Set aside by Appeal : Set aside by appeal on 22/11/2002 CITATION: Z -v- Director General, Department of Transport [2002] NSWADT 67 DIVISION: General Division APPLICANT PARTIES: Z RESPONDENT Director General, Department of Transport FILE NUMBER: 013153 HEARING DATES: 17/09/2001, 16/10/2001 SUBMISSIONS CLOSED: 10/16/2001 DATE OF DECISION: 04/30/2002 BEFORE: Rice S - Judicial Member APPLICATION: Bus driver - cancellation of authority - Long Distance Service driver - cancellation of authority - Passenger Transport Act - bus driver - cancellation of authority - Passenger Transport Act - long distance service driver - cancellation of authority - Passenger Transport Act - private hire vehicle driver - cancellation of authority - Passenger Transport Act - tourist service driver - cancellation of authority - Private hire vehicle driver - cancellation of authority - Tourist Service driver - cancellation of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 Chiropractors Act 2001 Criminal Records Act 1991 LEGISLATION CITED : Firearms Act 1996 Human Rights and Equal Opportunity Commission Act 1986 Medical Practice Act 1992 Osteopaths Act 2001 Passenger Transport Act 1990 Totalizator Act 1997 Z v Director-General, Department of Transport [2000] NSWADT 87 Z v Director-General, Department of Transport [2001] NSWADTAP 14 Z v Director-General, Department of Transport (No 2) [2001] NSWADTAP 18 Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 Taylor v- Director-General, Department of Transport [2001] NSWADTAP 29 Saadieh v Director-General, Department of Transport [1999] NSWADT 68 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Brown v Director General, Department of Transport [2000] NSWADT 15 Singh v Director General, Department of Transport [1999] NSWADT 96 Farquharson v Director General, Department of Transport [1999] NSWADT 53 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Lloyd v Director General, Department of Transport [2001] NSWADT 201 Armani -v- Director General, Department of Transport [1999] NSWADT 20 Re Saffron and the Commissioner of Taxation (1991) 102 ALR 19 Re Ridley and Secretary, DSS (1993) 113 ALR 655 Re Secretary, DSS and Mariot (1993) ALD 677 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: 1. The decision of the Director General is set aside; 2. In substitution a decision is made that Mr Z's authorities to drive route buses and private hire cars are cancelled, but that his authority to drive long distance and tourist buses is not cancelled; 3. Pursuant to s88(1) there is no award of costs. 1 For the reasons I give below, in my view the correct and preferable decision is that the decision of the Director General be set aside and a different decision be substituted. This means that Mr Z's application is successful in part, and that his long distance and tourist bus authority is not cancelled. Jurisdiction 2 Mr Z applies to this Tribunal under s52(1) of the Passenger Transport Act 1990 ('the PT Act'), for review of a decision to cancel his three passenger transport authorities: a long distance and tourist authority, a route bus authority and a private hire car authority. That decision was made on 16 March 2000 and was affirmed after an internal review. The decision of 16 March 2000 is the reviewable decision. 3 By s60 of the Administrative Decisions Tribunal Act 1993 ('the ADT Act') the Tribunal has jurisdiction to review a reviewable decision. By s63 the Tribunal "is to decide what the correct and preferable decision is", having regard to any relevant factual material and any applicable written or unwritten law. History of proceedings 4 Mr Z's application was first decided by this Tribunal in Z v Director-General, Department of Transport [2000] NSWADT 87 ('the first decision'). The Tribunal as it was then constituted affirmed the Director-General's decision to cancel Mr Z's passenger transport authorities. 5 Mr Z appealed to the Appeal Panel of this Tribunal. In Z v Director-General, Department of Transport [2001] NSWADTAP 14 ('the first appeal decision') the Appeal Panel set aside the Tribunal's decision because of a failure to accord Mr Z procedural fairness. In Z v Director-General, Department of Transport (No 2) [2001] NSWADTAP 18 ('the second appeal decision') the Appeal Panel remitted the matter for rehearing by a differently constituted Tribunal. Basis of remitting for re-hearing 6 The Appeal Panel in the first appeal decision said at paragraph 28 The ground of appeal that has given us the most concern is Ground 3 i.e. the Tribunal erred 'In that reports and opinions relied upon to make her decision were not filed as evidence And the authors were not called to give evidence'. 7 The reference in the appeal ground to 'reports and opinions relied upon' is a reference to a report known in these proceedings as 'the SOTAP report'. To explain how the issue became a ground of appeal, resulting in the matter being remitted for re-hearing, it is necessary to set out the relevant history of the proceedings. 8 The Tribunal, after hearing evidence and submissions in the proceedings which gave rise to the first decision, reserved its decision. Feeling it did not have enough evidence on which to make the correct and preferable decision, the Tribunal, of its own motion and empowered by s73(2) of the Administrative Decisions Tribunal Act, obtained a report on Mr Z's personal and criminal history. This was the SOTAP report. The Tribunal then commissioned the opinion of Mr Milenkovic, a clinical psychologist. Mr Milenkovic's opinion was based on information in the SOTAP report. Mr Milenkovic's opinion was provided to the parties, and the Tribunal reconvened to allow him to give evidence and be cross-examined. 9 The SOTAP report on which Mr Milenkovic based his opinion was not, through oversight it seems, provided to the parties. However "[t]he SOTAP report's contents were considered relevant in their own right by the Tribunal and not treated merely as a background otherwise not to be referred to for use by the expert" (first appeal decision at paragraph 43). 10 Accordingly, the Appeal Panel was "satisfied that there was on this occasion a significant omission (non-provision of the SOTAP report) giving rise to a failure to accord Mr Z procedural fairness" (first appeal decision at paragraph 44). 11 Having allowed the appeal, the Appeal Panel declined to consider the merits of Mr Z's application itself, preferring to remit it to the Tribunal for re-hearing. In the second appeal decision the Appeal Panel said: 9 Had it been the case that there was no likelihood that any fresh material would be introduced, the Appeal Panel would have been inclined to have proceeded to dispose of the matter, as the relevant material is not great in volume or complexity and finality would be achieved. However, it is not desirable that the Appeal Panel be called on to consider fresh evidence and possibly make additional findings beyond those already made by the Tribunal. Ideally all findings of significance should be made in the one proceeding by the same member or panel of members. So our first conclusion is that the conventional practice of remitting the application to the Tribunal below for rehearing should be followed. Mr Z's application for leave to extend to the merits is, therefore, refused. 12 In deciding to remit to a differently constituted Tribunal the Appeal Panel said: 12 The Federal Court . . . has explained the circumstances in which it considers it advisable for the remitter to contain an express direction that the quashed proceedings be reheard by a differently constituted Tribunal. In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal (1990) 26 FCR 39 at 42, Davies and Foster JJ said: 'If a decision has been set aside for error and remitted for rehearing, it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal. This is because the member constituting the Tribunal in the original inquiry or hearing will already have expressed a view upon facts which will have to be determined in the rehearing. The aggrieved party may think that a rehearing before the Tribunal as originally constituted could be worthless, for the member's views have been stated. Thus, if a decision of the Administrative Appeals Tribunal has been set aside and the matter remitted for rehearing, the President of that Tribunal ordinarily allocates to the rehearing a different member of the Tribunal. . . . . . . 