Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kanj v Transport for NSW [2024] NSWCATOD 180 Hearing dates: 30 September 2024 Date of orders: 05 November 2024 Decision date: 05 November 2024 Jurisdiction: Occupational Division Before: M Deane, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE REVIEW – driver's authority – bus driver - good repute – fit and proper person – s 11 Passenger Transport Act 1990 (NSW) – s 12 Passenger Transport Act 1990 (NSW) Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Passenger Transport Act 1990 (NSW) Passenger Transport Act 2014 (NSW) Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director-General Transport NSW South Wales v AIC [2011] NSWADTAP 65 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Lal v Director General Department of Transport [2001] NSWADT 74 Saadieh v Director-General Department of Transport [1999] NSWADT 68 Texts Cited: None cited Category: Principal judgment Parties: Abdul Nasser Kanj (Applicant) Transport for NSW (Respondent) Representation: Applicant (Self-Represented) B Duck (Transport for NSW) (Respondent) File Number(s): 2024/00300850 Publication restriction: Nil REASONS FOR DECISION 1. This is an application for administrative review of a decision made by Transport for NSW (the Respondent or TfNSW) refusing to grant Mr Kanj (the Applicant) authority to drive a bus (a Bus Driver Authority) under s 12 of the Passenger Transport Act 1990 (NSW) (the PTA 1990). Overview 1. The Applicant submitted an application for a Bus Driver Authority on 19 May 2024. 2. Seven traffic infringements had been recorded against the Applicant's traffic record in NSW since 4 August 2020: on 7 February 2021, 15 February 2021 and 19 September 2021 he is recorded to have exceeded the speed limit by not more than 10 km/h whilst driving a motor vehicle; on 4 August 2020, 28 April 2021, 19 July 2021 and 10 February 2022 he is also recorded to have exceeded the speed limit by not more than 10 km/h whilst driving a motor vehicle, in a school zone. 3. The Applicant's NSW driver licence was subject to good behaviour conditions from 6 April 2022 to 5 April 2023 inclusive. 4. A further traffic infringement appearing on the Queensland traffic records on 9 November 2019 for disobeying a traffic light was also taken into account by the Respondent. 5. On the basis of the applicant's traffic record, the Respondent was unable to attest that the Applicant was a person with sufficient responsibility and aptitude to drive a public passenger vehicle. On 29 May 2024, the Respondent's delegate refused the application for a Bus Driver Authority. 6. The Applicant sought internal review of the Respondent's decision on 6 June 2024. In the internal review application, the Applicant acknowledged that during the period of 2019 – 2022 he had a number of driving offences which resulted in his driver's licence being subject to a good behaviour condition from 6 April 2022 to 5 April 2023. He stated that this had resulted in a greater understanding of the importance of his driver's licence and his responsibilities when driving a vehicle, especially in the sector in which he was employed. He had not had another driving offence since the good behaviour condition ended on 5 April 2023. Realising the possibility that he could lose his licence taught him a valuable lesson from which time he had been driving with respect for the traffic laws and with caution regarding his surroundings. He would continue to drive safely and respectfully. 7. He had successfully obtained employment with Cumberland City Council as a transport assistant. It was his duty to transport seniors and people with disability to and from their homes to attend programmes and provide transport for them to attend social outings and access the community in a safe and responsible manner. In undertaking that role, his eyes had been opened to the reality of how recklessly others may drive and the impact this had on other drivers on the road. He did not want to be, nor would he be, a driver that impacted others like that again. He had incurred expense to secure his Bus Driver Authority Certificate and it was difficult to find another job that he enjoyed as much. 8. The Applicant provided a letter of support from Teneille Bush, Senior Coordinator Seniors & Disability Services, Cumberland City Council dated 4 June 2024 which is discussed further below. 9. On 21 June 2024, an internal reviewer for the Respondent affirmed the original decision to refuse the application for a Bus Driver Authority. 10. On 14 August 2024, the Applicant applied to the Tribunal for review of the internal review decision. Relevant Legislation 1. The internal review decision refers to both the Passenger Transport Act 1990 (PTA 1990) and the Passenger Transport Act 2014 (PTA 2014). 2. Section 2 of the PTA 2014 sets out: 2 Commencement This Act commences on a day or days to be appointed by proclamation. 1. The provisions governing the determination of applications for driver authorities generally appear in Part 4 Division 3 of the PTA 2014 and are yet to commence. 2. Accordingly the provisions of the PTA 1990 in Part 2 Division 2 still apply to this scheme. 3. Section 11 of the PTA 1990 provides: 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 services is operated; and (ii) in accordance with law and custom. … 1. Section 11B of the PTA 1990 allows authorities to be issued subject to additional conditions. 