TURK & TERRITORY & MUNICIPAL SERVICES (Administrative Review)
[2010] ACAT 85
•1 December 2010
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
AKIN TURK & TERRITORY & MUNICIPAL SERVICES (Administrative Review) [2010] ACAT 85
AT 10/65
Catchwords: Suitable person to hold a vehicle licence – hardship – taxi licence infringement notices – type of criminal offences – grounds for cancellation of public vehicle licence – rehabilitation – time offence committed – whether customer would object to driver – expressio unius est exclusio alterius
Legislation: ACT Civil and Administrative Tribunal Act 2009, s 9
Road Transport (Driver Licensing) Regulations 2000, ss 47, 87, 88 & 90A
Disallowable Instrument D12006-26.
Cases:Director-General of Planning and Infrastructure v Nealon [2003] WASCA 161
Maythisathit and Registrar of Motor Vehicles [1996] ALD 475
Texts: D.C.Pearce Statutory Interpretation in Australia 2nd Ed. 1981
Butterworths, Sydney
Tribunal: Mr Allan O’Neil, Senior Member
Date of Orders: 1 December 2010
Date of Reasons for Decision: 1 December 2010
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AT 10/65
BETWEEN:
AKIN TURK
Applicant
AND:
TERRITORY & MUNICIPAL SERVICES
Respondent
TRIBUNAL: Mr Allan O’Neil, Senior Member
DATE: 1 December 2010
ORDER
1. The decision under review is affirmed.
………………………………..
Mr Allan O’Neil
Senior Member
REASONS FOR DECISION
On 30 July 2010 Mr Akin Turk (“The Applicant”) applied under section 9 of the Civil and Administrative Tribunal Act 2009 (“the Act”) to the ACT Civil and Administrative Tribunal for review of a decision of the Road Transport Authority (“The Respondent”) made on 7 July 2010. The decision was to cancel that part of the Applicant’s full motor vehicle licence which permits him to drive a public vehicle. It was made under section 87(1)(c) of the Road Transport (Driver Licensing) Regulations 2000 (“the Regulations”). For convenience that part of the Applicant’s full motor vehicle that was the subject of the decision under review is referred to as the taxi licence (“the taxi licence”). The ground for the cancellation of the Applicant’s taxi licence was that he is not a suitable person to hold a taxi licence.
Legislation
The relevant sections of the Regulations are as follows:
47Circumstances in which court may give order authorising issue of restricted licence
(1)The Magistrates Court may make an order authorising the road transport authority to issue a restricted licence to a person only if the person establishes that there are exceptional circumstances justifying the issue of the licence.
(2)In deciding whether exceptional circumstances exist, the court must have regard to the following:
(a)the person’s history of offences (including offences for which infringement notices were served on the person)—
(i)against the road transport legislation or a law of another jurisdiction corresponding to it (or to any provision of it); or
(ii)against another law of any jurisdiction in relation to the use of motor vehicles;
(b)any relevant rehabilitation or remedial action undertaken, or to be undertaken, by the person;
(c)the risk to the safety of other road users;
(d)the likelihood that the person, or anyone else affected by the outcome of the application, would suffer or incur any inconvenience or loss (actual or potential) that would be unreasonable if a restricted licence were not to be issued to the person;
(e)whether it would be unreasonable for the person to use an alternative means of transport, including public transport, if a restricted licence were not to be issued to the person;
(f)the likelihood of the person’s health, or the health of a dependant of the person, suffering or being put at risk if a restricted licence were not to be issued to the person;
(g)the likelihood of the person complying with any conditions of a restricted licence.
NoteAn infringement notice includes a notice (however described) served on a person under the law of another jurisdiction that gives the person the option of paying an amount for an offence instead of being charged with the offence (see Act, dict, def infringement notice).
(3)Subsection (2) does not limit the matters to which the court may have regard.
