Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Haggar v Point to Point Transport Commissioner [2018] NSWCATOD 38 Hearing dates: 13 February 2018 Date of orders: 14 March 2018 Decision date: 14 March 2018 Jurisdiction: Occupational Division Before: Dr J Lucy, Senior Member Decision: 1. The Tribunal determines to deal with the applicant's application even though the applicant has not duly applied for an internal review, pursuant to s 55(4)(b) of the Administrative Decisions Review Act 1997. 2. The respondent's decision is set aside. 3. The Tribunal decides, in substitution for that decision, not to make any determination under cl 12(2) of Sch 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act 2016, that the applicant should not, because of his convictions, be a driver for a passenger service. 4. The applicant is to file and serve any application for costs within 14 days of the date of this decision, accompanied by any evidence and submissions on which the applicant relies. 5. If the applicant makes an application for costs, the respondent is to file and serve any evidence and submissions on the costs application within 28 days of the date of this decision. 6. Any costs application made by the applicant is to be determined on the papers. Catchwords: ADMINISTRATIVE LAW – Passenger Transport – Where applicant drove private hire vehicles pursuant to an authority under the Passenger Transport Act 1990 – Where applicant had committed disqualifying offences 28 years ago - Where respondent decided, upon commencement of the Point to Point Transport (Taxis and Hire Vehicles) Act 2016, that the applicant should not be allowed to continue to drive passenger service vehicles, due to the disqualifying offences – Principles governing exercise of discretion ADMINISTRATIVE LAW – Where applicant had not applied for internal review - Whether it was necessary for the Tribunal to deal with the application in order to protect the applicant's interests Legislation Cited: Administrative Decisions Review Act 1997 (NSW) Child Protection (Offender's Registration) Act 2000 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Crimes Act 1900 (NSW) Interpretation Act 1987 (NSW) Passenger Transport Act 1990 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW) Cases Cited: Alameddine v Roads and Maritime Services [2018] NSWCATAD 22 Haggar v Roads and Maritime Services [2017] NSWCATOD 125 Hossain v Roads and Maritime Services [2018] NSWCATOD 11 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21 Category: Principal judgment Parties: Colin Haggar (applicant) Point to Point Transport Commissioner (respondent) Representation: Counsel: I Latham (applicant) K Averre (respondent) Solicitors: Uther Webster & Evans (applicant) Hunt & Hunt (respondent) File Number(s): 2017/332873 REASONS FOR DECISION 1. The Point to Point Transport Commissioner ("the Commissioner") decided not to allow the applicant to be a hire car driver, because of the applicant's convictions. The applicant was convicted, in 2016, of indecently assaulting a child three times between 1988 and 1990. 2. The Commissioner's decision was made just before the commencement of the parts of the Point to Point Transport (Taxis and Hire Vehicles) Act 2016 (NSW) which regulate the driving of taxis and hire vehicles. Prior to the commencement of that legislation, the applicant had an authority to drive a private hire vehicle under the Passenger Transport Act 1990 (NSW). 3. The applicant poses little, if any, risk to the travelling public in circumstances where he confessed to his crimes soon after they were committed and has been remorseful ever since. I have decided that the correct and preferable decision is that the applicant should be permitted to drive hire cars. Background 1. The applicant sexually assaulted an 8-year old girl on three occasions between January 1988 and March 1990. He was a Salvation Army Officer at the time and aged about 30. 2. The offences occurred when the victim went to the applicant's Salvation Army office alone. On one occasion, he placed his foot between the victim's legs whilst sitting opposite her, and pushed against the victim's vagina through clothing. On another occasion, the applicant used his fingers to rub and touch the victim on the outside of her vagina through her clothes. On the third occasion, the applicant placed his hand inside the victim's underpants and touched the outside of her vagina. On this occasion she said "no" and left the office. 