CITATION: FV v Ministry of Transport [2008] NSWADT 143 DIVISION: General Division APPLICANT FV PARTIES: RESPONDENT Ministry of Transport FILE NUMBER: 063427 HEARING DATES: 19 March 2007, 23 July 2007, 31 January 2008 SUBMISSIONS CLOSED: 31 January 2008 DATE OF DECISION: 20 May 2008 BEFORE: Montgomery S - Judicial Member CATCHWORDS: Taxi driver - grant of authority MATTER FOR DECISION: Principal matter Child Protection (Prohibited Employment) Act 1998 Commission For Children And Young People Act 1998 LEGISLATION CITED : Passenger Transport (Taxi-cab Services) Regulation 2001 Passenger Transport Act 1990 Passenger Transport Regulation 2007 EB v Director General, Department of Transport [2002] NSWADT 258 Health Care Complaints Commission v Litchfield [1997] NSWSC 297 CASES CITED: Johnson v Page [2007] FamCA 1235 Loye v Director General, Department of Transport [2000] NSWADT 145 RV v Commission for Children and Young People [2007] NSWADT 299 UY v Ministry of Transport [2007] NSWADT 147 APPLICANT J Butland, barrister REPRESENTATION: RESPONDENT A Wozniak, solicitor ORDERS: The decision under review is set aside. In its place the decision is made that the authority is granted. REASONS FOR DECISION 1 In these reasons the names of all private individuals have been anonymised so as to preserve the privacy of their personal affairs. In these reasons the Applicant is referred to as FV. 2 FV applied to the respondent for authorisation to drive a taxi-cab under the Passenger Transport Act 1990 ("the Act"). In accordance with Section 33B of the Act, a delegate of the Director-General of the respondent determined to refuse FV's application. The application was refused on the grounds that as a consequence of his proven offence record FV cannot be considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. 3 FV sought an internal review of that determination. The delegate who determined the internal review affirmed the refusal on the ground that FV had been convicted for offences of indecent assault and that as a consequence of these convictions, FV is a 'prohibited person' within the meaning of the Child Protection (Prohibited Employment) Act 1998 ("the CPPE Act"). 4 FV applied to this Tribunal for an external review of the determination to refuse his application. Applicable legislation 5 Division 5 in Part 4 of the Act makes provision for authorisation to drive taxi-cabs. The purpose of authorisation is set out in section 33 of the Act: 33 Authorities … (3) 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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom. 6 The decision to refuse the application was made under section 33B of the Act, which provides as follows: 33B Grant or refusal of application (1) Having regard to the purpose of authorisation under this Division, the Director-General may grant an application and authorise the applicant to drive a taxi-cab, or may refuse the application. (2) Before an application is granted, the applicant must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant. … 7 In this matter, FV's application was dated 11 August 2006. The initial determination was dated 22 September 2006. The internal review decision was dated 27 October 2006. At the time of the application, the applicable regulations were the Passenger Transport (General) Regulation 2000 and the Passenger Transport (Taxi-cab Services) Regulation 2001 ("the repealed regulations"). The repealed regulations were repealed with effect from 1 September 2007 and replaced by the Passenger Transport Regulation 2007 ("the Regulations"). There are no significant differences between relevant provisions in the repealed regulations and the Regulations. It seems to me that FV would not be adversely affected if his application were determined by reference to the Regulations rather than the repealed regulations. 8 Clause 29 of the Regulations provides: 29 Criteria for authorisation to drive public passenger vehicles (1) For the purposes of sections 12(2), 33B(2) and 40B(2) of the Act, the criteria that an applicant for an authorisation to drive a public passenger vehicle must meet before the application is granted are the criteria set out in sub-clauses (2)–(4). (2) The applicant: … (e) must satisfy the Director-General that he or she: … (ii) is of good repute and in all other respects a fit and proper person to be the driver of the vehicle concerned, and (iii) has sufficient responsibility to drive the vehicle concerned in accordance with law and custom. 9 Clause 146 of the Regulations provides: 146 Driver of taxi-cab to accept hiring (1) Subject to this clause, the driver of a taxi-cab that is available for hire must accept a hiring immediately when offered. Maximum penalty: 5 penalty units. (2) The driver of a taxi-cab may refuse to accept a hiring: (a) if acceptance of the hiring would result in the number of passengers in the taxi-cab exceeding the maximum number of passengers that may be carried in the taxi-cab, or (b) if acceptance of the hiring would cause the driver to contravene the provisions of clause 41 (Carriage of goods and animals), or (c) in the case of a taxi-cab that is displaying a sign in accordance with clause 142 (Display of destination sign on taxi-cab), if the intending passenger indicates that he or she wishes to be taken to a location that is not on the way to the destination displayed by the sign, or (d) if the intending passenger indicates that he or she wishes