Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Ivanovski v Roads and Maritime Services [2017] NSWCATOD 78 Hearing dates: 7 March 2017 Date of orders: 18 May 2017 Decision date: 18 May 2017 Jurisdiction: Occupational Division Before: D Dinnen, Senior Member Decision: Decision of 2 December 2016 is affirmed. Catchwords: Merits Review – authority to drive public passenger vehicle – good repute – fit and proper - serious criminal convictions Legislation Cited: Administrative Decisions Review Act 1997 Passenger Transport Act 1990 Criminal Records Act 1991 Cases Cited: Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; 170 CLR 321 Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 Ex Parte Tziniolis; re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 Sobey v Commercial Agents Board (1979) 22 SASR 70 Z v Director General, Department of Transport [2000] NSWADT 87 Category: Principal judgment Parties: Lupco Ivanovski (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: In Person (Applicant) Smythe Wozniak Lawyers (Respondent) File Number(s): 2016/00380266 Publication restriction: None Reasons for decision 1. On 17 November 2016, Lupco Ivanovski ("the Applicant") applied to Roads and Maritime Services ("RMS" or "the Respondent") for authorisation to drive buses. 2. On 2 December 2016 the Respondent refused the Applicant's application for authorisation to drive buses, pursuant to section 12 of the Passenger Transport Act 1990 ("the Act"), on the basis that his criminal convictions and period of incarceration meant that he was not of good repute or a fit and proper person as required by s 11(2) of the Act. The decision under review 1. The applicant seeks the review of the decision made by the Respondent on 2 December 2016 to refuse the applicant's application for an authority to drive a bus in New South Wales ("the Decision"). The law 1. The Application was made pursuant to s 52 of the Act which relevantly provides that a person whose application under Part 2 of the Act (which includes an application for an authorisation to drive public passenger vehicles including buses) has been refused, may apply to the Tribunal for an administrative review, under the Administrative Decisions Review Act 1997 (the ADR Act), of the refusal. 2. Section 63 of the ADR Act requires the Tribunal, in determining an application concerning an administratively reviewable decision such as the Decision, to decide what the correct and preferable decision is having regard to the material then before it (including material not previously available to or considered by the administrator) and any applicable written or unwritten law, and authorises the Tribunal to affirm, vary or set aside the administratively reviewable decision. If the Tribunal sets aside that decision the Tribunal is to make a decision in substitution for that decision or remit the matter for reconsideration by the administrator who made the decision. 3. For the purpose of these proceedings, the most relevant object of the Passenger Transport Act is "to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services": s 4(e). 4. Relevantly, s. 12 of the Act authorises the respondent to grant authorities to persons. Pursuant to section 11(2) of the Act: The purpose of an authority under this Division is to attest: 1. that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. 1. Section 7 of the Criminal Records Act 1991 states: Which convictions are capable of becoming spent? (1) All convictions are capable of becoming spent in accordance with this Act, except the following: (a) convictions for which a prison sentence of more than 6 months has been imposed … Material before the Tribunal 1. The Respondent relied on 1. a bundle of documents filed with the Tribunal on an unknown date comprising the Respondent's file of 31 pages. 2. oral submissions by Mr Wozniak, solicitor for the Respondent. 1. The Applicant relied on: 1. his Application; 2. his written submissions received by the Tribunal on 20 February 2017, including his CV and a reference from Town & Country Vehicle Accessories; 3. his oral evidence and submissions at hearing. 1. At the conclusion of the hearing, I gave directions for the Applicant to file and serve any additional references or supporting material by 20 March 2017. Nothing further was received by the Tribunal. The Applicant's convictions 1. The Applicant was convicted on 18 October 2007 of supplying commercial quantities of a prohibited drug, and sentenced to two periods of imprisonment – one for seven years, with a non parole period of three years and six months, and one for eight years, with a non parole period of four years. 2. The Applicant was incarcerated from 13 July 2006 until his release on 11 July 2011. He completed a four year probation period in 2015. 