Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mroue v Department of Transport and Infrastructure [2012] NSWADT 43 Hearing dates: 21 December 2011 Decision date: 19 March 2012 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed Catchwords: Hire-Car driver authority, Operator Accreditation, fit and proper person, repute Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 Department of Transport and Infrastructure v Murray (GD) 2011 NSWADTAP 16 Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Murray v Department of Transport and Infrastructure [2010] NSWADT 295 Nasour v Director-General, Transport NSW[2011] NSWADT 91 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Category: Principal judgment Parties: Zahe Mroue (Applicant) Department of Transport and Infrastructure (Respondent) Representation: Hanna Legal (Applicant) Smythe Wozniak (Respondent) File Number(s): 113038 REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant held an authority, accreditation and licence to operate a hire car vehicle under the Passenger Transport Act 1990 ("the Act"). A delegate of the Director-General of the Department of Transport and Infrastructure ("the Department") determined to cancel each of those credentials. The Applicant has applied to the Tribunal for external review of the determination. He is not pursuing the matter insofar as it relates to his licence to operate a hire car vehicle. The driver authority and accreditation remain as the subjects of the present review. Background 2The chronology of events leading to the determination is not in dispute. 3The Applicant was first issued with an Authority under the Act in 2000. 4In March 2000 he pleaded guilty to an offence of obtaining money by deception and was fined $200 and ordered to pay Court costs. He also pleaded guilty to an offence of having goods in his personal custody, reasonably suspected of being stolen and was fined $150 and ordered to pay Court costs. 5In December 2007 the Applicant pleaded guilty to an offence of possessing a prohibited drug and was fined $400 and ordered to pay Court costs. He also pleaded guilty to an offence of possessing equipment for administering a prohibited drug and was fined $400 and ordered to pay Court costs. 6The Applicant concedes his drug use as a one-off incident. There is no suggestion that he continues to do so. 7In January 2008 the Applicant received a written request from the manager of the Respondent's Licensing and Accreditation division requesting the Applicant to undergo a drug-screening test. The Applicant underwent that screening in February 2008 and the test returned a negative result for all drug groups. 8In April 2008 the Applicant was convicted of an offence of common assault, and received a bond for a period of 12 months pursuant to section 9 of the Crimes (Sentencing Procedure) Act 1999. In June 2008 the Respondent issued the Applicant with a warning as a result of these convictions. 9In October 2008 the Applicant was issued with an infringement notice and fined $5,000 for the offence of touting and soliciting for passengers. 10In April 2009 the Applicant was involved in a protest carried out by hire car drivers in the Sydney Airport precinct. He received five separate infringements for various offences, with fines totalling $2,000. 11In May 2009 the Applicant was issued with an infringement notice and fined $750 for the offence of driver of private hire vehicle ply/stand/park vehicle for hire on road. The Applicant elected to have this matter heard before the Court and was found guilty. 12In summary, the Applicant's criminal history is as follows: * Convictions in 2000 for two offences of obtaining money by deception. * A conviction in December 2007 for possessing prohibited drugs and possession of equipment for administering prohibited drugs. * A conviction in April 2008 for a common assault charge. 13The Applicant was issued with the following infringement notices in the period between 3 October 2008 and 4 November 2010: * 3 October 2008 - Issued with an infringement notice for $5000.00 for the offence of Tout or Solicit passengers (Sydney Airport Precinct) * 3 April 2009 - Issued with a Parking Penalty Notice for $185.00 for the offence of Disobey Stopping Sign. * 3 April 2009 - Issued with an infringement notice for $750.00 for the offence of driver of private hire vehicle not obey direction from Authorised Officer (Sydney Airport Precinct) * 3 April 2009 - Issued with an infringement notice for $100.00 for the offence of Driver not behave in orderly/civil manner * 3 April 2009 - Issued with an infringement notice for $81.00 for the offence of Use of fog light when not permitted. * 3 April 2009 - Issued with an infringement notice for $1000.00 for the offence of Driver of private hire vehicle moves more than 3 metres from vehicle (Sydney Airport Precinct). * 7 May 2009 - Issued with an infringement notice for $750.00 for the offence of driver of private hire vehicle ply/stand/park vehicle for hire on road. * 4 November 2010 - charged with offences of tout/solicit, contravene condition of licence and ply/stand/park on road for hire. 14In August 2009 the Applicant was given a 'Show Cause Notice' with respect to his driver authority. The Authority was cancelled in September 2009, following a review of the Applicant's submissions. The Applicant sought review of the cancellation in the Tribunal. The matter came before Judicial Member Higgins in December 2009, at which point the Judicial Member affirmed the decision to cancel the Applicant's authority. 