87When authority may vary, suspend or cancel driver licences
(1) The road transport authority may vary, suspend or cancel a person’s driver licence on its own initiative under section 88 (Procedures for variation, suspension or cancellation of driver licences) if the authority is satisfied on reasonable grounds that—
(a)the person is not eligible to apply for, or be issued with, a class or kind of driver licence held by the person; or
(b)the person does not have sufficient driving ability or knowledge of safe driving practices or road law to hold a driver licence or a driver licence of the class or kind applied for; or
(c)the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person; or
(d)the person does not comply with the required medical standards; or
(e)the person’s ability to drive safely is impaired by—
(i)an illness, injury or incapacity suffered by the person; or
(ii)the effects on the person of treatment (including the taking of a drug) for an illness, injury or incapacity suffered by the person; or
(f)the person has not complied with any requirements of a law of any jurisdiction relating to the assessment, treatment, supervision or education of drivers convicted or found guilty of offences involving alcohol or drugs that apply to the person; or
(g)the person has been convicted or found guilty in another jurisdiction, an external territory or a foreign country of an offence because of which the licensing authority of the other jurisdiction, external territory or foreign country could have varied, suspended or cancelled the person’s licence if it had issued the licence; or
(h)the licence was issued or renewed in error; or
(i)the licence is incorrect in any material respect; or
(j)the person has failed to comply with a condition to which the licence is subject; or
(k)the person has not complied with a requirement made by the authority in relation to the licence or a requirement of the Act relating to the licence; or
(l)the photograph contained in the licence is no longer a true likeness of the person; or
(m)if the licence was issued endorsed with ‘Valid without photo’—the person has unreasonably refused to go to a place designated by the authority to have a photograph taken or provide a photograph that is suitable for use on a driver licence; or
(n)the person has failed to comply with a request under section 88B (2); or
(o)the person has failed to return the person’s public vehicle driver authority card to the authority as required under section 64B (2).
NoteSee s 15 for the meaning of required medical standards.
(2) The road transport authority may also suspend or cancel a person’s driver licence under section 88 in accordance with—
(a)an order made by an Australian court; or
(b)another provision of the road transport legislation or any other territory law.
NoteIf a payment for the issue or renewal of a driver licence is not honoured, the licence must be suspended and then cancelled (see Road Transport (General) Regulation 2000, s 17 and s 19).
(3) Without limiting subsection (1) (c), the road transport authority may suspend or cancel a person’s public vehicle licence under section 88 because the person is not a suitable person to hold a driver licence or a driver licence of the class or kind held by the person if—
(a)the person has been convicted or found guilty of an offence that the road transport authority considers is relevant to the person’s suitability to hold the licence or the class or kind of licence; or
NoteThe road transport authority must comply with any guidelines approved by the Minister under s 90A (Public vehicle licence guidelines—relevant offences).
(b)the person has contravened the Road Transport (Public Passenger Services) Act 2001.
NoteA reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(4) For subsection (1) (i), a driver licence is incorrect in a material respect if anything that is required under section 12 (Form of driver licences) to be shown on the licence is incorrect.
(5) This section does not apply to the making of a condition variation.
Note 1Condition variations are made under div 3.9.
Note 2A court may also order licence variation, suspension and cancellation under the Road Transport (Mass, Dimensions and Loading) Act 2009, s 204.
88Procedures for variation, suspension and cancellation of driver licences
(1) If the road transport authority proposes to vary, suspend or cancel a person’s driver licence (the proposed action) on its own initiative, the authority must give the person a written notice stating—
(a)the proposed action; and
(b)if the proposed action is to vary the licence—the proposed variation; and
(c)if the proposed action is to suspend the licence—the proposed suspension period; and
(d)the grounds for the proposed action; and
(e)any action that must be taken by the person to avoid or reverse the proposed action; and
(f)the date when the variation, suspension or cancellation takes effect (the date of effect); and
(g)whether and, if so, by when the person is required to return the licence to the authority if the proposed action takes effect.
(2) The notice must also state that, unless the notice is revoked by the road transport authority before the date of effect—
(a)if the proposed action is to vary the person’s driver licence—the person must not drive a motor vehicle of a stated kind on a road or road related area on or after the date of effect; or
(b)if the proposed action is to suspend the person’s driver licence—the person must not drive a motor vehicle on a road or road related area for the period of suspension stated in the notice; or
(c)if the proposed action is to cancel a person’s driver licence—the person must not drive a motor vehicle on a road or road related area on or after the date of effect.
(3) The notice may, but need not, provide an opportunity for the person to make representations about why the proposed action should not be taken.
(4) The date of effect must not be earlier than 14 days after the notice is given to the person.