3. He included with his application a National Police Certificate dated 1 November 2016 which included the following "disclosable court outcomes": Court Court date Offence Outcome Sydney District Court 18/10/2007 SUPPLY PROHIBITED DRUG >= COMMERCIAL QUANTITY - SI IMPRISONMENT: 7 YEARS COMMENCING 13/07/2006 CONCLUDING 12/07/2013 NON PAROLE PERIOD: 3 YEARS AND 6 MONTHS TO COMMENCE 130706 AND CONCLUDE 120110 COURT CASE REFERENCE NUMBER 06/11/1054 Sydney District Court 18/10/2007 SUPPLY PROHIBITED DRUG >= COMMERCIAL QUANTITY - SI IMPRISONMENT: 8 YEARS COMMENCING 13/07/2007 CONCLUDING 12/07/2015 NON PAROLE PERIOD: 4 YEARS COMMENCING 13/07/2007 CONCLUDING 12/07/2011 DRUG TO BE DESTROYED: (MATTERS TAKEN INTO ACCOUNT ON FORM1) COURT CASE REFERENCE NUMBER 06/11/1054 Sydney District Court 18/10/2007 SUPPLY A PROHIBITED DRUG TAKEN INTO ACCOUNT ON FORM 1: THIS FILE COURT CASE REFERENCE NUMBER 06/11/1054 The applicant's evidence and contentions 1. In his application for the authority, the Applicant did not respond to the question "Do you have any criminal convictions in NSW or elsewhere which occurred more than ten years ago (more than three years ago if committed as a juvenile) where you were imprisoned for more than 6 months or the conviction/s related to a sexual offence?" 2. The Applicant gave evidence that he had been upfront about his conviction, had learnt from his mistake; was honest, responsible, and a person of good repute; was remorseful for his conviction; and had "become a fit and proper person in his lifestyle within societies' standards". 3. The Applicant submitted that the Respondent's decision was "very generalised and therefore discriminative". He gave evidence that he had telephoned the Respondent and was informed that there was no specific time limit that a criminal record was prohibited, there was no mention of a criminal conviction being prohibited in the application, and he was not advised at any stage of the process that his criminal conviction would prevent him from gaining a licence. He stated that he had not been interviewed or assessed in person by the respondent and could not understand, therefore, how the Respondent could determine what type of person he was. 4. The Applicant gave evidence that he had been employed in a number of jobs since his release where he was "the face of the company", and submitted that this demonstrated his fitness and propriety, as did the nature of the offences for which he was convicted being non-violent. The Respondent's contentions 1. The Respondent relied on the reasons given with the decision: Your convictions reflect negatively on your moral rectitude and character and have led Roads and Maritime Services to conclude that you cannot be safely entrusted with the responsibilities of a public passenger vehicle driver. These convictions are considered serious offences and are of grave concern to Roads and Maritime Services, raising questions as to whether you can be considered a 'fit and proper' person for the purposes of the passenger Transport Act 1990. In determining "public interest" one has to formulate it in terms of the perceptions of "a reasonable member of the travelling public". It is likely that a reasonable member of the travelling public would regard your criminal convictions and period of incarceration as sufficient to refuse your application for an authorisation. In view of the criminal convictions recorded against you, which are considered serious offences and the period of incarceration that you were sentenced to, Roads and Maritime services cannot attest that you are a fit and proper person for the purposes of the Passenger Transport Act 1990. 1. The Respondent submitted that although the Applicant had provided a list of jobs he had been employed in since his release, none of those jobs required a test or standard to be applied such as that required of the Act. 2. The Respondent submitted that with reference to section 7(1)(a) of the Criminal Records Act 1991, the Applicant's convictions were not capable of being "spent" through the passage of time. 3. The Respondent submitted that the Applicant had not provided any evidence of having changed dramatically from the person who was convicted of the offences in 2007. The only reference provided by the Applicant was from an employer, was not addressed to any person in particular, and did not make reference to the Applicant's criminal history, and therefore should be afforded little weight. Consideration 1. It is uncontroversial that the statutory regime under the Act is protective, not punitive. Good repute as well as fitness and propriety must be assessed in the context of the work which the licence entails, in this case driving a public bus. The test is directed towards maintaining and encouraging appropriate standards in the passenger transport industry. 