16 . . . the making of an express direction that a Tribunal (or lower court) be differently constituted is not routine. The New South Wales approach would appear to be only to give an express direction where there are 'special circumstances'. What the 'special circumstances' may be was not spelt out by Kirby P. 17 In this instance we are satisfied that there should be an express direction. . . . . 18 This is not a case strictly about credibility. Nothing that Mr Z placed before the Tribunal below was rejected on grounds of credit. It is, however, a case relating to the fitness, character and general repute of the applicant. Mr Z's confidence has been damaged, by not having had the opportunity to respond to material that was prejudicial to him prior to its inclusion in the reasons for decision. In these circumstances, it would in our view be preferable if the matter was dealt with by another member. Another member would bring a fresh mind to consideration of the question of whether that material should be taken into account on the next occasion. A reasonable person would, we consider, see it as preferable that the question be considered by a member who has not already based part of their judgment as to fitness and repute on that material. 13 It was in this context that the matter proceeded before me. Legislation 14 Mr Z's authorities were cancelled by the Director General under s14 of the PT Act, which empowers the Director General to at any time vary, suspend or cancel any person's authority, having regard to the purpose of an authority. 15 The purpose of an authority is set out in s11(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. 16 An objective of the PT Act in s6(e) is: to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 17 In my view, the principal issue is whether Mr Z is a person of good repute, and in all other respects a fit and proper person to be the driver of a public passenger vehicle, in light of · Mr Z's criminal history, and in particular any likelihood of Mr Z re-offending in the nature of the 1980 matters and the 1988 matters; · the traffic matters; · his conviction in 2001. 18 It is artificial to separate the issues in this way, as it is their combined or cumulative effect which will reflect on Mr Z's good repute and fitness and propriety. I set them out like this only to allow for an ordered consideration of the issues they raise. As I discuss further below, the reasonable expectations of the community for safe passenger transport services is a guiding consideration in assessing Mr Z's fitness and propriety. 19 I note that even if I consider Mr Z to be a person of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, I must then consider the further issues in s11(2) (see Taylor v- Director-General, Department of Transport [2001] NSWADTAP 29 at paragraphs 55-57). These issues are firstly, his responsibility, and secondly his aptitude, to drive both in accordance with the conditions under which a public passenger service is operated, and in accordance with law and custom. Evidence in this matter 20 On 17 July 2001 I directed that the parties should have access to the SOTAP report to enable them to cross-examine Mr Milenkovic. Eight weeks later Mr Milenkovic was re-called by the Tribunal and was cross-examined by the parties. By agreement between the parties the exhibits and transcripts from the proceedings which gave rise to the first decision were admitted into evidence before me. Fresh evidence was led, as was anticipated by the Appeal Panel in paragraphs 8 and 9 of the second appeal decision. 21 I admitted into evidence the following: Exhibit 1 the file of the Director General in which there are, among many documents, transcripts of the court's remarks on sentencing for each of the 1980 and 1988 matters Exhibit 2 exhibits A, B, C and D in the proceedings giving rise to the first decision, being: Convictions and traffic record (A-C) Letter from previous employer (D). Exhibit 3 letter from Mr Miroslav Milenkovic to the Tribunal dated 2 June 2000, along with information and records provided to Mr Milenkovic on which he based his opinion, being: an article: Hanson R.K., & Thornton D. Static 99: Improving Actuarial Risk Assessments for Sex Offenders (User report 99-02) Department of the Solicitor General of Canada (1999), www.sgc.gc.ca/epub/Corr/e199902/e199902.htm ('the Static-99 article') a summary of that article: Brief Risk Scales for the Prediction of Sex Offence Recidivism , Research Summary – Corrections Research and Development (Canada) Vol 4 No 5 September 1999 a report from a sexual offenders treatment and assessment program (SOTAP) dated 16 May 2000, summarising Mr Z's case file for his assessment by SOTAP on 21 January 1991 ('the SOTAP report'). Exhibit 4 transcripts of the proceedings on 1 May and 16 June 2000 giving rise to the first decision. Exhibits 5-10 material relating to criminal and traffic history produced under summons by: The Department responsible for prisons in another State (5) Victoria Police (6) NSW Police Service (7) WA Police Service (8) NT Police (9) SA Police Dept (10). Exhibit 11 a bundle of references tendered by Mr Z. Exhibit 12 transcript of proceedings at Parramatta Local Court on 26 July 2001. Exhibit 13 copy of a newspaper clipping. Exhibit 14 statement of a person J dated 24 July 2001. 22 The SOTAP report was admitted into evidence not to establish the truth of its contents but merely to establish the basis of Mr Milenkovic's opinion. 23 On its face the SOTAP report also appears to have some relevance to an assessment of Mr Z's character, traversing, as it does in some detail, Mr Z's personal history. I did not admit it for this purpose. The report's authors say that the report was written in 2000 "based on a referral letter written to SOTAP [in 1991] . . . and an assessment conducted by a psychologist [in 1992]". The report's authors were not called to give evidence or be cross-examined; the material they relied on to write the report was not in evidence; Mr Z objected to much of what was recounted in the report regarding his history; and the matters in the report which purport to describe Mr Z's personal history were matters on which Mr Z could give his own evidence. For these reasons I consider that the report has low probative value, and that to rely on it as evidence as to its contents would be unfairly prejudicial to Mr Z in the circumstances. 24 A significant piece of fresh evidence before me was the transcript of proceedings at Parramatta Local Court on 26 July 2001. Those proceedings, and the facts which gave rise to them, occurred after the first decision was delivered. The first opportunity the Director General has had rely on this issue has been in the proceedings before me, when I was re-hearing the matter afresh. 25 I heard submissions from the parties on 16 October 2001. Criminal and traffic history 26 I repeat here the account given in the first decision of Mr Z's criminal and traffic history, which was not disputed in the proceedings before me: 8 Z has a long history of criminal offences which were committed between 1964 and 1988. They include: insufficient means; break bonds; carnal knowledge (with consenting under age girl); larceny; shop break; break with intent; drunk and disorderly behaviour; illegal use of motor vehicle; assault occasioning actual bodily harm and stealing. 9 In 1980 Z was convicted in the Supreme Court of another state of kidnapping, four counts of rape and two counts of false pretences, with a further six offences of false pretences taken into account. These offences related to the kidnapping of a woman and having vaginal and oral sexual intercourse with her, without her consent, on four occasions. An unloaded shot gun was used in the commission of these offences. Z was seriously affected by alcohol at the time and, according to the comments of the Supreme Court Justice when sentencing him, Z had a serious drinking problem. The false pretences convictions related to presenting false cheques. Z served three years of a four and a half year prison sentence. 