CITATION: Basham -v- Director General, Department of Transport [2000] NSWADT 170 DIVISION: General Division APPLICANT Eric Leslie Basham PARTIES: RESPONDENT Director General, Department of Transport FILE NUMBER: 993272 HEARING DATES: 03/03/2000 SUBMISSIONS CLOSED: 03/03/2000 DATE OF DECISION: 11/22/2000 BEFORE: Skinner PM - Judicial Member APPLICATION: Bus driver - grant of authority - Passenger Transport Act - bus driver - grant of authority MATTER FOR DECISION: Principal matter LEGISLATION CITED : Passenger Transport Act 1990 CASES CITED: Rasheed v Director General, Department of Transport [2000] NSWADT 5 Ghachame v Director-General, Department of Transport, [2000] NSWADT 113 APPLICANT REPRESENTATION: K Carmody, solicitor RESPONDENT A Wozniak, solicitor ORDERS: The reviewable decision is affirmed. This application 1 On 9 December 1999 the applicant applied to the Tribunal for a review of the respondent's decision to refuse his application for the issue to him of a regular route public passenger bus driver authority under the Passenger Transport Act 1990 ('the Act'). The applicant's authority 2 The applicant was first licensed to drive motor vehicles in 1955, and to drive buses in 1974. 3 On 15 May 1991 he applied for accreditation to operate regular passenger services pursuant to the new administrative regime that had come into force with the Act, and was granted that accreditation. 4 On 11 November 1994 he applied for an authority under the Act to drive public passenger buses. He was granted that authority on 24 November 1994. 5 Prior to the decision under review, the applicant had been given two warnings by the Department in relation to his accreditation to operate and authority to drive passenger buses. Obviously the decision under review was made in that context, and therefore the circumstances of those two previous warnings were before me and must be analysed as some length in this decision, as well as the circumstances directly leading to the decisions under review. The 1995 incident 6 On 9 and 10 August 1995 the applicant was interviewed by police and the original police report prepared 11 August 1995 indicates that as a result of that police investigation the applicant was to be charged with offences described as 'owner permit drive unregistered vehicle', 'owner permit drive uninsured vehicle' and 'owner permit drive with plates calculated to deceive'. Presumably these charges were brought under the Traffic Act 1909, then in force. 7 The police report fully sets out the facts relied upon by the police. 8 The Department of Transport was informed of these police matters, and, although the charges were yet to be dealt with in the Local Court, the Department, charged with administration of the Act, sent the applicant a 'Notice to show cause why accreditation should not be suspended or cancelled' dated 11 Sept 1995. The accreditation in issue was that of the applicant to operate regular passenger services, under s 7 of the Act. 9 The police charges then pending were objectively serious. It is well known that the system of ensuring registration of motor vehicles not only seeks to ensure that they are thus insured against third party liability, but also enforces compliance with rigorous safety standards for the vehicles. The vehicle in question was a school bus, carrying many school children as passengers 10 Also, the police report alleged inconvenience and worry occasioned to the children and their parents whilst the bus in question was properly registered at police insistence. 11 The Notice reminded the applicant that by his application for accreditation in 1991 he had personally undertaken to comply with the relevant standards determined and published by the Department, a breach of which may have caused his accreditation to be suspended or cancelled. 12 He was also informed in the Notice that on the basis of the police report he appeared to have breached his service contract with the Department, particularly the manual for operators, the terms of which are read into that contract. 13 By a letter received by the Department on 25 September 1995 the applicant made submissions as to why his accreditation should not be withdrawn. He advised the Department of the reasons for his breaches of the Traffic Act and also disputed some of the police allegations about the stress and inconvenience to the children and their parents. 14 A representative of the Department had a meeting with the applicant on 31 October 1995 and discussed the matters raised in the Show Cause Notice and his response, and generally arising out of his contract with the Department. 15 The Department decided to issue a warning to Mr Basham, and his accreditation was not disturbed. 16 All this compliance administration took place prior to the court hearing in respect of the police charges. The administration by the Department of the Act is quite distinct from the administration by the police and the courts of the general traffic law. 17 I was informed that on 10 November 1995 the Local Court at Young found the police charges proven, but extended to the applicant the benefit of the then s 556A of the Crimes Act 1900 and recorded no conviction. The first PCA offence - 1996 18 At about 8.25 a.m. on Monday 16 September 1996 the applicant was driving school-children to school on one of his buses, when he was stopped and subjected to a breath test by the police. He was tested because of a complaint received by the police that his breath smelt of intoxicating liquor. 