3. The applicant confessed to his wife and to the Salvation Army shortly after the last offence occurred. He attended upon the police in about 1990 and confessed to the crimes. He was not charged at the time. There is a question as to whether he told the police the name of the girl the subject of the assaults, but he maintained (and I accept) that he gave the police all the information they requested of him. 4. In 2007, in connection with his work at the Salvation Army, the applicant attended upon a forensic psychiatrist, Dr Bruce Westmore, who prepared a risk assessment. Dr Westmore's opinion was that the applicant does not suffer from the condition paedophilia and noted that, on occasions, depression or stress can cause people to act in a sexually inappropriate way. Dr Westmore concluded: "While psychiatrists cannot predict in any definitive way how any human being will react at any time it is my view, based on his history and his clinical presentation, that Mr Haggar does not pose any significant risk to adults or minors. I think that the risk of Mr Haggar acting again in an inappropriate sexual way towards children is minimal if any risk is there at all. I think his prognosis from a forensic perspective is extremely good." 1. In 2013, the applicant obtained an authority to drive a private hire vehicle, under the Passenger Transport Act. 2. In 2015, the applicant was arrested and charged with three counts of indecent assault pursuant to s 61E of the Crimes Act 1900 (NSW). The charges related to the offences committed between 1988 and 1990. According to the judge's sentencing remarks, the applicant's arrest resulted from a hearing at the Royal Commission into Institutional Responses to Child Sexual Abuse. 3. The applicant obtained a psychiatric report from Dr Olav Nielssen on 1 November 2016 for the purposes of the criminal proceedings. Dr Nielssen was of the view that the applicant did not suffer from any psychiatric disorder. In his opinion, the applicant did not have a disorder of abnormal sexual interest (a paraphilia), such as heterosexual paedophilia, despite the offences. He was also of the opinion that the applicant had "a low risk of further offences, on both clinical grounds and on actuarial estimates". 4. The applicant entered a plea of guilty and, on 16 December 2016, was convicted of the charges and given a 12-month suspended prison sentence and two good behaviour bonds of three and a half years each to be served concurrently. 5. In early 2017, Roads and Maritime Services first suspended and then cancelled the applicant's authority to drive a private hire vehicle, because of his convictions. The applicant sought review of those decisions in the Tribunal. On 18 August 2017, the Tribunal set aside the cancellation decision, meaning that the applicant's authority to drive a private hire vehicle continued in effect (see Haggar v Roads and Maritime Services [2017] NSWCATOD 125). 6. The regulation of private hire vehicles in New South Wales changed on 1 November 2017. The Passenger Transport Act ceased to apply to them and instead they became regulated under the Point to Point Transport (Taxis and Hire Vehicles) Act by a new regulator, being the Commissioner. 7. Drivers of private hire vehicles no longer need an authority to drive. However, persons who have been found guilty of a "disqualifying offence" (including the offence of which the applicant was convicted) are generally prohibited from driving a hire vehicle to provide a passenger service (Point to Point Transport (Taxis and Hire Vehicles) Regulation 2017 (NSW), cl 24(1)). 8. There is an exception from this prohibition for drivers who held an authority immediately before the commencement of Part 3 of the Point to Point Transport (Taxis and Hire Vehicles) Act, as the applicant did, unless the Commissioner determines that the person should not, because of the conviction, be a driver for a passenger service (Point to Point Transport (Taxis and Hire Vehicles) Act, Sch 2, cl 12(1) and (2)). 9. A brief to the Commissioner, by staff of the Commissioner, which the Commissioner approved on 26 October 2017, appears to make the following recommendation: all holders of driver authorities which were suspended or cancelled by the Roads and Maritime Services, but which were later reinstated by the Administrative Decisions Tribunal or this Tribunal, should not be "transitioned" under the new legislation. One of the persons the subject of the recommendation is the applicant. 10. On 31 October 2017, a day before the commencement of Part 3 of the Point to Point Transport (Taxis and Hire Vehicles) Act, the Commissioner wrote to the applicant. In the letter, the Commissioner stated that she had determined that, because of the applicant's convictions, he was ineligible to drive a vehicle under the Point to Point Transport (Taxis and Hire Vehicles) Act. Internal Review 1. On 3 November 2017, the applicant applied to this Tribunal for a review of the Commissioner's determination and for a stay of the determination. 