2. Section 12 of the PTA 1990 relevantly provides 12 CRITERIA AND PROCEDURE (1) Having regard to the purpose of an authority, TfNSW may grant authorities to persons applying for them. (2) Applicants must meet any criteria set forth in the regulations and must satisfy TfNSW as to any matter TfNSW considers relevant. (3) Procedures for the purposes of this section may be settled by TfNSW, subject to any provision in that behalf made by the regulations. 1. Under s 52 PTA 1990, any person whose application under Part 2 has been refused or whose accreditation or authority has been varied, suspended or cancelled may apply to NCAT for administrative review under the Administrative Decisions Review Act 1997 (the ADR Act) of the refusal, variation, suspension or cancellation. 2. The Tribunal is to determine the correct and preferable decision concerning the Applicant's application for a Bus Driver Authority having regard to the relevant factual material and any applicable written or unwritten law (s 63(1) ADR Act). In doing so the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision (s 63(2) ADR Act). 3. The Tribunal may decide to affirm or vary the administratively reviewable decision, or set it aside and either substitute a different decision or remit the matter to the administrator for reconsideration (s 63(3) ADR Act). Issue to be Determined 1. Under s 12(1) PTA 1990, the Respondent may grant authorities to persons applying for them "having regard to the purpose of an authority". 2. Under s 11(2)(a), the purpose of an authority is to attest 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. 3. In oral submissions to the Tribunal, the Respondent clarified that the requirements under s 11(2)(b) of the PTA 1990 were not in dispute. 4. Therefore the issue to be determined is whether the Tribunal (exercising the functions that are conferred on the administrator who made the decision) can attest that the Applicant 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, as required by s11(2)(a) of the PTA 1990. Relevant law 1. The word 'attest' was considered in Director-General Transport NSW South Wales v AIC [2011] NSWADTAP 65 (AIC), where the Appeal Panel of the former Tribunal stated at [12]: The primary meaning of this word is to 'bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity … The Parliament in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. 1. 'Good repute' and 'fit and proper' as set out in s 11(2)(a) of the PTA 1990 require different considerations. 'Good repute' relates to the way in which a person is regarded by others in the community (fairly or unfairly), while 'fit and proper' relates to an individual's intrinsic characteristics, whether they are known to others or not (Farquharson v Director General, Department of Transport [1999] NSWADT 53 at [27]). 2. The Respondent did not provide any evidence or make any argument to the effect that the Applicant was not of good repute. The Respondent's submissions centred on whether, given his driving record, he is a 'fit and proper' person to be the driver of a public passenger vehicle. 3. The High Court explained the concept of 'fit and proper' in Hughes and Vale Pty Ltd v State of New South Wales (1955) 93 CLR 127 (at 156) as follows: The expression 'fit and proper person' is of course familiar enough as traditional words when used with reference to offices and perhaps vocations. But their very purpose is to give the widest scope for judgment and indeed for rejection. "Fit" (or "idoneous") with respect to an office is said to involve three things, honesty knowledge and ability: "honesty to execute it truly, without malice affection or partiality; knowledge to know what he ought duly to do; and ability as well in estate as in body, that he may intend and execute his office, when need is, diligently, and not for impotency or poverty neglect it' – Coke. When the question of whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not 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 on its own circumstances. 1. Toohey and Gaudron JJ held in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 (at 380) (Bond) that the term "fit and proper person" carries no precise meaning; a determination of whether an applicant is a fit and proper person must be made by reference to the activities the person has or will be engaged in and whether any improper conduct has occurred or is likely to occur: …The concept of 'fit and proper' cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. 1. In Bond (at 388), Toohey and Gaudron JJ further stated 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 to be given to matters favouring the person whose fitness and propriety are under consideration. 