10 In 1988, five years after his release from prison, Z was convicted in the Supreme Court of another state of rape, and attempted rape. These offences were committed on Z's 14 year old daughter while she was in his custody. In sentencing Z the presiding Judge said: You invited her into your bedroom, ostensibly to watch television and then forcibly had full vaginal sexual intercourse with her. Later the same evening you again attempted to have similar intercourse, but she managed to get out of the house and seek assistance from a neighbour. 11 Z was sentenced to 9 years imprisonment with a 7 years non-parole period. Z denies that he committed these offences. 12 Z was on parole for four years following his release from prison. In that time he said he has worked driving buses in other states as well as New South Wales. . . . 14 The Police Service in another state provided information that Z had been convicted of several traffic offences, namely: exceeding the speed limit by between 10 and 14 kilometres an hour on 12 January 1995 and fined $100; drive motor vehicle without due care and attention/careless driving on 24 October 1995 for which he was fined $120; demerit point suspension, disqualified from driving for three months on 19 February 1996; driving while suspended, disqualified for nine months and fined $200 on 26 June 1996; not being holder of appropriate valid drivers licence - 2 counts; under fines suspension on 21 January 1998; and giving information that he knew to be false/misleading - fined $1500 on 15 March 1999; 15 Information from another Police Service advised that while no criminal convictions had been recorded against Z in that state, Police Central Warrants Bureau is holding 5 interstate warrants of apprehension in his name issued on 30 April 1999 and 26 July 1999 for traffic offences committed elsewhere. 27 I will refer to the matters described in paragraph 9 of the extract above as 'the 1980 matters', those in paragraph 10 as 'the 1988 matters', those in paragraphs 8,9 and 10 collectively as 'Mr Z's criminal history', and those in paragraphs 14 and 15 as 'the traffic matters'. 28 Mr Z's is a very serious criminal history over a long period of time. That period of time ended in 1986: the matters of which Mr Z was convicted in 1988 had occurred in 1986. Mr Z was released from gaol in 1992 and has not been convicted of a criminal offence since that time: for some 9 years at the date of the hearing before me. Mr Z was 51 years old at the date of hearing. Reputation 29 Mr Z asks the Tribunal, and his circumstances squarely raise the issue: 'how long is long enough?'. Is there a time when Mr Z can step out from the shadow of a criminal history, when he can be accepted as a different person whose character can be assessed afresh, without regard to that history? 30 This is an appropriate question to ask. The mere fact of a criminal history does not determine a person's character. In Saadieh v Director-General, Department of Transport [1999] NSWADT 68 the Tribunal said 14 If the respondent is submitting that once a person has committed a dishonesty offence such as breaking, entering and stealing, he can never again be regarded as a person of good character (or in this case, "good repute") then I reject that proposition. If it were otherwise any conviction for a dishonesty offence would automatically prevent a person from re-applying for a taxi authority. The Director General has not interpreted the legislation in this manner, nor do I think it correct to do so. 15 Furthermore, I do not accept the respondent's submission that the applicant is not of good repute merely because his criminal record indicates bad repute and there is no other evidence of repute . . . A person's criminal record alone is not necessarily evidence of bad repute which is sufficient to disqualify that person from holding a taxi authority. All the circumstances of the case must be taken into account in assessing a person's suitability to be obtain or retain such an authority. 31 And I respectfully agree with the Tribunal's observations in the first decision, in response to a submission by Mr Z regarding ss3(1) and 11(1)(aa) of the Human Rights and Equal Opportunity Commission Act 1986, and reg 4 of the Human Rights and Equal Opportunity Commission Regulations. The Tribunal said that, while not preventing the Director General from cancelling an authority having regard to a criminal record, those provisions reinforce the fact that a person's authority should not be refused or cancelled solely because of a person's criminal convictions without any proper consideration of whether those convictions prevent the Director General from asserting that the person is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. 32 A criminal history is not itself a bar to a good reputation, but the answer to Mr Z's question 'how long is long enough?' can only be answered, in this matter, by other evidence as to his reputation. He is of good repute when he is of good repute – it is those whose opinion gives him his reputation who will decide when it has been long enough. Mr Z's criminal history, particularly the 1980 and 1988 matters, might in the minds of those who know him or deal with him, raise doubts about his reputation. Evidence of reputation 33 In the proceedings giving rise to the first decision, Mr Z presented no evidence of good reputation. The Appeal Panel in the second appeal decision explicitly remitted the matter of re-hearing to give Mr Z an opportunity to address his character and reputation. 34 Mr Z tendered a letter from his father-in-law, dated 24 July 2001. The letter refers to his having first met Mr Z in 1992. The letter states: [Z] volunteered information concerning his past including his criminal records. We understand that he was determined to avoid at all costs further acts likely to add to his record. In the ensuing years [Z] has not done anything to my knowledge to show that he has changed his mind in this matter. Z has shown a responsible attitude towards our grandson ––––––––'s upbringing and I believe will continue to maintain an understanding and blameless attitude in the future. 35 Mr Z's father-in-law is representative to a degree of the general public, and the nature of his relationship to Mr Z is such that he might be expected to be particularly demanding in his expectations of Mr Z. It is clear from his letter that he holds Mr Z in good esteem. 36 Mr Z tendered a letter from a professional coach captain and certified workplace trainer and assessor, H. It is undated, but I infer from its content and the bundle of dated documents of which it forms a part that it was written in or about July 2001. It does not specify the relationship between Mr Z and H but again I infer from its content and the other documents in the bundle that H was a co-worker of Mr Z. The letter says that H has known Mr Z for approximately 3 years. Relevantly to my assessment of Mr Z's reputation, the letter states: I have found [Z] to be of excellent character . . . [he] has always been . . . trustworthy At one stage I learned about his criminal history, and that overshadowed my trust in, and opinion of him to a degree. However never at any time did it influence his capabilities and standard of conduct as a Coach Captain. I state without any reservations, that [Z] is, in my opinion . . . a fit and proper person to hold any kind of driver's authority, because of his excellent character and professional conduct as a Coach Captain. 37 Mr Z tendered a letter from another professional coach captain, M, dated 9 August 2001. M was a co-worker of Mr Z. The letter states that M has known Mr Z for about 10 months. Relevantly to my assessment of Mr Z's reputation, the letter states: I was made aware of his criminal convictions before I actually met him. At first I was unsure of him, because of what I was told . . . In my opinion [Z] . . . is a very good coach captain with a professional attitude at all times . . . I would have no hesitation in working with him again. 