19 The breath analysis machine showed a reading of 0.115 grammes of alcohol per 10 millilitres of blood. This squarely put the applicant in the 'middle range' prescribed under s 4E of the Traffic Act, which extended from 0.08 to less than 0.15 grammes of alcohol in 100 millilitres of blood. The applicant was charged with driving with the middle range prescribed content of alcohol ('PCA') in his blood. 20 It should be noted that although driving with a middle range PCA is the second tier PCA offence for most civilian drivers, it is in fact the third tier offence for 'special category' drivers, which Mr Basham was at the relevant time as he was driving a public passenger vehicle for reward. As such he committed an offence in driving with more than a concentration of only 0.02 grammes of alcohol in 100 millilitres of blood, before the 'low range' PCA of 0.05 to less than 0.08 grammes of alcohol in 100 millilitres of blood applied. 21 On 17 September 1996 the applicant's Public Vehicle Route Bus Driver's Authority under the Act was suspended forthwith, with further action postponed pending the outcome of the court case in respect of the police charge. 22 The material in the Department's file shows that Mr Basham wrote a letter of apology to the local newspaper which was printed on 23 September 1996, which included reference to him being a diabetic and that submissions were made by him that that condition, and the medication he took to control it, may have affected the rate at which he 'absorbed' the alcohol which he had imbibed whilst celebrating the local rugby league grand final win the night before. 23 On 8 November 1996 the applicant was convicted in Young Local Court of the police charge, upon a plea of guilty, and he was fined $600 by the Court and disqualified from driving for three months from that date. The fine was lenient when compared to the maximum penalty under the Traffic Act, and the period of disqualification was the minimum required under the Act. 24 As reported in the local newspaper on 11 November 1996, a clipping from which is in the Departmental file, the applicant's solicitor, Mr Carmody, had submitted to the magistrate that his client realised the serious nature of the offence but would have 'learned from the experience'. The magistrate in his remarks when sentencing had said that the applicant was unlikely to re-offend. 25 On 13 November 1996 a Notice to Show Cause was issued to Mr Basham by the Department, which advised that consideration was being given to the cancellation of his Passenger Vehicle Driver's Authority on the grounds that 'The Department can no longer attest that you have the responsibility and aptitude to drive public passenger vehicles because of the behaviour that you have been displayed by being convicted …'. 26 On 26 November 1996 the applicant's solicitor wrote to the Department in response to the Notice, making submissions in summary as to the approach that the Local Court had adopted in dealing with the applicant's offence, and forwarding copies of the numerous and glowing character references that had been tendered to the Court. 27 After considering all of this material, noting the sentence and remarks of the magistrate, and noting the possible effect of the applicant's diabetes, the Department advised the applicant by letter from the Operations Manager dated 10 December 1996 that no further action would be taken over the matter. The letter however also included the following warning:'…should you come to adverse notice of the Department of Transport in the future, your Public Passenger Vehicle Driver's Authority may be immediately suspended or cancelled'. 28 After the applicant's driving licence was restored to him on 11 February 1997, the suspension on his Public Passenger Driver's Authority was also lifted, on 21 February 1997, and the applicant continued to drive buses pursuant to his authority. The second PCA offence - 1997 29 On 27 July 1997 Mr Basham was arrested and charged by the police for driving with a high range PCA, measured at .225 grammes of alcohol per 100 millilitres of blood. His driver's licence was suspended until the court disposed of the charge. 30 Upon being advised of this by the police on 1 August 1997 the applicant's authority to drive passenger vehicles was forthwith suspended by the Department on the basis that it was considered that he was not able to satisfy the terms of section 11(2) of the Act. He was notified that such suspension commenced on 1 August 1997 and remained in force until the charge was determined by a court. 31 Section 11(2) of the Act is in the following terms: 'Division 2 - Drivers' authorities Authorities 11. … (2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) in accordance with the conditions under which a public passenger service is operated; and (ii) in accordance with law and custom. 32 On 20 August 1997 the applicant was convicted in Cowra Local Court of driving with a high range PCA. He was fined $800 and disqualified from driving for two years, dating from the suspension of his licence. 33 On 26 August 1997 the applicant was notified by the Department that his authority to drive public buses was cancelled. 34 By letter dated 24 September 1997 the applicant was given notice to show cause why his accreditation under the Act to operate regular passenger services should not also be suspended or cancelled. He was referred to s 7(2)(a) of the Act, which relates to the accreditation of operators of public passenger services and is in the equivalent terms to s 11(2)(a) of the Act. 35 By letter dated 10 October 1997 the applicant's solicitor made representations to the Department in response to the Notice of 24 September 1997. The representations were considered by the Department but it was recommended nonetheless that the accreditation be cancelled. 