Appeal Panel - Internal CITATION: Director-General, Ministry of Transport v FV (GD) [2008] NSWADTAP 60 APPELLANT PARTIES: Director-General, Ministry of Transport RESPONDENT FV FILE NUMBER: 089042 HEARING DATES: 8 September 2008 SUBMISSIONS CLOSED: 8 September 2008 DATE OF DECISION: 22 September 2008 BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Blake C - Non-Judicial Member CATCHWORDS: Appeal - Application for Taxi Driver Authority - 'Good Repute' Requirement - Effect of 'Prohibited Person' Status under Child Protection Law - Passenger Transport Act 1990, s 33 - Appeal dismissed DECISION UNDER APPEAL: FV v Ministry of Transport [2008] NSWADT 143 FILE NUMBER UNDER APPEAL: 063427 DATE OF DECISION UNDER APPEAL: 05/20/2008 Administrative Decisions Tribunal Act 1997 Child Protection (Prohibited Employment) Act 1998 LEGISLATION CITED : Commission for Children and Young People Act 1998 Crimes Act 1900 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 CASES CITED: Goody v Oldhams Press Ltd [1967] 1 QB 333 Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127 Lo v Director General, Department of Transport (GD) [2002] NSWADTAP 39 Re T and Another and the Director of Youth and Community Services [1980] 1 NSWLR 392 D Jordan, counsel / Smythe Wozniak Solicitors REPRESENTATION: J W Shaw QC, The People's Solicitors Pty Ltd ORDERS: Appeal dismissed REASONS FOR DECISION 1 The General Division has set aside a decision of the appellant, the Director-General, Ministry of Transport ('the administrator'). The administrator now appeals. 2 In issue is the administrator's decision to refuse the respondent's application made under the Passenger Transport Act 1990 (PT Act) for an authority to drive a taxi. The administrator was not satisfied that the applicant could 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': see PT Act, s 33(3)(a) and Passenger Transport Regulation 2007, cl 29(2)(e)(ii). 3 The respondent was born in 1952, and is now aged 56 years. At first instance the administrator referred to the respondent's criminal history, starting in 1969. The submissions emphasised two components. The first component is a sexual offence history belonging to the years 1975 to 1977 involving convictions in Victoria for a number of offences of indecent assault on a male under 16. The second component is a recent driving offence history belonging to the years 1997 to 2004. 4 The administrator submitted unsuccessfully that the applicant failed to satisfy the requirements of s 33(3)(a) because of that history. The history, it was said, did not permit a positive finding that he was of 'good repute' and, otherwise, a 'fit and proper person' to be a taxi driver. 5 Under the Administrative Decisions Tribunal Act 1997 (ADT Act), ss 112, 113 an appeal against a Tribunal decision in respect of a reviewable decision may be made as of right of a question of law, and, with leave, the appeal may be extended to the merits. While the notice of appeal was more broadly cast, at hearing the administrator amended the notice to confine the appeal to the following single ground: 'Was it open to the Tribunal to find that the respondent is a person of good repute, within the meaning of [the provisions already mentioned] in circumstances where he is a prohibited person pursuant to s 33B of the Commission for Children and Young People Act 1998 [CCYP Act]?' 6 On appeal the administrator has not questioned the following aspects of the Tribunal's reasons: that the driving offence history does not stand in the way of him being granted an authority, or that he presents no to a low risk of reoffending sexually. Risk of reoffence was the subject of two psychiatric reports. The administrator's expert classified the risk as 'low' (Dr Stephen H Allnutt, Forensic Psychiatrist) and the applicant's expert as 'no' risk (Dr George Jacobs, Clinical Psychiatrist). 7 The CCYP Act in Part 7 regulates the employment of persons with sexual offence histories in jobs that involve working with children and young people. The term 'prohibited person' is a definitional term used in that Act. Section 33B provides, relevantly: '(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,'. 8 Relevantly, a serious sex offence means … : '(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'. 9 A person who is a 'prohibited person' within the meaning of the Act may only undertake 'child-related employment' if he or she has been granted an exemption, by one of the following bodies – the Commissioner for Children and Young People, this Tribunal or the Industrial Relations Commission. 10 'Child-related employment' is the subject of an extensive definition setting out seventeen categories of work, and allowing for further categories to be added by the regulations made under the Act. The only category bearing on the driving of taxis is found in item (xii) of the definition, i.e. ' 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: … (xii) employment involving regular provision of taxi services for the transport of children with a disability.' 