38 M gave evidence before me. He acknowledged that the extent of his knowledge of Mr Z's criminal history was awareness that Mr Z had one, and not knowledge of its contents. His awareness had come from a newspaper clipping which he had been shown. He said that he hadn't read the clipping but from being shown it he knew that Mr Z had a criminal history. I note that the clipping, exhibit 13, has a large heading, in letters a centimetre and more high, which says 'Rapist's licence revoked'. The clipping appears to be a report of the first decision, and so would have been published on or about 4 November 2000. In cross-examination M agreed that he doesn't know the details of Mr Z's criminal history, and doesn't really care. 39 Mr Z tendered a letter from another co-worker, R, dated 13 July 2001. The letter states that R has known Mr Z for about 10 months. Relevantly to my assessment of Mr Z's reputation, the letter states: I am also aware of his criminal record . . . I consider [Z] to be a good operator of coaches and especially good with passengers and other members of the public . . . I would have no hesitation in recommending [Z] for any position involving driving or the operation of any coach service. 40 Another of Mr Z's co-worker's, B, gave evidence. He agreed that he knew of Mr Z's criminal record, and said that he had no problem with Mr Z as a driver and would work with him again. In cross-examination B agreed that Mr Z denied that he was guilty of the sexual assaults reported in the newspaper clipping. 41 These witnesses' references to their knowledge of Mr Z's criminal history are not precise, and I do not know the extent to which they are aware of its detail. In M's case he knows it only very generally. Nevertheless, even a glance at the newspaper is enough to characterise Mr Z as a 'rapist'. The witnesses' positive view of Mr Z's character, despite this knowledge, attests to his good repute, at least among these witnesses who work with him and with whom he associates in his occupation. 42 The Director General cross-examined the two witnesses called by Mr Z, but did not call the other character referees for cross-examination, and did not call witnesses of his own. As Mr Z has invited me to assess his reputation among those with whom he works, I must comment on the material before me which refers to people with whom Mr Z works other than those whose evidence he relies on. 43 I am aware from the proceedings in Parramatta Local Court that there may be people who work with Mr Z, and with whom he associates in his occupation, who do not hold the same positive view of Mr Z's character. This possibility is merely an inference on my part from the facts of the Local Court proceedings, which I describe in more detail in paragraphs 100-107 below, and from the Magistrate's comments. 44 The facts and findings of the Local Court proceedings raised a question about Mr Z's honesty. People with whom Mr Z associates in his occupation clearly had reason to believe that Mr Z was not, in those particular circumstances, being honest with them. It appears as well that they have become aware, at some stage and to some extent, of Mr Z's criminal history, through the newspaper clipping if not otherwise. 45 Those people were not called to give evidence before me. Nothing in their evidence to the Magistrate was directed towards an assessment of Mr Z's character. I do not know and cannot from any of the material before me reasonably infer what any of them would say if asked their opinion of Mr Z's character. It is possible that despite their dealings with Mr Z giving rise to the Local Court proceedings they regard him as being of good character. I don't know, and I have no relevant evidence before me . 46 Mr Z's wife gave evidence. Her evidence was unchallenged. She said that she has known Mr Z since his release from gaol. He took her to Police headquarters to show her his criminal record. Mr Z has not been violent towards her, or touched her inappropriately. He doesn't drink. She said that Mr Z looks after his passengers well, respects them and is well regarded by them. He has driven for government officials, and received an invitation from an international traveller to drive in Singapore. In cross-examination Mr Z's wife agreed that Mr Z denies his guilt for the 1980 and 1988 matters. 47 Mr Z's wife's son gave evidence. When asked Z how he sees Mr Z the witness said that he sees Mr Z as a father figure. He agrees that Mr Z has not been violent and does not drink. He says that from being on coaches with Mr Z he is aware that Mr Z gets on well with passengers. In cross-examination the son identified the significant offences in Mr Z's criminal history, saying that Mr Z had told him this history. The son agreed that Mr Z denies his guilt for the 1980 and 1988 matters. 48 Less weight attaches to the evidence of Mr Z's wife and her son, both because of their personal relationship with Mr Z and because of the limited extent to which they represent "those who live in the neighbourhood of his residence, those who work with him or those with whom he associates in his occupation" (Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 per Waddell J at 393). I do not discount it entirely however, particularly because of their long association with him, in full knowledge of his history. 49 There is evidence from his wife, her son, and R, that the travelling public hold Mr Z in some esteem. I assume however that the views of the travelling public known to these witnesses were held or expressed in ignorance of Mr Z's criminal history, and I can give the evidence every little weight. 50 It is notable in light of the nature of the 1980 and 1988 matters that there is no evidence of Mr Z's reputation in the minds of women, other than his wife. It may be that women would be less forgiving of Mr Z's criminal history than are the men who gave evidence before me. This is not however a matter on which I can speculate, or which I can properly assume to be so for purposes of taking into it account. I would require some evidence, of an expert nature or specific to the facts. 51 Mr Z's is not an unblemished character and, as the Tribunal said of the applicant in Brown v Director General, Department of Transport [2000] NSWADT 153 at paragraph 22: "his reputation in the community is less than perfect". The witness H perhaps encapsulated the balance when he was able to say in the one letter, quite plausibly in my view: "I have found [Z] to be of excellent character . . . At one stage I learned about his criminal history, and that overshadowed my trust in, and opinion of him to a degree". 52 On balance, the evidence satisfies me of Mr Z's good repute, at least among those he works with and with whom he associates in his occupation. Fit and proper 53 An assessment of whether a person is 'fit and proper' involves different considerations from those relevant to 'good repute' (Singh v Director General, Department of Transport [1999] NSWADT 96 at paragraphs 25 to 28; Farquharson v Director General, Department of Transport [1999] NSWADT 53 at paragraph 27). Even though Mr Z is of good repute, he may not be a fit and proper person for the particular purpose of driving a public passenger vehicle. 54 The Tribunal is usually guided by the following authority: 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 (per Mason CJ in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at para 63). 55 From the same authority, per Toohey and Gaudron JJ para 56, it is clear that the question to be asked is whether a person is fit and proper "to undertake the activities in question". Those activities are driving long distance and tourist coaches, driving route buses and driving private hire cars. 56 Considerations generally in relation to fitness and propriety have been set out by the Tribunal in, among other decisions, Saadieh v Director General, Department of Transport [1999] NSWADT 68 at paragraph 17. 57 In this matter there are three principal concerns regarding Mr Z's fitness and propriety as a driver of a public passenger vehicle. The first is the possibility of his re-offending in the nature of the 1980 and 1988 offences. That issue arises because of the very serious nature of the 1980 and 1988 matters, and the PT Act's objective of meeting community expectations for safe passenger transport services. The second concern is his traffic record, and the third is his recent conviction under the PT Act. Likelihood of re-offending 58 How can one be confident that a person will not re-offend? In Saadieh at paragraph 18 the Tribunal identified several relevant considerations for assessing the likelihood that a person will re-offend: 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. 