36 Mr Basham sought approval for the transfer of his passenger bus service contracts to his wife, Rosemary Basham, and she applied for accreditation under the Act to enable her to operate the family bus business. Ultimately the transfer was approved, Mrs Basham was duly accredited, and in early 1998 Mr Basham voluntarily surrendered his accreditation. The decision under review 37 On 30 July1999 the applicant's driving license was restored. He was issued with an unrestricted licence with good behaviour conditions applying until 30 July 2000, no doubt as a standard condition for re-issue after disqualification. 38 The applicant re-applied to the Department for an authority to drive school buses, lodging the appropriate form on 26 August 1999. That form was accompanied by the prescribed Public Passenger Vehicle Driver Health Assessment Form. It is noted that Mr Basham disclosed that he had high blood pressure and diabetes, for which latter condition he required treatment with insulin or other substance to reduce blood sugar. 39 He also noted that he drank more than four standard drinks in a 24 hour period on average one or two times a week. 40 The doctor however certified that in his or her opinion Mr Basham met the medical criteria for a driver authority as applied for. 41 Upon first consideration of the application the Department considered that in the light of his various court matters since 1995 the applicant may not have been able to satisfy the terms of s 11(2) of the Act, but the Department invited him to make further submissions by way of sending him a letter in the form of a Notice to Show Cause, dated 7 September 1999, with attached to same a Statement of Reasons as to why the Department was considering the refusal of his application. 42 A letter dated 17 September 1999 from the applicant's solicitor was received by the Department. The letter reiterated the submissions made in the previous 'show cause' letters on behalf of Mr Basham and made further submissions and attached further references as to his good character. 43 On 28 September 1999 the relevant contracts manager of the Department recommended in writing that despite the submissions made on his behalf Mr Basham's application for issue of a Public Passenger Bus Authority should be declined.. 44 After approval of this recommendation by the further appropriate officers in the Department, by notice dated 1 October 1999 the applicant was advised that his application was refused. He was provided with a Statement of Reasons and advised of his right of internal review and of application to this Tribunal. 45 By letter dated 21 October 1999 from his solicitor the applicant applied to the Department for an internal review of the decision to refuse. Further submissions were made on his behalf by the applicant's solicitor as to the appropriate treatment of the objective facts of the charges against Mr Basham over the years, and further submissions were made as to his subjective qualities, supported by the tender of further references. 46 The internal review was carried out by an appropriate officer of the Department on 9 November 1999, the Operations and Compliance Manager, Northern Region, Mr or Ms P W Sullivan, as delegate of the respondent. 47 In his or her written reasons for decision, after noting consideration of the further submissions put on behalf of the applicant, P W Sullivan refers to the attestation required by s 11(2) of the Act but then confirms the original decision. The officer states: 'The decision is based on my view of what a reasonable member of the public would regard as appropriate behaviour for the driver of a school bus. I am convinced that the parents of the children travelling on a school bus would not regard a person who was convicted twice within a one year period of serious alcohol related driving offences as an appropriate person to be driving their children to and from school. It would be a further concern to those parents if they were to discover that one of those offences, Mid Range PCA, occurred whilst the person was driving a load of school children to school.' 48 On 11 November 1999 the applicant was notified that the result of the internal review was that the Department had re-affirmed the decision to refuse his application. On 9 December 1999 the applicant applied to this Tribunal for a review of the decision. 49 In the his written application filed with the Tribunal the applicant stated in paragraph 7: 'It is submitted that I have satisfied the requirements of section 11 of the Passenger Transport Act 1990 and in particular the evidence indicates: (a) that I am still held in good repute in the community; (b) the periods of disqualification in respect to driving offences have now elapsed; (c) the evidence demonstrates that I have now sufficient responsibility to act in accordance with law and custom.' Further relevant facts and material before me 50 In the hearing before me on 3 March 2000 the applicant tendered an affidavit sworn by himself going to the circumstances of the three matters which brought him before the Local Court and which are referred to above, and the current effect upon his wife's business of his inability to drive buses. He also tendered an affidavit from his wife to much the same effect, and a medical certificate. He also relied upon the submissions and references already made on his behalf in the Department's file, which are referred to above. 