Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bahloul v Roads & Maritime Service [2013] NSWADT 200 Hearing dates: 18 July 2013 Decision date: 18 July 2013 Jurisdiction: General Division Before: S Montgomery, Judicial Member Decision: The decision under review is affirmed. Catchwords: Authority to drive a taxi cab - suspension - fit and proper person Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Assi v Director General Transport NSW [2012] NSWADT 7. Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409 Saadieh v Director General, Department of Transport [1999] NSWADT 68 Category: Principal judgment Parties: Anter Bahloul (Applicant) Roads & Maritime Service (Respondent) Representation: L Ndou, Bazzi Lawyers (Applicant) P Culbert, Smythe Wozniak Legal (Respondent) File Number(s): 133118 reasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant held a driver authority under the Passenger Transport Act 1990 ("the Act"). By a Notice of Decision dated 5 March 2013 a delegate of the Respondent advised the Applicant that the Respondent had determined to suspend his driver authority and to issue a Notice to Show Cause as to why his authority should not be cancelled. Reasons for the determination 2The statement of reasons for the determination stated: 1. Facts, Evidence and Material RMS relies on the following facts, evidence and material to make the decision to suspend your driver authority GQ8580. COMPLAINTS HISTORY Since 4 February 2013 you have been the subject of two (2) complaints. 1.1 On 6 March 2013, Taxis Combined Services (TCS) received a complaint relating to the driver of taxi-cab 1002 masturbating whilst conveying a female passenger. The female advised that the driver conveyed her boyfriend and her from Bourke Street to Pyrmont. After her boyfriend left the taxi she then proceeded in the taxi intending to go to The Rocks. The driver then removed his belt from his waist and then pulled his pants down slightly. The driver was staring at the female passenger seated in the rear and started to masturbate however he covered his crotch area with a towel or jumper. The female ended the journey prior to arriving at her preferred destination. The driver subject of the complaint was identified by TCS as Anter Bahloul, Driver's Authority GQ8580. RMS investigated the matter. The above complaint shows a pattern of behaviour and is of concern to RMS. 1.2 On 4 February 2013, Taxis Combined Services (TCS) received a complaint relating to the driver of taxi-cab T1201 masturbating whilst conveying three female passengers. The females entered the taxi at Kings Cross to travel to Surry Hills. The driver then started to masturbate and the females ended the journey prior to arriving at their preferred destination. The driver subject of the complaint was identified by TCS as Anter Bahloul, Driver's Authority GQ8580. Surry Hills LAC are currently investigating this matter. The above complaint shows a pattern of behaviour and is of concern to RMS. ... 3. Reasons for the decision 3.1 You have been the subject of two (2) complaints regarding unacceptable conduct towards passengers since February 2013. The complaints are of a similar nature and include masturbation whilst conveying female passengers. 3.2 RMS has a continuing obligation under the Passenger Transport Act 1990 (NSW) to ensure that public passenger services meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services including the requirement that persons authorised to drive public passenger vehicles are of good repute and in all other respects fit and proper. 3.3 A public passenger vehicle driver has a continuing responsibility to ensure that he is a "fit and proper person". Your complaint history relating to poor customer service demonstrates that you have failed to appreciate the level of responsibility required in the public interest to hold an authority to drive public passenger vehicles. Accordingly, the determination has been made to suspend your taxi driver authority GQ8580 effective immediately. 3The Applicant has applied to the Tribunal for external review of the determination. The matter came before me for hearing on 18 July 2013. I determined that the suspension should be affirmed and I gave brief reasons for my decision. The Applicant has requested written reasons for the decision and these reasons are provided in response to that request. Applicable Law 4Section 33(3) of the Act states: The purpose of an authority under this division is to attest: (a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a taxi-cab; and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service is operated; and (ii) in accordance with law and custom. 5Section 33F of the Act states: Having regard to the purpose of an authorisation under this Division, RMS may at any time vary, suspend or cancel any person's authority under this division. 6Section 4 of the Act states: 4 Objects The objects of this Act are: (a) to require the accreditation or authorisation, by TfNSW, [Transport for NSW] of the operators of and drivers involved in public passenger services (other than ferry services), and ... (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and ... 7Section 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. It 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. 8A 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. 9Section 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. 10The Tribunal has considered these legislative provisions in numerous decisions. A useful review of the authorities was provided in the case of Assi v Director General Transport NSW [2012] NSWADT 7. 11The objective seriousness of the charges brought against the Applicant is the reason for the Respondent's decision to suspend his authority. In considering a review of a decision to suspend a driver authority, the Tribunal is not to examine the strengths or weaknesses of the prosecution case against an authority holder: Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 at [22]. 