11 Some classes of 'prohibited persons' are not permitted to apply for an exemption: s 33G. At its hearing on 31 January 2008 the primary Tribunal was informed by counsel for the respondent that the respondent had not sought an exemption. This was because the offences with which he was convicted between 1975 and 1977 fell into one of the categories where the offender was barred from applying for an exemption. See s 33G(1)(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)'. The offences in this case fit ss 66C and 66D. 12 The administrator's primary argument is that it is sufficient, without more, to find that a person is not of 'good repute' if he or she is a 'prohibited person' within the meaning of the CCYP Act. On this ground alone, it is said, the administrator may refuse an application. 13 This Tribunal has accepted that the requirements of 'good repute' and 'fitness and propriety' go to different aspects of a person's attributes. 'Repute' denotes the estimation in which a person is held by those who know him, and the wider community. Whereas, the question of whether a person is 'fit and proper' to hold an authority raises the question of the person's intrinsic moral character. 14 It may turn out that a person is held in high esteem by the community but there are issues of intrinsic moral character, or underlying qualities of character, that disqualify the person from being granted a relevant licence or authority, especially when account is taken of the nature of the industry or occupation for which the authority or licence is sought. Equally a person may be held in low esteem, but be, in fact, a person of good intrinsic moral character. (As to the assessment of character, see Hughes & Vale Pty Ltd v New South Wales (No 2) (1955) 93 CLR 127, at [9] per Dixon CJ, McTiernan and Webb JJ and Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, at [13] per Mason CJ, and at [36] per Toohey and Gaudron JJ.) 15 We reiterate that in this case the findings of the Tribunal about the respondent's fitness and intrinsic moral character (see [42] and [43] of its reasons) are not put in issue by the administrator. 16 In this appeal the focus is entirely on whether the respondent passes the 'good repute' requirement. As compared to many professional accreditation and occupation licensing schemes which focus entirely on whether a person is of fit and proper character, the taxi-driver licensing scheme is unusual in that its primary emphasis is on 'good repute'. 17 The leading New South Wales decision on how the assessment of whether a licence applicant is of good repute is to be undertaken, and much cited in Tribunal decisions, is Re T and Another and the Director of Youth and Community Services [1980] 1 NSWLR 392 (Waddell J). 18 In that case Mr and Mrs T applied in 1979 under the relevant law to be included on the Adoption Register. They had experience since mid-1977 as foster-parents. Professional reports as to their suitability, and present fitness, based on their conduct as foster-parents were positive. The administrator refused their application on the ground that Mr T did not meet the statutory requirement of 'good repute' because of a conviction history that had commenced as a 14 year old in 1962 and ended in April 1977. There were children's court convictions in the years 1962-1964 followed by traffic offences in 1967-69, an indecent behaviour offence in 1973 and most importantly alcohol blood level traffic offences in 1969 and 1977. 19 We adopt the following summary of Waddell J's reasoning given by the Appeal Panel in Director General, Department of Transport v Z (No. 2) (GD) [2002] NSWADTAP 37 (Z No 2): '19 The Court said at 395: '.... A distinction must be drawn between 'repute' or 'reputation' and 'character' or 'disposition'. The word 'character' is sometimes used as meaning a person's reputation, but 'reputation' is not ordinarily used to mean character. ... [various authorities cited] ... In some cases, evidence of a person's reputation may be admissible as hearsay testimony relevant to his actual character. In other cases, the nature of a person's reputation is itself, as it is in this case and defamation cases, a question in issue. ... The distinction mentioned is, in my opinion, clearly preserved by [the relevant statutory provision] ... [T]he Court is concerned with two distinct matters, the reputation borne by the applicant or applicants, and his or their suitability to fulfil the responsibilities of a parent. To illustrate, an applicant might be a person of good repute but, unknown to those who hold such an opinion of them, have deficiencies in his moral character which would make him not a fit and proper person to fulfil the responsibilities of a parent. A person might not be of good repute, because of a widespread but mistaken belief that he was dishonest but, in fact, have all the personal qualities necessary to make him fit and proper to fulfil the responsibilities of a parent. In either case, the Court, if so satisfied, would be obliged to refuse an application by him for the adoption of a child.' 20 At 399 Waddell J said: 'This definition ['reputation', Shorter Oxford Dictionary , 1973, 1083] makes it clear, as is the law, that a person's reputation is to be found in the estimate of his moral character entertained by some specific group of people, such as by those who live in the neighbourhood of his residence, those who work with him, or those with whom he associates in his occupation or profession.' 