15In March 2010 the Applicant lodged a fresh application for a Hire Car Authority. That application for was approved in April 2010. In April 2010 he lodged an application for an authority to drive a bus or tourist vehicle. That application for was approved in May 2010. 16In November 2010, the Applicant was charged with three offences in contravention of the Act and the Passenger Transport Regulation 2007. The Applicant was convicted of these offences in the Parramatta Local Court on 15 December 2011. The Applicant appealed that decision in the District Court. At the time of hearing the appeal had not been determined however the Applicant's solicitors subsequently advised the Tribunal that the appeal had been withdrawn and dismissed. 17The Applicant's authority, accreditation and licence were cancelled on 9 February 2011. Applicable legislation 18Section 63 of the Administrative Decision Tribunal Act 1997 ("the ADT Act") provides that in determining an application for review the Tribunal is to make the correct and preferable decision having regard to the material before it, and any applicable written or unwritten law. 19At the time the decision was taken to cancel the Applicant's authority and accreditation he had been charged with the November 2010 offences but had not been convicted. However the convictions were recorded prior to the hearing of this matter. 20It is well established that in considering an application for review the Tribunal is not restricted to a consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409. 21A frequently used phrase is that, when conducting a review, the Tribunal 'stands in the shoes of the decision maker' and exercises the same functions and powers. The Tribunal is therefore constrained in its powers to those held by the decision maker. 22Section 63(3) of the ADT Act provides that 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. 23Section 38 of the Act outlines that the purpose of an accreditation is to attest that the accredited person is considered to be of good repute and in all other respects fit and proper to be responsible for the operation of a private hire vehicle service, and that the accredited person has demonstrated the capacity to meet and continue to meet other relevant requirements. 24Section 38E of the Act confers a discretion upon the Director-General to vary, suspend or cancel an accreditation. 25Section 40 of the Act outlines that the purpose of an authority is to attest 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 private hire vehicle, and that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle in accordance with the conditions under which the private hire vehicle service concerned is operated, and in accordance with law and custom. 26Section 40E of the Act confers a discretion upon the Director-General to suspend, vary or cancel an authority. The evidence at the hearing 27The Respondent provided evidence in the form of the departmental file relating to the Applicant. The Respondent also relies on statements from compliance officers Scott Watson and Ajit Nagpal and a statement of Constable Adam Tomlin of Mascot Police Station. At the hearing Mr Wozniak handed up pages from the transcript of hearing in the Local Court matter that resulted in the 15 December 2011 convictions. 28The Applicant provided a written statement and gave oral evidence at the hearing and was cross-examined. The Applicant also provided a report by Tim Watson-Munro, a forensic-psychologist and two reports prepared by Dolun Teoman, Mental Health Counsellor. The Applicant also provided character references from Jawad Reda and Tawfic Alaouie which attest that the Applicant is of good repute. 29The Applicant's solicitor, Mr Soukie provided detailed written submissions on behalf of the Applicant. Both Mr Soukie and the Respondent's solicitor, Mr Wozniak made oral submissions at the close of the hearing. The Applicant's case The Applicant's evidence 30The Applicant provided a written statement and gave oral evidence. He does not dispute his criminal history however, despite the convictions, he did maintain his innocence in relation to the most recent convictions. 31In regard to his dealings with the Respondent he stated that he acted on comments made by Judicial Member Higgins in December 2009. In that matter the Judicial Member had stated: I am concerned that this lack of insight and indeed some lack of detailed knowledge of what the regulations require, that he is not, as of today, properly equipped to ensure that he does not resort to the type of contravening behaviour he has engaged in the past. The issue is, as I raised during the course of the hearing, whether Mr Mroue should be given an opportunity to address some of these issues, such as his lack of insight and also his lack of knowledge. 32In that regard, the Applicant stated: I have had the benefit of seeking Counselling sessions from a Mental Health Counsellor, who has taught me how to cope with stressful, tense situations, and who has taught me how to manage my anger and behaviour. I genuinely believe that had I had the benefit of Counselling and behavioural cognitive therapy as at April 2009, I would not have been involved in such a protest. In hindsight, I have realised that being angry, and irrational does not achieve outcomes. I believe that since receiving counselling from my Mental Health Counsellor, and since speaking informally with forensic-psychologist Tim Watson-Munro, they have given me a renewed lease on life. 33The Applicant contends that events that occurred prior to the grant of his current driver authority and accreditation should not weigh against him as the Respondent granted those credentials in the full knowledge of his past conduct. He maintains that he has had extended periods where he has not committed any offences and also refrained from committing any criminal offences. He asserts that he is able to comply with the laws and customs of hire car driving. 