Z v Director General, Department of Transport (GD)

[2001] NSWADTAP 14

Appeal Panel

CITATION:	Z -v- Director General, Department of Transport (GD) [2001] NSWADTAP 14
PARTIES:	APPELLANT Z RESPONDENT Director General, Department of Transport
FILE NUMBER:	009036
HEARING DATES:	23/02/2001
SUBMISSIONS CLOSED:	02/23/2001
DATE OF DECISION:	05/24/2001
DECISION UNDER APPEAL:	Affirmation of decision to cancel passenger transport authorities: Z v Director General, Department of Transport [2000] NSWADT 87
BEFORE:	O'Connor K - DCJ (President) at 1; Lees M - Judicial Member at 1; Mapperson K - Member at 1
CATCHWORDS:	opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	003075
DATE OF DECISION UNDER APPEAL:	07/05/2000
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Crimes Act 1914 (Cth) Privacy and Personal Information Protection Act 1998
CASES CITED:
REPRESENTATION:	APPELLANT In person RESPONDENT A Wozniak, solicitor
ORDERS:	1 The decision under appeal be set aside; 2 That the matter be relisted for directions before the Appeal Panel

1 In a decision delivered on 5 July 2000, the General Division of the Tribunal (the Tribunal) affirmed a decision made by a delegate of the Director General, Department of Transport (the Director General) to cancel passenger transport authorities held by Mr Z: Z -v- Director General, Department of Transport [2000] NSWADT 87. Two of the three authorities had been granted on 30 August 1999 (to expire 30 August 2002) and the third on 31 January 2000 (to expire 31 January 2001).

2 Z, who is unrepresented, now appeals against that decision. His notice of appeal (as amended) sets out a number of questions which are said to involve questions of law. There is a right to appeal on a question of law, with the Appeal Panel having a discretion to permit an extension of the appeal to the merits: Administrative Decisions Tribunal Act 1997 (the Tribunal Act), s 113.

3 The text of Z’s grounds of appeal (as amended) follows:

‘The Learned member erred at Law:

1. In that the Learned Member found against the evidence that I was not a fit and proper Person to hold the Authorities
2. In that the Learned Member failed to find that the evidence relied upon by the Director General was obtained unlawfully, and therefore inadmissible.
3. In that reports and opinions relied upon to make her decision were not filed as evidence And the authors were not called to give evidence
4. In that the Learned Member found that due to traffic convictions that I was not a Trustworthy person
5. In that the Learned Member failed to find that my matter had been treated with bias.
6. In that the Learned Member failed to find that I was subject to a miss-carriage [sic] of justice
7. In that the Learned Member failed to find that the Internal review conducted by the Department of Transport was not in accordance with the Act and Regulations.
8. In that the Learned Member failed to find that the Director-General of Transport was in Breach of the Privacy and Personal Protection Act.
9. In that the member failed to find that the Director-General, and his Delegate/s did not apply the provisions of the Commonwealth Constitution When making their original decision.’
Background

4 The initial authorities had been issued on the basis of information supplied by Z in answer to questions in the Department’s standard form. Z had previously been a licensed passenger coach driver interstate. After receiving his authorities he became a passenger coach driver in New South Wales.

5 The question asked on the Department’s standard form inquired at Q14 ‘Have you been convicted of any criminal offences within the past ten (10) years?’ and he marked the box ‘No’. He had filled in the form on 28 August 1999. He did not refer to his pre-1989 criminal history. In answer to Q15 he answered the question ‘Have you been convicted of any traffic offences (other than parking) within the past five (5) years?’ by marking the box ‘Yes’. To Q13 ‘Have you ever had your licence to drive a vehicle suspended or cancelled in NSW or elsewhere?’ he marked the box ‘Yes’ and noted ‘W.A. details supplied by Transport Department, Perth.’ A copy of that record was supplied. He signed a statutory declaration at the Department of Transport office at Surry Hills on 30 August 1999 declaring that ‘I have not been fingerprinted, or charged with a criminal offence in the past ten years. However, I admit that I was charged with an offence in South Australia in 1986.’ Z saw his answers to Q13 and Q15 and the contents of the statutory declaration as an indication of his preparedness to be candid with the process. It was this information, as we understand the matter, that led to the Director General making further inquiries interstate.

6 Records from the motor vehicle registries in Western Australia and Northern Territory appear on the Department’s file at that time.