12The approach to be adopted by the Tribunal in considering a review of a decision to suspend a driver authority was considered most recently by the Appeal Panel in Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. In that matter the Director General had suspended AIC's taxi driver authority after being informed that he had been charged with two counts of indecent assault of a child under the age of ten. The conduct was said to have occurred in 1999. At hearing the Tribunal set aside the suspension decision. The Director General successfully appealed the Tribunal's decision. 13The Appeal Panel in AIC considered the provisions of section 33 of the Act. In regard to the construction of section 33(3) of the Act 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. 16 In the regulatory context, the exercise of the power of suspension is in fact intended to have a temporary effect. Meaning no 3 in the Macquarie Dictionary (4th ed. 2005) reflects this understanding, i.e. 'temporary abrogation of a law or privilege'; similarly the Australian Concise Oxford Dictionary (3rd ed. 1997) 'suspend' ­ 'debar temporarily from a function, office or privilege'. 17 The power is a usual part of accreditation and licensing schemes. It is a disciplinary power. Disciplinary powers have as their object protection of the public. 18 The power to suspend an occupational accreditation, licence or authority is used by regulators in, at least, two contexts. One is as a disciplinary sanction for misconduct that lies at a level of seriousness that warrants a more severe penalty than, say, a fine or imposition of conditions. Used in this way, it is often imposed for a relatively short period, say 3 months. It is a form of final order. 19 The other is where information comes to light about a licensee's conduct that is seen as throwing into question their suitability to continue to use the licence pending further inquiry or investigation of the matters of concern. This is the use made of it in the present case. In these circumstances it is being used for the protection of the public until more is known. 20 In either case, the effect of a suspension may be very harmful to the individual financially. There is also the humiliation and damage to public reputation that may follow." 14The assessment of whether an applicant is a "fit and proper person" was also considered in the case of Caska v The Director General of the New South Wales Department of Transport [2001] NSWSC 205 (Simpson J): 42 ... the holder of an authority is required to have two attributes: he/she is to be 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". The magistrate was conscious of the concession that Mr Caska's "good repute" was not challenged and was not in issue. The question he correctly identified for himself was whether he was "in all other respects a fit and proper person to be the driver of a public passenger vehicle". He in fact enunciated this test explicitly. 15In the case of Saadieh v Director General, Department of Transport [1999] NSWADT 68 Deputy President Hennessy offered guidance as to assessing a person's fitness to be authorised to drive a taxi-cab. The Deputy President 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. The Respondent's case 16The Respondent's case is essentially that set out in the reasons for decision referred to above. 17The Respondent relies on a bundle of material filed pursuant to section 58 of the ADT Act. Contained within that material is documentation showing the complaints referred to above and the history of the Respondent's handling of the complaints. The Respondent also relies on the transcript of interview in which officers of the Respondent interviewed the Applicant. 18One of the complainants, Emily, complained to the Respondent in relation to an incident on Wednesday 6 March 2013 ("the March incident"). A statement was prepared on the basis of that complaint but remained unsigned. Emily was prepared to attend the hearing to give evidence but was not required to do so. However, material before the Tribunal indicates that Emily adopted the contents of that statement. She stated: About 8am on Wednesday 6 March 2013 my boyfriend and I hailed a Combined Services taxi-cab on Bourke Street Redfern. The driver stopped and picked us up. Upon entering the taxi I said, "Can we please go to Pyrmont." The driver nodded and proceeded to drive the taxi. Throughout the journey I gave the driver directions and he followed my directions. Upon arriving at Murray Street, Pyrmont I advised the driver to stop and my boyfriend exited the taxi. I then said, "I'm going to Hickson Road, can you take a right onto Bunn Street". The driver nodded and continued driving. At this point I observed the driver remove his belt from his trousers. While stationary at an intersection I observed the driver adjust his position in his seat and pull his trousers down slightly. I then telephoned my sister because I was feeling quite uneasy. As I was speaking with my sister I observed the driver was looking at me in the rear view mirror and his left arm was moving up and down in a fast motion. His left hand and crotch area were covered by what appeared to be a jumper. I felt very uncomfortable and scared as the driver appeared to be masturbating. At this point we were situated on the Western Distributor in heavy traffic. I considered exiting the taxi because we were in the left hand lane but there was a high railing to our left with no footpath. Each time the traffic started to move the driver stopped moving his left arm. Each time we stopped due to traffic the driver would look at me in the rear view mirror and continue moving his left hand up and down in a fast motion. When we turned left onto Sussex Street, I said, "Please pull over and let me out here." The driver said, "I thought you said you wanted to go to Hickson Road." I said, "No just here is fine." The driver pulled over, I paid the fare in cash which was about $22 and I exited the taxi. Upon exiting the taxi I told my sister, who I remained speaking to on my mobile telephone the entire time, the driver's taxi driver number which was GQ8580. The driver's actions made me feel extremely unsafe, uncomfortable, angry and concerned that he thought it was okay to masturbate in a taxi with a female passenger. 