34Under cross-examination he struggled to explain his failure to inform the Respondent of infringement notices and charges brought against him but conceded that he had deliberately withheld information because he believed that if he had provided the information it would have impacted on his applications. Nevertheless, he maintained that he is an honest man who has made mistakes. Tim Watson-Munro 35Mr Watson-Munro is a forensic-psychologist who has provided a letter of support for the Applicant. He has had informal dealings with the Applicant in his capacity as a forensic-psychologist and the Applicant has also driven him from the airport on several occasions. Mr Watson-Munro is aware of the current proceedings. He considers that he is well placed to speak not only from a professional perspective, but also on the basis of his direct experience and observations of the Applicant in his capacity as a driver. He wrote: I have always found Mr Mroue to be highly professional in his conduct as reflected by his punctuality, his service delivery and his willingness on occasions to wait when I have been delayed due to inclement weather at Sydney Airport. Quite recently Mr Mroue waited for in excess of an hour and half because of lightning strikes about Sydney. In terms of my assessment of his character, I am aware of his prior history in terms of being on probation and I am also aware that he has previously been before the Court in relation to drug matters. His substance abuse has been of short lived duration and essentially arose in the context of significant stress referable to his marriage. 36Mr Watson-Munro also stated: "I have been collected by numerous hire car drivers both in Melbourne and in Sydney on literally hundreds of occasions. In contrast with the vast majority of drivers who I have encountered over the years, I have found this man's behaviour to be beyond reproach". Dolun Teoman 37Mr Teoman is a Mental Health Counsellor who has assisted the Applicant since February 2010. He provided two reports for the Applicant. The first is dated 12 March 2010. The second is dated 2 June 2010. In his March 2010 report Mr Teoman indicated that the Applicant had completed six therapy sessions and a further six sessions were planned. He stated that the Applicant: "was initially referred to me for anger management but it became evident after a number of visits that he is a rather gentle person who is in need of behavioural modification. Consequently he has been attending my rooms to address this issue and Mr Mroue has been an active participant in Cognitive Behavioural Therapy which I utilise as a tool to assist him to change his learnt pattern of behaviour". 38As background information regarding the Applicant Mr Teoman stated: He has had relationship problems in his marriage and as a result there were short separations where he felt helpless and distraught. During these separations he used drugs from time to time in order to cope. He is currently with his wife and children and has been since 2008. He has not used any kind of drugs since he has re united with his family. 39Mr Teoman made the following observations regarding the Applicant: Mr Mroue appears to be a pleasant man who has had a disadvantaged upbringing in many aspects of the word. It appears that, in general, he has not learnt to communicate in a socially acceptable matter. For example, he admits to using swear words when he is angry and even raising his voice. On one occasion he admits to pulling his wife's hair during a domestic argument. He does, however, appear to be genuinely upset about his undesirable behaviour and wishes to change this pattern and wants to be taught how to achieve this outcome. To his credit, Mr Mroue appears to be an honest man with pride and a strong desire to be a good husband, father and son. He has strong bonds with his children, wife and mother and appears to place great value on these relationships. In my opinion Mr Mroue has the capacity to change his learnt behaviour pattern if he wishes to do so. He does, however, need guidance in this pursuit. His agreement to attend counselling " for as long as it takes" (in his words) evidences both his desire to change and an understanding of the negative consequences of his undesirable behaviour to date. He also appears to understand the negative effects of resorting to drug use when things are not going well for him in life. I also believe that Mr Mroue, if given an opportunity, will strive to become an improved person who is responsible and aware of the consequences of his actions. His motivation will not only come from the recent experience of having to face the consequences of losing his licence but also from within. As he tells me, and I have no reason to doubt him due to his honest disposition, that he understands why he needs to change and, more importantly, he wants to change. 