to be taken to a location that is outside the taxi-cab's area of operation, or (e) if the intending passenger is smoking, eating or drinking and refuses to stop doing so, or (f) if the intending passenger is a person who is, or who is carrying a thing that is, likely to soil or damage the taxi-cab or the clothing or luggage of other passengers, or to otherwise cause inconvenience, a nuisance or annoyance to other passengers or to the driver (as referred to in clause 53 (1)(a) or (b)), or (g) if one of the intending passengers is under the age of 1 year and neither the driver of the taxi-cab nor any other intending passenger is carrying a child restraint that is not more than 10 years old, or (h) if the intending passenger cannot, on request, satisfy the driver that the person is able to pay the estimated fare. 10 The CPPE Act has been repealed and the provisions relating to a 'prohibited person' that were contained within the CPPE Act were amended and incorporated into the Commission for Children and Young People Act 1998 ("the Commission Act"). In RV v Commission for Children and Young People [2007] NSWADT 299 Deputy President Britton considered the relationship between the CPPE Act and the Commission Act. She stated at paragraphs [4] – [6] 4 A preliminary issue arises for determination namely the legislation under which RV's application should be determined. This arises because the initiating application was lodged in August 2005 when the governing legislation was the now repealed CPPE Act. Since 2 January 2007, the Tribunal's power to make declarations concerning prohibited persons is found in the Commission for Children and Young People Act 1998 (the Commission Act): section 5(1) of the Commission for Children and Young People Amendment Act 2005. 5 Before deciding this question it is necessary to make some brief comments about the Commission Act and its predecessor. Both make it unlawful for 'prohibited persons' that is, persons convicted of certain types of offences, to apply for, undertake or remain in 'child related employment'. Both statutes give prohibited persons a right to apply to the Tribunal for an order declaring that the prohibition under the legislation, which makes it unlawful to engage in child-related employment, does not apply to them in respect of a specified offence (section 33I(1) of the Commission Act; section 9(1) of the CPPE Act). Both provide that the Tribunal cannot make such an order unless it is satisfied that the applicant 'does not pose a risk to the safety of children'(section 33J(1) of the Commission Act and section 9(4) of the CPPE Act). Both instruct the Tribunal to take into account a non-exhaustive list of factors when making that determination. 6 In ZM v Commission for Children and Young People [2007] NSWADT 148 at [8] to [18] I concluded that where an application was lodged before 2 January 2007 the resolution of the question of which legislation should apply turned on whether the applicant would be adversely affected if the matter proceeded under the Commission Act. 11 It seems to me that FV would not be adversely affected if his application were determined by reference to the Commission Act rather than the CPPE Act. As noted in RV v Commission for Children and Young People the Commission Act makes it unlawful for a prohibited person to engage in child-related employment. Section 33B of the Commission Act provides: 33B Prohibited persons (1) For the purposes of this Division, a prohibited person means: (a) a person convicted of a serious sex offence, the murder of a child or a child-related personal violence offence, whether before or after the commencement of this subsection, or (b) a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000. (2) For the purposes of this Division, a person is not a prohibited person in respect of an offence if an order in force under Sub-division 2 declares that this Division is not to apply to the person in respect of the offence. (3) In this Division: child-related personal violence offence means: (a) an offence committed by an adult involving intentionally wounding or causing grievous bodily harm to a child, or (b) an offence committed by an adult of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a), but does not include an offence committed by an adult who is not more than 3 years older than the child concerned. serious sex offence means (subject to sub-sections (4) and (5)): (a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or (b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or (c) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or (d) an offence under sections 91D–91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or (e) an offence under section 91H, 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or (f) an offence an element of which is an intention to commit an offence referred to in paragraph (a) or (b), or (g) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or (h) any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations. Note. A conviction for an offence includes a finding that an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. (4) An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Division if the conduct constituting the offence has ceased to be an offence in New South Wales. (5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Division if the conduct constituting the offence: (a) occurred in a public place, and (b) would not have constituted an offence in New South Wales if the place were not a public place. (6) For the purposes of this Division, section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence or a child-related personal violence offence. 