Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Robertson v Roads and Maritime Services [2015] NSWCATOD 47 Hearing dates: 2 April 2015 Decision date: 02 April 2015 Jurisdiction: Occupational Division Before: A Scahill, Senior Member Decision: Decision of Respondent affirmed Catchwords: good repute; fit and proper; Legislation Cited: Administrative Decisions Review Act 1997 Civil and Administrative Tribunal Act 2013 Crimes (Sentencing Procedure) Act 1999 Passenger Transport Act 1990 Passenger Transport Regulation 2007 Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Bedi v The Director General, of Transport [1999] NSWADT 51 Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 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. Hughes and Vale Pty Ltd v New South Wales (No. 2) [1955] HCA 28; (1955) 93 CLR 127 Lal v Director-General, Department of Transport [2001] NSWADT 74 Nasour v Director-General, Transport NSW [2011] NSWADT 91 Saadieh v Director General, Department of Transport [1999] NSW ADT 68 Singh -v- Director General, Department of Transport [1999] NSWADT 96 Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 Category: Principal judgment Parties: Paul Robertson (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: P Robertson (Applicant in person) Smythe Wozniak Solicitors (Respondent) File Number(s): 1520047 REASONS FOR DECISION 1. This is an application by Mr Robertson to review the decision made by the Respondent to suspend his taxi driver authority on 27th February 2015. Mr Robertson's application for review was lodged with the NCAT on 17th March 2015. He had not sought internal review of the decision. His application for a stay was dealt with by Deputy President Hennessy of the Tribunal on the 23rd March 2015 and declined. The Application was dealt with in the absence of Internal Review. 2. The matter was expedited by the Tribunal and heard on Thursday 2nd April 2015. 3. At the end of the hearing on 2nd April 2015, the Tribunal advised that it affirmed the Respondent's decision to suspend Mr Robertson's taxi driver authority. 4. Mr Robertson requested that the Tribunal provide its reasons for this decision. The Tribunal's reasons are as follows. Tribunal's reasons 1. Mr Robertson's suspension of his driver authority on 27th February 2015 arose out of his conviction on 5th February 2015 in Newcastle District Court for "Possess child abuse material" and "use carriage service". 2. Mr Robertson was sentenced to a term of imprisonment of 18 months for the possess child abuse material conviction. The execution of the sentence was suspended on the condition that he enter into a good behaviour bond under section 12 of the Crimes (Sentencing Procedure) Act 1999 for a term of 18 months with several additional conditions imposed. One of the conditions of the bond was that he continue to receive treatment from Mr Dieter (psychologist) for the term of the bond or until Mr Dieter decides treatment is no longer necessary or refers Mr Robertson for treatment by other practitioners. He was also required to perform 400 hours of community service in respect of the "Use carriage service" matter. He was required to advise RMS of the conviction within 7 days. The Respondent's reasons for decision 1. The Respondent wrote to Mr Robertson on 27th February 2015 advising him that it had determined to suspend his driver authority immediately and asked him to show cause as to why the driver authority should not be cancelled. The statement of reasons recited the conviction and sentencing as evidence that Mr Robertson was not of good repute and no longer fit and proper to hold a taxi driver authority as required by section 33 of the Passenger Transport Act (PTA). 2. The statement of reasons quoted the continuing obligation of the RMS to ensure that public passenger services meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services. Persons authorised to drive public passenger vehicles are required to be of good repute and in all other respects fit and proper. The fact of the behaviour raised doubt whether Mr Robertson was a fit and proper person to remain the holder of an authority. It was also expected that an authority holder would have sufficient responsibility and aptitude to drive a taxi in accordance with the law. Passengers were entitled to feel safe and secure while using the services of an authorised taxi driver. RMS believed that any member of the travelling public being aware of his actions would object to being a passenger in a taxicab driven by him. Relevant law The Passenger Transport Act 1. The Passenger Transport Act 1990 (the PTA) contains provisions governing the purposes of, the mechanisms for granting, and the power of the Administrator to cancel or suspend an authority to drive a taxi-cab. S.33 of the PTA sets out the purpose of the authority, while s.33F gives the Administrator power to cancel or suspend that authority at any time, "having regard to the purpose of the authority". 2. Section 33 (3) of the PTA sets out 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 concerned is operated, and (ii) in accordance with law and custom. 1. Section 33F of the PTA confers powers to vary, suspend or cancel an authority that has been issued. In exercising any of these powers, the Respondent is required to have regard to the purpose of the authority. Accordingly, when considering cancellation of an existing authority the Respondent must consider whether the Applicant is of good repute, fit and proper, and has the responsibility and aptitude to drive a public passenger vehicle. 