(5) However, the road transport authority may decide that the variation, suspension or cancellation is to take effect on a date not earlier than the date when the notice is given to the person if the authority proposes to vary, suspend or cancel the person’s driver licence on the ground that—
(a)the person does not have sufficient driving ability or knowledge of safe driving practices or road law to hold a driver licence or a driver licence of the class or kind applied for; or
(b)the person does not comply with the required medical standards; or
(c)the person has failed to comply with a requirement under this regulation to—
(i)undergo a test or assessment of the person’s driving ability or knowledge of safe driving practices or road law; or
(ii)undergo a medical examination by a doctor or allied professional practitioner; or
(iii)provide any documents in the person’s possession or control relevant to the person’s medical fitness to hold a driver licence or a driver licence of a particular class or kind; or
(d)the person has failed to comply with a requirement under this regulation to provide information about—
(i)an illness, injury or incapacity suffered by the person; or
(ii)the effects on the person of treatment (including the taking of a drug) for an illness, injury or incapacity suffered by the person; or
(e)the person has not complied with any requirements of a law of any jurisdiction relating to the assessment, treatment, supervision or education of drivers convicted or found guilty of offences involving alcohol or drugs that apply to the person.
NoteSee s 15 for the meaning of required medical standards.
(6) A person must not, without reasonable excuse, fail to return his or her driver licence to the road transport authority in accordance with a requirement under subsection (1) (g).
Maximum penalty: 20 penalty units.
(7) If the road transport authority varies a person’s driver licence under this section, the authority must issue a varied driver licence to the person.
(8) A driver licence issued to a person under subsection (7) must be issued for the remainder of the period of the driver licence that it replaces.
(9) This section does not apply to the making of a condition variation.
NoteCondition variations are made under div 3.9.
90APublic vehicle licence guidelines—relevant offences
(1) The Minister may approve guidelines about the exercise of the road transport authority’s functions under the following sections:
(a)section 70 (3) (a) (When applications for issue and certain variations of driver licences can be refused);
(b)section 87 (3) (a) (When authority may vary, suspend or cancel driver licences).
(2) Without limiting subsection (1), the guidelines may make provision about—
(a)the offences that are relevant in relation to—
(i)an application for a public vehicle licence; and
(ii)the suitability of a person to continue to hold a public vehicle licence; and
(b)the matters or circumstances that may or must be considered, in deciding whether—
(i)an application for a public vehicle licence may or must be refused; or
(ii)a public vehicle licence may or must be suspended or cancelled.
Examples for par (b)
1whether a person has been convicted for a single offence or multiple offences and the nature and seriousness of the offence
2the age of the person when the offence was committed
3the time elapsed since the offence was committed
NoteAn example is part of the regulation, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
(3) The road transport authority must comply with any guidelines approved under this section.
(4) Approved guidelines are a disallowable instrument.
NoteA disallowable instrument must be notified, and presented to the Legislative Assembly, under the Legislation Act.
Hearing
The matter was heard on 12 October 2010. The Applicant represented himself and the Respondent was represented by Ms Katavic of the ACT Government Solicitor’s Office. The Applicant gave evidence on his own behalf and Mr Brett Swale, the manager of Road User Service, Transport and Infrastructure Division of the Department of Territory and Municipal Services gave evidence for the Respondent. Mr Swale was the decision-maker as delegate of the Respondent. The instrument of delegation was produced to the Tribunal (Exhibit R1). Although it is more usually the practice for an applicant to present his case before a respondent is called upon to reply, in this matter the practice was not followed. The Tribunal felt that it would be fairer for the Respondent to present its case and for the Applicant to reply. Ms Katavic agreed to adopt this arrangement to assist the Applicant.
Evidence
The Tribunal had before it the T-Documents produced by the Respondent. There was no conflict between Mr Swale’s evidence and that of the Applicant. The undisputed evidence is set out below.
Three traffic infringements infringement notices were issued in March 2010 to the owner-operator of motor vehicle ACT Registration No. TX 461 (“the taxi”). The details of the notices are:
(a)9 March 2010 at 9:14:50 am at the junction of Canberra Avenue, Manuka Circle and Captain Cook Crescent, the offence being “Proceed When Traffic Light Red”.
(b)14 March 2010 at7:06:40 am on the Barton Highway between Gungahlin Drive and Ellenborough the offence being “Non-School Zone Exceed Speed Limit by not more than or equal to 15 K.P.H.” (speed limit 80kph, vehicle speed 98kph).
(c)22 March 2010 at 9:55:19 am at the junction of Canberra Avenue, Hindmarsh Drive and Newcastle Street, the offence being “Proceed When Traffic Light Red”.
In each case the owner operator of the taxi made a statutory declaration stating that the Applicant was driving the taxi at the time of the offence. New infringement notices were issued to the Applicant.