40In his June 2010 report Mr Teoman indicated that the Applicant had been attending his weekly sessions without failure and had made significant progress in behaviour modification as a positive outcome of Cognitive Behavioral Therapy. He stated that: Throughout his therapy Mr Mroue has been equipped with skills to continue making changes in his life once he recognizes the established patterns of behaviour which he wants changed. These skills will ensure further progress in relation to behaviour modification. ... Mr Mroue has developed communication skills he previously lacked and this will assist him in all aspects of his life. He is enthusiastic to continue putting these newly acquires skills into practice as he sees positive results in their application not only in his personal life within his family but also in his day to day dealings with others. I am pleased with Mr Mroue s progress and I am confident that he will be able to make further changes in his life without ongoing assistance through a Mental Health Care Plan. Jawad Reda 41Jawad Reda is the owner of Cabcash International - a business that operates a payment system for the Taxi and Hire Car industry. He attests that the Applicant is of good repute. He stated: I have known Zahe Mroue for over twenty-five (25) years. I have had the privilege of knowing Zahe on both a business level, through his hire car driving, and on a personal level. I am aware of the Cancellation Notice which Zahe received from the New South Wales Ministry of Transport. I am also aware of Zahe's criminal record and his infringement history. Notwithstanding my knowledge of the preceding matters I am providing this character reference in full support of Mr Mroue in order to indulge the Ministry of Transport with my knowledge of Mr Mroue both as a client, and as a friend. ... Zahe is a man of integrity. Dealing with him on a professional level has allowed me to personally observe Zahe's professionalism. He is well presented and very well spoken. He comes across as a person who gets along with his clients quite well whilst maintaining a level of professionalism throughout his employment. ... Having regard to my personal and professional involvement with Zahe which has spanned over a total of twenty-five (25) years, I am of the view that Zahe is a reputable member of his community and that I attest to his good reputation. Tawfic Alaouie 42Tawfic Alaouie is a teacher who has known the Applicant for 20 years and who attests that the Applicant is of good repute. He stated: I have known Zahe Mroue for a period of approximately 20 years both on a personal and professional level. I am specifically aware of the cancellation of Mr Mroue's hire car authority, accreditation and licence. I have intimate knowledge of Mr Mroue's criminal history as well as his infringement history having known Mr Mroue for the past twenty (20) years. Notwithstanding the convictions and infringements issued to Mr Mroue I am of the view that Mr Mroue is a person of good character and moral standing. Zahe is a generous, giving person who is always prepared to go beyond the call of duty in order to support his friends and family. ... I was genuinely shocked to be informed of the Cancellation notice. I cannot believe that Zahe Mroue would risk his livelihood. I have discussed the matters raised in the Cancellation Notice, particularly in relation to the infringements and the criminal record, with Zahe and he has expressed profound regret over the stupidity of his actions. In my view it appeared as though Zahe's remorse was genuine. ... I know for a fact that he takes his occupation extremely seriously. He always works to the best of his ability and goes far beyond necessary to keep his clients satisfied. Submissions on behalf of the Applicant 43As noted above, Mr Soukie provided detailed written submissions on behalf of the Applicant. He submitted that the Tribunal should place little, if any, weight on the Applicant's criminal record whilst determining whether the Applicant is of good repute, and in all other respects, a fit and proper person. He conceded that the infringements, which the Applicant received, are relevant considerations, which the Tribunal may consider whilst determining whether the Applicant will behave appropriately in relation to his service. 44He argues that whilst the Applicant's infringement history is inexcusable, that history is not of sufficient seriousness to warrant a finding that the Applicant is not a fit and proper person, and that the Applicant is not capable of observing duties and responsibilities of the position according to law and custom. 45It is submitted that a bulk of the infringement offences were committed on the same day and under the same circumstances. For instance, 5 offences were committed on 3 April 2009. Mr Soukie contends that this is a relevant consideration for a number of reasons. First and foremost, it clearly illustrates that the Applicant does not embark upon a course of offending over separate days. Secondly, the offences which were committed on 3 April 2009 were committed in circumstances where there was a heavy police presence, and in circumstances where there was protest comprising of hire car drivers, protesting against their working conditions at the time. He does not seek to justify the Applicant's conduct, but rather seeks to contextualise the circumstances in which the offences were committed. 46The Applicant was highly irrational and aggressive at the time in which the infringement offences were committed on 3 April 2009. Following those offences, the Applicant identified an anger management issue and sought to address it by consulting Mr Teoman, a mental health counsellor. 47As is evident from Mr Teoman's report, the Applicant has sought to address his anger issues. It is thus submitted that it is highly unlikely that the Applicant will engage in any further conduct such as that embarked upon on 3 April 2009. 