59 On the question of the length of time since the offence was committed, ten years is often seen as an apt period, at least for serious offences such as Mr Z's. I note a few of many examples. 60 The Criminal Records Act 1991 (NSW) sets 10 years as a point after which a person can put a criminal history behind them, ie a criminal history can be 'spent'. Under the Passenger Transport Act the Director General asks applicants for passenger transport authorities to volunteer criminal convictions only in the past 10 years, although that may be the Director General's deference to the provisions of the Criminal Records Act. Under the Medical Practice Act 1992 there is a presumption that a person who has been convicted of certain offences on 2 or more occasions in any period of 10 years is not a fit and proper person. Under the Firearms Act a licence cannot be issued to a person who has, within the period of 10 years before a licence application, been convicted of a prescribed offence. Similarly, a licence cannot be issued to a person who has, within the period of 10 years before a licence application, been subject to a apprehended violence order. 61 On some occasions a criminal history will always be relevant. The benefit of the Criminal Records Act does not extend to "sexual offences", which includes Mr Z's 1980 and 1988 matters, and those matters can never be spent. Similarly, for purposes of applications under the Totalizator Act 1997 and the Casino Control Act 1992, no convictions are ever 'spent'. Under the Osteopaths Act 2001 and the Chiropractors Act 2001 a person may be refused registration if they have been convicted of an offence at any time. The Child Protection (Prohibited Employment) Act 1998 characterises a person as a prohibited person on the basis of a conviction for a serious sex offence whenever it occurred. 62 In Brown v Director General, Department of Transport [2000] NSWADT 153 the Tribunal considered that 12 months was a sufficient time for a person with a long criminal record, but only because account was taken of the person's conduct in that time: Although it is only 12 months since he was convicted of malicious damage to property, since that time he has conducted himself in a way which demonstrates his commitment to a responsible lifestyle and to providing for his son. 63 In Lloyd v Director General, Department of Transport [2001] NSWADT 201 the Tribunal considered that the time must be measured at least against the balance of time still to run on a bond imposed as a penalty for a criminal offence: in the absence of independent evidence on the issue of the likelihood of Mr Lloyd re-offending, further time needs to elapse before the community can be confident that Mr Lloyd has undergone genuine rehabilitation. 64 In Mr Z's matter, just such independent evidence is available in the form of Mr Milenkovic's report. The passage of time as a factor is incorporated into that independent assessment, but Mr Z's intervening conduct remains a factor for the Tribunal to consider. Likelihood of re-offending: empirical evidence 65 Mr Milenkovic is a clinical psychologist employed by Forensic Psychology Services in Sydney. He described the basis of his specialised knowledge in the proceedings that gave rise to the first decision, and I do not repeat it here. The reliability of his evidence was not challenged then, or before me, by the parties. I am satisfied that he does in fact have specialised knowledge in a recognised area of scientific study, and that his opinion is substantially based on relevant study and training, and considerable relevant experience. In his evidence Mr Milenkovic said that, for purposes of administering the forensic tool known as Static-99, he had available to him all the material he needed. That was not contested. 66 When giving evidence before me Mr Milenkovic adopted all that he had said and was recorded on the transcript in the hearing that gave rise to the first decision. Mr Milenkovic was cross-examined by Mr Z, and I asked questions, after which the parties had the opportunity to re-examine. 67 Mr Milenkovic's opinion is in a letter to the Tribunal dated 2 June 2000. He wrote: Research in the area of sexual offenders consistently identifies a number of static (ie historical) factors that are robust predictors of sexual recidivism. The most commonly used scale for assessment of risk in this areas, the Static-99, was derived from these empirical findings. 68 Static-99 is described in the Static-99 article which is part of exhibit 3. The status of Static-99 is described in the conclusion to the article, at page 19: The present study is part of growing body of research supporting empirically based risk prediction for sexual offenders. No risk prediction scheme will be entirely accurate, and the measures described in the current article are far from perfect. Nevertheless, the current results are a serious challenge to sceptics who claim that sexual recidivism cannot be predicted with sufficient accuracy to be worthy of consideration in applied contexts. The value of unstructured clinical opinion can be questioned, but there is sufficient evidence to indicate that empirically based risk assessments can meaningfully predict the risk for sexual offence recidivism. It is up to future researchers and clinicians to build upon the foundations that have been already established. 69 The empirical research which supports Static-99 gave rise to the following table of risk of recidivism (Table 5): Recidivism rates for Static-99 risk levels . Static-99 score Sample size Sexual recidivism Violent recidivism - - 5 years 10 years15 years5 years10 years15 years 0 107 (10%) .05 .11.13.06.12.15 1 150 (14%) .06 .07.07.11.17.18 2 204 (19%) .09 .13.16.17.25.30 3 206 (19%) .12 .14.19.22.27.34 4 190 (18%) .26 .31.36.36.44.52 5 100 ( 9%) .33 .38.40.42.48.52 6 + 129 (12%) .39 .45.52.44.51.59 .22 Average .26 3.2 1086 (100%) .18 .25 .32 .37 70 The limitations of the Static-99 risk tables are described at page 17 (references omitted): Static-99 . . . includes only static variables, and . . . is this year's version of a work in progress. It is likely that actuarial risk scales can improve upon Static-99 by including dynamic (changeable) risk factors as well as additional static variables. The variables in Table 1 are grouped according to five dimensions that are plausibly related to the risk of sexual offence recidivism: sexual deviance, range of available victims, persistence (lack of deterrence or "habit strength"), antisociality, and age (young). The variables chosen to mark these dimensions were those conveniently available in the existing data sets. Deliberate efforts to create variables targeting these risk dimensions has the promise of substantially improving the prediction of sex offence recidivism. Additional variables could include, for example, repetitive victim choice (same age and sex) as a marker for sexual deviance or early onset of sex offending as a marker of "persistence". The inclusion of dynamic factors would likely increase the scale's predictive accuracy. Among non-sexual criminals, dynamic variables predict recidivism as well or better than static variables. The research on dynamic factors related to sexual offending is not well developed, but some plausible dynamic risk factors include intimacy deficits, sexualisation of negative affect, attitudes tolerant of sexual assault, emotional identification with children, treatment failure, and non-cooperation with supervision. 71 Nevertheless, the article says at pages 16-17 (reference omitted): Static-99 is clearly more accurate (r = .33) than unstructured clinical judgement (average r = .10). 