The Applicant then made statutory declarations stating that a person who the Applicant was training to be a taxi driver (“TS”) was driving the taxi. TS did not hold a taxi licence at the relevant times. On 14 May 2010 Mr Swale wrote to the Applicant (T8) questioning his suitability to hold a taxi licence as he had allowed TS to drive a taxi without the correct licence. At a meeting between the parties on 20 May 2010 the Applicant said he was training TS to be a taxi driver and that he was on all occasions in the taxi with TS. He said that he did not know that TS needed to hold a taxi licence when he was being taught.
In early June 2010 the Respondent received a certificate (T6) from the Australian Federal Police setting out the Applicant’s criminal record. This was information of which the Respondent had not been aware. The Respondent has two convictions for driving with alcohol in his blood (although not in a taxi), four for using telecommunications equipment to harass or menace, two for breaches of recognizance, one for assault occasioning actual bodily harm, one for assault and one for maliciously damaging property by fire. Five other offences are also listed. The Applicant was sentenced to four terms of imprisonment although on at least one occasion (8 November 2006) that sentence was suspended when he entered into a two-year good behaviour bond.
Mr Swale wrote to the Applicant (T5) in the form required by section 88 of the Regulations on 7 July 2010. The relevant sections of that letter are set out below.
Having considered your admission that you allowed a person that did not hold a taxi licence to drive a taxi and your police character check, I believe there are reasonable grounds for the RTA to find that you are not a suitable person to hold a public vehicle driver licence.
As a result I have decided to vary your full licence to cancel your taxi and omnibus driver licence under section 87(1)(c) of the Road transport (Driver Licensing Regulation 2000.
I propose to cancel your licence on 28 July 2010.
As a result of receiving the letter the Applicant sought an internal review of that decision. He attended at a meeting with Mr Swale and Ms Karen Greenland the General Manager, Transport Regulation. At that meeting the Applicant said the only source of income for him and his children was his taxi driving. He admitted that he had been driving the taxi at the time the offences were committed. He had said that TS was driving to avoid more demerit points as these points would have resulted in his licence being suspended. This had occurred previously. Notwithstanding the deception he had attempted, the Tribunal found him to be a frank and honest witness.
Ms Greenland subsequently confirmed Mr Swales’ decision in a letter to the Applicant of 26 July 2010 (T2). In that letter she also made reference to the Applicant’s infringement history (T3) showing infringement notices issued for minor traffic offences in the period from 17 June 2000 to the date of the letter. The infringement history also showed the Applicant’s licence history between 19 July 2007 and 26 June 2010.
At the hearing the Respondent tendered a further document (Exhibit R3) which updated the Applicant’s licence details and infringement history. These consist of the following:
(a)21 offences of exceeding the speed limit by less that 15 kph,
(b)12 offences of exceeding the speed limit more than 15 kph but less than 30 kph, and
(c)5 miscellaneous traffic offences.
Four of these infringements notices were issued after the parties met on 20 May 2010 when the question of the Applicant’s suitability to hold a public vehicle licence was discussed. Two fines have been paid and two had not been admitted at the time of the hearing.
Submissions and conclusion
Ms Katavic for the respondent argued that there were essentially three separate grounds for finding that the Applicant was not a suitable person to hold a public vehicle licence. She submitted that each ground was sufficient for a finding of unsuitability.
The first ground was the attempted deception of the Respondent in stating that TS was the driver of the taxi at the time of the infringements, when it was in fact the Applicant. Although the attempted deception was by way of a false statutory declaration the Tribunal accepts that he did not appreciate the gravity of making a false statutory declaration. The Applicant has learned English as an adult and so his limited understanding of the formal document is understandable.
The second ground was the Applicant’s not insignificant criminal record between 1993 and 2007. The Applicant submitted that he was experiencing some difficult personal problems in the past when most of the offences were committed and that he had undertaken anger management counselling. He spent a number of years in refugee camps and came to Australia in 1987 as a humanitarian refugee.
The third ground was the Applicant’s lengthy history of traffic infringements over a ten-year period, including some issued after the Applicant was put on notice that his suitability as a taxi driver was under investigation.
The Applicant submitted that as a taxi driver he was on the road for 12 hours a day and, while he accepted that he must obey the traffic laws, it was inevitable that from time to time those laws would be breached. The tribunal notes that the breaches average just under four a year. He also pointed out the hardship he and his two dependent children would suffer if he lost his public vehicle licence because taxi driving was the only occupation he was qualified to do.