48It is further submitted that although there are a number of entries on the Applicant's infringement history relating to offences of touting/soliciting and ply for hire, there are prolonged periods of time in which the Applicant has not engaged in any conduct of that kind. 49In Mr Soukie's submission a member of the public would not object to being a passenger in a vehicle driven by the Applicant. He says that the offences for which the Applicant was convicted are relatively minor on the criminal scale, and fell at the lower end of the scale in terms of objective seriousness. Furthermore, it is submitted that there are a number of factors favouring this Applicant, which could be summarised as follows: * ·the character references which attest that the Applicant is of good repute; * ·the fact that there have been no complaints made by any member of the public against the Applicant; * ·that the Applicant has not committed any criminal offences since 2008 and has complied with the stringent conditions of the Section 9 bond imposed on him by the Kogarah Local Court on 24 April 2008; * ·the fact that the offences for which the Applicant was convicted fell at the lower end of the scale in terms of objective seriousness; * ·the fact that the Applicant pleaded guilty to the offences at the earliest available opportunity, evidencing his remorse and contrition; * ·the fact that the offences for which the Applicant was convicted did not involve serious violence tendencies. 50In the above regard, it is submitted that a member of the public who is aware of the offences for which the Applicant has been convicted, in addition to the circumstances, would have no qualms or objections with being the passenger of a hire car vehicle being driven or operated by the Applicant. 51It is submitted that consideration of the character references should lead to a finding by the Tribunal that the Applicant is of good repute. 52In regard to the question of whether or not the Applicant is a "fit and proper person" to hold the authority and accreditation, Mr Soukie submitted that although the Applicant has been convicted of a number of offences, it is necessary for the Tribunal to consider the seriousness, frequency and nature of any criminal offences for which the Applicant has been convicted: Saadieh v Director General, Department of Transport [1999] NSWADT 68 (" Saadieh "). 53In Saadieh the Tribunal set out a number of factors, based on the terms of the legislation and the case law interpreting similar provisions, which need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. The same criterion applies in the context of hire car vehicle authorities, accreditations and licences. These factors were: i.The nature, seriousness and frequency of any criminal offences for which the Applicant has been convicted, ii.The nature, seriousness and frequency of any complaints made against the Applicant, iii.The Applicant's driving record, iv.The Applicant's reputation in the community, v.The likelihood that the Applicant will re-offend or be the subject of further complaints. 54It is submitted that the offences for which the Applicant was convicted indicate that the offences fell at the lower end of the scale in terms of objective seriousness and that the criminal convictions were infrequent and sporadic. 55There have been no complaints made against the Applicant by any member of the general public or any passengers of the Applicant. 56Since the year 2000, the Applicant has received a number of traffic infringements for speeding and disobey left turn/right turn sign. It is submitted that the offences that appear on the Applicant's traffic history were not committed throughout the course of the Applicant's employment. As such, there is no direct nexus between the Applicant's traffic blemishes and the Applicant's employment. Furthermore, it is submitted that the Applicant's traffic record is reasonable for a person who is required to drive, at the very minimum, four hours each day, and any analysis of the Applicant's record should carried out in that context. Bearing in mind the circumstances and nature of the Applicant's employment, it is submitted that the Applicant's traffic record is a factor that works in his favour. 57In Mr Soukie's submission, after considering "all the circumstances of the case" such as the Applicant's reputation in the community, the Applicant's driving history, the Applicant's subjective circumstances, the nature, seriousness and frequency of any criminal convictions or complaints against the Applicant, the Tribunal can be assured that the Applicant is of good repute, and in all other respects, a fit and proper person to hold a private hire vehicle authority, accreditation and licence. 58Mr Soukie did not make detailed submissions in regard to the 15 December 2011 convictions. He indicated that while the fact of the convictions was a relevant consideration for the Tribunal, it should be noted that the Applicant had appealed that decision in the District Court. However, as noted above, that appeal was withdrawn. 59In summary, Mr Soukie's submission is that in the circumstances the Tribunal can be satisfied that the Applicant has made attempts towards rehabilitation. He has undergone anger management counselling, admitted his guilt and paid his penalties and taken steps to ensure that his prior conduct will not be repeated. It is submitted that the correct and preferable course would be to set aside the Respondent's decision. The Respondent's case 60The Respondent relies on the reasoning contained in the Respondent's determination and also relies on the departmental file and Mr Wozniak referred to documents within that file both during cross-examination of the Applicant and in submissions. 