12 It is my understanding that FV concedes that he is a 'prohibited person' for the purposes of the Commission Act. It is therefore unlawful for him to engage in child-related employment. 'Child-related employment' is defined in section 33 of the Commission Act as follows: "child-related employment": (a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment: (i) employment involving the provision of child protection services, (ii) employment in pre-schools, kindergartens and childcare centres (including residential childcare centres), (iii) employment in schools or other educational institutions (not being universities), (iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987), (v) employment in refuges used by children, (vi) employment in wards of public or private hospitals in which children are patients, (vii) employment in clubs, associations, movements, societies, institutions or other bodies (including bodies of a cultural, recreational or sporting nature) having a significant child membership or involvement, (viii) employment in any religious organisation, (ix) employment in entertainment venues where the clientele is primarily children, (x) employment as a babysitter or childminder that is arranged by a commercial agency, (xi) employment involving fostering or other childcare, (xii) employment involving regular provision of taxi services for the transport of children with a disability, (xiii) employment involving the private tuition of children, (xiv) employment involving the direct provision of child health services, (xv) employment involving the provision of counselling or other support services for children, (xvi) employment on school buses, (xvii) employment at overnight camps for children, and (b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations. 13 Section 33I of the Commission Act gives prohibited persons a right to apply to the Tribunal for an order declaring that the prohibition does not apply to them in respect of a specified offence. That right is subject to section 33G of the Commission Act. Section 33I of the Commission Act provides: 33I IRC and ADT may make declarations concerning prohibited persons (1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence. (2) A relevant tribunal is: (a) the Industrial Relations Commission, or (b) the Administrative Decisions Tribunal. (3) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order. (4) An applicant must fully disclose to the relevant tribunal any matters relevant to the application. (5) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that offence until after the period of 5 years from the date of the tribunal's refusal, unless the tribunal otherwise orders at the time of refusal. (6) Orders under this section may be made subject to conditions. (7) The following applies to proceedings before the Administrative Decisions Tribunal under this section: (a) the Tribunal may not award costs, (b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings. 14 Section 33G of the Commission Act provides: 33G Persons not entitled to make review applications (1) A prohibited person who has been convicted of any of the following offences, committed by the person as an adult, is not entitled to make an application under section 33H or 33I: (a) murder of a child, (b) an offence under section 66A, 66B, 66C, 66D or 73 of the Crimes Act 1900 or a similar offence under that Act or any other law involving sexual intercourse with a child (including a law other than a law of New South Wales), (c) an offence under section 91H (2) of the Crimes Act 1900, involving the production of child pornography, or a similar offence under a law other than a law of New South Wales, (d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs. (2) The Commission or a relevant tribunal may grant leave to a prohibited person to make a review application, despite a conviction for an offence referred to in sub-section (1), if the Commission or tribunal is satisfied that: (a) the offence is an offence referred to in subsection (1) (b), or an offence of attempting, or of conspiracy or incitement to commit such an offence, and (b) the prohibited person was not more than 3 years older than the child against whom the offence was committed, and (c) the offence did not involve circumstances of aggravation within the meaning of section 66C of the Crimes Act 1900. 15 These proceedings were adjourned to allow FV to make an application for an order under section 33I of the Commission Act. That application was subsequently discontinued. I understand that the application was discontinued because FV accepted that he was precluded from obtaining an order under section 33I by the operation of section 33G of the Commission Act. FV's case 16 FV relies on his own evidence. He appeared at the hearing on 19 March 2007 and gave evidence and was cross-examined. 17 FV contends that he is not precluded from holding an authority to drive a taxi-cab by operation of the Commission Act and that notwithstanding his offence record he can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. 