72 Commenting on the application of the risk table to actual circumstances, the article says, at page 16: If a risk scale is to be used in applied contexts, then it is important to considered whether the degree of predictive accuracy is sufficient to inform rather than mislead . . . applied risk decisions typically hinge on whether offenders surpass a specified probability of recidivism (e.g., more than 50%). . . . Static-99 identified a substantial subsample of offenders (approximately 12%) whose observed sex offence recidivism rate was greater than 50%. At the other end, the scale identified another subsample whose observed recidivism rates was only 10% after 15 years. Differences of this magnitude should be of interest to many applied decision-makers. 73 In summary, the utility of Static-99 is described at page 18: Use of Static-99 in sex offender risk assessments. The Static-99 is intended to be a measure of long-term risk potential. Given its lack of dynamic factors, it cannot be used to select treatment targets, measure change, evaluated whether offenders have benefited from treatment, or predict when (or under what circumstances) sex offenders are likely to recidivate. . . . Static-99 does not claim to be comprehensive, for it neglects whole categories of potentially relevant variables (e.g., dynamic factors). As well, prudent evaluators would want to consider whether there are special features of individual cases that limit the applicability of actuarial risk scales (e.g., a debilitating disease or stated intentions to reoffend). 74 What Mr Milenkovic did was to read the SOTAP report (see paragraph 23 above) and then codify various aspects of Mr Z's history so as to arrive at a score. That score determines Mr Z's risk category in Table 5 of Static-99. Mr Milenkovic wrote in his report to the Tribunal: Based on the information on the records you provided, [Mr Z] scores within the lower end of the high risk category in the Static-99. The score reflects his history of convictions for common offences; sex crimes; non-sexual violence; and the fact that one of his victims was a stranger. The score can be interpreted by referring to the fact that in the sex offender sample used in the validation of the scales the 12% of offenders who scored within this category had a sexual re-conviction rate of 45% in the first 10 years post release . Within a 15 year period the re-conviction rate of this sample group rose to 52%. 75 In evidence Mr Milenkovic was asked to explain his statement that "12% of offenders who scored within this [high risk] category had a sexual re-conviction rate of 45% in the first 10 years post release". He said that of the whole sample of 1086 offenders, 12% scored more than 6 points on the Static-99, putting them in the high risk category. He said that of this 12%, 45% re-offend within 10 years. In numerical terms I understand this to mean that of the sample of 1086 people, 129 people scored more than 6 points. Of these, 58 people re-offend within 10 years 76 Mr Milenkovic's evidence was that Mr Z scored 7 points, which Mr Milenkovic described in his report as "within the lower end of the high risk category". It seems however that no weight can be put on the extent to which a score is over 6: Mr Milenkovic's evidence was that while there are "confidence intervals" in, say, the medium-high category (4.5 – 5.9 points), there are no such intervals above 6 points. 77 Static-99 is not predictive of Mr Z's actual risk of re-offending. Such a predictor seems, from the Static-99 article, to be the object of a great and complex quest, in which Static-99 is but a stage. The score of '7 points' and the resulting allocation of 'high risk' as a measure of the likelihood of re-offending, does not predict the likelihood of Mr Z re-offending. It is an actuarial measure of trends within a cohort. 78 Mr Milenkovic was asked in evidence whether he could say which particular sex offender would re-offend. He said no, Static-99 cannot identify which individuals would re-offend. Similarly, he was asked if he could say whether Mr Z would re-offend. Consistently with his earlier answer, he said 'no'. He was asked if the travelling public at large would be in danger from Mr Z if he was to drive them, to which Mr Milenkovic replied that the answer to that is beyond what he knows from Static-99, and that he would need information regarding dynamic factors relating to Mr Z's ongoing functioning and current psychological state. 79 A prediction of the likelihood that Mr Z will re-offend would have to take account of 'dynamic' factors. That is, there would need to be a clinical assessment of Mr Z to build on the actuarial base. This would include an interview, an assessment of Mr Z's current psychology and circumstances, and factoring in the type of variables described in the Static-99 article – see paragraph 70 above. 80 The full relevance of Mr Milenkovic's evidence comes down to this: the Static-99 measure indicates that Mr Z is in a group for which the risk of re-offending is 45%. This is highly relevant to my assessment of whether Mr Z is a fit and proper person to drive public passenger vehicles. Likelihood of re-offending: other evidence 81 I note the following passage from the Static-99 article, omitting references, which lists "some plausible dynamic risk factors": intimacy deficits, sexualisation of negative affect, attitudes tolerant of sexual assault, emotional identification with children, treatment failure, and non-cooperation with supervision. 82 I have no material before me that relates to any of these factors, except perhaps for the last. It might be present in Mr Z's history and circumstances in as much as Mr Z continues to deny the offences, and on that basis was refused treatment by SOPTAP in 1991. This was not however a matter explored with Mr Milenkovic in his evidence or addressed by him in his report. 83 In general terms however I am aware of Mr Z's activities and conduct in the nine years from his release until the hearing. He has committed no further criminal offences, although he has a traffic record and a recent conviction for an offence under the PT Act to which I will return later. 84 Mr Z is in a long-term stable domestic relationship, in which he has the trust and support of his wife, her father and her son. He is effectively a father to his wife's son. He admitted having drunk heavily previously, during the period of his criminal history, but since being imprisoned for the 1988 matter he drinks rarely and in moderation. 85 At the date of hearing it was 15 years since the occurrence of the 1988 offence; it has not been disputed that for the seven years Mr Z was in gaol he was a hard working, well behaved prisoner. Mr Z has worked conscientiously in employment since his release from gaol. He ran a coach company with his wife in another state. He is clearly keen to continue to work: he says that that is all he does. 86 Mr Z's work has involved driving coaches, and there have been no complaints about his driving or his conduct towards passengers. It seems that his conduct is well regarded by passengers. He is well thought of by those he works with: they commented in their written references variously that he is "punctual", "trustworthy", "a Coach Captain . . . of the highest standard", "quiet", pleasant", "with a professional attitude at all times", "a good [coach] operator", "good with passengers and other members of the public", one who takes "pride in the appearance of both the vehicle and himself", and "a fit and proper person to hold any kind of driver's authority". 87 These considerations all support a judgment that Mr Z is likely not to re-offend, and are consistent with his being in a group for which the risk of re-offending is less than 50%. 88 As he does not acknowledge his guilt, Mr Z does not show remorse for the conduct of which he was convicted. Although the Tribunal in Saadieh identified this a factor to take into account in assessing the likelihood of re-offending, the simple presence or absence of remorse is not, of itself, always a sufficient guide. In my view Mr Z's situation could be described in terms similar to those in Armani -v- Director General, Department of Transport [1999] NSWADT 20 at paragraph 37: I accept that the applicant is keen to make a new start and is embarrassed by his criminal record. When he wrote the show cause letter in March 1996 in relation to his January application he said that he was not proud of his record and wanted to leave it behind. Indeed he has not been charged with any further offences since February 1996, so he has demonstrated his sincerity on that count over the last three years. While the applicant did not show strong feelings of guilt or remorse I accept that he fully understands the consequences of any further convictions and is determined not to re-offend. 