61The Respondent relies on the evidence of Mr Watson and Mr Nagpal and that of Constable Tomlin. That evidence concerns a multi-agency operation between Botany Bay Local Area Command, Australian Federal Police, New South Wales Department of Transport, Qantas and Sydney Airport Corporation limited targeting independent hire car operators soliciting or 'touting' for fares at the Domestic Terminal at Mascot on 4 November 2010. The evidence concerns the allegations against the Applicant that ultimately resulted in the 15 December 2011 convictions. 62During cross-examination the Applicant was asked about his awareness of the requirement to advise the Respondent if he was charged with any offence. He agreed that he had failed to advise the Respondent of many incidents. He conceded that on occasions he had deliberately withheld information because of the concern that if he had advised the Respondent it would have had implications for his ability to retain his authority. Mr Wozniak submits that in some situations this failure was more serious than that actual offence that the Applicant had not disclosed. 63Mr Wozniak submits that the Applicant has been shown to be dishonest but preferred to make excuses for his conduct and could not admit that he had been dishonest. He has failed to disclose offences despite having been given several warnings. 64He submits that the uncontested evidence shows that the conduct that resulted in the 15 December 2011 convictions was not an isolated incident. The Applicant has shown that he is prepared to do whatever he needs to do to get work. He has demonstrated lack of honesty in dealing with the administrator and that he is prepared to take the risks. 65Mr Wozniak submitted that the correct and preferable decision is to affirm the decision under review. Consideration 66The Act confers a two-tier approach in determining the purpose of an authority. Firstly, the Act mandates that the person must be of good repute, and in all other respects, a fit and proper person to be the driver of a hire care vehicle, and, secondly that the authorised person is considered to have sufficient responsibility and aptitude to drive a private hire vehicle in accordance with the conditions, and in accordance with law and custom. 67As noted above, the Tribunal in Saadieh offered guidance as to assessing a person's fitness to be authorised to drive a taxi-cab. That advice is equally relevant to the assessment required in this matter. In Saadieh the Tribunal observed: 17 Taking into account the terms of the legislation and the case law interpreting similar provisions, there are a number of factors that need to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. These factors include: the nature, seriousness and frequency of any criminal offences for which the Applicant has been arrested or convicted; the nature, seriousness and frequency of any complaints made against the Applicant; the Applicant's driving record; the Applicant's reputation in the community; and the likelihood that the Applicant will re-offend, be the subject of further complaints or commit further traffic offences. 18. In assessing the last factor, several considerations are relevant. 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. 68The provisions of the Act dealing with Hire Car authorities and accreditation are in similar terms to those concerning taxis. Those provisions have been considered in numerous Tribunal decisions. A useful review of the authorities was provided by Judicial Member Molony in Chowdhury v Department of Transport and Infrastructure [2010] NSWADT 199 at paragraphs [8] - [14]: 8 The meaning of "fit and proper" is dependent on the nature and purpose of the activities which the person will undertake. In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: '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. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' 9 The Tribunal and the Appeal Panel have frequently cited with approval the test posed by the equivalent ACT Tribunal dealing with an equivalent legislative scheme in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165 per Curtis P: 'One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done ... to rehabilitate himself, would object to the applicant as the driver of the taxi.' 10 In Farquharson -v- Director General, Department of Transport [1999] NSWADT 53, at [36] O'Connor DCJ said: 'In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence.' 11 The fact that offences with which a person is charged occurred in the regulated environment may have a greater impact upon that consideration than those that occur outside that environment: Farquharson . "The nature, seriousness and frequency of any complaints made against the applicant" are relevant factors in such an assessment: Saadieh v Director General, Department of Transport [1999] NSWADT 68. 12 In contrast to character, reputation as Waddell J explained in Re T and Anor and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 389: "...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. The importance of a person's reputation is that it is an estimate of his character, or some aspect of his character, upon which the persons in such a group are generally, although not necessarily unanimously, agreed. It is this essential nature of reputation which makes it a reliable guide to a person's character. See, generally, Wigmore on Evidence, 3rd ed., vol 5, p 486 et seq, pars 1615, 1616; p 479 et seq, par 1610. As is pointed out by Wigmore, a person might not have a general reputation in the neighbourhood where he lives, but may have established a reputation in another group of persons: p 472 et seq, par 1606. It is, I suppose, possible that a person might not have any reputation at all, simply because he does not participate in the activities of any group of people who have any necessity to form an estimate of his character. 