Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 Hearing dates: 28 November 2011 Decision date: 23 December 2011 Jurisdiction: Appeal Panel - Internal Before: Judge K P O'Connor, President S Higgins, Judicial Member M Bolt, Non-judicial Member Decision: 1. Decision under appeal set aside. 2. Suspension decision of the administrator is restored with the addition of the words 'until such time as the charges are finalised'. 3. Application for review to be listed for dismissal, 24 January 2012. Liberty to the parties to apply for such an order earlier. Catchwords: PASSENGER TRANSPORT - Taxi Driver Authority - Suspension - Set Aside - Appeal by administrator - Nature of Power - Interpretation - Public Protection - Passenger Safety - Suspension Restored - Passenger Transport Act 1990, s 33, s 33F Legislation Cited: Administrative Decisions Tribunal Act 1997 Passenger Transport Act 1990 Transport (Compliance and Miscellaneous) Act 1983 (Vic) Transport (Public Vehicles) Regulations 1930 Transport Administration Act 1988 Cases Cited: A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47 Commissioner for Motor Transport v Leo, BC 8600704 (10 September 1986) Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 Director of Public Transport v XFJ [2011] VSCA 302 Farquharson -v- Director General, Department of Transport [1999] NSWADT 53 Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 Murray v Department of Transport and Infrastructure [2010] NSWADT 295 Nasour v Director-General, Transport NSW [2011] NSWADT 9 Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 Sobey v Commercial and Private Agents Board (1979) 22 SASR 70 Stasos v Tax Agents' Board (1990) 21 ALD 437 Ziems v Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 Category: Principal judgment Parties: Director General, Transport NSW (Appellant) AIC (Respondent) Representation: COUNSEL M Robinson SC (Appellant) A Wozniak, Smythe Wozniak Solicitors (Appellant) No appearance (Respondent) File Number(s): 119041 Publication restriction: Non-publication order pursuant to s 75(2)(b) of the Administrative Decisions Tribunal Act 1997 (details in the reasons for decision) Decision under appeal Jurisdiction: 9108 Citation: AIC v Director General, Transport NSW [2011] NSWADT 189 Date of Decision: 2011-08-08 00:00:00 Before: General Division File Number(s): 113108

REASONS FOR DECISION Non-Publication order The Appeal Panel orders under s 75(2)(b) of the Administrative Decisions Tribunal Act 1997 that the disclosure of the name, address, picture or any other material that identifies, or may lead to the identification of the abovenamed applicant for review in these proceedings, or the doing of any other thing that may lead to the identification of such a person, is prohibited; except - (a) in the context of confidential communications that occur between the parties and their legal representatives for the purpose of the case; and (b) for the administrative purposes of the abovenamed respondent. 1APPEAL PANEL (K O'CONNOR, DCJ (PRESIDENT), S HIGGINS (DEPUTY PRESIDENT), M BOLT (NON-JUDICIAL MEMBER)): This is an appeal from the Director General, Transport NSW, as administrator of the Passenger Transport Act 1990 (the Act). The respondent is the holder of a taxi driver authority. 2The grant of taxi driver authorities is dealt with by s 33 of the Act. It provides: 33 Authorities (1) TfNSW may, by the issue of authorities under this Division, authorise persons to drive taxi-cabs, subject to and in accordance with this Division. A person authorised under this Division is referred to in this Part as an "authorised taxi-cab driver". (2) A person who drives a taxi-cab is guilty of an offence unless the person is an authorised taxi-cab driver. Maximum penalty: 100 penalty units. (3) 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. (4) The regulations may create categories or grades of authorities. (5) Without limitation, the regulations may provide that subsection (2) does not apply in specified circumstances, including, for example, when a taxi-cab is being driven to a place to have it repaired or serviced. 3The Director General's power to suspend an authority is given by s 34F of the Act. It provides: 34F Variation, suspension or cancellation of authorisation (1) Having regard to the purpose of authorisation under this Division, TfNSW may at any time vary, suspend or cancel any person's authorisation under this Division. [ S 3: "TfNSW" means Transport for NSW constituted under the Transport Administration Act 1988 ] 4The Director General suspended the respondent's authority after being informed that he had been charged with two counts of indecent assault of a child under ten, said to have occurred in 1999. The respondent was placed on bail. 5The respondent applied to the Tribunal for review, and applied for an interim order under s 60 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) to stay the application. The Tribunal granted the application for a stay thus allowing him to continue working under his authority; and at final hearing set aside the suspension decision. 