1. In Saadieh v Director-General Department of Transport [1999] NSWADT 68 (Saadieh) at [17], Hennessy DP, as she then was, listed five non-exhaustive factors that needed to be taken into account in considering a similar question as to an applicant's suitability and fitness to obtain a taxi authority: * the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; * the nature, seriousness and frequency of any complaints made against the applicant; * the applicant's driving record; * the applicant's reputation in the community; and * the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 1. In relation to the last factor, she considered: 18 … several considerations are relevant. These include: the length of time since the offence/s were committed or the complaint/s made; the circumstances in which those offences or complaints occurred or are alleged to have occurred; whether the applicant admits responsibility for the offences or complaints and shows genuine remorse; the efforts the applicant has made to rehabilitate himself or herself during that time and; any change in the applicant's circumstances such as increased support from friends, family or professional service providers. Evidence 1. The Respondent provided the following evidence: 1. The Applicant's application for a Bus Driver Authority dated 19 May 2024; 2. the extract from DRIVES - the Applicant's traffic offence and licence history dated 19 May 2024; 3. NSW Govt – Digital National Police Certificate - licencing name and date of birth check dated 21 May 2024; 4. Queensland government traffic record for the Applicant dated 25 May 2024; 5. the Respondent's correspondence regarding the Applicant's Bus Driver Authority application, including the statement of reasons dated 29 May 2024; 6. Cumberland City Council letter of support dated 4 June 2024; 7. Applicant correspondence - application for an internal review dated 6 June 2024; 8. correspondence from the Respondent- notice of internal review - decision affirmed including statement of reasons dated 21 June 2024; 9. DRIVES - traffic offence and licence history for the Applicant dated 23 August 2024. 1. The Respondent obtained further information from the Department for Infrastructure and Transport in South Australia by way of summons. These documents contained further details of the Applicant's 12 driving infringements in South Australia between 6 October 1996 and 16 March 2010, including three infringements involving exceeding the signed or default speed by 15 – 29 kph. Six infringements involved exceeding the signed speed by up to 14 kph. 2. The Applicant provided a letter of support from Teneille Bush, Senior Coordinator Seniors and Disability Services Cumberland City Council who stated in part: [The Applicant] commenced with the Seniors and Disability Team on 29 April 2024 in the role of transport assistant. The primary responsibility of his role is to provide safe and reliable transport in an accessible bus for seniors and people with disability to access programmes, services and the community. In his time in this role he has demonstrated superior driving skills and a dedication to following the road rules. We have received numerous positive feedback and comments from customers regarding [the Applicant] being a careful driver and someone they feel safe in the vehicle with. I acknowledge that [the Applicant] is new to this role however I feel confident in his dedication to fulfilling his duties to a high standard. Obtaining a bus driver authority is an essential requirement of the role and an inability to obtain this would be a great loss to our team, the organisation and the passengers he transports. I know from open and honest discussions with him, that it would be detrimental to him also. … Submissions The Respondent's submissions 1. The Respondent's representative submitted that the Applicant's NSW driving record, which included seven speeding offences, four of which took place in a school zone, demonstrated a history of offending. The South Australian driving record further indicated that the Applicant's infringements were of serious concern. 2. The Applicant had accumulated sufficient demerit points to warrant suspension of his driver's licence. He had elected a good behaviour condition of a period of 12 months between 6 April 2022 and 5 April 2023. 3. The Respondent submitted that the speeding offences were particularly significant due to the responsibilities owed by drivers of public passenger vehicles both to other road users and their passengers. The Respondent submitted that this was especially relevant to the factors set out by DP Hennessy in Saadieh regarding the Applicant's driving record. 4. The Respondent submitted that the Applicant's driving record was a significant consideration in the present case. Each of the offences set out in the Applicant's NSW driving record carried inherent risks for other road users. The Respondent further pointed out that, as the holder of a Bus Driver Authority, the Applicant could be driving school buses or other vehicles carrying children or adolescents. 5. The frequency of infringing over a two year period In NSW showed a pattern of repeat behaviour and consistent disregard for road rules which the Respondent submitted demonstrated a strong likelihood that the Applicant would commit further offences. 6. The Respondent noted that the reference provided by Ms Bush did not indicate that she was aware of the Applicant's traffic offences and may be of limited use. 7. Regarding the Applicant's contention that he had changed his driving behaviour during the period in which the good behaviour condition had been imposed, the Respondent acknowledged that the Applicant had not incurred any further traffic infringements since 6 April 2022 but considered that further time would be needed to ensure that the Applicant would not reoffend. 