Z v Director General, Department of Transport

[2000] NSWADT 87

Set aside by Appeal: Set aside by appeal on 24/05/2001

CITATION:	Z -v- Director General, Department of Transport [2000] NSWADT 87
DIVISION:	General Division
PARTIES:	APPLICANT Z RESPONDENT Director General, Department of Transport
FILE NUMBER:	003075
HEARING DATES:	16/06/2000
SUBMISSIONS CLOSED:	06/16/2000
DATE OF DECISION:	07/05/2000
BEFORE:	Hennessy N (Deputy President)
APPLICATION:	Passenger Transport Act - private hire vehicle driver - cancellation of authority - Private hire vehicle driver - cancellation of authority
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Passenger Transport Act 1990
CASES CITED:	Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Stasos v Tax Agents' Board of NSW 1990) 90 ATC 4950 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321 Bedi -v- The Director General, of Transport [1999] NSWADT 51 Mulligan -v- Director General, Department of Transport [1999] NSWADT 126
REPRESENTATION:	APPLICANT In person RESPNDENT A Wozniak, solicitor
ORDERS:	1. The decision of the Director General to cancel Z's passenger transport authorities is affirmed.

Introduction

1 On 30 August 1999, the Director General’s delegate issued the applicant with authorities to drive Long Distance and Tourist buses and Route buses. On 31 January 2000 he was issued with an authority to drive a Private Hire Vehicle. In response to a question on the application form as to whether he had been convicted of any criminal offences within the past ten years, Z ticked the “No” box. He noted on the application form that he was charged with an offence in another Australian state in 1986. The Director General did not make any further enquires in relation to that declaration and the authorities were issued.

2 On 16 March 2000, after receiving information concerning Z’s convictions, the Director General cancelled Z’s authorities to drive public passenger vehicles. Z requested an internal review of that decision. The internal review affirmed the original decision. The Director General took into account the nature, seriousness and frequency of the offences for which Z had been convicted and the likelihood that he will again commit criminal offences. Z applied to the Tribunal for a review of the decision to cancel his public passenger vehicle driver authorities.

Jurisdiction

3 Under s 52(1) of the Passenger Transport Act 1990 (the Act) a person whose application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision. Section 63 of the Administrative Decisions Tribunal Act 1993 (ADT Act) sets out the Tribunal’s powers when reviewing a reviewable decision. That section states that:

(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision.
(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:
(a) to affirm the reviewable decision, or
(b) to vary the reviewable decision, or
(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or
(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal."

Legislation

4 Section 14 of the Act gives the Director General a discretion to vary suspend or cancel any person’s authority. That section states that:

Having regard to the purpose of an authority, the Director-General may at any time vary, suspend or cancel any person's authority.

5 Sub-section 11(2) sets out the purpose of an authority in the following terms:

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.

6 Section 4 of the Act sets out its objectives which include:

(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.

Issues

The issue in this case is whether, given Z’s criminal history and all the other circumstances of the case, 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.

Evidence

8 Z has a long history of criminal offences which were committed between 1964 and 1988. They include: insufficient means; break bonds; carnal knowledge (with consenting under age girl); larceny; shop break; break with intent; drunk and disorderly behaviour; illegal use of motor vehicle; assault occasioning actual bodily harm and stealing.

9 In 1980 X was convicted in the Supreme Court of another state of kidnapping, four counts of rape and two counts of false pretences, with a further six offences of false pretences taken into account. These offences related to the kidnapping of a woman and having vaginal and oral sexual intercourse with her, without her consent, on four occasions. An unloaded shot gun was used in the commission of these offences. Z was seriously affected by alcohol at the time and, according to the comments of the Supreme Court Justice when sentencing him, Z had a serious drinking problem. The false pretences convictions related to presenting false cheques. Z served three years of a four and a half year prison sentence.

10 In 1988, five years after his release from prison, Z was convicted in the Supreme Court of another state of rape, and attempted rape. These offences were committed on Z’s 14 year old daughter while she was in his custody. In sentencing Z the presiding Judge said:

You invited her into your bedroom, ostensibly to watch television and then forcibly had full vaginal sexual intercourse with her. Later the same evening you again attempted to have similar intercourse, but she managed to get out of the house and seek assistance from a neighbour.

11 Z was sentenced to 9 years imprisonment with a 7 years non-parole period. Z denies that he committed these offences.

12 Z was on parole for four years following his release from prison. In that time he said he has worked driving buses in other states as well as New South Wales.

13 Z tendered a reference from a former employer dated 2 February 2000 which stated that he had been employed as a Coach Captain from 31 October 1999 until 17 January 2000 when he resigned of his own accord.