13 In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained: '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. 14 In Re T Waddell J (at 399) discussed how reputation is to be proved by evidence from those who know the person well, and who know how the person is generally regarded in the community in which he lives. At 401, his Honour said that: '...evidence of particular acts of conduct on the part of the person whose reputation is in issue is not admissible to prove the nature of that reputation." 69In Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 (" Murray ") the Appeal Panel considered the role of the "perception of the public" in decisions about whether an applicant is a "fit and proper person". The Appeal Panel reviewed relevant authorities and concluded: When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson , to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public. 70In reaching this conclusion the Appeal Panel noted: In the same case, Mason CJ stated at [63] that: 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. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration. (our emphasis) While the seriousness of the conduct is a matter for evaluation by the decision maker, the question of whether it can be assumed that the conduct will not recur is a matter which is to be viewed through the eyes of the general community. The Federal Court applied the decision in Bond in relation to the meaning of 'fit and proper person' when it upheld a decision of the Administrative Appeals Tribunal relating to taxation agents: Toohey v Tax Agents' Board of Victoria (No 3) [2010] FCA 356 at [46-47]; Toohey and Tax Agents' Board [2008] AATA 262. Middleton J held at [37] that "determining whether a person is the prescribed fit and proper person involves an evaluation of character and reputation." At first instance the AAT decided that the public as a general body would not have confidence in the conduct not occurring again (at [156-160]). The Federal Court reiterated that the enquiry is directed not only to whether improper conduct has occurred, but whether it is likely to occur again, and whether the community will have confidence that it will not occur. 71The Appeal Panel's decision in Murray was subject of comment by the President of the Tribunal in Nasour v Director-General, Transport NSW [2011] NSWADT 91 (4 May 2011): In that case [ Farquarsson ] I went on to look at the question of how then might the administrator go about forming a view as to 'repute and character'. The reasons referred to taking into account the views that might be formed by a reasonable member of the travelling public; and have been read as allowing the views of the travelling public to be used in the assessment of character. The Appeal Panel recently held in Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 (8 April 2011) that the views of the travelling public are not a relevant consideration when assessing character. What is involved in the assessment of character is an objective evaluation of the person's fitness to continue to undertake the regulated occupation having regard to the relevant material. The Appeal Panel's approach is similar to the one I expressed at para [29] of Farquharson , as extracted above. The preferable approach in dealing with the character question (often expressed in statutes as whether the person is a 'fit and proper' person to undertake the regulated activity), therefore, where one event is substantially relied upon - the laying of serious criminal charges - is to reserve judgment on intrinsic character until more is known. However, 'repute' is a concept very much about what members of the public, and importantly the passenger community, might think (fairly or unfairly). The Act itself, not surprisingly, gives weight to passenger thinking. One of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)). A person's reputation is a function of public perception. See for example Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 380 at [36] per Toohey and Gaudron JJ. The full passage appears in Murray at [16]. The same point is made in the Supreme Court and ACT Supreme Court decisions to which the Appeal Panel refers at [13]. A judgement as to the perception of reasonably-minded members of the travelling public remains, in my view, a relevant consideration for an administrator, when considering the 'repute' of a driver, or the driver's 'aptitude and responsibility'. 72In the recent decision of Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 (a case that dealt with a review of a decision to suspend a taxi driver authority where the driver had been charged with criminal offences) the Appeal Panel discussed issues of public trust/confidence in the context of a regulatory scheme in relation to the purpose of an authority. The Appeal Panel stated: 12 The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' (Macquarie Dictionary , 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context. 13 As we see it paragraph (a) focuses on general characteristics of the driver relevant to the regulated function, paragraph (b) focuses on maturity and technical competence. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]-[29]). 