89 The same can be said for Mr Z, except that the period is nine years not three, and he shows no feeling of guilt or remorse. The absence of remorse follows not from any callousness, or pleasure taken in the criminal conduct, but from denial that the conduct occurred. Absence of remorse in these circumstances is explicable. In any event, it is not to be looked at in isolation without regard to other considerations. 90 Mr Z's denial of guilt is itself a factor in assessing the likelihood of his re-offending. The Director General's questioning of the character witnesses was directed principally to the fact that Mr Z continues to deny his guilt in relation to the 1980 and 1988 matters. 91 Mr Z's continued denial of the offences is relevant in this way: his failure to be honest about what happened in relation to the offences raises a question about his honesty generally. I return to this issue below. Requirements of the position 92 The High Court's direction that the judgment of 'fit and proper' must be made having regard to "the activities in question" is reflected by Mr Milenkovic in his report when he says: In [Mr Z]'s case, the importance and relevance of these risk levels is related to the specific requirements of the position he has applied for and the opportunities it affords to have unsupervised access to potential victims. This is a decision for the tribunal. 93 The activities in question are the driving of long distance and tourist coaches, route buses, and private hire cars. Mr Z's principal experience is in driving long distance and tourist buses, and not public buses or hire cars. All the evidence he relies on relates to his driving of long distance coaches. 94 My understanding of the circumstances of driving long distance and tourist coaches is that Mr Z would at all times be with groups of people, and on occasions with a co-driver. Mr Z would not, as a driver of a long distance and tourist coach, be in close quarters or private places with individuals. The nature of the work is that it provides few if any opportunities for Mr Z to have "unsupervised access to potential victims". 95 I cannot say the same with confidence about his driving of public route buses and private hire cars. It seems to me that those activities might well give rise to opportunities for Mr Z to have "unsupervised access to potential victims". Traffic history 96 A further aspect of Mr Z's conduct since his release for the last of his offences, and of direct relevance to the activity for which he would be authorised, is his traffic history. 97 Since his release from gaol in 1992 Mr Z has been convicted of the traffic offences set out in paragraph 26 above. No traffic offences can be ignored, and a traffic offence must not be tolerated as a normal incidence of driving. In my view however the nature and frequency of Mr Z's traffic offences are, except for two, unremarkable for purposes of my judgment as to 'fit and proper'. The Director General issued Mr Z with an authority despite his traffic history, did not cancel Mr Z's authority because of that history, and did not before me press the traffic history as a reason for my affirming the decision to cancel his licence. 98 Two of the traffic offences may reflect adversely to a degree on Mr Z's honesty. In 1996 Mr Z was convicted of driving while suspended, and in 1999 he was convicted of knowingly giving false information. In his evidence in the proceedings giving rise to the first decision, Mr Z explained the first of these as resulting from a phenomenon in the State where it occurred, in which many drivers had their licences suspended without notice on the introduction of a new fines regime. I accept that the offence does not reflect adversely on Mr Z's honesty. 99 In his evidence in the proceedings giving rise to the first decision, Mr Z explained the second of these offences as resulting from his having given an address where he could be contacted when he moved out of the State. The explanation is not clear or detailed, and on its face does not mitigate at all the apparent seriousness of the offence. Thus the offence of knowingly giving false information does in my view stand as an adverse reflection on Mr Z's honesty. Offences against the Passenger Transport Act 100 The final aspect of Mr Z's conduct since his release from gaol, which is also of direct relevance to the activity for which he would be authorised, is his conviction in 2001 for an offence under the PT Act. 101 Mr Z was convicted on 16 counts of driving a public passenger vehicle without an authority. The reason he had no authority was that it had been cancelled by the Director General's decision of 16 March 2000 which is the subject of these proceedings. Mr Z lodged an application for internal review of the decision on 21 March 2000, and an application to this Tribunal on 18 April 2000. The cancellation of his authorities has been fairly consistently under review since 21 March 2000, through internal review, a Tribunal hearing, a reserved decision, an appeal hearing, a further reserved decision, a further appeal hearing, a re-hearing, and a further reserved decision. 102 In the Local Court on 26 July 2001 Mr Z admitted to driving on the alleged occasions and to not holding an appropriate authority. This was taken by the Magistrate as an admission of guilt. Mr Z was concerned to explain the circumstances of his conduct, and the Magistrate heard extensive evidence, led by the informant and from Mr Z, on the question of penalty. 103 Of the many witnesses and the 63 pages of transcript, I refer only to the following aspects of the Local Court hearing, by way of illustrating findings the Magistrate made which are relevant to my assessment of 'fit and proper' in this matter. 104 Mr Z's case in mitigation before the Magistrate was that he had been advised by J, a director of his then employer, a coach company, that he was able to drive coaches without an authority because he was not collecting fares. J was, or at least Mr Z believed him to be, a solicitor. On that advice, Mr Z says, he drove coaches for that company without an authority, but in the belief that he could do so. A statement by J is exhibit 14 in this matter, and in that statement he denies ever having given Mr Z such advice. J repeated that denial before the Magistrate and maintained it under cross-examination from Mr Z. 105 The Magistrate heard evidence from a witness C who gave an account of having seen Mr Z wearing his driver's uniform at a time when Mr Z's authority had been cancelled. C's evidence was that when asked if he was driving, Mr Z had said that he was working as a yardman. Mr Z's evidence to the Magistrate was only that he could not recall what he had said in the conversation. The Magistrate accepted C's evidence and found that Mr Z's statement to C that he was working as a yardman was inconsistent with his holding the honest belief that he was entitled to drive. 106 The Magistrate heard evidence from another director of the coach company who said that Mr Z had telephoned him to enjoin him to say that Mr Z was in fact working as a yardman. In his evidence to the Magistrate Mr Z denied the conversation. 107 The Magistrate found, on the balance of probabilities, that Mr Z knew at the times he drove without an authority that he was not permitted to do so. The Magistrate made no explicit findings as to Mr Z's credit, saying only "I have made some findings which do not accord with [Mr Z's] position in relation to these matters, they are in fact finings of fact against [him]". 108 Mr Z did not seek to re-litigate before me his claim that he had an honest belief that he could drive at the relevant times, although I had made directions before the hearing in which I indicated that he was entitled to do so if he wished (cf Re Saffron and the Commissioner of Taxation (1991) 102 ALR 19; Re Ridley and Secretary, DSS (1993) 113 ALR 655; Re Secretary, DSS and Mariot (1993) ALD 677). 