2. It was common ground that the applicant did not apply for an internal review of the Commissioner's determination. Pursuant to s 55(3) of the Administrative Decisions Review Act 1997 (NSW), an application may not be made to the Tribunal unless the person has duly applied for an internal review. However, that provision is subject to s 55(4) of the Administrative Decisions Review Act. Section 55(4)(b) provides, relevantly, that the Tribunal may deal with the application even though the applicant has not applied for an internal review if the Tribunal is satisfied that it is necessary to deal with the application in order to protect the applicant's interests and the application to the Tribunal was made within a reasonable time. 3. On 21 November 2017, a Tribunal member granted a stay of the Commissioner's determination, subject to conditions. Neither party requested written reasons for that decision. Accordingly, it is not clear whether the Tribunal considered the operation of s 55 of the Administrative Decisions Review Act when dealing with the application for a stay. 4. There is no question that the applicant's application was made to the Tribunal within a reasonable time of the reviewable decision within s 55(4)(b) of the Administrative Decisions Review Act, as it was made three days later. 5. The Commissioner submitted that "the Tribunal is likely to conclude that it is satisfied that it was necessary to deal with the application in order to protect the applicant's interests" and that, given that the Tribunal has already granted a stay, the "application of s 55 may well be otiose." 6. I consider that it is necessary to deal with the application in order to protect the applicant's interests, within s 55(4)(b) of the Administrative Decisions Review Act. If the Tribunal did not consider the effect of the lack of an internal review application on 21 November 2017, then the applicant has prepared a case and attended a hearing on the likely assumption that the Tribunal has jurisdiction to deal with his matter. He is now out-of-time to apply for internal review, since that application (or an application for reasons for the decision) needs to be made within 28 days of the decision (Administrative Decisions Review Act, s 53(2)(d)). Whilst an application for internal review may also be made on "such later date as the administrator may allow," there is no guarantee that the Commissioner would allow the applicant to apply for internal review now. 7. It is also in the applicant's interests for the Tribunal to deal with the matter since he earns his income driving hire cars. If the Tribunal did not deal with the matter, there could be a long period in which the applicant was unable to drive hire cars and he may lose his current employment. That may mean that, if the applicant then decided to seek review of a negative internal review outcome in the Tribunal, he would be unable to regain his employment, even if the Tribunal decided the review application in his favour (or granted a stay). 8. For all of these reasons, I am satisfied that it is necessary to deal with the application in order to protect the applicant's interests and that the application to the Tribunal was made within a reasonable time. I have accordingly decided to deal with the application. Jurisdiction 1. 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 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)). 2. The Point to Point Transport (Taxis and Hire Vehicles) Act provides, in cl 12(3) of Sch 2, that a determination of the Commissioner that a person should not, because of a disqualifying conviction, be a driver for a passenger service, is a reviewable decision for the purposes of s 145. Section 145(1) of that Act provides that a person aggrieved by a reviewable decision may apply to this Tribunal for an administrative review under the Administrative Decisions Review Act of the decision. The applicant is a "person aggrieved" by the Commissioner's decision and it follows that the Tribunal has jurisdiction to review it. Timing of Commissioner's decision 1. The applicant did not raise, as an issue, the question of the timing of the Commissioner's determination. 2. The Commissioner made the determination, purportedly under cl 12 of Sch 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act, before that provision had commenced. There must be some doubt as to whether the Commissioner had power to do so. 3. This issue was not raised by the parties at the hearing. The Commissioner's determination could arguably be regarded as a continuing one. It is clear that the Commissioner maintains the position set out in the October 2017 letter in 2018. In these circumstances, I am reasonably satisfied that the Tribunal has power to review the determination, even though it was made prior to the commencement of cl 12. Legislative Framework 1. I set out some of the relevant legislative framework relevant to the regulation of taxis and hire vehicles and the change of legislative regimes in Hossain v Roads and Maritime Services [2018] NSWCATOD 11, esp at [13]-[25] and Alameddine v Roads and Maritime Services [2018] NSWCATAD 22, esp at [21]-[24]. 