Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Hossain v Roads and Maritime Services [2018] NSWCATOD 11 Hearing dates: 13 December 2017 Date of orders: 16 January 2018 Decision date: 16 January 2018 Jurisdiction: Occupational Division Before: Dr J Lucy Decision: 1. The proceedings are dismissed. Catchwords: ADMINISTRATIVE REVIEW – Passenger Transport –Where applicant's authority to drive taxis suspended under Passenger Transport Act 1990 - Commencement of new legislation and repeal of relevant provisions of Passenger Transport Act 1990 – Whether Tribunal has jurisdiction to review suspension decision – Whether, if Tribunal does have jurisdiction, applicant is of good repute Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW). Interpretation Act 1987 (NSW) Passenger Transport Act 1990 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Cases Cited: Ashford v Roads and Maritime Services [2017] NSWCATOD 170 Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 Farquharson v Director General, Department of Transport [1990] NSWADT 53 Loye v Director General, Department of Transport [2000] NSWADT 145 Category: Principal judgment Parties: Md Tanvir Hossain (Applicant) Roads and Maritime Services (Respondent) Representation: Solicitors: Applicant in person Smythe Wozniak Lawyers (Respondent) File Number(s): 2017/00275537 reasons for decision 1. The applicant applied for review of the decision of the respondent ("RMS") to suspend his authority to drive a taxi-cab. The decision was made under the Passenger Transport Act 1990 (NSW). 2. Since that decision, the relevant provisions of the Passenger Transport Act have been repealed and the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) has commenced. 3. I have found that authorities to drive taxi-cabs under the Passenger Transport Act do not have continuing effect under the new legislation and that the Tribunal no longer has jurisdiction to review the decision to suspend the applicant's driving authority. 4. Accordingly, I have dismissed the application. Background 1. On 18 April 2017, Mr Hossain was charged with assault occasioning actual bodily harm and common assault. 2. On 10 June 2017, Mr Hossain was charged with enter enclosed lands, stalk/intimidate, common assault and destroy or damage property. 3. On 27 July 2017, RMS suspended Mr Hossain's authority to drive a taxi-cab and his authority to drive a private hire vehicle pursuant to ss 33F and 40E of the Passenger Transport Act. It did so on the basis that he was not of good repute and was not a fit and proper person to drive a taxi-cab (Passenger Transport Act, ss 33(3)(a), 33F). 4. On 1 August 2017, the charge of assault occasioning actual bodily harm was withdrawn and Mr Hossain pleaded guilty to common assault (an offence under s 61 of the Crimes Act 1900 (NSW)). He was found guilty of this offence, but without proceeding to conviction he was directed to enter into a good behaviour bond for twelve months pursuant to s 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW). 5. Mr Hossain applied for internal review of the decisions of RMS to suspend his driver authorities on 4 August 2017. The decisions were affirmed on internal review. 6. On 11 September 2017, Mr Hossain applied to the Tribunal for a review of the suspension decisions pursuant to s 52 of the Passenger Transport Act. He made clear, at the hearing, that he only sought review of the decision to suspend his taxi authority. 7. Mr Hossain did not file or serve any evidence. However, he provided an unsigned statement to RMS, which was also provided to the Tribunal, in which he sought to explain the charges against him. He said that the charge of assault arose after he had a domestic argument with his partner and "when police arrived they put their own assumption and put charge against me." He stated that he pleaded guilty "according to [his] lawyer" and received a one-year good behaviour bond. Mr Hossain's partner also provided an unsigned statement to RMS in which she supported Mr Hossain's account of the incident and said "there was no assault to me at all." 8. Mr Hossain claimed that the second set of allegations against him were "not true at all." He explained that his neighbour had slashed his partner's tyre, following which he had a verbal argument with the neighbour. He then stated: "Later that afternoon police charge me for assault and damaging his asset which I never done it." What is the applicable legislation? 1. The whole of Part 4 (Taxi Cabs) of the Passenger Transport Act (including s 33F) was repealed by the Point to Point Transport (Taxis and Hire Vehicles) Act, which came into effect on 1 November 2017. The Point to Point Transport (Taxis and Hire Vehicles) Act introduced a new regime for the regulation of taxi drivers. Section 27(1) of the Point to Point Transport (Taxis and Hire Vehicles) Act provides that it is an offence to provide a taxi service unless authorised to do so. Division 2 of Part 3 of that Act provides for applications for an authorisation to provide a taxi service, which are to be determined by the Point to Point Transport Commissioner. Pursuant to s 45 of that Act, the Commissioner may vary, suspend or cancel an authorisation to provide a taxi service if certain criteria are met. 2. Under the Point to Point Transport (Taxis and Hire Vehicles) Act, a person may not be granted an authorisation to provide a taxi service if the person has been convicted of a disqualifying offence (s 31(2), (3)(a)). A "disqualifying offence" is an offence specified in the regulations (Point to Point Transport (Taxis and Hire Vehicles) Act, s 32; Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017, cl 24). The regulations provide that a person must not drive a taxi if the person has been found guilty of a disqualifying offence (Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017, cl 24(1)). A "disqualifying offence" is not defined to include an offence under s 61 of the Crimes Act (Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017, cl 24). 