2. Clause 44 of the Passenger Transport Regulation 2007 requires a driver of a pubic passenger vehicle to advise the Respondent with written details of any alleged offence within 7 days of the laying of the charges. Mr Robertson did not do this prior to the decision to suspend his authority. The Hearing 1. The Tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the PTA and section 63 of the Administrative Decisions Review Act 1997. 2. The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12. 3. The Tribunal may affirm, vary or set aside the original decision. 4. The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start, including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the 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. 5. Section 38 of the Civil and Administrative Tribunal Act 2013 (CATA) provides that The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. 6. At the hearing the Tribunal had before it the following documents: * Mr Robertson's application for review and stay dated 12th March 2015 and filed in the Tribunal on 17th March 2015; * the section 58 documents produced by the Respondent; * a report of psychologist Mr Dieter dated 30th January 2015; * a report of Mr Ron Gibbs dated 11th March 2015; * a letter from Mr Hayden Harvey dated 17th March 2015; * a letter from Dr Von Schwedler dated 1st April 2015; * a letter of Mr G. Pennell dated 30th March 2015; * a court attendance notice; * an 8 page facsimile from Mrs Gerlinda Robertson received at the Tribunal on 20th March 2015; and * a letter from Mr Ralph Whitfield – undated. The issue for the Tribunal 1. The issue before the Tribunal was whether Mr Robertson was of good repute and a fit and proper person to hold a taxi driver authority. The sole matter before the Tribunal which brought his good repute and his fitness and propriety into question was his conviction and sentencing by the District Court in Newcastle on 5th February 2015. 2. The statement of facts for the offences sets out that Mr Robertson was charged with the offences after detectives attended his home in Wyee and spoke to Mrs Robertson. They had taken his computer hard drive. After analysis of the hard drive contents, Mr Robertson had been charged with the offences. He had pleaded guilty before the Court. Submissions from Mr Robertson. 1. Mr Robertson was not represented at the Tribunal hearing. He did not give sworn evidence. Mr Robertson gave submissions to the Tribunal as follows. 2. He said that his working career had been unblemished. He had done school bus runs. He had worked at Budgewoi School. He had done a lot of work with children. He had driven regularly for a woman for 14 years and had mowed her lawns. He has not presented a public safety risk at any time. He has never done anything wrong in a cab. Taxi driving was the only area of his life in which "he knew what direction he was going." The only thing he could go on was his reputation as a taxi driver. He has had many difficulties in his life. He had previously been a jockey and had experienced a number of falls. Taxi driving had been a career he was able to follow given his injuries. He wants to rebuild his career. 3. He has been out of the family home – but has been in regular contact with his family. Most of the money he earns goes to his family. If anything good has come out of this, it is that his wife, who has a mental illness, is now getting outside the home and doing things with the children. 4. He referred to the positive opinions expressed about him by Dr Schwedler, Mr Greg Pennell, Mr Hayden Harvey and Mr Whitfield in the letters and reports presented to the Tribunal. He was continuing to see the psychologist Mr Dieter. 5. He had not known that he was required to report having been charged with the offences to the RMS. The day after he was convicted he had taken the letter setting out the convictions to the RMS. He told the Tribunal that he could guarantee that there was no risk to the public from him working as taxi driver. The Respondent's submissions 1. Mr Wozniak told the Tribunal that Mr Robertson should have advised the RMS that he had been charged with the offences. This was a requirement of a taxi authority. Had Mr Robertson reported the charges he would have been suspended in April 2014 – rather than in February 2015 when the RMS was advised of the convictions. Mr Robertson had been driving for the year from 2014-2015, in circumstances where he should not have been. 2. The Respondent was concerned that the police statement of facts set out that Mr Robertson was unemployed. The RMS questioned whether Mr Robertson had deliberately failed to inform the police that he was a taxi driver so that he could avoid notifying the RMS of the charges. 3. The Respondent submitted that Mr Robertson had pleaded guilty to and had been convicted of 2 serious offences. This in itself was sufficient to establish he was not of good repute and therefore not a fit and proper person for the purposes of a driver authority. 4. The medical material he had submitted did not assist him to challenge the decision to suspend him on the basis of good repute and fitness and propriety. 