14 The Police Service in another state provided information that Z had been convicted of several traffic offences, namely:

· exceeding the speed limit by between 10 and 14 kilometres an hour on 12 January 1995 and fined $100;

· drive motor vehicle without due care and attention/careless driving on 24 October 1995 for which he was fined $120;

· demerit point suspension, disqualified from driving for three months on 19 February 1996;

· driving while suspended, disqualified for nine months and fined $200 on 26 June 1996;

· not being holder of appropriate valid drivers licence - 2 counts; under fines suspension on 21 January 1998; and

· giving information that he knew to be false/misleading - fined $1500 on 15 March 1999;

15 Information from another Police Service advised that while no criminal convictions had been recorded against Z in that state, Police Central Warrants Bureau is holding 5 interstate warrants of apprehension in his name issued on 30 April 1999 and 26 July 1999 for traffic offences committed elsewhere.

16 At the Tribunal’s instigation, pursuant to s 73(2) of the Administrative Decisions Tribunal Act 1993 (ADT Act), a report was requested from a Sex Offenders Treatment Program in the state in which the offences occurred. Z was referred to the service by the department administering corrective services in that state in 1991. As Z denied that he was guilty of sexual offences against his daughter he was deemed unsuitable for the program and did not receive treatment. This policy has since been modified so that sexual offenders are only precluded from treatment after they have undergone the first few months of treatment and continue to assert that they are not guilty of the offence.

17 On the basis of a letter from the Correctional Services Department of the state in which the offences took place, dated 6 December 1991, and an interview with Z on 21 January 1992, officers from the treatment facility prepared a summary for the Tribunal. The summary outlines the reasons for Z’s referral, previous charges, partner details, psychosocial functioning, and educational and vocational background. Under the heading “functioning while in prison” the summary states that:

According to the referral letter from the Senior Psychologist: “Many reports of the time speak of him as a demanding person whose high opinions of himself exceed his capabilities.” Z was described in the letter as “an arch manipulator and vocal person who uses others to his own ends. There are reports by parole officers that he . . . cunningly endeavours to give answers and behaviours that best suit his course. Likewise he has on several occasions said that he had ‘woken up to himself’ but nothing subsequently changed. There was no genuine desire to attempt readjustment.

18 Under the heading “Vocational Background” the summary stated that:

Z worked for catering companies in the 1970’s but was dismissed for excessive alcohol consumption. According to the assessment, he was a chef by trade. He used to own two massage parlours. He had also been a truck driver and labourer. The assessment indicated Z had always found it easy to get work and had been employed in numerous different positions. Z said he was ‘sacked a lot’ for not going to work and being aggressive. He said that he had problems with authority. He ‘couldn’t handle being told what to do’ and he hated ‘people on his back over minor things.’

19 Under the heading “Drug History” the summary recorded that:

Started drinking alcohol in 1965, when he was 16 years old. At the time of the referral letter Z was described as a ‘chronic alcoholic.” Z stated that he did not have any memory problems or blackouts. His medical history showed no evidence of alcohol related problems. According to the referral letter, Z had a long history of ‘drug abuse’. However, according to the assessment, Z thought that ‘heavy drugs [were] very bad.’

20 The Tribunal contacted the Sex Offenders Program within the Department of Corrective Services to prepare a report in relation to the likelihood of Z re-offending. The report was prepared by Miroslav Milenkovic, clinical psychologist, and endorsed by Narci Sutton, Acting State Wide Clinical Co-ordinator of the Sex Offender Programs. Mr Milenkovic applied information relating to the circumstances of the offences for which Z had been convicted to the Static-99 scale for assessment of risk of recidivism. The Static-99 scale is a risk evaluation instrument developed by researchers in the United Kingdom and Canada, which is used to assess the risk of re-offending by people convicted of sexual offences.

21 In part, Mr Milenkovic’s report stated that:

Based on the information on the records you provided, Z scores within the lower end of the high risk category in the Static-99. The score reflects his history of convictions for common offences; sex crimes; non-sexual violence; and the fact that one of his victims was a stranger. The score can be interpreted by referring to the fact that in the sex offender sample used in the validation of the scale the 12% of offenders who scored within this category had a sexual re-conviction rate of 45% in the first 10 years post release. Within a 15 year period the re-conviction rate of this sample group rose to 52%.

In Z’s case the importance and relevance of these risk levels is related to the specific requirements of the position he has applied for and the opportunities if affords to have unsupervised access to potential victims, This is a decision for the Tribunal.

Submissions

22 Z stated that once the Director General had made a decision to grant him an authority, based on the information requested, he could not change his mind.