7 It was the application for the third authority, to drive private hire vehicles, which triggered further interstate enquiries by the Department leading to revelation of the serious criminal offences in documents received on 13 March 2000 from the Criminal Courts Registry in South Australia. On 16 March 2000 an authorised delegate of the Director General notified Z of his decision to cancel all public passenger driver authorities. Z’s application for internal review was rejected on 10 April 2000. Z lodged his application for review in the Tribunal on 18 April 2000, and its decision was delivered on 5 July 2000.

8 At the appeal hearing in his written submissions Z essentially made the same case that was ultimately, rejected by the Tribunal below. He contended that he had been dealt with unjustly in having his licence cancelled as he had answered honestly the questions put to him in the application process. He acknowledged that he had a long criminal record, including serving two significant periods in custody in South Australia for offences that on each occasion included rape. Fuller accounts are set out in the Tribunal’s reasons for decision at paras [8] to [11]. In relation to the second set of offences he was sentenced in 1988 to 9 years imprisonment with a 7 year non parole period. He was released in 1994.

9 His record of offences since the date of release is set out in para [14] of the decision below. Compared to the previous offences, they are relatively minor. There are several driving offences between 1995 and 1998, and in 1999 an offence of giving information knowing it to be false or misleading. All have resulted in fines and sometimes periods of suspension or disqualification from holding a driver’s licence. There are no offences of violence.

10 Z has, he said, complained to a number of authorities including the Ombudsman and the Privacy Commissioner over what he regards as unlawful conduct in relation to the Department’s requests for information and on the part of the interstate bodies that disclosed the information.

11 In its decision the Tribunal approached the issue of the correctness of the Director-General’s decision first by setting out the relevant statutory provisions, considering the extent to which spent convictions legislation protecting the old offences from disclosure might apply, and referring to the case-law interpreting the criteria that the Director General must apply (in particular what is embraced by the requirements that the licenceholder be of ‘good repute’ and ‘in all other respects a fit and proper person to be the driver of a public passenger vehicle’).

12 The Tribunal considered at length the question of the likelihood of sexual assault reoffence by Z. It concluded having regard to his criminal history generally, the likelihood of reoffence as estimated by an independent expert and other matters such as his recent driver offence history and offence relating to honesty that the Director General’s decision was correct.

Appeal Grounds

13 In this case it is plain that the Director General had regard to relevant information.

14 We have no doubt that a prior history of serious offences of violence, especially when a person is at the time of the offences an adult of mature age (as here) is something which is highly relevant to the exercise of a discretion that entitles a person to drive public buses or hire cars.

15 We do not understand Z to challenge that proposition. Instead he raises several issues as to the processes followed by the Department.

16 As it happens the design of the standard form’s questions left it open to Z to give an answer which did not disclose his serious offence history prior to 1989. The form was a reasonably worded one, no doubt directed to the Department’s main concerns in respect of applicants for authorities.

17 The form’s questions do not set a boundary in relation to what is relevant to the exercise of the Director-General’s discretion.

18 In this instance it was reasonable in principle for the Department to seek to inform itself as to the extent of the applicant’s prior history, and it was likely (as occurred) that the Department might take action on information of the kind that it received.

19 We now turn to the appeal grounds, set out at [3] above.

Grounds 1 and 4

20 Grounds 1 (against the weight of evidence) and 4 (use of traffic conviction information) relate to the merits of the Tribunal’s decision. They do not raise any question of an error on the part of the Tribunal in relation to its understanding or application of the law.

Grounds 2, 5, 6, 7, 8 and 9

21 Grounds 2, 5, 6, 7, 8 and 9 all seek to challenge the Tribunal’s alleged failure to examine the lawfulness of the administrative process undertaken by the Department giving rise to its decision to cancel the authorities.

22 The Tribunal, it is said should have found that the Department relied on unlawfully obtained evidence (Ground 2), should have examined whether the Department had acted with bias (Ground 5), should have ascertained whether the Department caused a miscarriage of justice (Ground 6), should have examined the adequacy of the internal review procedure (Ground 7), should have assessed whether there had been compliance with the Privacy and Personal Information Protection Act 1998 (Ground 8), and should have examined the matter for compliance with the Commonwealth Constitution (Ground 9).