Reliance was placed by the Respondent on Disallowable Instrument D12006-26. This is a set of Guidelines made under section 90A of the Regulations which empowers the Minister to approve guidelines about the exercise of the Respondent’s functions, inter alia, to vary, suspend or cancel drivers’ licences under section 87(3)(a) of the Regulations. The Guidelines deal with certain criminal offences relevant to the suitability of a person to hold a public vehicle licence. In this matter however the Respondent has cancelled the Applicant’s taxi licence under section 87(1)(c) so that the Guidelines cannot be applied by force of the statute. However many of the matters in the Guidelines are relevant to the Respondent’s decision under section 87(1)(c) of the Regulations and may properly be considered by the Respondent and this Tribunal.
Ms Katavic argued that under section 87(1)(c) of the Regulations hardship was not a relevant consideration. She quoted a number of authorities to support her position. In the principal authority, Director-General of Planning and Infrastructure v Nealon [2003] WASCA 161, Miller J held that hardship was not relevant. He said that express reference had been made to hardship in another section of the Road Traffic Act 1974 (WA) and if had been intended to be considered in the operative section an express reference would have been included. In the Regulations there is an express reference in section 47(2)(d) to unreasonable inconveniences or loss being relevant for the grant of a restricted licence but nothing similar in section 87(1)(c).
Rather than rely on this application of the maxim expressio unius est exclusio alterius which Professor Pearce suggests should be applied with caution (D.C.Pearce Statutory Interpretation in Australia 2nd Ed. 1981 Butterworths, Sydney) the Tribunal considers that when the criterion of not being a suitable person is examined it becomes clear that hardship is not a relevant criterion. A person who is not suitable to hold a taxi licence cannot be rendered suitable if the cancellation of the licence would cause hardship. These are quite different matters. In any event the Tribunal finds that the evidence before it is not sufficient to show that the Applicant would suffer hardship on the cancellation of his taxi licence.
In deciding if the Applicant is not a suitable person to hold a taxi licence the Tribunal must consider not only the misconduct of the Applicant but also those matters favourable to the Applicant. All of the relevant circumstances must be taken into account, including the nature of the offences, the time when they were committed and any rehabilitation efforts made. It is a value judgment by the decision-maker. In Maythisathit and Registrar of Motor Vehicles [1996] ALD 475 Curtis P proposed the following test:
One must put oneself, so far as is possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public knowing the applicant’s criminal record and what he had done … to rehabilitate himself would object to the applicant as the driver of the taxi.
That test related to whether Mr Maythisathit was a fit and proper person to hold a taxi licence. He had been convicted of a number of dishonesty offences but not imprisoned. Although the phrase is a different one the Tribunal believes that the test propounded by Curtis P is appropriate in deciding whether the Applicant is a suitable person to hold a taxi licence.
The Tribunal has taken into account the Applicant’s position that because he is on the road 12 hours a day he is at a higher risk of being caught offending. It also accepts that there are no records of complaints being made against him and that he is solicitous of his passengers.
The Applicant’s criminal record over 14 years affords the Tribunal considerable disquiet. In particular the offences against the person and the Applicant’s periods of imprisonment lead the Tribunal to conclude that a member of the public, knowing of them, would object to the Applicant as the driver of a taxi in which they might travel.
The large number of infringement notices for traffic offences suggests that the Applicant seems to be unable to comply with his obligations to obey the rules of the road even after having been warned in May 2010 and having his licence suspended for accumulating demerit points in March 2009. This chronic inability to drive within the road rules would cause a member of the public to object to the Applicant as the driver of a taxi in which they might travel.The Applicant would not be a suitable person to hold a taxi licence.
The attempted deception of the Respondent by the making of a false statutory declaration is a serious matter. The Tribunal accepts that the Applicant did not apprehend the gravity of his actions. When confronted by the consequences of his actions he admitted his wrongdoing. In giving his evidence to the Tribunal he was frank and did not seek to excuse his actions. In applying the test enunciated by Curtis P the Tribunal takes the view that a member of the public, knowing the whole of the evidence, would not object to the Applicant as the driver of a taxi in which they might travel if this were the only basis for his unsuitability to hold a taxi licence.
The Tribunal affirms the decision under review.
………………………………..
Mr Allan O’Neil
Senior Member
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO: AT 10/65
APPLICANT: AKIN TURK
RESPONDENT: TERRITORY AND MUNICIPAL SERVICES
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT: Ms K. Katavic, ACT Government Solicitor
OTHER: APPLICANT: self
RESPONDENT:
TRIBUNAL MEMBER/S: Mr A. O’Neil, Senior Member
DATE/S OF HEARING: 12 October 2010 PLACE: CANBERRA
DATE/S OF DECISION: 1 December 2010 PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
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