21 At 401 his Honour referred to the way in which old convictions are dealt with in ascertaining reputation in defamation law, and cited with approval the dicta of Lord Denning MR in Goody v Oldhams Press Ltd [1967] 1QB 333, where he said: '[Previous convictions] stand in a class by themselves. They are the raw material upon which bad reputation is built up. They have taken place in open court. They are matters of public knowledge. They are accepted by people generally as giving the best guide to his reputation and standing. They must of course be relevant, in this sense, that they must be convictions in the relevant sector of his life and have taken place within a relevant period such as to affect his current reputation. ...' 22 In the case Waddell J ultimately concluded, on the basis of additional evidence placed before him that had not been available to the administrator, that the man's current reputation was, despite his earlier history, now a good one. The appeal was allowed.' 20 In Lo v Director General, Department of Transport (GD) [2002] NSWADTAP 39, the Appeal Panel summarised Re T, as follows: '18 In Re T the administrator's contention was that the applicant's record of convictions was so poor that on that basis he could not be said to be a person of 'good repute'. He might otherwise be a person of good character but given the record he was not a 'fit and proper person' to be entrusted with the adoption of children. Waddell J concluded that while the administrator had formed a reasonable conclusion on the basis of the material that had been before him, the Court had had the benefit of more extensive evidence as to the applicant's current reputation. The Court was satisfied on the basis of the additional evidence that the persons who knew T and with whom he worked now held him in good repute, and had formed that view reasonably having regard to the way in which T had gone about rehabilitating himself since his last convictions. ('The evidence is that, since then [his last conviction three years before], his drinking habits have changed; he has matured considerably, and that he has devoted himself to his family responsibilities as a foster parent': at 403.) Consequently the Court allowed the appeal against the administrator's decision.' 21 In the present case, the Tribunal took into account the various testimonials, already mentioned. They came from many people who knew the respondent, including a former local mayor, a solicitor, a barrister, a retired accountant and a minister of religion, which praised greatly the respondent, and spoke of his good family life and his involvement in community organisations. The testimonials did not refer to his criminal history. 22 The primary argument of the administrator in this case challenges the need to have any regard to the views of members of the community on the question of repute in a case of the present type. The submission is that a 'prohibited person' is a person who is statutorily presumed to be a person who poses a risk to the safety of children. Such a person, necessarily, is a person who can not be regarded as a person of good repute. The submission relies on s 33J(2): '(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.' 23 In our view, this approach is not consistent with the approach seen as appropriate by Waddell J in Re T. Clearly, Waddell J saw the question of the esteem, or reputation, in which a person is held in the eyes of the public as one capable of being answered by reference to the views held by those in the community or neighbourhood of the person. Therefore, it was permissible and appropriate to place before the decision-maker testimonials and references. In Re T that is precisely what the applicant father did. 24 In its submissions in this case the administrator places considerable emphasis on the passage, already quoted, from a judgment of Lord Denning in Goody v Oldhams Press Ltd, cited with approval at [30] by Waddell J, and set out at [21] of the Appeal Panel's reasons in Z No 2, already quoted. The submissions also referred to the following passage in the Appeal Panel's decision in Z No 2 at [33]: '[W]e accept that there may be extreme circumstances where the criminal record itself is sufficient to provide the entire basis for a conclusion as to reputation. Reputation for this purpose being an objective assessment of a person's reputation as it's likely to be regarded in the eyes of the community.' 25 This passage formed part of the Appeal Panel's oral reasons delivered at the close of hearing. They were incorporated verbatim into the final written reasons at [33] of those reasons. Further on in the written reasons at [37]-[38] the Appeal Panel elaborated on this point, and said: '37 Reliance on Criminal Record Alone: We accept that there may be extreme circumstances where the criminal record itself is sufficient to provide the entire basis for a conclusion as to a person's reputation in the eyes of the community. In this case the Tribunal saw itself as dealing with a situation where a long history of criminality culminating in crimes of great seriousness appeared to have ended. Since release from prison in 1995, Mr Z's offences have been, by comparison, relatively minor. There was evidence of a real attempt on his part to put his past behind him. It was open to the Tribunal to form the view that an axiomatic rule of the kind urged by the Director-General should not be applied. 