Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Archer v Point to Point Transport Commissioner [2025] NSWCATOD 8 Hearing dates: 18 December 2024 Date of orders: 24 January 2025 Decision date: 24 January 2025 Jurisdiction: Occupational Division Before: P Roney KC, Senior Member Decision: The decision under review is affirmed. Catchwords: ADMINISTRATIVE LAW Other occupations – Point to Point transport providers – Authorisation to provide a limousine taxi service – Discretionary nature of decision – Public safety considerations – whether unacceptable risk to public safety Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Offenders Registration) Act 2000 (NSW) Crimes Act 1900 (NSW) Interpretation Act 1987 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) Cases Cited: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Shi v Migration Agents Registration Authority [2008] HCA 31 Singh v Point v Point Transport Commissioner [2024] NSWCATOD 137 YG and GG v Minister for Community Services [2002] NSWCA 247 Texts Cited: None cited Category: Procedural rulings Parties: Scott Archer (Applicant) Point to Point Transport Commissioner (Respondent) Representation: Applicant (Self-Represented) D Farinha (Point to Point Transport Commissioner) (Respondent) File Number(s): 2024/00360834 Publication restriction: Nil Reasons for the DecIsion 1. Mr Scott Archer applied to the Point to Point Transport Commissioner (the Commissioner) on 3 April 2024 for authorisation as an individual using the business name "Lincoln's Prestige Limousines" to provide a booking service under the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) (PTP Act). That authorisation, if granted, would permit him to operate a limousine transport service to members of the public for reward. By section 30(l)(a) of the PTP Act an individual may apply for authorisation to provide a booking service. His initial indication was that he wished and intended to be a driver of limousine for his business however he came to accept that he was disqualified from doing so because of criminal convictions he has and was not eligible to drive a point to point transport vehicle, although he pressed an application for authority to undertake passenger services using drivers other than himself. 2. By s 30 of the PTP Act an application is to be made to the Commissioner in a form approved by the Commissioner containing required information and accompanied by the prescribed fee and the Commissioner may, by written notice given to the Applicant, and did in this case, require an Applicant to provide further information relevant to the application that is specified in the notice. 3. Section 27 of the PTP Act prohibits a person from providing a booking service unless the person is authorised to provide that service. The expression "provide a booking service" is defined s 7(1) to include carrying on the business of taking bookings for hire vehicles to provide passenger services. The term "hire vehicle" is defined in s 6 as a motor vehicle used to provide a passenger service that is not a taxi service. The term "passenger service" is defined in s 4 (1) to mean the transport, by a motor vehicle (other than a bus), of passengers within, or partly within, this State for a fare. 4. A delegate of the Commissioner determined to refuse the application based on the Applicant's convictions for sexual offences under the Crimes Act 1900 (NSW). The decision was affirmed on internal review based on a number of matters including the Applicant's history of failing to comply with reporting obligations and his conduct in furnishing what it said w was false or misleading information contrary to the Child Protection (Offenders Registration) Act 2000 (NSW). The Applicant seeks administrative review of the decision in this tribunal. 5. By an application received on 30 September 2024, the Applicant seeks administrative review of the decision under s 31 of the PTP Act to refuse his application under s 30 of that Act. As the decision is a "reviewable decision" under s 145(2) of the PTP Act, the Applicant could apply to the Tribunal for such review under s 145(1) of that Act. The Tribunal thus has administrative review jurisdiction under s 9(1) of the ADR Act. The material before the Tribunal includes a substantial body of material not before the Commissioner at the time of the original decision and internal review decision. That further material comprised copies of the District Court files on the Applicant's appeals against the sentences imposed for the sexual offences and reporting offences. The file in relation to the sexual offences includes a signed statement of agreed facts detailing the background, offending, complaint and arrest. The file in relation to the reporting offences includes an annotated police facts sheet, which appears to be the only record of the facts on which the Applicant's appeal against sentence was conducted: 6. When the Applicant applied for authorisation to provide a booking service as Lincoln's Prestige Limousines the application asked whether he had been convicted of or had current proceedings against him for a "disqualifying offence", to which he responded in the affirmative and provided as details in the form: "Demerit points, assault". 