8. As to any conditions which might be imposed, it was the Respondent's preference that the authority is not issued. Conditions such as the size of vehicle or the type of passenger were difficult to regulate and not preferred, however the imposition of a good behaviour period could be monitored by the Respondent as any infringement could be identified in the system and the authority cancelled as a result. 9. Regarding the Applicant's submissions that failure to obtain a Bus Driver Authority would result in the termination of his position at Cumberland City Council, the Respondent noted that Lal v Director General Department of Transport [2001] NSWADT 74 [at 47] excluded considerations of possible hardship to an Applicant from consideration in determining whether the Respondent had made the correct and preferable decision: 47 in his show cause submissions, Mr Mayall stated that cancellation would cause Ms Lal considerable hardship. He referred to the considerable financial investment she has put into taxis over 20 years in support of this submission. Hardship to Ms Lal is not a factor which the Tribunal can take into account in determining whether or not the Director General has made the correct and preferable decision. 1. Further it was not immediately clear why the Applicant required an authority to maintain his position at Cumberland City Council. The Respondent provided an evidentiary certificate under section 62(2) PTA 1990 to the effect that there was no bus operator accreditation on record in the name of Cumberland City Council. The PTA 1990 requires both that the driver of a public passenger vehicle hold an appropriate authority (s 11 of the PTA 1990) and an operator of a public passenger service be an accredited service operator (s 7(1) of the PTA 1990). The Applicant's submissions 1. Regarding the Respondent's view that he was not a fit and proper person to be the driver of a public passenger vehicle, the Applicant stated he believed he was a safe driver. He had received no negative feedback from his passengers. He would not object if the Bus Driver Authority were issued subject to conditions. 2. The Applicant submitted that he had complied with the good behaviour condition on his licence. He had seen how other people drove and he now understood why the traffic laws were in place. He was grateful for the good behaviour condition. It was a slap in the face. 3. The good behaviour condition had changed his driving behaviour because he had been reminded of the death of a childhood friend by a speeding driver. He had been reminded of the potential consequences of bad driving behaviour. 4. The Applicant submitted that he is currently employed as a transport assistant with Cumberland City Council. This involves transporting elderly people in a bus or a van. Although Ms Bush might not have referred to his traffic infringements in her letter of support, she was aware of his driving record because she saw every email from the Respondent and the Applicant had been required to submit his driving record in order to gain employment. 5. He required a Bus Driver Authority to retain his employment because he had received a letter stating his employment would be terminated without the authority. Consideration Can the Tribunal attest that the Applicant is a person of good repute and in all other respects a fit and proper person to be a driver of a public passenger vehicle? 1. The Respondent's concern in granting the Applicant a Bus Driver Authority focusses on the Applicant's poor driving record and in particular, speeding offences, prior to the imposition of a 12 month good behaviour condition on his licence on 6 April 2022. The Applicant acknowledges that he has had a significant number of speeding infringements prior to the good behaviour condition being put in place; however from that time he changed his driving behaviour and has not incurred another infringement in the 2 ½ years since then. 2. The Respondent is of the view that the Applicant's driving record demonstrates a pattern of repeat behaviour and consistent disregard for the road rules. Speeding carries inherent risks for other road users. The Applicant did not argue with that position; he noted that obeying his good behaviour condition gave him the opportunity to observe the dangerous driving of others on the road and its consequences. 3. The Respondent contends that the Applicant's driving record leads TfNSW to be unable to attest that he is a fit and proper person to be a driver of a public passenger vehicle. Although 2 ½ years has passed since his last infringement, that time is too short to certify that he is now a fit and proper person to be the driver of a public passenger vehicle. The Applicant says that he is a good driver now and receives compliments on his driving from his passengers. 4. Under s 12(2)(a) of the PTA 1990, the purpose of an authority is to attest 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. 5. "Attest" is akin to "certify." This requires a degree of confidence. 6. The relevant case law explains that the requirements to be a "fit and proper person" are not fixed, and that determination must be carried out by reference to the activities that the person will be engaged in and any improper conduct which has or is likely to occur. In this case, where the Applicant seeks an authority to drive a vehicle potentially carrying many passengers, including the elderly and children, his driving record is central to that assessment. 