38 Good Repute: The approach to be adopted in considering 'good repute' is well explained by Waddell J in Re T. The Appeal Panel also considers it in a forthcoming decision, Lo -v- Director-General, Department of Transport [2002] NSWADTAP 39. 'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation can not be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.' 26 In our view, the present submission of the administrator borders on the use of a stereotypical assumption and involves, once again, the proposition that an axiomatic rule may be applied. 27 Clearly the Parliament has gone to great care to delineate the circumstances in which persons with sexual offence histories shall be allowed to work in the vicinity of children. 28 The practical situation is that the respondent is prohibited from one class of child-related employment, that 'involving regular provision of taxi services for the transport of children with a disability'. It will be seen that he is not prohibited from transport involving children without a disability, and that he is not prohibited in respect of disability-related taxi services that are not of a degree of frequency to amount to 'regular provision' of those services. 29 We were informed at hearing that persons providing regular services of this kind must be trained in the task. It is, in effect, a specialised branch of taxi driving. We agree with the submissions on behalf of the respondent that the Parliament has not used the CCYP Act to place any similar restriction on the remainder of the taxi services supplied to the community. It is, of course, the duty of the respondent, if he becomes a taxi driver, to ensure that he does not infringe the category (xii) prohibition, as it is also of any person who employs him. 30 In our view, the administrator under the PT Act should approach the task of assessing this applicant's application on the basis that he or she is dealing with a category (xii) prohibited person, not a prohibited person in some wider, unqualified sense. 31 Similarly, the statutory presumption in s 33J(2) has to be read in context. While the respondent is presumed to be a 'risk to the safety of children' for the purpose of a review application, he, in fact, has no right within that scheme to rebut the presumption. It is plain from the psychiatric reports that had the scheme given him the chance he would, almost certainly, have been successful in rebutting the presumption. 32 In our view, he has done what he can in the context of the present application to deal with the issue to which that presumption is directed – the threat he poses to the safety of children and young people. We acknowledge that the issue of passenger safety is one fundamental to any conclusion to be formed by the administrator about whether an applicant is fit to drive a taxi. The respondent put on expert psychiatric evidence as to the present, actual risk, he presented. The administrator had him assessed by his psychiatrist. The reports were consistent in the conclusion that he did not present any appreciable present risk. 33 It would, we think, be quite unfair to have the question of 'repute' determined simply on the single point of criminal history in a case like the present where there was a range of material before the Tribunal on review, standing in the place of the administrator, that went to the public estimation of the individual. On the one side, we accept, there is a criminal history. On the other side, there is the testimonial evidence presented by friends and associates. In this instance the Tribunal also received evidence from FV and he was cross-examined. 34 The observations of Lord Denning, cited with approval in Re T, were looking at the 'admissibility' of criminal conviction history in defamation proceedings when assessing the nature of the plaintiff's reputation. The plaintiff had argued that the court should only have regard to general estimates of public standing given by witnesses. Lord Denning's reply was that the defendant could bring forward criminal history. His Lordship was not going so far as to suggest that criminal conviction history was to be viewed in isolation. 35 On the other hand, there may be cases where the only evidence going to reputation is a criminal conviction history. If it is conviction history of a relevant kind and of sufficient seriousness, it may well be determinative of that issue against an applicant for a licence or approval. 36 In the case of Z No 2, the Appeal Panel gave leave to extend to the merits and restored the administrator's decision cancelling Z's authority (long distance bus driver authority). It did so, we note, on grounds of present fitness and did not consider it necessary to examine as an independent issue the question of repute. 