23 Z argued that the “spent convictions” legislation prevented the Tribunal from taking into account offences that were more than 10 years old.

24 In addition, Z submitted that the Human Rights and Equal Opportunity Commission Act 1986 prevented an employer from discriminating against him on the ground of his criminal record.

25 Finally, Z submitted that the convictions were very old and that he had demonstrated that he was now of good character. He has been out of prison for seven years and has not been charged with any offence (other than traffic offences) since that time. He has held a driver’s authority in New South Wales for charter and long distance coaches and route buses for seven months. He has no convictions for criminal or traffic matters during that time.

26 Mr Wozniak on behalf of the Director General submitted that the test to be applied is whether the Director General can attest that Z 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. Since Z falls into the high risk category for re-offending and has a lengthy record, he is not a fit and proper person to be the driver of a public passenger vehicle. In addition Mr Wozniak emphasised that Z had not shown any sign of contrition in relation to the offences he had committed.

Reasons

27 Z submitted that because the Director General had made a decision based on his truthful answers in the application, he could not change his mind. This is not borne out by the legislation. Section 14 of the Act gives the Director General the discretion to cancel any person’s authority, having regard to the purpose of that authority. One of the purposes of an authority is to attest that the 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. If the Director-General does not consider that a person meets this requirement, he can cancel an authority at any time.

28 The question on the application form asks whether the applicant has been convicted of any criminal offences within the past ten years. Z indicated that he had not. The question arises as to why the respondent only requires an applicant to disclose convictions in the last 10 years if they could be convinced on the basis of older convictions that the person was not a fit and proper person to carry an authority.

29 Z also relied on the spent convictions legislation. Under s 7(1) the Criminal Records Act 1991 (NSW), convictions for sexual offences and convictions for which a prison sentence of more than 6 months has been imposed, are not capable of becoming spent. “Sexual offences” are defined in s 7(g) to include an offence committed before the date of commencement of this section (31.5.1991) against a law of New South Wales or a law of a place outside New South Wales which constituted an offence of a similar nature to a sexual offence. Consequently, the offences for which Z was convicted cannot be “spent” under the New South Wales legislation.

30 Pursuant to s 85ZV of the Crimes Act 1914 (Cth) only convictions relating to Commonwealth and Territory offences can be spent under that legislation. Z’s convictions are not Commonwealth or Territory offences.

31 In relation to his submission about discrimination, the Human Rights and Equal Opportunity Commission Act 1986 allows a person to make a complaint to the Human Rights and Equal Opportunity Commission (HREOC) alleging unlawful discrimination, including discrimination on the ground of criminal record. (Human Rights and Equal Opportunity Commission Regulations, Reg 4). There is an exception for discrimination in respect of a particular job based on the inherent requirements of the job. (See s 3(1) of the Human Rights and Equal Opportunity Commission Act 1986 ) This legislation does not make discrimination on the ground of criminal record by an employer unlawful. But it does provide a person with an opportunity to lodge a complaint if they allege that they have been discriminated against in employment. The fact that the HREOC has been given the power by the federal government to investigate and attempt to conciliate complaints of discrimination on the ground of criminal record, indicates the government’s commitment to protecting people with a criminal record from arbitrary and unfair decision making in relation to their employment. That commitment derives, in part, from the terms of the International Labor Organisation (No. 111) concerning Discrimination in respect of Employment and Occupation, to which Australia has been a party since 1974.

32 In this case, while the existence of the provisions in the Human Rights and Equal Opportunity Commission Act 1986 do not prevent the Director General from cancelling the authority of a person who has a criminal conviction, those provisions provide an important context for making employment decisions about people with a criminal record. They reinforce the fact that a person’s authority should not be refused or cancelled solely because of a person’s criminal convictions without any proper consideration of whether those convictions prevent the Director General from asserting that the person is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle.

33 The meaning of “good repute” has been canvassed in several cases. Waddell J in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393) said that:

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.

34 However a person's reputation and character is not immutable. In Stasos v Tax Agents' Board of NSW 1990) 90 ATC 4950 the Federal Court considered the meaning of "fit and proper" in the general context of persons holding specified offices or vocations as well as in the specific context of Tax Agents (at 4,957) the Court noted that:

Where the issue is whether a person who has been guilty of misconduct is at a time somewhat after that misconduct a fit and proper person to exercise a particular occupation carrying with it privileges and responsibilities, it will be relevant whether that person has understood the error of his ways.

35 The term “fit and proper person” was discussed by Chief Justice Mason in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at [63]. The Chief Justice said that:

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 fitness and propriety are under consideration."