18 FV concedes the events that cause concern to the respondent but says that they were dealt with by the Victorian criminal justice system in 1977. Since then there have been no further instances of sexually inappropriate, or other conduct, towards children and young people, over a thirty-year period, that could lead the Tribunal to the conclusion that he poses an unacceptable risk to any child or young person who he may convey should he be granted a taxi driver authority. 19 Mr Butland, Counsel for FV, relies on the case of Johnson v Page [2007] FamCA 1235 as a guide to the principles to be applied in determining whether FV presents an unacceptable risk to any child or young person travelling in a taxi driven by him. He points to the medical reports of Dr Stephen Allnutt and Dr George Jacobs and submits that both say that FV is a minimal risk of further behaviour towards passengers and young people in particular. 20 Dr Allnutt considers that FV "falls into the low risk group for sexual recidivism" and Dr Jacobs concluded that FV "has not reoffended for thirty years and by the above standard is no risk." 21 FV also relies on a number of references, which suggest that he is well regarded by their authors. Most of the references are general in nature and do not specifically relate to the present application. Several refer to business activities in which FV has been engaged and in particular his involvement in the entertainment industry. None make mention of his offence record. The authors were not called to give evidence and I am unable to conclude whether or not the authors are aware of FV's record. 22 Of the references that specifically relate to this application, provided by a retired Anglican rector, stated: "It has been my privilege to know [FV] for the last seven years. I celebrated his marriage … and baptized their two delightful children. While preparing them for marriage and later for the baptism … and also whenever they attended our morning family service and many other events … my wife and I came to know them very well. [FV] is very gifted in many ways ... I find his strong though warm personality and guileless character a refreshing exception to the rather monotonous and predictable mediocrity and over-sophistication of much that people admire today. And he usually manages to do it with a smile! I have always found him dependable, a hard worker, a good friend, eager to be a good husband and father, and a man of his word. I heartily commend him to your consideration." 23 The Mayor of FV's local Council wrote: "I have known [FV] for in excess of 5 years and he is married to … a friend … I worked with for about 10 years. ... [FV] is a person of integrity and initiative, and I can certainly commend him to you in his licence application" 24 FV's solicitor wrote: "I have known [FV] and his wife … for approximately 6 years ... I was [FV's] solicitor during his upheaval and the ending/separation of his company … I understand [he is] applying to the ministry for the higher taxicab certificate. In the years I have known him I have found him to be of exemplary character, honest, cheerful and helpful. I wish him every success in all he endeavours in the future." 25 Mr Butland submits that in all the circumstances, the Tribunal can be satisfied that FV has met all the criteria for the issue of an authority. The decision should therefore be taken to grant FV a taxi driver authority. Respondent's case 26 Mr Wozniak, solicitor for the respondent, adopts the reasoning provided as a basis for the internal review decision. He points to FV's offence record, which shows that FV had a long and extensive criminal record in his teenage years until he was about 25 years of age. He had been sentenced to a youth training centre and ultimately spent time in an adult jail. He was convicted of several offences of indecent assault on a male under 16 years of age. He was last convicted for sexual assault in July 1977. He was convicted for soliciting a female for prostitution in 1981. 27 Mr Wozniak submits that as a consequence of these convictions, FV is a 'prohibited person' within the meaning of the Commission Act. He argues that he is therefore prohibited from undertaking employment that might require that he carry a child. He submits that Johnson v Page has no relevance to these proceedings. 28 Mr Wozniak points to clause 146 of the Regulations, which provides that the driver of a taxi-cab that is available for hire must accept a hiring immediately when offered. FV would be in breach of that provision if he refused to carry a child. Mr Wozniak further submits that it would not be practicable to monitor compliance with a condition on an authority that a driver must not accept a hiring to carry a child. He relies on the decision in Health Care Complaints Commission v Litchfield [1997] NSWSC 297 as authority for the principle that such a condition should not be imposed. 29 In Litchfield the Court held that the necessity for imposing a condition on the appellant's registration (that the doctor only saw female patients with a chaperone) demonstrated he was unfit to practice medicine and in those circumstances the only appropriate order was one that prevented him from doing so. 30 Mr Wozniak submitted that in this matter, if the Tribunal were to impose a condition that FV held his authority only on the basis that he not accept a hiring to carry a child, then such a condition would not only become difficult to enforce but it would also demonstrate that the Tribunal itself had concerns. That being the case, the authority should not be granted. 