3. At the hearing, I raised the question of which legislation governed this review, given that Part 4 (Taxi Cabs) of the Passenger Transport Act has been repealed. 4. Mr Wozniak, for RMS, submitted that the legislation applicable at the time the decision was made (that is, the Passenger Transport Act) applied for the purpose of this review. He did not explain the legal basis upon which he made this submission. Mr Hossain made no submission either way. 5. The savings and transitional provisions in Sch 3 to the Passenger Transport Act relevantly provide: " 2 Definitions In this Part: 1990 Act means the Passenger Transport Act 1990. … 12 Holders of driving authorities (1) This clause applies to a person who was, immediately before the commencement of Part 3 of this Act, the holder of a driver authority under the 1990 Act that authorised the person to drive a taxi-cab or a private hire vehicle. (2) The person may drive a vehicle that provides a passenger service under this Act even if the person had, before that commencement, been convicted of an offence that would prevent the person from being eligible to drive a vehicle for that purpose under this Act, unless the Commissioner determines that the person should not, because of that conviction, be a driver for a passenger service. (3) Any such determination is a reviewable decision for the purposes of section 145. (4) The Commissioner must give written notice to the person, and any provider of a passenger service or booking service for which the person is a driver or that provides services to the person, of a determination under this clause. (5) This clause does not extend to any offence committed on or after the commencement of Part 3 of this Act." 1. There is no provision expressly continuing in force or giving continuing effect to a driver authority under the Passenger Transport Act. Whilst the regulations may contain provisions of a savings and transitional nature, they do not do so (Point to Point Transport (Taxis and Hire Vehicles) Act, Sch 2, cl 1). 2. Section 30 of the Interpretation Act 1987 provides, relevantly: "30 Effect of amendment or repeal of Acts and statutory rules (1) The amendment or repeal of an Act … does not: … (b) affect the previous operation of the Act … or anything duly suffered, done or commenced under the Act …, or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the Act …, or ... (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability or penalty, and any such penalty may be imposed and enforced, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, as if the Act … had not been "amended or repealed. (2) Without limiting the effect of subsection (1), the amendment or repeal of an Act … does not affect: … (b) any right, privilege, obligation or liability saved by the operation of the Act …, or (c) any amendment or validation made by the Act …, or (d) the operation of any savings or transitional provision contained in the Act …. (3) This section applies to the amendment or repeal of an Act … in addition to, and without limiting the effect of, any provision of the Act … by which the amendment or repeal is effected." 1. Section 5(2) of the Interpretation Act relevantly provides: "(2) This Act applies to an Act … except in so far as the contrary intention appears in this Act or in the Act … concerned." 1. If there were no contrary intention apparent in the Point to Point Transport (Taxis and Hire Vehicles) Act, the effect of s 30(1)(e) would be that the proceedings for review of the decision of RMS to suspend Mr Hosain's authority to drive a taxi-cab would not be affected by the repeal of the relevant provisions of the Passenger Transport Act. That is, subject it having jurisdiction to do so, the Tribunal could continue to review the decision. 2. However, in my view, a contrary intention is apparent in the Point to Point Transport (Taxis and Hire Vehicles) Act. 3. The Point to Point Transport (Taxis and Hire Vehicles) Act expressly continues in force ordinary, short term and annual taxi licences (being licences granted under the Passenger Transport Act) (Sch 2, cl 2(1), (2)). The Act also provides that an accredited operator of a taxi service and a holder of a taxi-cab network authorisation under the Passenger Transport Act are each taken to be an authorised provider of a taxi service under the Point to Point Transport (Taxis and Hire Vehicles) Act (Sch 2, cl 8(1), 9(1)). Further, an accredited operator of a public passenger service by means of a private hire vehicle and an accredited operator of a tourist service provided by means of motorcycles or four wheel drive vehicles under the Passenger Transport Act are each taken to be an authorised provider of a booking service under the Point to Point Transport (Taxis and Hire Vehicles) Act (Sch 2, cl 10(1), (1A)). 