2. Relevantly to these proceedings, cl 12 of Sch 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act provides: "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. This case turns principally on the application of cl 12(2). What principles apply to the exercise of discretion? 1. The Tribunal's task when conducting an administrative review is to decide what the correct and preferable decision is, having regard to the material before it (Administrative Decisions Review Act, s 63(1)). Thus, the Tribunal must decide whether the Commissioner's decision that the applicant should not, because of his convictions for disqualifying offences, be a driver for a passenger service, is (at the time of the Tribunal's decision) the correct and preferable decision. 2. The applicant submitted that the Commissioner's discretion is not subject to any express restrictions and that the permissible considerations, not being specified, may be identified by reference to the scope and purpose of the legislation. He relied for this proposition upon Water Conservation and Irrigation Commission (NSW) v Browning (1947) 74 CLR 492; [1947] HCA 21, Dixon J at 504-505. In that case, Dixon J said of the discretion conferred by the relevant legislation, at 505: "The discretion is, therefore, unconfined, except in so far as the subject matter and the scope and purpose of the statutory enactments may enable the Court to pronounce given reasons to be definitely extraneous to any objects the legislature could have had in view." 1. To similar effect, in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40, Mason J said at 39-40: "If the relevant factors - and in this context I use this expression to refer to the factors which the decision-maker is bound to consider - are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard: …" 1. The applicant's counsel submitted that it was apparent from the text of the Point to Point Transport (Taxis and Hire Vehicles) Act and from the second reading speech that "notions of the safety of the public and accountability are paramount." Mr Averre, for the Commissioner, accepted that public safety was a relevant factor to consider in the exercise of the discretion conferred by cl 12. This concession was well made. It is clear from Part 2 of the Point to Point Transport (Taxis and Hire Vehicles) Act ("Safety of Services") that safety is a paramount concern under the legislation. It is not necessary to have regard to the second reading speech to reach that conclusion. 2. I do not need to determine whether it is mandatory to consider safety issues when exercising the discretion under cl 12 of Sch 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act. I am satisfied that I am permitted to consider such issues and that they are relevant in this case. 3. In support of his submission that public safety would not be compromised by a decision of the Tribunal which had the effect of allowing the applicant to drive a passenger vehicle, Mr Latham said that: 1. The applicant has had no other convictions or charges for 28 years; 2. There is evidence of the applicant's remorse; 3. He is highly regarded by others; 4. Two expert psychiatric reports are highly supportive of the applicant; and 5. The applicant has provided a safe and efficient serve as a hire car driver since 2014. 1. I accept that the circumstance that the applicant has had no further convictions or charges for 28 years is strong evidence that he is no longer a risk to children. I also accept the applicant's evidence that he "experienced great shame and remorse" at the time of his confession and that, since that time, he has worked hard to "redeem" himself and "to try and atone for what was a grievous and terrible crime." It was not suggested to the applicant in cross examination that this expression of remorse was not genuine. The applicant's longstanding regret for his crimes is another factor indicating that he is not, in 2018, a risk to children. 2. The applicant has provided character references from his wife and other persons which indicate the referees' knowledge of the applicant's convictions, but also speak highly of his character. I give the high regard in which the referees hold the applicant some weight as an indicator that children would be safe when driven by him, although I do not consider that this factor is as persuasive as the two factors discussed above. 3. The two expert psychiatrists who provided reports about the applicant agreed that the applicant posed a low risk of reoffending, one considering that there may not be any risk of him acting again in an inappropriate sexual way. Both agreed that he does not have a disorder of abnormal sexual interest. This expert opinion supports the applicant's case that he does not pose a threat to public safety. 