is that the learned Member erred in finding that the Department’s imposition of a requirement to have a photograph on a Queensland driver licence is reasonable in all the circumstances.
The learned Member observed that the test of reasonableness was an objective one, requiring him to balance the nature and extent of the discriminatory effect against the reasons advanced in favour of the requirement.[55] The learned Member listed the matters on which the Department relied to support its argument that the imposition of the condition was reasonable.[56] He found that those matters were ‘compelling’.[57]
[55] Reasons of the learned Member at [102].
[56] Ibid [105].
[57] Ibid [106].
The applicants advanced a number of arguments to rebut the Department’s assertion that the imposition of the condition was reasonable. They submitted that the purpose of the driver licence was to licence road users, not to create a central identity system. They advanced that argument before the learned Member. It may be accepted that the primary purpose of issuing a driver licence is to provide authority from the State to a citizen lawfully to drive a motor vehicle on a road or in a public place. However, the State may choose to do that in a way which it considers best identifies the person granted that authority. Also, that the issuing of a licence has that primary purpose does not mean that the licence may not have a secondary function as well.
Driver licences are regulated by the Transport Operations (Road Use Management) Act 1995 (Qld) (TORUM Act).
Section 39 of the TORUM Act required that if the holder of the driver’s licence changed his or her name or address he or she must notify the chief executive of the change within 28 days. If the chief executive was satisfied the information given by the holder was correct, then the chief executive must issue, for a change of name a replacement licence with the holder’s new name or for a change of address, a change of address label.
Section 91A(1) of that Act now provides, that a person must allow the chief executive to take and keep a digital photo and digitised signature of the person if the person applies for the grant, renewal or replacement of a prescribed authority. A driver’s licence is a prescribed authority. Section 91A(5) provides that the chief executive ‘must refuse to consider any application by the person relating to a prescribed authority if the person does not comply with sub-section 1…’
The present requirement in s 91A of the TORUM Act to allow the chief executive to take and keep a digital photograph and digitised signature reflects long standing legislative policy for the inclusion of photographs in driver licences. The respondent put evidence before the Tribunal detailing how each of the states and territories of Australia had for a number of years been working together to, so far as possible, develop nationally consistent driver licensing laws so that throughout Australia there would be nationally recognised driver licensing.
The evidence of Keith Ryan, the manager of legal policy National Transport Commission was of particular relevance in this regard. In December 1997 a National Driver Licensing Policy was developed and approved by the Australian Transport Council comprising government ministers. This lead to the creation of an Administrative Guideline National Driver Licensing Scheme in January 2000 by the then National Road Transport Commission (NRTC). The purpose of the administrative guideline was to create a national focus to ensure that reform in the transport area, relevantly here, the driver licensing area, was administered consistently across Australia.
In 2003 the NTRC was replaced by the National Transport Commission (NTC) established by the National Transport Commission Act 2003 (Cth) and an intergovernmental agreement was signed by each of the states and territories. Its purpose was to establish the NTC with an on-going responsibility to develop, monitor and maintain uniform or nationally consistent regulatory and operational reforms relating to road transport. Section 7 enabled regulations to be made setting out model legislation. The National Transport Commission (Road Transport Legislation – Driver Licensing) Regulations 2006 (Cth) followed. Section 3 thereof provided that Schedules 1 and 2 of the regulations dealt with driver licensing. Whilst these did not have the force of law they were a step along the way of the work of the states and territories in developing uniform driver licensing policies and laws across Australia. The intention of the regulations was they be a model upon which each of the states and territories would base their legislation creating so far as possible, relevantly here, a national driver licensing scheme.
Primary Principle 2 of the Driver Licensing Regulations set out the purpose of the scheme in the licensing area:
to provide for the establishment of an Australia wide driver licensing system designed to provide:
· uniform licence classes for the drivers of motor vehicles
· uniform attendant eligibility criteria for those licence classes
to provide a means of identifying drivers of motor vehicles. (emphasis added)
Clause 9 of the Supporting Principles and Clause 1.6.2 of the Guidelines deal with the information to be included on a driver’s licence. A driver’s licence must show all information listed in Clause 1.6.2.1 and Clause 1.6.2.2. Clause 1.6.2.1 requires that a driver’s licence must show a photo of the person and the person’s signature together with the other personal details listed.