5. Mr Gibbs' letter confirmed Mr Robertson's hospital admission with a mental disorder. It did not contradict concerns about Mr Robertson's reputation or fitness and propriety to drive a cab. 6. Mr Dieter's report assessed Mr Robertson's risk of reoffending to be low and that he needed to continue his participation in counselling and the current treatment plan. 7. The letter from Mr Robertson's Pastor, Mr Hayden Harvey, indicated in the Respondent's submission, that Mr Robertson was "salvageable". 8. The "statutory declaration" in the material from Mrs Gerlinda Robertson stated that she thought her husband needed time to get his mental issues back under control. 9. The Respondent submitted that none of these documents established that Mr Robertson was of good repute or that he was presently fit and proper to be authorised to drive a taxi cab. 10. The Respondent submitted that an 18 month good behaviour bond had only just been imposed upon Mr Robertson. Consistently with the Tribunal's decision in the matter of Bedi, it was necessary to allow time for Mr Robertson to show compliance with the bond. See Bedi v The Director General, of Transport [1999] NSWADT 51. 11. The Respondent also referred to the Tribunal's decision in AIC - see Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 at 12. This meant that the attestation to Mr Robertson being a fit and proper person must be positive and not simply a failure of the case against him. The judgement of a reasonably minded person is an important consideration in deciding whether Mr Robertson was now fit and proper. 12. References provided by Mr Robertson were ineffective where they did not disclose an understanding of the matters of which he been convicted. Findings of fact 1. The Tribunal finds that Mr Robertson has been convicted of 2 offences by the District Court on 5th February relating to the possession of child abuse materials. He is required to perform community service and has entered into an 18 month good behaviour bond which the Tribunal understands will expire in August 2016. Relevant law Good Repute 1. Section 33 of the PTA requires that the authorised cab driver 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. The President of the Tribunal, Judge K P O'Connor, in the case of Nasour v Director-General, Transport NSW [2011] NSWADT 91 at 34 has said that: "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'." 78 The Tribunal adopts the ADT President's finding in Nasour's case that a judgement as to the perception of reasonably-minded members of the travelling public is a relevant consideration for an administrator considering the repute of a driver. Mr Harvey states in his letter: "I too, like most people, find child pornography reprehensive,…" There is no doubt that members of the public would consider Mr Robertson's behaviour in possessing child abuse materials to be abhorrent. The Tribunal accepts that a member of the travelling public might not consider Mr Robertson to be of good repute as a result of his conviction. This is one of the relevant considerations the Tribunal must weigh up. Fit and proper 1. The meaning of fit and proper person in the context of issuing a driver authority was considered by the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20. In that matter, Deputy President Hennessy said that 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. 2. The Appeal Panel in Murray referred to the approach of the High Court to the phrase "fit and proper person" as set out in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1. The ABT was required to refuse a licence if it was not satisfied that the Applicant or the holder of a licence was a "fit and proper person". Toohey and Gaudron JJ stated (at 380) that: The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question. 1. 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. 1. This Tribunal's synthesis of these requirements in this matter is that Mr Robertson's fitness and propriety must be determined in the light of the role that he undertakes as a taxi driver. The Tribunal must consider whether Mr Robertson could be considered to be of good repute as an aspect of his fitness and propriety. It is a determination to be made by the Tribunal taking into account and weighing up matters both contrary to and in favour of Mr Robertson. 2. Saadieh's case sets out factors for consideration by a decision maker in weighing up these matters concerning cancellation of an authority. See Saadieh v Director General, Department of Transport [1999] NSWADT 68. Those considerations are: * "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." 1. In assessing the last factor, the following considerations are relevant: * the length of time since the offences were committed and the circumstances in which they were committed; * 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; * any change in the Applicant's circumstances such as increased support from friends, family or professional service providers. 1. The Tribunal has considered the factors set out in Saadieh's case. In this matter Mr Robertson has been convicted of a serious criminal offence. It is the only complaint of a serious nature against Mr Robertson. 2. The Tribunal notes that Singh -v- Director General, Department of Transport [1999] NSWADT 96 at 34 was a matter in relation to a taxi driver authority for an Applicant who had a history of breaching an apprehended violence order - as well as a history of another assault. In Singh the Tribunal observed that: "The fact that the breaches of the order relate to his personal life does not mitigate their severity in any way." 1. From this the Tribunal concludes that even though the matters leading to Mr Robertson's conviction occurred in his private life, they are still serious matters which bear on his repute and fitness and propriety to hold a taxi driver authority. 