4. It is also relevant, as the applicant submits, that he has driven hire cars since 2014 without incident. His employer stated, in a letter dated February 2018, that the applicant "is known and trusted by" his customers and that he has never had a complaint regarding the applicant. The respondent did not seek to cross examine the employer, or to cross examine the applicant about his conduct as a hire car driver. I accept the evidence of the applicant's employer that he is a trusted driver who has not been subject to complaints. This is also a factor indicating that the applicant does not pose a risk to public safety. 5. The Commissioner relies upon a number of factors said to be relevant to the exercise of my discretion. These are, using the language from the Commissioner's submissions: 1. "The mandatory disqualification of the applicant under the new legislative regime by virtue of his criminal convictions is of significance"; 2. "The only basis upon which the applicant may continue to drive a passenger service vehicle is based upon the transitional provisions"; 3. "The applicant has never given evidence or had his evidence tested" – referring to the circumstance that the applicant pleaded guilty and did not give evidence in his criminal trial; 4. "Risk assessment" – making the point that the risk assessments, which are favourable to the applicant, have limited predictive value; 5. "Working with children"; 6. "Punishment" – accepting that the Commissioner's decision is not punitive; and 7. "The Differences in the Regimes" – referring to the differences in regulation of drivers of vehicles providing passenger services under the Passenger Transport Act (as it formerly applied) and the Point to Point Transport (Taxis and Hire Vehicles) Act. First and second factors: legislative regime 1. A person in the applicant's position is not subject to a mandatory disqualification under the new legislative regime, as the Commissioner suggests. Rather, the starting point is that a person who held a driver authority under the Passenger Transport Act immediately before the commencement of the new regime is entitled to drive a hire vehicle, unless the Commissioner decides that, because of the person's convictions, the person should not be a driver for a passenger service. 2. There is some circularity in the Commissioner's submission. The Tribunal, standing in the Commissioner's shoes, is determining whether the Commissioner's decision that the applicant should not be a driver for a passenger service due to his convictions is the correct and preferable decision. The prohibition upon persons convicted of disqualifying offences driving hire cars only applies to persons who did not hold a driver authority immediately before the commencement of the new regime. Whilst it may be relevant to consider that this is the legislative policy applicable to such persons, it is also relevant to consider that the legislative policy is that persons who did hold such a driver authority are not prohibited from driving hire cars unless the Commissioner so determines. As the Tribunal is reviewing that determination in these proceedings, it makes little sense to focus on the position of persons who did not hold a driver authority at the end of the previous regime. 3. It is not relevant, in my view, that the applicant's prima facie (contingent) entitlement to drive hire vehicles is contained in the transitional provisions rather than in the main part of the Act. This does not make it less of an entitlement. The savings and transitional provisions are contained in Schedule 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act. A schedule to an Act has effect according to its tenor when it comes into force, whether or not the Act declares that the schedule has effect: Interpretation Act 1987 (NSW), s 64A. It is convenient and conventional to place savings and transitional provisions in a separate part of an Act. The circumstance that the legislature has seen fit to make different arrangements for existing drivers of passenger services and new drivers does not diminish the force of the legislature's expressed intention in respect of existing drivers. Third factor: applicant did not give evidence 1. As for the Commissioner's third factor, I give this little weight. I accept, as the Commissioner submitted, that the applicant did not give evidence at his sentencing hearing. However, the applicant made himself available for cross examination in these proceedings and was cross examined by the Commissioner's legal representative. The Commissioner thus had an opportunity to put to the applicant any matters the Commissioner considered relevant. Fourth factor: risk assessments 1. The fourth factor relied upon by the Commissioner is that risk assessments of the applicant provided by psychiatrists have limited predictive value and that risk assessment tools, such as "Static-99", do not inform the Tribunal as to the actual likelihood of the specific person re-offending. Rather, such a tool informs a court or tribunal as to the percentage of persons sharing like characteristics who actually reoffended in given periods. The Commissioner relies upon the comments of Bell J in Attorney-General (NSW) v Tillman [2007] NSWSC 605 at [72]-[76] about risk assessments. 