4. There is no equivalent provision applying to authorities to drive a taxi, granted under s 33 of the Passenger Transport Act. Rather, cl 12 of Sch 2 of the Point to Point Transport (Taxis and Hire Vehicles) Act (set out above) provides that the holder of a driver authority immediately before the commencement of Part 3 of that Act may be authorised under the new legislation, even though the person had been convicted of a disqualifying offence. In other words, the savings and transitional provisions effectively provide an exemption from the prohibition upon persons who have been convicted of a disqualifying offence from driving taxis, for existing taxi drivers whose offences are historical. There is no indication, however, of any intention to continue in force existing driver authorities. The omission of any provision doing so, in circumstances where other licences and authorisations are given continuing effect, indicates an intention that driver authorities under the Passenger Transport Act cease to have effect upon the commencement of Part 3 of the Point to Point Transport (Taxis and Hire Vehicles) Act. 5. The absence of any provisions giving effect to driver authorities issued under the Passenger Transport Act makes the review futile. It means, in my view, that there is a legislative intention that the repeal of Part 4 of that Act brings to an end any proceedings for review of a decision to suspend a driver authority. 6. I also consider that the Tribunal no longer has jurisdiction to conduct the review. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") or any other legislation (NCAT Act, s 28(1)). One type of jurisdiction the Tribunal has is administrative review jurisdiction (NCAT Act, s 28(2)(b)). The Administrative Decisions Review Act 1997 (NSW) provides for the circumstances in which the Tribunal has administrative review jurisdiction over a decision of an administrator (NCAT Act, s 30(1)). The Tribunal has administrative review jurisdiction over an administrator's decision if, broadly, enabling legislation provides that applications may be made to the Tribunal for an administrative review under the Administrative Decisions Review Act of the decision (Administrative Decisions Review Act, s 9(1)). 7. At the time Mr Hossain applied to the Tribunal, s 52(1) of the Passenger Transport Act relevantly provided that a person whose taxi authority had been suspended may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act of the suspension. The Tribunal had jurisdiction as enabling legislation (being the Passenger Transport Act) provided for applications to be made for the review. On 1 November 2017, s 52 was amended so that it only authorised reviews of decisions made under Part 2 of the Passenger Transport Act (that is, it did not authorise the review of a decision to suspend a taxi authority). As the savings and transitional provisions in the Point to Point Transport (Taxis and Hire Vehicles) Act do not continue in effect an authority to drive a taxi granted under the Passenger Transport Act, there is no legislation which currently confers jurisdiction on the Tribunal to conduct the review (NCAT Act, s 28(1)). The Interpretation Act does not achieve this, for reasons given above. The Tribunal therefore no longer has administrative review jurisdiction (or any jurisdiction) over the decision (Administrative Decisions Review Act, s 9(1)). 8. The appropriate order is therefore to dismiss the proceedings, pursuant to s 55(1)(b) of the NCAT Act, on the basis that they are frivolous or vexatious or otherwise misconceived or lacking in substance. Is Mr Hossain of good repute and a fit and proper person to drive a taxi? 1. In case I am wrong, and the relevant provisions of the Passenger Transport Act continue in effect, I will consider, briefly, whether Mr Hossain 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" within s 33(3)(a) of that Act. 2. The RMS was entitled to suspend Mr Hossain's authority to drive a taxi-cab, having regard to the purpose of authorisation, which includes 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 taxi-cab (Passenger Transport Act, ss 33(3)(a), 33F). By using the word "attest" the Parliament has sought "to emphasise the idea that the conferral of an authority involves a declaration of public trust": Director General, Transport New South Wales v AIC [2011] NSWADTAP 65 at [12]. 3. As the President of the Administrative Decisions Tribunal said in Farquharson v Director General, Department of Transport [1990] NSWADT 53 at [27]: "Clearly the laying of serious criminal charges bears on the reputation of an individual and may raise questions as to the person's character. The concepts of "good repute" and "fit and proper character" involve different considerations. The former concept goes to the way in which a person is regarded by others in the community (fairly or unfairly), while the latter concept goes to an individual's intrinsic characteristics, whether they are known to others or not: see, for a detailed discussion, Re T and Director of Youth & Community Services [1980] 1 NSWLR 392 (Waddell J)." 1. Thus, even if Mr Hossain did not, in fact, commit an assault, the fact that he has been found guilty of assault adversely affects his good repute. Similarly, the circumstance that he has been charged with other crimes adversely affects his good repute, irrespective of whether he is ultimately convicted of those charges. Both sets of charges were laid in the last twelve months. 2. Given Mr Hossain's criminal history, the onus is on him to establish his good reputation: Loye v Director General, Department of Transport [2000] NSWADT 145 at [29]. 3. Mr Hossain provided a number of character references, some of which were unsigned. These references displayed no knowledge of the charges against him or of the guilty finding in relation to common assault. I therefore give them little weight (Ashford v Roads and Maritime Services [2017] NSWCATOD 170 at [13]-[14]). 4. Taking into account Mr Hossain's recent finding of guilt and the recent charges against him, I find that he is not of good repute. 5. For this reason, if I had power to do so, I would affirm the decision of RMS to suspend his authority to drive a taxi-cab. Orders 1. The proceedings are dismissed. ******** 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: 17 January 2018