23 The essence of the task facing the Tribunal is to ascertain whether the decision is the correct and preferable one.

24 While the effective operation of the State administrative review system requires of agencies that they observe the relevant standards governing internal review, once the matter is before the Tribunal it will normally be better that the Tribunal go on and dispose of the matter rather than referring the matter back because the internal review process was inadequate. There is no error of law involved in a Tribunal declining to examine closely the adequacy of the internal review process (Ground 7). If the decision is found to be the correct and preferable one, there can be no miscarriage of justice (Ground 6).

25 The references to the Commonwealth Constitution (Ground 9) have to do, as we understood them, with the question of compliance with federal law and human rights instruments as they pertain to the use of old conviction information. There is no question here that the serious convictions considered by the Tribunal was not spent under either State or Federal law. The Commonwealth scheme (Crimes Act 1914, Part 7C) does not protect a conviction that has led to imprisonment of over 30 months; and, in a range of circumstances below that threshold, does not protect old sexual offence convictions.

26 The Tribunal did not err in declining to enquire into the question of the lawfulness of the receipt by the Department of the information provided by interstate authorities (Ground 2, Ground 8). There is a separate stream for the making of complaints relating to compliance with the Privacy and Personal Information Protection Act 1998 (which ultimately involves the Tribunal). Unless the application for review of the administrator’s decision and an application for review of a decision of the Privacy Commissioner (the route through which information privacy complaints must pass) are joined in the one proceedings, there is no error involved in the Tribunal choosing not to deal with alleged privacy breaches affecting the administrator’s decision.

27 Ground 5 raises a matter (bias or improper motive on the part of the Department) that is more appropriate for proceedings by way of judicial review in the Supreme Court. It is not an error of law for the Tribunal to fail to embark on that inquiry.

Ground 3

28 The ground of appeal that has given us the most concern is Ground 3 i.e. the Tribunal erred ‘In that reports and opinions relied upon to make her decision were not filed as evidence And the authors were not called to give evidence’.

29 Z said at the appeal hearing that the first time he had known of the contents of a report relied upon by the Tribunal relating to his personal history, including his family background and various alleged circumstances relating to his sexual offences, was when he read the reasons for decision delivered by the Tribunal. In essence, he contended that he had been denied procedural fairness by the Tribunal. It is plain that the Tribunal in reaching its decision gave weight to this material, which if accurate and fair was relevant material.

30 The use of this material arose in this way.

31 At the hearing on 23 March 2000, Z had urged on the Tribunal that he should be given the opportunity for a fresh start, and that he had reformed in respect of any concern that he might again engage in any offences of violence in particular sexual assault. The matter was not completed that day. The main hearing took place on 1 May 2000. First of all at that hearing the Tribunal dealt with a request from the Department for various summonses for production of criminal record histories to issue to interstate authorities. Z gave evidence on oath and was cross examined. The cross examination referred to the criminal record set out in the observations of the sentencing judge in 1988. There were closing submissions from the parties. The Tribunal concluded the proceedings by advising that it had decided to reserve its decision.

32 However, on 4 May 2000 the Registrar wrote to the parties advising that the Tribunal felt that it did not have sufficient evidence at the moment to determine the likelihood, if any, as to whether Z would re-offend. The Registrar referred to the Tribunal’s powers under s 73(2) of the Tribunal Act. Section 73(2) provides:

‘(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.’

The letter said: ‘There are several possible sources of information and assessment which may be relevant to the issue. At the Directions Hearing (listed for 9 May 2000) the Tribunal intends to canvass these sources of information and discuss with the parties the most appropriate means of obtaining such evidence.’
33 The Tribunal file contains a note of telephone directions written by the presiding Member made 9 May 2000 which, as relevant, said:

‘I told them that I did not feel that I had sufficient evidence to come to a view and suggested that more evidence be obtained. I suggested that the Manager of the Sex Offender Program … be asked to carry out a Risk Evaluation Instrument re sex offenders to determine the risk of re-offending. Mr [Z] agreed to this and Mr Wozniak [for the Department] did not oppose it.

….
Mr [Z] will endeavour to contact the Sexual Offenders Rehabilitation Clinic in South Australia to obtain copies of reports etc in relation to him.’
34 The Tribunal obtained Z’s written consent to obtain the record: see handwritten note from Z on the Tribunal’s file with fax date 10 May 2000. The material part of the note addressed to the Sexual Offenders Treatment and Assessment Program (SOTAP) states ‘I authorise the Sexual Offenders Treatment & Assessment Program to release a copy of my file to the Administrative Decisions Tribunal …’. The Tribunal faxed its request to an officer in South Australia in which the Tribunal officer said among other things ‘Please be advised that a copy of the document will be provided to Mr [Z] and the [Director General] …’.