36 These cases recognise, either expressly or impliedly, that a person can live down their bad reputation and reform their bad character. All the circumstances of the case must be taken into account, including the time since the convictions were recorded, in assessing a person's reputation and character.

37 The discretion to cancel a person’s 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; Bond v Australian Broadcasting Tribunal (1990) 170 CLR 321.) Section 4 of the Act sets out its objectives which include:

(e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services.

38 In this case the relevant circumstances include community expectations of bus and hire car drivers to provide safe, reliable and efficient passenger transport services. In Bedi -v- The Director General, of Transport [1999] NSWADT 51 (30 June 1999) at [36], O’Connor J made the following comments:

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 considerate approach might be taken in relation to restoration of a bus authority (subject to any medical clearances).

39 In Mulligan -v- Director General, Department of Transport [1999] NSWADT 126 (1 December 1999), this Tribunal quoted at [12] a passage of a High Court decision which is relevant to the present case.

The High Court in Hughes and Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 at 156-7 suggests that the question of whether a person is "fit and proper" to hold a licence "ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances". It said that a power exercised by reference to such a test "depends on no certain or definite criteria and ... in truth involves a very wide discretion."

40 In this case, the relevant factors include: the nature and extent of Z’s criminal record, the time since his last conviction, the likelihood of re-offending, any evidence of current good character or good repute including evidence of contrition, and the nature of the duties he is required to perform.

41 Looking first at the nature and extent of Z’s record, he has a long history of criminal offences, two of which are sexual offences for which he served lengthy terms of imprisonment. These are extremely serious offences which would lead to a conclusion that at the time of their commission, Z was not a fit and proper person to hold a passenger transport authority.

42 Z’s most recent offence was committed 14 years ago in 1986. He was sentenced in 1988 and, I gather from his evidence, was released from prison in 1993. He remained on parole until 1997.

43 Expert evidence given at the hearing puts Z’s likelihood of re-offending within the lower end of the high risk category in the Static-99. In statistical terms, the likelihood of Z being re-convicted of a sexual offence is 45% in the first 10 years post release and 52% within 15 years post release. Z was released in 1993. Given that almost half the fifteen year period has already expired, the likelihood of Z re-offending at this stage would be somewhat lower than the statistical average.

44 There was not a great deal of evidence before the Tribunal of Z’s current character and/or repute. Z has not been convicted of any criminal offences other than traffic offences since 1988. That conviction related to an offence committed in 1986. However the traffic offences are not insignificant. During the period from 1995 to 1999, Z was convicted of at least six traffic offences including driving on two occasions without a valid driver’s licence and providing misleading information. The offence of providing misleading information took place in March 1999. Z was fined $1500 for that offence and continues to remain under a fines suspension in another state.

45 The respondent did not lead any evidence of complaints made by passengers or other members of the public against Z since he was issued with the authorities in August 1999 and I assume that there has been none.

46 The letter from one of Z’s recent employers, did not express any view about Z’s character. It merely said that he was employed for three months and resigned voluntarily.

47 In the report, which recorded information current during 1991 and 1992, Z was described as having “no genuine desire to attempt readjustment.” The main point he made at the hearing was that the convictions were now very old and since he had not re-offended, he should not be deprived of the opportunity to drive a bus or a hire car. He did not show any remorse or guilt, but he did try to give the impression that his old life was behind him and that he was a reformed character. That impression cannot be entirely accepted given evidence of Z’s traffic convictions in another state several of which bring into question his honesty and integrity.

48 On the basis of this evidence I have come to a number of conclusions. Firstly, given that seven years has already elapsed since Z’s release, there is less than a 50% chance that he will commit any further sexual offences either in the course of his employment as a bus or hire car driver or outside that employment.

49 Secondly, the passing of time does not necessarily change a person’s character. Z had an extensive and serious criminal record as a younger man. Although he has no major convictions for more than 10 years, he has recently been convicted of driving without a valid licence and providing misleading information. While these convictions may seem trivial in isolation, they indicate to me that Z is still not an entirely honest character. There is no evidence from employers or other members of the community with some standing that Z has been trustworthy, honest and responsible in recent years. If Z had not been convicted of traffic offences involving dishonesty; if he had shown genuine remorse and determination not to re-offend; and if he had provided evidence of current good character and reputation, my conclusion may have been different. But on the basis of the evidence before me, I agree with the Director General’s decision that he is unable to attest to Z’s good repute or to attest that in all other respects Z is a fit and proper person to be the driver of a public passenger vehicle.

50 The decision of the Director General to cancel Z’s passenger transport authorities is affirmed.