7. The Applicant also submitted a National Police Check as part of his application, which identified that he had the following convictions: (a) On or about 28 February 2017, the Applicant was convicted of seven sexual offences contrary to provisions of the Crimes Act, namely: (i) two counts of indecent assault where the victim was under 10 years of age (contrary to s 61M (2); (ii) two counts of acts of indecency where the victim was under 10 years of age (contrary to s 610(2); (iii) one count of indecent assault where the victim was under 16 years of age (contrary to s 61M (2); (iv) one count of attempt to commit indecent assault where the victim was under 16 years of age (contrary to s 61 P with s 61 M (2)); and (v) one count of indecent assault where the victim was under 16 years of age (contrary to s 61M (2). (b) On or about 3 February 2021, the Applicant was convicted of five reporting offences contrary to provisions of the Child Protection (Offenders Registration) Act 2000, namely: (i) four counts of failing to comply with reporting obligations (contrary to s 17(1)); and (ii) one count of providing false or misleading information (contrary to s 18). 1. On 12 April 2024, a person from the Commissioner's office called the Applicant to inform him that he would be disqualified as a point to point driver for life because of the criminal convictions recorded against him. The Applicant responded that it was his intention to drive point to point vehicles as well as be an authorised service provider. The Applicant stated that he had previously spoken to someone at the Commissioner's office who told him there would be no problem with driving such vehicles but could not say who or what section of the Commissioner's office he had spoken to. The Applicant then said he was unsure if he wished to go ahead with his application as he had to make enquiries and phone calls having regard to the fact that he had been told that he was disqualified from driving point to point vehicles for life. He then stated that he would get back in touch with the Commissioner's office when he had made a decision in relation to his application. 2. On 29 April 2024, the Applicant again rang the Commissioner's office and said he was aware that due to criminal convictions on his file he could not work as a driver but then asked whether he could get service provider accreditation and onboard new drivers to his network. 3. On 13 May 2024, the Commissioner's office sent a notice to the Applicant requiring further information relevant to the application and referred to the seven sexual offences for which the Applicant had been convicted and noted that these were not considered disqualifying offences for persons applying for authorisation as a taxi or booking service provider but were disqualifying offences for driving or being a driver. There are laws that sometimes mean that older convictions for offences do not appear in official records or release them after a specified period. Those are commonly referred to as spent convictions. The 13 May 2024 Commissioner's office notice noted that those sexual offence convictions could never be spent. The Commissioner's office then required the Applicant to provide information regarding his current (or draft) Safety Management System specifically relating to the process as to how he intended to recruit and on-board drivers and what steps he would take to identify if they have been found guilty of a disqualifying offence (on an on-going basis), and what action he would take if he identified that such an offence had been committed. 4. On 27 May 2024, the Applicant provided the Commissioner's office with a document headed "Safety Management System" and marked "First draft-25 May 2024. Section 5 of the document, was headed "RECRUITMENT AND DRIVER ON BOARDING", and stated: 5.1 ON BOARDING PROCESS Lincoln's Prestige Limousines will conduct interviews for all potential drivers. All potential drivers will be required to hold a clear and unblemished drivers license, with experience as a professional driver. As part of the onboarding process, any driver recruited to drive for my Limousine Service would be required meet the general standards for authorisation and not have a conviction for a disqualifying offence and to obtain and provide evidence of their point to-point accreditation. If they do not yet have accreditation, this would be a requirement before they would be permitted to drive at the commencement of employment or as a sub-contractor. I would contact Point-to-point to confirm that their accreditation is valid & current. Also, I would confirm with point-to-point if the driver has had any suspensions or disqualifications that would prevent him from driving. 5.2 BACKGROUND CHECKS ON ALL DRIVERS Lincoln's Prestige Limousines will conduct interviews for all potential drivers. All potential drivers will be required to hold a clear and unblemished driver's license, with experience as a professional driver. I would inform any employee or sub-contractor that their accreditation must be kept up to date as required & annual police checks would be required to ensure that there have been no disqualifying offences committed within the last twelve months. If any disqualifying offences are found upon viewing the police check, their services would be terminated immediately. 