109 Rather, in his submissions Mr Z asked me to come to a different view from that of the Magistrate on my reading of the transcript, and in particular asked me to agree with him that the only explanation for his having dealings with J at all was that Mr Z had received from him the advice he claims to have received. 110 While I am of the view that I am able, for purposes of these proceedings, to come to a different view of the evidence from that of the Magistrate, I decline to do so. The findings of the Magistrate were clearly based on her assessment of the credibility of the witnesses, and I do not have that advantage. In any event I do not accept Mr Z's submission to me that his interpretation is necessarily to be preferred on the evidence. 111 The finding of the Magistrate that Mr Z knew at the times he drove without an authority that he was not permitted to do so, is a finding which I into take account when assessing whether Mr Z is a fit and proper person to drive a public passenger vehicle. As the Director General has submitted, the offences occurred in the course of the activity for which Mr Z seeks an authority, and are the more serious for that. Assessment of 'fit and proper' 112 In making my assessment of whether Mr Z is a fit and proper person to be the driver of a public passenger vehicle, I have taken account of all the available relevant material and law, and have had regard to the factors set out in Saadieh v Director General, Department of Transport [1999] NSWADT 68 at paragraph 17. 113 In particular I have taken account of the likelihood of his re-offending in the manner of the 1980 and 1988 matters. I have done so having regard to the Static-99 assessment; Mr Milenkovic's evidence; Mr Z's denial of guilt; Mr Z's personal history and circumstances since his release from gaol; observations by coach drivers as to his fitness as a long distance and tourist coach driver; the relative requirements of the position for which he seeks the three different authorities; and the opportunities that those positions affords him to have unsupervised access to potential victims. 114 Further, I have taken account of his traffic history. I have done so having regard to the nature and the frequency of the offences, the reasons given by Mr Z to explain the circumstances of some of those offences, and the adverse reflection of one of the offences on Mr Z's honesty. 115 Further, I have taken account of Mr Z's recent offences under the PT Act. I have done so having regard to the Magistrate's finding that Mr Z knew at the times that he drove without an authority that he was not permitted to do so. I also have regard to the fact that apart from this set of offences, all arising out of the same circumstances and occurring around the same time, Mr Z has no record of breaching the requirements of an authorised driver of public passenger vehicles either in NSW or in other States where he has been so authorised. 116 Further, I have taken account of the fact that the issue of Mr Z's honesty has arisen more than once. It is raised by his denial of guilt for the 1980 and 1988 matters, by his having knowingly given false information, and by the Magistrate's finding of facts contrary to those alleged by Mr Z. 117 As to the last of these – the Magistrate's finding – Mr Z's apparently deliberate misrepresentation as to his status as an unauthorised driver is, to my mind, consistent with his very clear determination to work, and to not be prevented from working by his criminal history. It is apparent from the transcript of the proceedings which gave rise to the first decision, from the transcript of the Local Court proceedings, and from his submissions to me, that Mr Z is very frustrated, perhaps angered, by the effect on his life that his criminal history has had, at least in relation to his being able to drive with an authority. That frustration has no relevance to what the correct and preferable decision is as to the cancellation of his authority. It does however appear to me to offer some explanation for his wilfulness in taking the opportunities to drive after his authority was cancelled and while reviews, hearings and appeals were pending. 118 Further, I have taken account of what the reasonable member of the travelling public would expect. The Director General has put it that "the central issue . . . is the test of what the reasonable member of the travelling public would expect". That 'test' flows from the object of the PT Act to meet the reasonable expectations of the community for safe passenger transport services. To the extent that it informs the assessment of reputation, and of 'fit and proper', which are explicit criteria for an authority, I agree that what the reasonable member of the travelling public would expect is an essential guiding consideration. 119 Mr Z's criminal history is serious. I know the Director General's legal representative in these proceedings to be very experienced in such matters, and I have no reason to doubt his assertion that "in all the matters that the Tribunal has dealt with in relation to the Passenger Transport Act, these would be the most serious offences of which somebody has ever been convicted". At the same time, as the above reasoning is intended to show, there are many more factors than a criminal history to take account of in assessing a person's reputation and judging whether they are fit and proper to engage in a particular activity. 120 In the proceedings giving rise to the first decision, the Director General submitted that the reasonable member of the travelling public would not expect to be in the care, or have their children in the care, of Mr Z "knowing this type of record". That is an inadequate account of what must assessed as meeting, or not, the expectations of the reasonable member of the travelling public. It is not merely "this type of record", but the whole picture: his record, his subsequent conduct, an assessment of the likelihood of re-offending, appraisals by colleagues, and so on, which must meet expectations of the reasonable member of the travelling public. 121 On the issue of public safety, I note that Mr Z appears to be a prohibited person for purposes of s5 of the Child Protection (Prohibited Employment) Act 1998. This precludes him from child-related employment (ss 7 and 8 of that Act) even if he is the holder of driving authorities under the PT Act. 122 Taking account of all the available material I am satisfied, on balance, that Mr Z is a fit and proper person to be the driver of a public passenger vehicle authorised to drive long distance and tourist buses, but not authorised to drive route buses or private hire cars. Responsibility and aptitude 123 The only basis on which a question might arise as to Mr Z's being considered to have sufficient responsibility, within the meaning of s11(2)(b)(i), is his traffic history and the offences under the PT Act. For the same reasons as I set out above, and fortified by the references he has from co-workers in relation to his driving, I am satisfied that he can be considered to have sufficient responsibility within the meaning of s11(2)(b)(i). 124 The Director General does not dispute, and I see no basis for questioning, that Mr Z is considered to have sufficient aptitude within the meaning of s11(2)(b)(ii). Correct and preferable decision 125 The consequence of my findings is that the correct and preferable decision is that Mr Z continue to hold the authority to drive long distance and tourist buses which were issued to him, but that his authorities to drive route buses and private hire cars be cancelled. Non-disclosure order 126 I note that the Tribunal has made an order under s75(2) of the Administrative Decisions Tribunal Act, which remains in force, prohibiting the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the applicant Mr Z, and the doing of any other thing that identifies, or may lead to the identification of him. Orders (1) The decision of the Director General is set aside. (2) In substitution a decision is made that Mr Z's authorities to drive route buses and private hire cars are cancelled, but that his authority to drive long distance and tourist buses is not cancelled. (3) Pursuant to s88(1) there is no award of costs. 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.