51 The respondent through his solicitor relied on the material in the Department's file, part of which was extracted as a separate bundle and tendered to me, and submissions made to me by Mr Wozniak in the hearing. Decision 52 Section 11(2) of the Act is clear in its terms, and the approach that an administrator must take to the question whether the authority sought should be issued and so attest to the public that the person is considered to have the qualities set out in paragraphs (a) and (b) of the subsection, has been discussed in several decisions of this Tribunal. I referred to some of these decisions in Rasheed v Director General, Department of Transport [2000] NSWADT 5. Since that decision there have been several more by this Tribunal, constituted variously. In my opinion these further decisions are consistent with the decisions and authorities I identified in Rasheed. 53 In Ghachame v Director-General, Department of Transport, [2000] NSWADT 113, Deputy President Hennessy noted at [63] and [64] that: '63 …A question which arose in these proceedings is the punitive effect on Mr Ghachame of not granting him an authority. There are several avenues by which a taxi driver can be punished, including being issued with infringement notices, being temporarily suspended from driving and being prosecuted for breaches of the Regulations or of the criminal law. The ability to suspend, cancel or refuse to grant a person's licence, while having a punitive effect on a driver, is predominantly designed to protect the public… 64 On the basis of this analysis, I do not accept the applicant's submission that Mr Ghachame has been adequately punished for the incidents in question and that an authority should be re-issued on that basis. The real question is whether Mr Ghachame has the requisite character, reputation, responsibility and aptitude to meet the public's reasonable expectations of taxi drivers.' 54 I agree with this statement of the correct approach to be taken. I also refer to the formulation of the test for 'fit and proper character', in the case of a taxi driver, that I cited in Rasheed at [28]: 'One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done … to rehabilitate himself, would object to the applicant as the driver of the taxi.' 55 The above principles apply equally to the applicant as a driver of school buses, not taxis. Also, in my opinion, the members of the public to whom the decision maker in this case should have regard include the parents of the school children who are driven or might be driven by the applicant. 56 Approaching my decision in this way, and considering all of the material before me, some of it additional to that before the Departmental officer who conducted the internal review, I find myself wholly agreeing with the reasoning of that officer, as extracted above. 57 Consequently, despite the many testimonials filed for the applicant, and that he undoubtedly is a good citizen and of good repute with many people in his community, I do not consider that the applicant meets s 11(2)(a) of the Act. 58 Also, I do not accept paragraph 7(c) of his written application. I do not consider that the applicant meets s 11(2)(b) of the Act. It was not mentioned by the original decision maker, nor in the internal review, but I am concerned as to the applicant's responsibility in relation to drinking alcohol, when despite the evidence that he adduced as to the possible increased effect upon him of alcohol because he is a diabetic, he stated in his written application filed on 26 August 1999 that he still drank more than four standard drinks in a 24 hour period on average one or two times a week. 59 He may meet the objective medical criteria for a driver authority, but to my mind this evidence sits awkwardly with the submissions the applicant made to both the Department and the courts as to the possible increased effect upon him of alcohol because of his diabetes. He should also be well aware from his first PCA offence of the capacity for alcohol to linger in his blood long after his last drink. 60 I regret the delay in handing down this decision, but given the passage of time I have considered whether that can be weighed in the applicant's favour now. The time that the applicant has been prevented from driving at all because of disqualification, and the additional time up to the date of this decision that has now elapsed during which he has not been authorised to drive passenger vehicles is still however not sufficient in my opinion to outweigh the public's expectation as I perceive it, and as was put into words by the officer conducting the internal review. 61 I reiterate that despite the effect of this decision upon the applicant and his wife's business, the protection of the public is the paramount consideration. The Local Court has punished Mr Basham for the last offence, but that punishment is a quite separate exercise and jurisdiction. It is not to the point that the applicant's period of disqualification has elapsed, as he submitted in paragraph 7(b) of his written application. 62 Finally, in considering the effect upon the applicant and his wife's business, it must be noted that he had received two very clear warnings from the Department for breaches of the Act before committing this last serious driving offence. He had also received a s 556A Crimes Act order less than a year before he committed the first PCA offence, and when he was sentenced for that PCA offence in late 1996 he made submissions through his solicitor that he had learnt his lesson and convinced the magistrate that he was unlikely to re-offend. Despite this, he committed a more serious PCA offence less than nine months later. Order The reviewable decision is affirmed. 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.