1. Section 2 of the Safety Management System document referred to advertising on Facebook, Twitter, TikTok and Instagram, to be managed by the "Admin Team". As a result of seeing this, the Commissioner's office then did a review of advertisements for the Applicant's business and this review identified that he was already advertising passenger services, contrary to s 129 of the PTP Act. 2. He was then sent a notice letter on 17 June 2024 which referred to the advertisements for the business and identified that he was currently advertising passenger services unlawfully and referred to posts, video and customer reviews suggesting that the Applicant was undertaking passenger services whilst not authorised to do so. It noted that the Safety Management System document did not state that the Applicant would ensure he would not be the driver for any passenger services undertaken under his authorisation and that he had initially informed the Commission it was his intention to be the driver for his business. In that context, the notice indicated that the Commissioner was considering refusal of the application and afforded the Applicant an opportunity to provide further information in response to the matters raised. 3. On 30 June 2024, the Applicant responded and stated that he had removed the advertising from the internet since the last correspondence and that the photos, videos, and reviewers were for advertising and did not involve customers. He also stated that he was not aware that his Safety Management System needed to specify that he would not be the driver and noted that he had amended the document to reflect this. 4. He then said in the 30 June 2024 response; In your previous correspondence you mentioned that it was my intention to be the driver, at the time this was true. I have always wanted to have my own Limousine Business. Of which I had planned to be a driver. However, since going through this process I now understand that I will never be allowed to do that. I have accepted this and understand your reason for having such strict regulations. I have a very large tax bill that I am trying to pay off by delivering pamphlets and with the help of my parents. My only other option is to go on unemployment benefits. 1. At the hearing he told the Tribunal that his tax bill was about $20,000. 2. He continued in his 30 June 2024 letter by attaching an amended version of the Safety Management System, which included a statement that: At no point will Scott Archer as the owner operator of Lincolns Prestige limousines be the driver of any vehicle engaged in passenger service undertaken by Lincolns Prestige Limousines. The only time Scott Archer will drive any vehicle owned by Lincolns Prestige Limousines will be for servicing and maintenance purposes. 1. On 2 August 2024, a delegate of the Commissioner determined and gave notice that the application had been refused. The reasons for the decision included the following: Your initial indication that you would be the driver for your company, prior to you becoming aware that you are not eligible to drive a point to point transport vehicle, leads me to believe you did not determine your convictions are deemed to be of a serious enough nature to preclude a person from undertaking passenger services. This raises questions as to whether you would be able to adequately ensure a person who is not eligible, or has been convicted of a disqualifying offence, does not undertake passenger services, raising safety concerns for passengers should you become authorised as a service provider. There is no information that demonstrates you do not meet the general standards for authorisation, therefore there is no express restriction on the Commissioner granting you with an authorisation. Nevertheless, section 31 does not provide an exhaustive list of factors to consider when deciding an application and allows discretion for the Commissioner to refuse an application. In that respect, the safety of the public has been a key consideration in deciding to refuse your application for authorisation. The Commission has considered granting your application for a booking service provider authorisation with imposed conditions prohibiting you from undertaking passenger services and to provide information to determine compliance with the conditions. However, it has been determined that any conditions imposed upon you would not eliminate the risk of you undertaking passenger services and therefore will not mitigate the safety risks to passengers. In addition, any, conditions imposed upon you of this nature would increase the burden on the Commission to ensure you are compliant with those conditions. 