2. The question of the predictive reliability of a risk assessment tool such as the Static-99 is a question of fact. In Attorney-General (NSW) v Tillman [2007] NSWSC 605, a number of psychologists and psychiatrists gave evidence and were cross examined about matters including the reliability of the Static-99 tool as a predictor of behaviour. Bell J sets out some of that (varying) evidence in her judgment. Having regard to that evidence, her Honour commented at [76] that the Static-99 is "a predictive tool of moderate value." 3. In these proceedings, the Commissioner did not seek to cross examine the psychologists who provided risk assessments or to otherwise provide evidence as to the reliability of the Static-99 tool. I note that, as recently as December 2017, Beech-Jones J found that the Tribunal had not given inadequate reasons when it placed far greater weight on the Static 99-R assessment of an applicant than a psychologist did, in BVT v Office of Children's Guardian [2017] NSWSC 1763 at [103]. It is implicit from that decision that the amount of weight the Tribunal gives to such an assessment is generally a matter for the Tribunal. That is particularly so when there is no evidence before the Tribunal as to the reliability of the risk assessment tool in question. 4. Dr Westmore does not state, in his report, that he has relied upon the Static-99 tool. He clearly states that psychiatrists cannot predict in any definitive way how any human being will react at any time. Dr Nielssen does rely upon the Static 99R tool (a different tool from the Static 99 tool), but his opinion of risk is based both on "clinical grounds" and on actuarial estimates. 5. I have taken into account Dr Westmore's opinion as to the limitation of psychiatrists' ability to definitively predict behaviour, as well as Dr Nielssen's use of clinical and actuarial means of assessment. I do not find that the Commissioner's submission about the limited usefulness of tools such as the Static-99 significantly undermines or qualifies their opinions. However, I accept that the assessment of risk is ultimately the task of the Tribunal, and that the expert opinions of psychiatrists must be weighed against other evidence. Fifth factor: working with children 1. The Commissioner's short submission under this heading is as follows: "The offences for which the applicant was convicted are class 2 offences for the purposes of the Child Protection (Offender's Registration) Act 2000. That protective legislation is not applicable to the applicant as [sic] person being able to drive under the new regulatory regime." 1. The Commissioner did not explain the relevance of this submission. If the legislature has decided that the applicant is not a person who needs to be registered under the Child Protection (Offender's Registration) Act 2000 (NSW), this may be for a number of reasons, including that the legislature does not consider that registration is necessary. It is not necessarily the case (if this is what the Commissioner is suggesting) that the lack of a requirement to be registered increases the risk posed by the applicant. No submissions were made as to the relevance of the heading to the Commissioner's topic ("working with children"). 2. As the Commissioner has not adequately explained the relevance of this topic, I give it no weight. Sixth factor: punishment 1. The Commissioner states: "It is not submitted that the disqualification of the applicant from being able to drive under the new regulatory scheme is one of punishment." It is not clear whether, by "disqualification," the Commissioner is referring to the disqualification of drivers who did not hold an authority at the end of the old regime, or the Commissioner's decision under cl 12 that the applicant should not be a driver of a passenger service. 2. In either case, the Tribunal accepts that the provisions are not punitive. This does not appear to advance the Commissioner's case. Seventh factor: difference in regimes 1. The seventh factor involves a comparison of the current legislative regime with the past regime. The point the Commissioner is making is not entirely clear from the written submissions. It was submitted, for the Commissioner: "There is no longer a 'good repute and in all respects a fit and proper person' test. There are disqualifying offences. The decision that a person is a disqualified person is not a reviewable decision. It is absolutely prohibited for a disqualified person to provide passenger services save for the transitional provision in Clause 12." 1. The Commissioner appears to be making a point similar to that made in relation to the first and second factors. That is, because new drivers would be disqualified if they had committed the offences committed by the applicant, and because the Tribunal would have no power to review the disqualification of a new driver, the Tribunal should affirm the Commissioner's decision. 