2. In Sobey v Commercial Agents Board (1979) 22 SASR 70 at 76, Walters J said in relation to the licensing of commercial and private agents, that the expression means that an applicant must show that he or she …is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 1. Determining whether someone is of good repute and a fit and proper person to be a bus driver involves the exercise of a discretion or, put another way, a "value judgment": Australian Broadcasting Tribunal v Bond (Bond Media Case) [1990] HCA 33; 170 CLR 321 at 388 Toohey and Gaudron JJ. As Toohey and Gaudron JJ went on to say in the Bond Media Case: 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. While there is an "area in which a decision-maker has a genuinely free discretion", any discretionary power must be exercised "reasonably": Minister for Immigration and Citizenship v Li [2013] HCA 18 at [63] and [66]; [2013] HCA 18; 249 CLR 332 at 362 and 363 (Hayne, Kiefel and Bell JJ.) 2. The Applicant's convictions in 2007 provide the basis for a finding that he is not a "person of good repute". As expressed in Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392 at 393: "Evidence of conviction for a criminal offence is ... most cogent evidence of bad reputation":. 1. In cases where 'good character' is part of the legal test for the practice of a particular occupation or profession, the question of reformation of character is significant. Similarly if a person has been 'unfit' in the past, the question arises is to whether they are now a fit and proper person to perform a particular role. Deputy President Hennessy said in Z v Director General, Department of Transport [2000] NSWADT 87 at paragraph 36, that a person can "live down" their bad reputation and reform their bad character. The classic statement of the law comes from Ex Parte Tziniolis; re the Medical Practitioner's Act (1966) 67 SR (NSW) 448 at 460-461, in a passage approved in part by the Supreme Court in Health Care Complaints Commission v Litchfield [1997] NSWSC 297; (1997) 41 NSWLR 630 at 637: Reformations of character and of behaviour can doubtless occur but their occurrence is not the usual but the exceptional thing. One cannot assume that a change has occurred merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred. If a man has exhibited serious deficiencies in his standards of conduct and his attitudes, it must require clear proof to show that some years later he has established himself as a different man. The position is somewhat similar to that which exists when application is made by a barrister or a solicitor who has been found guilty of serious misconduct exhibiting a lack of proper standards, seeking reinstatement on the ground that, after a lapse of time, he has become a fit and proper person to be a member of a profession which requires qualities and standards in which he has known to have been deficient. In such cases, it has been frequently said that a heavy onus lies on the applicant - see Ex Parte Clyne [[1962] SR (NSW) 436 at 441], and cases there cited. 1. Although the Applicant stated that he had "become a fit and proper person in his lifestyle within societies' standards", he provided almost no evidence in support of his statement, despite being provided with the opportunity to do so. The sole reference he provided, for the reasons identified by the Respondent, is relatively useless in the circumstances. On the evidence before me, I find that the Applicant is not a person of good repute within the meaning expressed in the Act. 2. 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 all of the evidence. The content of fitness and propriety was defined as having 3 components -"honesty, knowledge and ability" (Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at para 9). 3. On the evidence before me, which includes the Applicant's successful bus driving test as part of his application for the authority, I find that the Applicant has the requisite knowledge and ability to be a bus driver. However, the only evidence I have before me of the Applicant's honesty is to the contrary. Although the Applicant stated in evidence that he had been "upfront about his convictions", his application form for the authority was left blank in the relevant sections seeking information about prior convictions of longer than 10 years' duration. 4. For the above reasons, on the basis of the evidence before the Tribunal, I am not satisfied that the applicant is of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle. ORDER 1. I affirm the decision made on 2 December 2016 to refuse the applicant's application for an authority to drive a bus in New South Wales. 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: 18 May 2017