37 In the course of its discussion in that case, the Appeal Panel made the following observation at [55]: '55 Counsel for the Department submitted that the policy reflected in the recently enacted Child Protection (Prohibited Employment) Act 1998 [now replaced by the CCYP Act] was relevant. There the Parliament has established a scheme to prohibit persons with serious sexual offences from engaging in child-related employment. Bus driving is not covered by that legislation. We do not consider it necessary to express a final view on this submission on this occasion. Care must be shown, we consider, in cross-applying policies governing a different scheme of regulation.' 38 The submission in this appeal, in essence, is to 'cross-apply' the CCYP Act to a different scheme of regulation and apply an axiomatic rule. We would repeat the final sentence of the above paragraph. While here there is a reference in the CCYP Act (the successor to the legislation mentioned above) to 'taxi services', it is a very limited one. 39 In our view the primary argument of the administrator must be rejected. 40 The alternative argument of the administrator relates to the reliance placed on the testimonials and references by the Tribunal in reaching its conclusion. The administrator's submissions note that none of them showed any awareness of his 'status as a prohibited person'. 41 Clearly an important factor to be taken into account in giving weight to references is what the authors know of the negative history of the subject, especially criminal convictions. Where references do not show a knowledge of the negative history, they must be approached with caution. In our view, the Tribunal showed caution in this case. It said: '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 It will be seen that the Tribunal reached a decision on balance conscious of the gaps in the authors' knowledge. The Tribunal acknowledged that the references were of 'limited use'. 43 We note that the references in this case were otherwise very full ones as to the contemporary behaviour and conduct of the respondent, as experienced by the authors who came from a wide cross-section of the community. 44 The submissions challenge the statement that 'it is probable that most of the referees do not know of FV's offences'. It is said that the statement involves error because it implies that some of the referees were aware of the respondent's offences. We accept that the Tribunal expressed itself loosely. The position was that there was nothing in the references to indicate any author awareness of the history. 45 We agree with the comment made by the Appeal Panel in Z No 2 that: ''Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt.' 46 In our view, despite the absence of his past offence history, the Tribunal was entitled to accord some weight to what information was in the references. It then had to form its own judgment as to what reasonably-minded members of the community seized of the entire history would have seen the respondent's reputation to be. 47 These were very old sexual offence convictions and they had not resulted in custodial sentences. The dispositions were at the minor end of the penalty scale: 1975, indecent assault, male under 16 (four charges), buggery (2 charges), $500, good behaviour bond for 3 years; 1977, two indecent assaults, fine of $250 each. (The amounts of the fines need to be assessed against the value of money at that time, not today, of course. Nonetheless these were not particularly high fines.) 48 As we read the Tribunal's reasoning, it sought to put itself in the position of 'reasonably-minded people'. It used the references to fill in its understanding of how the respondent was seen by the people around him. Despite the looseness of its expression, the Tribunal acknowledged that there was nothing in the references to suggest any author awareness of the bad history. It then added its precise knowledge of the matters that put the respondent's reputation in doubt, and made what it regarded as the 'correct and preferable' decision in the circumstances, having regard to all relevant material (ADT Act, s 63). 49 While it is to be preferred that authors of references have the negative history before them, there are, we think, extenuating reasons in this case for that not having occurred. 50 The sexual offence history of concern to the administrator belongs to the period before the respondent was 25, the psychiatric reports refer to a childhood and youth that was marked by deeply troubled domestic and wider circumstances, neglect and removal into a youth welfare institution. The respondent, has sought, it would seem quite effectively, to put that past behind him. 51 The Parliament in 1998 used the description 'prohibited person' as a drafting convenience to apply to persons convicted of offences defined as 'serious sexual offences' for the purpose of imposing controls on who could engage in child-related employment. That description should not be used to make final judgements about applicants for taxi driver authorities without any regard to them as individuals. 52 In our view the Tribunal did not make any errors of law in the way it approached its task. Order Appeal dismissed. 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. 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