UY v Ministry of Transport

[2007] NSWADT 147

CITATION:	UY v Ministry of Transport [2007] NSWADT 147
DIVISION:	General Division
PARTIES:	APPLICANT UY RESPONDENT Ministry of Transport
FILE NUMBER:	053372
HEARING DATES:	9 February 2006, 9 May 2007
SUBMISSIONS CLOSED:	9 May 2007
EXTEMPORE DECISION DATE:	9 May 2007
DATE OF DECISION:	10 July 2007
BEFORE:	Montgomery S - Judicial Member
CATCHWORDS:	Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Child Protection (Prohibited Employment) Act 1998 Passenger Transport Act 1990
CASES CITED:	EB v Director General, Department of Transport [2002] NSWADT 258 TO v Commission for Children and Young People [2007] NSWADT 6
REPRESENTATION:	APPLICANT Applicant's father, agent RESPONDENT A Woznaik, solicitor
ORDERS:	The Ministry’s decision to refuse UY’s application for an authority to drive a public passenger vehicle is affirmed.

REASONS FOR DECISION

1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as UY.

2 UY applied for an authority to drive a public passenger vehicle under the Passenger Transport Act 1990 (“the Act”). A delegate of the Ministry refused the application on the grounds that UY is a 'prohibited person' within the meaning of the Child Protection (Prohibited Employment) Act 1998 (“the CP(PE) Act”). This view was based on the fact that on 23 February 1982 UY was convicted and sentenced in the Supreme Court of the offence of rape and indecent assault on a female. A 'prohibited person' must not apply for or undertake any child-related employment. For this purpose, 'child-related employment' means any employment where there is direct contact with children and that contact is not directly supervised and includes driving school buses.

3 The delegate was of the view that the grant of an authority to drive a bus would effectively give approval for UY to drive school buses or being in direct unsupervised contact with children. He stated that he could only attest that UY has sufficient responsibility and sufficient aptitude to drive a public passenger vehicle in accordance with law and custom as required by section 11(2)(b)(ii) of the Act if a condition was imposed upon the authority to the effect that UY not engage in child-related employment while driving a bus. He considered that he was constrained to follow the views that I expressed in EB v Director General, Department of Transport [2002] NSWADT 258 that the imposition of such a condition on the authority would be impractical and would in itself signal that he could not make the attestation.

4 The matter originally came before me on 9 February 2006. At that time I adjourned the proceedings to allow UY to apply for exemption from the operation of the CP(PE) Act. Judicial Member Smyth ultimately determined that application and here reasons are recorded in TO v Commission for Children and Young People [2007] NSWADT 6. The Judicial Member made the following determination:

“It is declared that the Child Protection (Prohibited Employment) Act 1998 is not to apply to TO in respect of the offence of rape and indecent assault on a female for which he was convicted and sentenced in the Supreme Court on 23 February 1982 on condition that he:

1(a) provide to the Tribunal and the Respondent within 14 days of the date of these orders a written undertaking that he will not possess or consume cannabis;

(b) submit to monthly urine analysis testing for cannabis performed by an accredited pathology service of the Applicant’s choice for a period of two years from the date of this order. The results of each test must show that the Applicant has not consumed cannabis from the date of these orders;

(c) arrange for the accredited pathology service to forward the results of the tests referred to in Order 1(b) above to a psychiatrist of the Applicant’s choice. TO must consult with that psychiatrist at least on a 6 monthly basis for the purpose of monitoring his test results. The psychiatrist is to be provided with a copy of these orders and the reports written by Dr Allnutt dated 31 January 2006 and 9 April 2006.

2. must not apply for, commence or remain in any child related employment unless he has commenced compliance with respect to Order 1 (a), (b) and (c) including an initial urine analysis test and consultation with a psychiatrist as specified in (1) (b) and (c) above.

3. must provide a copy of these orders to any person who employs him in child related employment for a period of two years from the date of this order.

4. The Registrar of the Tribunal is to serve a copy of these Orders on the Commissioner of Police.

5 The matter came back before me for further hearing on 9 May 2007. At the conclusion of the hearing I determined that the authority should not be granted and I gave brief reasons for my decision. The Ministry has requested written reasons and these reasons are provided in response to that request.

Applicable legislation

6 The following provisions of the Act are relevant:

11 Authorities

(1) A person who drives a public passenger vehicle (other than a ferry) is guilty of an offence unless the person is the holder of an appropriate authority under this Division.

Maximum penalty: 100 penalty units.

(2) The purpose of an authority under this Division is to attest:

(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 vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated, and

(ii) in accordance with law and custom.

12 Criteria and procedure

(1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them.

(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

7 It is common ground that UY has the conviction referred to above and that he is a 'prohibited person' within the meaning of the CP(PE) Act. The parties disagree as to the consequences of the orders made in TO v Commission for Children and Young People .

8 UY’s father appeared on his behalf at the hearing. He argued that the authority should be issued immediately but if the Tribunal did not agree the authority should issue on expiry of the conditions that were imposed. The Ministry argued, and I agreed, that it is inappropriate to issue the authority so long as UY is subject to the conditions imposed.

9 In my view it is appropriate to take account of the conditions that Judicial Member Smyth has imposed. It is not possible for the Tribunal to monitor UY’s compliance with them and it would be impractical to expect the Ministry to do so. Judicial Member Smyth has considered evidence that I cannot and have not considered. She formed the view that there is good reason for UY to be monitored. Until that process has been completed, I cannot attest that UY is a person who has sufficient responsibility to drive a public passenger vehicle in accordance with law and custom. Accordingly, the authority should not be issued at this time.

10 I note however, that it is my view that if the conditions are satisfied and all the appropriate reporting is provided to the Ministry, this should all be taken into account in UY’s favour if he reapplies for the authority. If no other issues arise in the meantime, I cannot see that there would be an impediment to UY being granted the authority.

Order

11 The Ministry’s decision to refuse UY’s application for an authority to drive a public passenger vehicle is affirmed.