6The Director General has appealed the decision. The Appeal Panel heard the appeal on 28 November 2011. The respondent did not file any reply to the appeal or any written submissions. The respondent did not appear at the appeal. His solicitor provided a written explanation as to non-attendance. 7At the close of the Appeal Panel hearing the Appeal Panel ordered that the Tribunal's decision be set aside on error of law grounds and reinstated the Director General's decision of suspension pending finalisation of the charges. We informed the parties that we would issue reasons at a later time. These are our reasons. 8Prior to finalising these reasons, we have been advised by the parties on 13 December 2011 that the local court gave its verdict on 6 December 2011, and the respondent was acquitted. The suspension order as varied by the Appeal Panel on 28 November 2011 has therefore lapsed. 9In the circumstances after consultation with the parties, we have anonymised the respondent's identity, and arranged to have the underlying decision anonymised and reissued. We have issued a non-publication order, terms set out above.

The Appeal 10The key ground of appeal is that the Tribunal was wrong in not having regard in its reasons (or if it did have regard not giving due weight) to the reasonable perception of a member of the travelling public in deciding whether the suspension decision was the correct and preferable one, an approach that had been favoured in many Tribunal decisions before the decision of another Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16.

Assessing Good Repute and Fitness in other respects 11If the statement as to the purpose of an authority as set out in s 33 is directly incorporated into s 33F, s 33F would read as follows: Having regard to the purpose of authorisation under this Division, which 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 TfNSW may at any time vary, suspend or cancel any person's authorisation under this Division. 12The first point to note is the use of the word 'attest'. The primary meaning of this word is 'to bear witness to; certify; declare to be correct, true or genuine; declare to the truth of, in words or writing: especially in an official capacity' ( Macquarie Dictionary , 4th ed. 2005). The Parliament, in using this word, seeks, we consider, to emphasise the idea that the conferral of an authority involves a declaration of public trust. While this is true of all licensing, the word gives special emphasis to it in the present context. 13As we see it paragraph (a) focuses on general characteristics of the driver relevant to the regulated function, paragraph (b) focuses on maturity and technical competence. The expression 'good repute and in all other respects a fit and proper person' is meant, we think, to be expansive in scope allowing for a broad range of personal attributes to be assessed, and for consideration to be given to the person's general standing in the community, especially among those who know the person well and are fully informed as to any matters of concern. It gives greatest weight to 'good repute'. For a recent discussion of the matters to which the terms 'good repute' and 'fit and proper' are addressed see Real Estate and Business Agents Supervisory Board v LJW [2011] WASCA 35 per Newnes JA (Pullin, Buss JJA agreeing). 'Fit and proper' goes to such matters of character as to whether the applicant is possessed of sufficient moral integrity and rectitude of character as to permit him or her to be safely accredited to the public without further inquiry (per Newnes JA at [27] citing with approval remarks of Walters J in Sobey v Commercial and Private Agents Board (1979) 22 SASR 70); and 'repute' goes to the public estimation of the person (at [28]-[29]). 14Different licensing schemes use variations on this language, for example 'good fame and character'; sometimes the term 'fit and proper' only is used. Sometimes there are specific references to such matters as 'honesty', 'integrity' and 'competence'. 15As we see it, the purpose of threshold requirements cast in broad terms of these kinds is to give 'the widest scope for judgement and indeed for rejection' (see Hughes and Vale Pty Ltd v NSW (No 2) (1955) 93 CLR 127 at 156). The various broad expressions invite the administrator to look broadly at the character and reputation of the individual and they have at the heart the conferral of public trust. The review tribunal is engaged in the determination of a question of fact. It has wide scope, therefore, for judgement, and its decision can not easily be set aside on error of law grounds. 16In the regulatory context, the exercise of the power of suspension is in act intended to have a temporary effect. Meaning no 3 in the Macquarie Dictionary (4th ed. 2005) reflects this understanding, i.e. 