2. The Tribunal is not presented with concerns about Mr Robertson's driving record, nor complaints about his driving in a taxi. 3. The Tribunal considers that Mr Robertson's reputation in the community would be negatively impacted upon by his conviction for possession of child abuse material offences. 4. The letters and reports provided by Mr Robertson from Mr Hayden Harvey, Mr Pennell, Dr Von Schwedler and Mr Ralph Whitfield are supportive of Mr Robertson but do not, in the Tribunal's view, counter the damage to Mr Robertson's reputation brought about by the conviction. 5. Mr Hayden Harvey is both a part-time taxi driver and a Pastor and Celebrant of a church. He states that Mr Robertson is "ranked the best driver here on the coast." He is honest, transparent and hard working. He states that Mr Robertson accepts that what he did is sickening and believes that he is salvageable. He believes reinstating Mr Robertson's authority will assist his rehabilitation. Mr Harvey notes the lack of alternative work options for Mr Robertson because of his literacy skills. Mr Harvey refers to the potential diminution of risk as Mr Robertson works night shift. 6. Mr Pennell's reference is dated March 30 2015. He states that he is aware of the charges that Mr Robertson is facing (Tribunal's underlining) and believes them to be way out of character and that Mr Robertson is extremely remorseful. He says he is comfortable and confident of Mr Robertson's ability to represent his taxi company in a professional and ethical manner. The Tribunal's concern is that Mr Robertson had already been convicted of the offences on 5th February 2015. It is not clear what Mr Pennell actually understood of Mr Robertson's situation. 7. Mr Whitfield, for whom Mr Robertson had worked as a casual driver does not comment on the convictions but says that Mr Robertson's work rate and honesty is beyond reproach. 8. Dr Von Schwedler describes his understanding of Mr Robertson's family life and his responsibility for his wife and children. He notes, like Mr Harvey, the lack of alternative work options for Mr Robertson. He refers to Mr Robertson's self-confession of having held some child pornography on his computer. Like Mr Harvey, Dr Von Schwedler refers to the potential diminution of risk as Mr Robertson works night shift. 9. Mr Dieter's report assesses Mr Robertson as a low risk of reoffending. Mr Hayden Harvey expresses optimism about Mr Robertson's future rehabilitation. The "statutory declaration" of Mrs Gerlinda Robertson, expresses a need for behavioural change in Mr Robertson. 10. The Tribunal understands the offences were committed prior to April 2014 – some 13 months ago. However an 18 month good behaviour bond has only recently been imposed in February 2015, some 3 months ago. Mr Dieter recommends ongoing counselling. It is still early days in Mr Robertson's rehabilitation and in the regaining of his reputation. 11. In Bedi's case (see Bedi v The Director General, of Transport [1999] NSWADT 51) the Tribunal concluded that it would be necessary for Mr Bedi to complete the period of post-conviction supervision prior to it being satisfied that he was a fit and proper person. In this instance the Tribunal is persuaded by the reports before it that it is necessary for Mr Robertson to continue (if not complete) his observation of the good behaviour bond and his treatment - prior to a decisionmaker being able to attest that he is fit and proper to hold a taxi driver authority. 12. In keeping with the Tribunal's past approach in Lal's case (see Lal v Director-General, Department of Transport [2001] NSWADT 74), the Tribunal has not taken into account the hardship that cancellation of Mr Robertson's authority will cause to him and his family. The issue at hand is whether he is of good repute and is fit and proper to hold a taxi driver authority. 13. Letters from Dr Von Schwedler and Mr Harvey suggest that the fact of Mr Robertson driving night shift diminishes the risk to the public. No proposal was put to the Tribunal as to how the imposition of such a condition on Mr Robertson's authority might be monitored. The Tribunal is not persuaded in these circumstances that the imposition of conditions on Mr Robertson's driver authority would now render him of good repute or fit and proper to hold a taxi driver authority. Decision 1. The objects of the Passenger Transport Act include in section 4(e): "To encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services…" The decision maker must be satisfied in maintaining Mr Robertson's taxi driver authorisation that he is of good repute and in all other respects a fit and proper person to hold an authority. Mr Robertson's recent conviction, the imposition of an 18 month good behaviour bond in lieu of a custodial sentence and his need for ongoing treatment towards rehabilitation, cause the Tribunal to conclude that it cannot presently attest that he is of good repute and in all other respects fit and proper to hold a taxi driver authority. 1. The correct and preferable decision is that Mr Robertson's authority should be suspended. The decision of the Respondent is affirmed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 21 May 2015