1. On 21 August 2024, the Applicant sought internal review of the decision under s 53 of the Administrative Decisions Review Act 1997 (NSW), His grounds included that there was no legal justification to disallow the application in the absence of information suggesting that he did not meet the general standards for authorisation or had been charged or found guilty of a disqualifying offence as an Applicant for such authorisation and referred to the "changes" that the Applicant said he had made when requested by the Commissioner in correspondence about things. The Applicant contended that he would do all the necessary police checks and contact the Commissioner's office to ensure accreditation was up to date and ensure that there had been no disqualifying offences for any potential driver. He contended that this was going above and beyond what is required to ensure the safety of passengers and he would not be holding the Commissioner's office responsible but by doing this extra check with the Commissioner's office it would ensure any driver remains accredited and that this simple check would ensure their accreditation was current and would be "best practice". He contended that by performing these additional checks, he was exercising due diligence. 2. Very similar arguments were put forward in the review hearing before this Tribunal. Role of the Tribunal 1. The Tribunal has jurisdiction to review an administratively reviewable decision: s 55 of the Administrative Decisions Review At 1997 (the ADR Act). Section 83B of the HB Act provides that applications may be made to the Tribunal for administrative review under the ADR Act of decisions to refuse authorities under the HB Act. I am satisfied the Tribunal has jurisdiction to hear and determine this application for review. 2. When considering an application for review the Tribunal is to decide what is the correct and preferable decision having regard to the material before it (s 63(1) of the 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) of the ADR Act). 3. 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]. In conducting a review, the Tribunal is not restricted to consideration of the material that was before the Commissioner but may have regard to any relevant material before the Tribunal at the time of the review: Shi v Migration Agents Registration Authority [2008] HCA 31. 4. 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: see s 63(3) of the ADR Act. Legal issues surrounding the exercise of discretion 1. I have set out above some of the procedural requirements that exist under the HB Act and the history of the Applicant's dealings the Commissioner's office. 2. By s 31 (1) of the PTP Act, the Commissioner "may" determine an application for authorisation to provide a taxi service or booking service by granting or refusing the application. The word "may", being used to confer a power, indicates that the power may be exercised or not, as a matter of discretion: Interpretation Act 1987 (NSW), s 9. Importantly s 31 (2) of the PTP Act provides that the Commission "must not" grant an application for authorisation unless satisfied that the applicant meets the general standards for authorisation (in the case of an applicant who is not a current provider) and any additional standards prescribed by the regulations. 3. The "general standards for authorisation" are set out in s 31(3) and include that the applicant has not been convicted of a disqualifying offence and that there are no current proceedings against the applicant for such an offence. A "disqualifying offence" is defined for the purposes of the HB Act as an offence under the law of this State or any other jurisdiction prescribed by the regulations for this purpose: s 32(1). Among the offences prescribed in reg 37(1) of the PTP Regulation are various dishonesty offences, including offences under Part 5A of the Crimes Act. That Part includes s 307B of the Crimes Act, the offence of giving false or misleading information in various official contexts. 4. In Singh v Point v Point Transport Commissioner [2024] NSWCATOD 137, (Singh) three important features of the statutory scheme were identified. First, "neither the Commissioner nor the Tribunal undertaking administrative review is obliged to grant the application even if the general standards for authorisation, and the additional standards in the regulations, are met"; instead, the decision in such a case whether to grant or refuse the application is "at the discretion of the decision-maker": Singh at [16] and [25]. 5. Secondly it was held in Singh at [26] that because the PTP Act and the regulations do not expressly identify any relevant factors for the exercise of that discretion, those factors are to be determined by implication from the subject matter, scope and purpose of the statute: Singh, citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 40 per Mason J. 6. Thirdly, it was held in Singh at [29]. that public safety is a matter of paramount importance in the exercise of the discretion under s 31 (1) of the PTP Act, which requires in a practical sense" that the decision-maker evaluate, first and foremost, the extent to which public safety may be at risk if the applicant is authorised to provide a service. 7. It was recognised in Singh (at [28]-[29], [50]-[51]), the paramount importance of public safety is reflected in the obligations imposed on booking service providers by the PTP Act and Regulations. Providers are obliged to ensure, so far as is reasonably practicable, the health and safety of drivers and other persons while they are engaged in providing the service and of passengers or other persons in connection with the provision of the service: PTP Act, s 13(1). Without limiting that obligation, the Act requires them to eliminate or at least minimise risks to safety so far as reasonably practicable: s 13(2). 