19Emily's evidence on this issue was not tested under cross-examination. The Applicant's case 20Evidence before the Tribunal indicates that the Applicant agreed that he had been the driver of the journey that Emily referred to, however he denied Emily's allegation. 21He stated that is a family man of good character with young children and would not engage in such conduct. He provided a number of references in support of his application. The authors of the references indicated that they were aware of the allegations against the Applicant, they considered the alleged conduct to be out of his character and despite the allegation still regard him a person of good character, a fit and proper taxi driver and a very responsible person. Consideration 22This is a matter, which is not uncommon in the Tribunal, where a taxi driver, the holder of a taxi driver authority, comes before the Tribunal in circumstances where charges have been brought but as yet the matter has not been dealt with to finality in the Local Court. On the basis of the charges the Respondent has taken action against the authority by putting a suspension in place. 23As noted by the Appeal Panel in Director General, Transport NSW v AIC, the purpose of a suspension is by its nature a temporary process and it is designed as a protective measure for the public. The Respondent's action in suspending the authority is related to the object of the Act. Section 4(e) of the Act provides that one of the objects is to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. 24The Respondent has determined that for the time being the Applicant should not be permitted to continue to drive taxis. In this particular case there have been two allegations against the Applicant. One of those has resulted in charges of an act of indecency and the other has not. 25From the authorities that have been referred to it is very clear that, in relation to allegations where charges have been brought, the power of the Tribunal to go into the details of that matter is limited. The Tribunal cannot conduct an investigation of the strengths or weaknesses of the matters that are before the Local Court. The Tribunal's role is limited to consideration of the nature of the charges that have been brought and the circumstances in which they were brought. 26In this matter, the allegation is of an act of indecency by the Applicant while driving a taxi. The charge is serious. As I understand it the potential penalty if found guilty is a term of imprisonment of eighteen months. The allegation concerns conduct in the course of the regulated activity. I have got no evidence that allows me to take that matter any further. 27In relation to the March incident, the complaint is of a similar nature and the conduct is also said to have occurred in the regulated activity. The allegation is an act of indecency by the Applicant while driving a taxi. In relation to that complaint I have a statement from the complainant. There was a complaint to the Respondent and it appears that a statement was drafted on the basis of that complaint. There was some difficulty in following up with the complainant but it is clear that she has subsequently adopted the majority of what was included in the statement. The only very minor change to the drafted statement related to her age. She has otherwise adopted the terms of the statement. The complainant had indicated that she was prepared to come and give evidence in the Tribunal but has not been required to do so. 28In relation to that complaint, I have the transcript of interview in which officers of the Respondent interviewed the Applicant. Mr Culbert has indicated that he would have liked to test comments that were made in that interview. The Applicant was not available for cross-examination and therefore that evidence has not been tested. 29There was some assertion by Mr Ndou that there were difficulties associated with the fact that only a written transcript is available, rather than an audio transcript. I have not been provided with a copy of the audio transcript, so I cannot make any comment about that issue. 30In the circumstances that the Applicant has not given evidence, I accept the statement of the complainant as an indication that the complaint has been made. I have got no basis on which I can discard that evidence and therefore I accept it. 31To be balanced against the statement of the complainant and the fact of the charge brought against the Applicant are a number of references that speak highly of the Applicant. It is clear that the references are written by lay people who know the Applicant and while there are problems in terms of the extent to which the references refer to the referee's knowledge of the situation, I think that there is enough information in several of those references to allow them to be admitted and some weight to be given to them. 32In the circumstances I need to determine whether or not I am able to attest that the Applicant is a person who is considered to be of good repute and in all respects a fit and proper person to be the driver of a taxi-cab. Given the nature of the charge that has been brought against him, the evidence of the complainant and the fact that I have no evidence from the Applicant, I am not able to attest that he is has those qualities. 33In the circumstances, it is my view that the decision that has been taken by the Respondent is a correct and preferable one. That being the case I affirm the decision. 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: 06 September 2013