35 On 16 May 2000 SOTAP faxed its report. The report stated that the author had never met Z, and that ‘The following summary is based on a referral letter written to SOTAP by the Senior Psychologist from the Department of Correctional Services and an assessment conducted by a Psychologist from SOTAP.’ It advised that the program had assessed Z in January, 1992 when he was still in custody. Under headings it dealt with the following: reason for Z’s referral to SOTAP; previous charges; partner details; psychosocial functioning; educational background; vocational background. It then dealt with the program under headings: outline of SOTAP; exclusion criteria; and then returned to Z’s circumstances with the headings: mental/physical health background; drug history.

36 A Tribunal officer met privately with a clinical co-ordinator of the NSW Department of Corrective Services on 19 May 2000. The report was provided along with other information which included Z’s South Australian and Northern Territory offender history, judge’s observations on sentencing in 1988 and Tribunal hearing transcripts.

37 By letter dated 2 June 2000 Dr Milenkovic, a clinical forensic psychologist belonging to the NSW Department of Corrective Services, Sex Offenders Programmes unit, provided a one page statement. It dealt with where Z’s case would fall in terms of representing a risk of sexual re-conviction using the most commonly used scale for assessment of risk in this area, known as Static-99 (there was a one-page explanation attached to the report with details of how this kind of scale works).

38 By letter dated 6 June 2000 a copy of the Milenkovic report was forwarded to Z.

39 The Tribunal reconvened on 16 June 2000 with Z present to consider Dr Milenkovic’s report. Dr Milenkovic gave evidence and was able to be cross examined.

40 The material recited in paras [17] to [21] of the Tribunal’s decision contains direct extracts from the SOTAP report and is very negative to Z. At para [20] the Tribunal sets out the steps it took. It commences by noting that it took the initiative to obtain the report. There is no reference to what position applied in relation to Z having access to the SOTAP report. It appears from the Registry file that the original intention was to give him a copy of the report. But there is no evidence in the transcript or other material before the Appeal Panel that that ever occurred.

41 Z had the opportunity to question Dr Milenkovic. Z’s questions on 16 June 2000 proceeded, as we interpret the transcript, on the basis that the expert and the Tribunal had the SOTAP report but not either of the parties. His questions refer to various parts of the text of the witness’s one-page report. He also asks him about the empirical test that is used. At ts 6 Z asked: ‘I was assessed in South Australia by the Sexual Offenders Assessment Plan, which I enabled them to do whatever they wanted to do. Have you got a copy of that report?’ to which the witness answered ‘I do have a psychological actual summary.’

42 Similarly, Mr Wozniak in closing submissions for the Department makes reference to the Dr Milenkovic report but none to the contents of the SOTAP report. In his closing submissions (ts 16) Z makes reference to the attachment to the Milenkovic report referring to the empirical test that is used (a document emanating from Canada). This also points towards him only having the Milenkovic report but not the SOTAP report on which Dr Milenkovic relied.

43 The SOTAP report’s contents were considered relevant in their own right by the Tribunal and not treated merely as a background document otherwise not to be referred to, for use by the expert. The parties were aware of the existence of the report but neither appears to have called for it to be placed in evidence. Z mentioned at the appeal hearing his experience in the criminal justice system where assessments were sometimes provided confidentially to the decision-maker and not made available (an example is parole proceedings). This may have been a factor in his not having sought access to the SOTAP report. Had Z been represented in these proceedings our view may have been different on the question of absence of procedural fairness.

44 We are satisfied that there was on this occasion a significant omission (non provision of the SOTAP report) giving rise to a failure to accord Z procedural fairness.

45 Because of the omission it is necessary to set the Tribunal’s decision aside. The administrator’s decision remains unaffected. The question is now how the application for review should proceed.

46 We invite submissions from the parties. The notice of appeal sought only to raise questions of law. It did not ask for leave for the appeal to be extended to the merits, although many of Z’s submissions to us were in the nature of an appeal on the merits. As the Appeal Panel has found it necessary to examine all the material in issue it may be more convenient for the Appeal Panel to retain and dispose of the matter. We will relist the matter for directions to consider the course to be followed.

Orders

1.That the decision under appeal be set aside.

2. That the matter be relisted for directions before the Appeal Panel.