In 2008 the Transport (New Queensland Driver Licensing) Amendment Act 2008 (Qld)[58] was passed. It contained amendments to the TORUM Act, relevantly in the area of driver licensing. It imposed, among other things, as s 91A(1), the requirement that a person applying for the grant, renewal or replacement of a driver licence allow the chief executive to take a digitised photograph and a digitised signature. If the person did not comply with those requirements, by s 91A(2), the chief executive was required to refuse to consider the application.
[58] Act No.71 of 2008.
The Explanatory Memorandum to the Transport (New Queensland Driver Licensing Amendment Bill 2008 set out the following reasons for the Bill:
The New Queensland Driver Licence initiative represents the Queensland Government's response to a rapidly ageing technology for the issue of driver licences and other authorities. The current laminated products issued by Queensland Transport are vulnerable to fraud and their use to facilitate identity deceptions is on the increase. The current incidence of identity fraud and other criminal activity using falsely-obtained driver licences is unacceptably high, and is one of the main drivers for the Queensland Government's decision to introduce the new Queensland smartcard driver licence and associated industry licensing products
These amendments were consistent with the National Transport Commission (Road Transport Legislation – Driver Licensing) Regulations 2006 (Cth). Those amendments were not proclaimed into force at that time. In 2010 the Transport and Other Legislation Amendment Act 2010 (Qld)[59] was passed. It amended or replaced provisions of the Transport (New Queensland Driver Licensing) Amendment Act 2008 (Qld) providing for driver’s licences to contain a photograph of the person. It resulted in amendment to the TORUM Act, in particular, inserting s 91A in its present form.
[59] Act No.13 of 2010.
It is clear that the driver licensing scheme is intended to be more than a mere issuing of authorities. It is also intended to ‘provide a means of identifying licensed drivers of motor vehicles’[60] and to ‘facilitate the regulation of drivers of motor vehicles in the interests of safety and efficiency and law enforcement generally’.[61]
[60]National Transport Commission (Road Transport Legislation –Driver Licensing) Regulations 2006 (Cth) s 2(1)(c).
[61]Ibid s 2(1)(d).
Once the wider purpose of the licensing system is accepted, the applicants’ argument that the Department cannot show that the requirement for a photo on a driver’s licence is not reasonable cannot be sustained.
The applicants point out that the Administrative Guideline states that a driver licence receipt (without a photo) has the same force and effect as a driver licence. A driver’s licence receipt was an interim measure to allow for delivery of a person’s digital photographic driver’s licence. It was only valid while the photographic licence was prepared and supplied. At the material time in these matters driver’s licence receipts were not used by Queensland Transport when a person sought a name change on a driver’s licence as the new laminated licence with photo was issued immediately.
The applicants also point out that the Administrative Guideline provides for exemptions from the requirement to hold a licence. So, by analogy, they contend that they should also be exempt from complying with the licensing requirements (of a photo licence). An examination of the exemptions shows that they are directed to types of vehicles (e.g. ride on lawn mowers and motorised wheelchairs), locations (e.g. golf courses and railways) or purposes (e.g. heavy vehicles that are agricultural machines or emergency service personnel driving vehicles in an emergency). The exemptions do not relate to the identity of the driver and they do not permit a driver wide ranging dispensation from the obligation to comply with the licensing requirements. Like the applicants’ argument in relation to the receipt, these exemptions are limited, identifiable and discrete circumstances in which a licence is not required to operate a motor vehicle. The exemptions do not assist the applicants unless they meet one of the criteria. They do not. In any event, the applicants do not contend that they should be exempt from holding a driver licence.
Disposition
The applicants have not demonstrated any error in the decision of the learned Member. The appeal must be dismissed.
Non-publication order
On 11 April 2013, a member of the Appeals Tribunal made a non-publication order in relation to the appeal only. It is a fundamental principle of justice that court proceedings are open and an order for anonymity is only made where there is some clear reason to depart from that general rule.[62]
[62]H v H & HS [2001] QADT 5, per Member Wyvill QC; Nash v Von Doussa[2005] FCA 660.
In forming the ‘reasonable opinion’ required by s 191 of the Anti-Discrimination Act 1991 (Qld), the Tribunal must not only take into account that fundamental principle, it must also have regard to the objects of the Act:
to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation. [63]
[63] Anti-Discrimination Act 1991 (Qld) s 6(1).
The applicants say, and the Appeals Tribunal can see, that publication of their identity might adversely affect their security and privacy. They live in a small town and it is likely that their identity, and connection with this proceeding, is known. The non-publication order should continue.
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