8. The PTP Act provides for safety standards to be specified in the regulations, including with respect to drivers: s 20. One such standard is that a person must not drive a taxi or hire vehicle that is being used to provide a passenger service if the person has been found guilty of a disqualifying offence for a driver: PTP Regulation, reg 24(1). The "disqualifying offences for a driver" differ from the disqualifying offences for an individual applying for authorisation. They relevantly include various offences against person, including offences under ss 61 M (2) and 610(2) of the Crimes Act of indecent assault and act of indecency where the victim is under 16 years of age: reg 24(2) (c). In the case of a driver of a taxi or hire vehicle used to provide a booking service, the service providers a responsible person for the purposes of this standard: reg 24(5). 9. These provisions emphasis the duty and responsibility of any provider to be in a position to ensure that drivers the provider uses or intends to use have not been found guilty of a disqualifying offence for a driver. This in turn throws into focus the self- awareness and reliability of an individual who seeks to become a provider who intends to use external drivers who might have been guilty of a disqualifying offence for a driver. Consideration 1. The sexual offences for which the Applicant has been convicted occurred at various times including when he was aged 15 years 17 years and 22 years and involved conduct involving a significantly younger female and a friend of that female. These were low level aggravated, indecent assault offences and involved in inappropriate touching. When confronted by his Church group about the incidents, he admitted to the offences and in due course pleaded guilty, on the basis of agreed facts with the prosecution in 2016. 2. The last of those offences had occurred 3 years before his convictions. He was an adult when the last of those offences occurred and was likely to have had a full understanding of the significance of the offending but also of the significance of having been convicted for those offences. Thereafter, his conduct showed a complete lack of awareness of the requirement that he not have contact with minors and that if he did have such contact, that he disclosed it to the relevant authorities. Yet he was convicted of the five reporting offences in contravention of the provisions of the Child Protection (Offenders Registration) Act 2000 that were committed when he failed to report such contact. To amplify the significance of that delinquency, he then gave false explanations for his conduct when confronted with the suggestion that he had in fact not made those disclosures. That conduct, although it occurred some years ago, is indicative of an inability or unwillingness to understand and meet the responsibilities that flow from the conduct that he has engaged in and potentially would be engaging in were he to provide a booking service and which would involve him interacting with members of the public and potentially minors. 3. The circumstances of the Applicant's reporting offences are a matter of grave concern. In 2020, the applicant was required under the Child Protection (Offenders Registration) Act to provide details to police including the names and details of children with whom he had contact. On 23 March 2020, he signed a form detailing reportable circumstances in which he did not disclose the details of any children he had contact with. Then on 22 November 2020, detectives attended his premises to conduct an inspection, in which they sighted a folder with a colour photograph of a female child about the age of five. The applicant identified the child as a particular person and stated that she had only been to his house once in the year, before admitting that he had seen her at his or another person's house on less than 10 occasions in the year. He stated that he was aware he was required to provide details of any child he had contact with to police but had not done so out of concern the police would attend the house each occasion the child was there. This was later found to be a falsehood. The applicant eventually admitted that he had lied previously when he told the police that the depicted child was who he said she was and stated that the child was someone else entirely who had attended his home approximately six times since July 2020 to assist him with book work for his mechanic's business. He stated that he had not informed the police of his contact with that child because he did not want to cause any trouble to her mother who was having family law issues. 4. The police later then received information that the Applicant was spending time with another young girl in the neighbourhood. The police went on to receive further information that the applicant had a very young child to a previous relationship during which he was in the direct company of the child, as well as another child of the same mother. 