7. Only two of the factors to be taken account set out in Saadieh are relevant to this case: the Applicant's driving record and the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences. 8. The Respondent considered that more time was needed for the Applicant to prove he was in fact a reformed driver before it could attest that he was a fit and proper person to be granted a Bus Driver Authority. 9. The Applicant does not contest that his driving record is significantly marred by speeding infringements. These are not absolved by being at the lower end of the range. However his clean driving history in the period of 2 ½ years since 6 April 2022 must also be taken into account. 10. In the first year of that period, the Applicant's licence was subject to a good behaviour bond. The Applicant acknowledged that the condition was a weighty incentive for him to demonstrate model driving behaviour, due to the risk of increasing any suspension period if he breached the condition. However, even 18 months after the good behaviour condition was lifted, and for a total of 2 ½ years, the Applicant has maintained a clean driving record. In considering his likelihood to reoffend, this is a significant period of time. He also acknowledged and expressed regret for his previous driving behaviour. 11. The Applicant gave credit to the good behaviour condition which was imposed as a major incentive for the changes in his driving and was open to having a condition on any Bus Driver Authority that might be granted to him. It is open to the Tribunal to apply a condition to his authority; however, 'fit and proper' relates to an individual's intrinsic characteristics, not the characteristics the individual displays when subject to a condition. I do not consider that the level of confidence that "attest" requires is met by finding that the Applicant is a fit and proper person to be the driver of a public passenger vehicle only when he is subject to a good behaviour condition. 12. According to the letter from Ms Bush, the Applicant has been in his current employment since 29 April 2024. There is a year in between during which the Applicant was neither subject to a good behaviour condition nor motivated by maintaining his employment to demonstrate exemplary driving behaviour. Yet he did so anyway. This demonstrates commitment to safe driving; but is it long enough to be confident that the Applicant will not reoffend, particularly in the context of potentially driving large passenger vehicles with multiple passengers including children and the elderly? 13. I have taken into account all of the circumstances, particularly the Applicant's consistent compliance with the traffic laws over the 2 ½ years since his last infringement, his acknowledgement of his past wrongdoing, his recognition of the damage that driving over the speed limit can cause and his remorse for his poor past driving behaviour. This must be weighed against the Applicant's previous driving behaviour where he accumulated seven speeding infringements in less than two years. 14. The time at which the correct and preferable decision is determined is when Tribunal makes its decision: YG and GG v Minister for Community Services [2002] NSWCA 247 at [25]. Accordingly, it is the Applicant's present circumstances that are relevant to the determination whether the Applicant is a "fit and proper person" for a Bus Driver Authority. 15. The Applicant is well on the way to demonstrating that he has turned a page on his past driving behaviour. However, weighing the Applicant's poor driving records in NSW, Queensland and South Australia over a long period against his 2 ½ years without infringing (one year of which was under a good behaviour condition), I do not have the required confidence that the risk of the Applicant reoffending is sufficiently low to be able to attest that he is a fit and proper person to be granted a Bus Driver Authority at this stage. 16. The Applicant submitted that the Bus Driver Authority was a requirement for his employment at Cumberland City Council. However, there was little evidence as to the reason that he required the Bus Driver Authority for that role, apart from his assertion that his employer had said so. Further, the Applicant has been undertaking his role without a Bus Driver Authority and the fact that the Applicant is unsuccessful on this occasion does not mean that a future application, after a longer period of reformed driving behaviour, would have the same outcome. 17. In any event, the Applicant's employment circumstances are irrelevant to the criteria which are required to be met for the grant of a Bus Driver Authority. 18. As a result, at the present time I am not satisfied that, in relation to his application for a Bus Driver Authority, the Tribunal can attest that the Applicant is a person of good repute and is, in all other respects, a fit and proper person to be the driver of a public passenger vehicle for the purposes of the PTA 1990. orders 1. As a consequence, I make the following orders: 1. The decision under review is affirmed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 November 2024