Carter -v- Director General, Department of Transport [2001] NSWADT 210

CITATION: Carter -v- Director General, Department of Transport [2001] NSWADT 210 DIVISION: General Division APPLICANT PARTIES: Aaron Richard Carter RESPONDENT Director General, Department of Transport FILE NUMBER: 013170 HEARING DATES: 28/09/2001 SUBMISSIONS CLOSED: 09/28/2001 DATE OF DECISION: 12/11/2001

BEFORE: Higgins S - Judicial Member APPLICATION: Bus driver - grant of authority - Long Distance Service driver - grant of authority - Passenger Transport Act - bus driver - grant of authority - Passenger Transport Act - long distance service driver - grant of authority - Passenger Transport Act - tourist service driver - grant of authority - Tourist Service driver - grant of authority MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Crimes Act 1900 Passenger Transport Act 1990 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 CASES CITED: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Z v Director General, Department of Transport [2000] NSWADT 87 Bedi v The Director General of Transport [1999] NSWADT 51 APPLICANT REPRESENTATION: In person RESPONDENT A Wozniak, solicitor ORDERS: The decision of the Director General, department of Transport to refuse Mr Carter's application for a driver's authority is affirmed.

Introduction 1 On 19 March 2001, Aaron Carter lodged an application with the Department for a driver's authority under s.12 of the Passenger Transport Act, 1990 ("the Act") to drive a regular passenger bus and long distance, tourist and charter buses. In that application Mr Carter gave a positive response to the question of whether he had been convicted of an offence. 2 On 20 April 2001 the Department wrote to Mr Carter advising him that the initial results from the Police Service indicated that his application would require a degree of consideration and requested Mr Carter to complete a bus authority application form and pay a fee of $40 if he wished to continue with his application. On 9 May 2001 Mr Carter forwarded to the Department a money order for $40 together with two completed application forms. 3 On 11 May 2001, the Department wrote to Mr Carter advising him that the Director General had decided to refuse his application for a public passenger authority. The basis of that refusal was Mr Carter's proven offences during 1999 and 2000. In the Statement of Reasons the delegate of the Director General stated "your proven offence record indicates you are not a person of good repute and in all respects a fit and proper person to drive a passenger vehicle. Therefore, I cannot attest that you are a fit and proper person to hold a public passenger authority in accordance with s.11(2), Passenger Transport Act, 1990. 4 On 28 May 2001, Mr Carter made an application for an internal review of the abovementioned decision. In support of his application for a review Mr Carter submitted several character references and submitted that his criminal record was limited to a very short period of time and arose from a domestic situation, "albeit not to my credit and do not portray a clear picture of my true character". 5 On 13 June 2001, the internal review affirmed the original decision. In affirming the original decision the Commissioner's delegate took into account the fact that Mr Carter had failed to provide any relevant additional information that supported his application and that the facts, evidence and material indicated that he was unable to satisfy the requirements of s.11 of the Act in that he could not be considered to be a person of "good repute" or a "fit and proper person to be the driver of a public passenger vehicle". 6 On 28 June 2002, Mr Carter lodged an application for review of the abovementioned decision. Jurisdiction 7 Under s.52(1) of the Passenger Transport Act, 1990 ("the Act") a person whose driver's authority application has been refused or whose accreditation or authority has been varied, suspended or cancelled, may apply to the Administrative Decisions Tribunal for a review of that decision. Section 63 of the Administrative Decisions Tribunal Act, 1993 ("ADT Act") sets out the Tribunal's power when reviewing a reviewable decision. That section states that: "(1) In determining an application for a review of a reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material before it, including following: (a) Any relevant factual material; (b) Any applicable written or unwritten law; (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant enactment on the administrator who made the decision; (3) In determining an application for the review of a reviewable decision, the Tribunal may decide: (a) to affirm the reviewable decision, or (b) to vary the reviewable decision, or (c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or (d) to set aside the reviewable decision and remit the matter for reconsideration by the Administrator in accordance with any directions or recommendations of the Tribunal". Legislation 8 Section 12 of the Act sets out the criteria and procedure for granting a driver's authority. Sub-section 12(1) states that "having regard to the purpose of an authority, the Director General may grant authorities to persons applying for them". 9 Sub-section 11(2) sets out the purpose of an authority in the following terms: "11(2) The purpose of an authority under this Division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle; and (b)that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates: (i) i n accordance with the conditions under which a public passenger service is operated; (ii)in accordance with the law and custom. (3) The regulations may create categories or grades of authority". 10 Section 4 of the Act sets out its objectives which include: "(e) To encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services". Issues 11 The issue in this case is whether, given Mr Carter's criminal history, it can be "attested" that he 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. Evidence 12 Mr Carter relied on his letter to the Tribunal, dated 29 June 2001, in which he set out the circumstances of his criminal record and other relevant material. He also tendered into evidence additional references, the writers of which all attested to Mr Carter's good character. However, only two of these referees made reference to the fact that they were aware of his prior convictions. One of these references is from a Dr Nino Sa Cordeiro of the Campbelltown Hospital, undated, and stating that the reference is written in support of his application to the Tribunal. In that reference, Dr Sa Cordeiro states: "I have known this pleasant young man for the past 2 years and believe that Mr Carter is a responsible and mature young man that has worked hard at making amends of his prior misadventures". 13 Mr Carter was also sworn as a witness. He was shown his letter to the Tribunal, dated 29 June 2001, and stated that the matters contained therein were true and correct. Mr Wozniak cross examined Mr Carter and in doing so put to Mr Carter documents which had been produced to the Tribunal pursuant to Summonses issued at the request of the Department. In compliance with the Summonses that had been issued and served, documents were produced by the Campbelltown Local Court, the Fairfield Local Court and the Burwood Local Court. Of these documents after they had been shown to Mr Carter, Mr Wozniak tendered the following documents into evidence: · Police Fact Sheet dated 4 February 1999 concerning an offence of possessing a prohibited drug. · The Police Fact Sheet dated 16 March 1999 concerning the unlawful possession of a prescribed restricted substance, use of offensive language, entering enclosed land without a lawful excuse and assault. · Police Fact Sheet dated 25 October 1999 concerning offences of larceny, obtain money by deception and attempting to obtain money by deception (three charges). · Letter dated 26 May 2000 from Mandy Woodbury, Clinical Nurse Specialist of the Macarthur Health Service, to the Magistrate of the Local Court stating that Mr Carter had been attending drug and alcohol counselling on a regular basis in an attempt to sort out his many life issues. It also states "He has at his volition given over supervised urine samples, all of which have shown methadone only. He is polite and courteous at all times". · Letter from Mandy Woodbury, Clinical Nurse Specialist of the Macarthur Health Service, to the Magistrate of the Campbelltown District Court providing an update on her report of 26 May 2000 for Mr Carter's appearance at Court on 20 July 2000. · Police Fact sheet dated 27 June 2000 concerning offences of shoplifting and goods in personal custody reasonably suspected of being stolen.