5. One of the submissions made on behalf of the Respondent was to the effect that a person having those characteristics was not someone about whom it could be reliably said that he would go out of his way to ensure that he understood the legislative requirements in the present context for persons who were drivers, even if he would not himself be a driver and take whatever steps were necessary to ascertain that the drivers that he engaged had not committed any offences which may affect the capacity to hold a licence. The onus is still upon him to do so. However, even during the course of the hearing, he sought to attribute responsibility for the need to identify whether drivers had criminal histories of relevance to the failure of the Respondent itself to provide him with information in that regard. 6. As counsel for the Respondent correctly submitted, the Respondent is not responsible for the keeping of records or the provision of information to applicants about persons who might be drivers in businesses being operated. 7. The Respondent submits that the decision should be affirmed in light of two concerns of public safety which is a matter of paramount importance in deciding whether to grant or refuse authorisation. The first arises from the Applicant's conviction for furnishing false or misleading information, which substantially corresponds to one of the disqualifying offences for individuals applying for authorisation under the Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) (PTP Regulation). The second concern, it is submitted, arises from the risks that the Applicant will not meet the safety standard in the PTP Regulation prohibiting persons who have committed various offences from driving hire vehicles. 8. The Applicant's submissions lacked focus as to the bases for which he sought to have the decision overturned and as to why it was appropriate that he be able to provide a booking service under the PTP Act. He was taken to each of the points made against him as have been articulated above but was unable to provide a substantive response to those expressed concerns, except to offer assurances that he would not drive the vehicles himself and that he would do what he needed to do to comply with his responsibilities. The focus of his submissions was to suggest that some of the points being made against him as justifying the decision were only recently communicated or by alternatively submitting that in some nonspecific way he had been exposed to discriminatory conduct, or alternatively that he had been led to believe initially that he had been approved the authority that he sought. The evidence is clear that the question of the granting of the authority was under consideration and not a fait accompli. I do not accept that the points being made against him as justifying the decision were only recently communicated, although the material relied upon here did include material relating to his criminal history which was not before the original decision maker. He had the opportunity to address the issues that this material was said to demonstrate. 9. There is nothing of substance to the submission that he was in some way or another subjected to discriminatory contact or treated in some way differently to other applicants. 10. The Respondent sought to place much emphasis on the contention that the Applicant did not demonstrate that he could successfully conduct a limousine business using independent contractors or independent drivers. I am not persuaded that applicants for the review of such decisions need to establish that their businesses would be successful before they could be granted the relevant authority. Nor is there any evidence that the Respondent typically expects such material. 11. The Applicant gave evidence at the hearing of the margins or returns that he expected to be able to make having regard to the percentage of the limousine use fee that would be paid to independent contractors or independent drivers. I am not persuaded ultimately that the risks that he would drive are materially increased by reason of the fact that he would need to engage independent drivers all that the business was like it filed unless he drove within it. 12. I am not persuaded that the Applicant has shown that he has the will or the means to adequately ensure a person who is not eligible, or has been convicted of a disqualifying offence, does not undertake passenger services, and this clearly raises safety concerns for passengers should he become authorised as a service provider and conduct his business using contract drivers. 13. The circumstances that I have described earlier also lead me to conclude that the Commissioner's ability to rely on the Applicant to comply with his obligations to report notifiable occurrences is questionable, as is the reliability of his assurances in the material before this Tribunal about the way he would conduct this business were he to be granted the authority sought. 14. In my view his history gives rise to an unacceptable risk to public safety were the applicant to be authorised to provide a booking service. In my view the correct and preferable decision having regard to the material before the Tribunal is to affirm the decision to refuse the authority sought. Having regard to the matters I have referenced, the decision under review is affirmed. 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: 24 January 2025