2. This submission, if I have understood it correctly, fails to give proper acknowledgement to the distinction the legislature has made been persons holding a driver authority at the time the new legislation was introduced, and persons who did not hold an authority at that time. The applicant is in the former category. If the Tribunal were to adopt the Commissioner's approach, it would mean that it would never permit existing drivers to continue driving, despite their convictions. This approach would defeat the legislature's intention in enacting cl 12. 3. Mr Averre also submitted, orally, that the legislature had determined in the new regime to move away from the "fit and proper person" test which previously applied (see the former ss 40(3)(a) and 40B(1) of the Passenger Transport Act). He submitted that this was a significant shift in terms of the eligibility of an applicant. It was now necessary, in Mr Averre's submission, for a decision-maker to look at the range of offences and the circumstances of offending in making a determination as to whether to refuse to "transition" a person to the new regime. This is a slightly different submission to the one made in writing. 4. It may be accepted that there has been a significant shift in the way the legislature has chosen to determine the eligibility of persons to drive hire vehicles. It may also be accepted that the nature of the offence and the circumstances of a person's offending are relevant to the exercise of discretion under cl 12. 5. As the Commissioner submitted, the applicant's offences are serious, particularly given the age of the child. It is now recognised, much more so than it was in the late 1980s, that such offences tend to have long term consequences and are generally traumatic for the victim. The seriousness of the offence is relevant to the exercise of discretion, as is the age of the child at the time and the relationship of trust which the applicant breached. The child was vulnerable and the applicant abused his position of power. I am satisfied that the applicant understands that this is the case. Conclusion 1. Having taken into account the seriousness of the applicant's offence, I nevertheless consider that the correct and preferable decision is to set aside the Commissioner's decision and to decide, in substitution for that decision, not to determine that the applicant should not, because of his convictions, be a driver for a passenger service. The effect of this decision is that the applicant may continue to drive hire cars. 2. The main reason why I consider this to be the correct and preferable decision is that I am satisfied, for reasons given above, that the applicant poses minimal, if any, risk to the travelling public. Given the significant amount of time which has passed since he committed the offences, and his continuing remorse, I consider that the fact of his having committed them no longer indicates that he is a risk to children or to other members of the public. As the Commissioner accepted, a decision as to whether he should be permitted to continue to drive hire cars is not to be made for punitive reasons. The preferable decision is therefore that he be permitted to continue to drive a motor vehicle being used for a passenger service. Costs 1. The applicant sought to be heard on costs, in the event that his application was successful. Both parties consented to any costs application made by the applicant being heard on the papers. 2. I am satisfied that the issues for determination on the applicant's foreshadowed costs application can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal (Civil and Administrative Tribunal Act, s 50(2)). Accordingly, I have decided to dispense with a hearing of that application. Orders 1. I make the following orders: 1. The Tribunal determines to deal with the applicant's application even though the applicant has not duly applied for an internal review, pursuant to s 55(4)(b) of the Administrative Decisions Review Act 1997. 2. The respondent's decision is set aside. 3. The Tribunal decides, in substitution for that decision, not to make any determination under cl 12(2) of Sch 2 to the Point to Point Transport (Taxis and Hire Vehicles) Act 2016, that the applicant should not, because of his convictions, be a driver for a passenger service. 4. The applicant is to file and serve any application for costs within 14 days of the date of this decision, accompanied by any evidence and submissions on which the applicant relies. 5. If the applicant makes an application for costs, the respondent is to file and serve any evidence and submissions on the costs application within 28 days of the date of this decision. 6. Any costs application made by the applicant is to be determined on the papers. ********** 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: 14 March 2018