14 Different licensing schemes use variations on this language, for example 'good fame and character'; sometimes the term 'fit and proper' only is used. Sometimes there are specific references to such matters as 'honesty', 'integrity' and 'competence'. 15 As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds. ... 23 The Tribunal [in Farquharson ] (constituted by the President sitting at first instance) upheld the suspension. In the course of his reasons, the President said: ... 36.The President, sitting at first instance, has suggested that public perception still has some role to play in relation to the matter of 'good repute' which is the primary part of formulation used in s 33F: see Nasour v Director-General, Transport NSW [2011] NSWADT 9 at [29]- [33]. Nasour was a suspension case. There the driver had been charged (not reported but discovered on data matching) with assault occasioning actual bodily harm; common assault, and use etc of an offensive weapon (a tyre lever) with intention to commit an indictable offence. (In addition there was a lengthy adverse disciplinary and traffic record. 37.The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. 73In this matter the Respondent contends that the Applicant's history, and in particular his dealings with the Respondent and his most recent convictions, support a finding that the Applicant is not a fit and proper person to be authorised to drive a private hire vehicle or to hold an accreditation to operate a private hire vehicle service. The Respondent also contends that the Applicant is not of good repute having regard to the criminal convictions and the overall evidence. The Respondent also submits that the references presented by the Applicant predate the most recent convictions and therefore can be of little assistance to the Tribunal in considering whether the Applicant is of good repute. 74The Applicant's case is that he has rehabilitated - he acknowledges his prior convictions and his failure to provide the required notices to the Respondent, but states that since he was before the Tribunal in December 2009 he has tried to change his life, as illustrated by his undergoing counselling. He states that his criminal behaviour was a mistake and is in the past. 75In this regard, the Applicant maintained that he is not guilty of the conduct that lead to his most recent convictions. In the circumstances I am not able to go behind those convictions. 76I note the Applicant's submission that I should not give weight to the matters that were known to the Respondent prior to the decision to grant the credentials and at the time that the Applicant appeared before Judicial Member Higgins in December 2009. As this decision is based on events that have occurred since that time, it is not necessary that I deal with that issue. 77I accept that the Applicant has made efforts to deal with the issues highlighted by Judicial Member Higgins in December 2009 by attending counselling sessions. I also accept that through those sessions he has obtained assistance to change his learnt pattern of behaviour. 78However, it is apparent from his evidence under cross-examination that he has not yet gained any real insight into his past contravening behaviour, particularly insofar as it relates to his obligations under the Act. This view is reinforced by the fact of his most recent convictions and the evidence that suggests that his behaviour that resulted in those convictions was not an isolated incident. In my view it is also significant that the Applicant has failed to acknowledge his guilt. 79In the circumstances it is my view that the risk of the Applicant re-offending is high. 80In order for the Applicant to regain his authority and his accreditation I must attest to the Applicant's fitness and propriety, and to his repute. 81Significant evidence as to the Applicant's good repute has been produced. However, that evidence does not make any reference to the most recent convictions and therefore is not evidence indicating that he is currently of good repute notwithstanding the offences. Evidence of convictions can be evidence of bad repute. The references do not assist the Applicant in establishing his good repute. 82On the evidence presented in this matter, I cannot be satisfied that the Applicant is of good repute. 83Nor am I satisfied that the Applicant is a fit and proper person to be authorised to drive a private hire vehicle or to hold an accreditation to operate a private hire vehicle service. 84The regulatory scheme requires the Tribunal to attest to the Applicant's fitness and propriety. I am unable to attest to these matters. In light of the Applicant's offences, his failure to comply with his obligation to advise the Respondent of relevant matters and his lack of insight into the relationship between his behaviour and his obligations Act, it is my view that the public could not have confidence that the Applicant would not re-offend. 85I note that Judicial Member Higgins stated: I am concerned that this lack of insight and indeed some lack of detailed knowledge of what the regulations require, that he is not, as of today, properly equipped to ensure that he does not resort to the type of contravening behaviour he has engaged in the past. 86I share that concern. 87For these reasons I am unable to attest to the Applicant's good repute and fitness and propriety, as is required for the Applicant to be authorised to drive a private hire vehicle or to hold the accreditation. 88Accordingly, the correct and preferable to decision is that the decision under review be affirmed. Order The decision under review is affirmed ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 March 2012