31 Mr Wozniak also relies on the decisions in EB v Director General, Department of Transport [2002] NSWADT 258 and UY v Ministry of Transport [2007] NSWADT 147 in which I indicated that I was persuaded by the views expressed by the NSW Court of Appeal in Litchfield. 32 Mr Wozniak also points to FV's traffic offence record. In 1998 FV was convicted of driving with the mid range PCA and disqualified from holding a licence for 3 months. In March 2001 FV was convicted of driving with the mid range PCA and disqualified from holding a licence until July 2002. In April 2004 FV was convicted of driving with an expired licence. 33 Mr Wozniak concedes that there has been no further traffic offence since then, however, he argues that FV's driving offence record shows that he does not have sufficient responsibility to drive in accordance with law and custom. 34 Mr Wozniak submits that the convictions are cogent evidence of bad reputation. He urged caution in attributing weight to the testimonials provided on behalf of FV that do not specifically address FV's offences or the issues with which the Tribunal is concerned, and submits that they are therefore of little use. In support of that submission he referred to the views expressed by Judicial Member Rice in Loye v Director General, Department of Transport [2000] NSWADT 145. 35 For these reasons he submits that the respondent made the correct decision in refusing FV's application and accordingly it should be affirmed. Findings 36 I accept that FV is a 'prohibited person' for the purposes of the Commission Act and that it is therefore unlawful for him to engage in child-related employment. 'Child-related employment' is defined in section 33 of the Commission Act as employment of the specified kind "that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment …". 37 Section 33(a) of the Commission Act lists a number of kinds of employment that are included within this definition. These include "(xii) employment involving regular provision of taxi services for the transport of children with a disability" and "(xvi) employment on school buses". 38 It is my view that the legislature did not intend to include other forms of taxi services within the definition of 'child-related employment'. While it is likely that a taxi-cab driver may from time to time have direct contact with children the work does not 'primarily' involve that contact. It follows, in my view, that the Commission Act does not prohibit FV from undertaking work as a taxi-cab driver except as provided for by section 33(a). The Commission Act does prevent FV from undertaking the kind of work that falls within the scope of section 33(a)(xii). 39 I agree that Johnson v Page has no relevance to these proceedings. However, I note that both Dr Allnutt and Dr Jacobs are of the view that FV presents minimal risk to passengers. I also note that FV has given an undertaking not to engage in the kind of work that falls within the scope of section 33(a)(xii) of the Commission Act. In any event he would be in breach of the legislation if he were to do so. 40 It is my view that both EB -v- Director General, Department of Transport and UY v Ministry of Transport can be distinguished on the basis of their facts. A report in relation to EB suggested that there remained a risk and I was persuaded that the protection of the public required that EB not be permitted to hold a driver authority that would have permitted him to drive a school bus. UY continued to be the subject of conditions imposed by the Tribunal in relation to his use of cannabis. I considered that it is inappropriate to issue an authority to UY so long as he was subject to the conditions imposed. Neither of those circumstances is present in this matter. 41 I agree with Mr Wozniak that most of FV's references do not specifically address FV's offences or the issues with which the Tribunal is concerned, and are therefore of limited use in determining whether FV can be considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab. In my view it is probable that most of the referees do not know of FV's offences. This is understandable given the time that has passed since most of those offences occurred and the efforts that FV has made to distance himself from his past. However, I accept that the references to which I have referred above are of some relevance. In my view it is reasonable to infer from those references that FV is probably well regarded in his community. 42 In the present case, the appropriate test in determining whether FV should be granted the authority that he seeks is that defined and applied by the President of the ACT Administrative Appeals Tribunal in the matter of Maythisathit v Registrar of Motor Vehicles (1996) ACT 165. In that particular case, the President stated the test in respect of a person being of fit and proper character to hold a taxi driver's authority as: "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 in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi". 43 In my view, it is unlikely that a member of the public in that position would object to FV as the driver of the taxi. It follows, in my view that the correct and preferable decision is that the authority should be granted. Orders The decision under review is set aside. In its place the decision is made that the authority is granted. 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.