'temporary abrogation of a law or privilege'; similarly the Australian Concise Oxford Dictionary (3rd ed. 1997) 'suspend' - 'debar temporarily from a function, office or privilege'. 17The power is a usual part of accreditation and licensing schemes. It is a disciplinary power. Disciplinary powers have as their object protection of the public. 18The power to suspend an occupational accreditation, licence or authority is used by regulators in, at least, two contexts. One is as a disciplinary sanction for misconduct that lies at a level of seriousness that warrants a more severe penalty than, say, a fine or imposition of conditions. Used in this way, it is often imposed for a relatively short period, say 3 months. It is a form of final order. 19The other is where information comes to light about a licensee's conduct that is seen as throwing into question their suitability to continue to use the licence pending further inquiry or investigation of the matters of concern. This is the use made of it in the present case. In these circumstances it is being used for the protection of the public until more is known. 20In either case, the effect of a suspension may be very harmful to the individual financially. There is also the humiliation and damage to public reputation that may follow. 21The difficulty that faces the administrator, and - as substitute decision maker on review - the Tribunal, is to decide in what circumstances a licensee should be stood aside from the licensed occupation while allegations remain unresolved that go to the public trust that has been reposed in the licensee, and particularly the 'mutual trust' that must exist between licensees and their customers (cf. Stasos v Tax Agents' Board (1990) 21 ALD 437 per Hill J, in the context of tax agent licensing). 22For many years the leading authority in the Tribunal on the exercise of the suspension discretion in taxi driver licensing was the second Farquharson case of 1999, Farquharson -v- Director General, Department of Transport [1999] NSWADT 53. The driver had an unblemished disciplinary history and no criminal record. He had been charged with soliciting to murder. He was on bail. He did not report the fact of the charges to the administrator, though that was required by licence procedures. (The same is typical of many of the suspension review cases that have been heard by the Tribunal, including the present case.) The administrator suspended him. 23The Tribunal (constituted by the President sitting at first instance) upheld the suspension. In the course of his reasons, the President said: 27 A taxi driver has a continuing responsibility to ensure that he is of "good repute" and a "fit and proper person". 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). 28 Even an acquittal may leave unresolved in an administrator's mind questions as to the reputation and integrity of a licensed individual. In a recent case involving the question of disclosure in the context of an application for admission to the legal profession, where the applicant had after receiving professional advice not disclosed a serious criminal charge of which he had been acquitted, the Supreme Court of the Australian Capital Territory (Miles CJ, Gallop and Madgwick JJ) observed: "It is true that the bare facts that a person has been tried for a charge, even a very serious one, and acquitted do not logically tend to the detriment of the person's character nor of his or her fame. But experience shows that matters are often otherwise. The acquittal may be entirely upon unmeritorious grounds or it may occur in circumstances which nevertheless reveal untoward collateral behaviour on the part of the accused." ( Re del Castillo , [1998] ACTSC 131, 11 December 1998 at [28]) 29 The administrator in this case was entitled, I consider, to have regard to the serious charges laid against the applicant. They may be properly regarded as affecting his "good repute" even though judgment may need to be reserved as to whether any negative conclusion should be formed about fitness and character, pending evidence at committal and trial, and the verdict. 30 The administrator is entitled to take account of the general circumstances giving rise to the charges, without being called on to examine the strengths and weaknesses of the prosecution case or the nature of any defences. Powers of suspension are, by their nature, designed to provide a temporary form of intervention pending further developments or further consideration or action by the administrator. A power of suspension, as compared to outright cancellation, does carry the (marginal) benefit for the licensee in not placing at risk the licence itself. 31 The administrator is obliged to provide a system for the accreditation of operators and drivers involved in public passenger services (Act, s.4(a)). The criteria for granting authorities to drive public passenger vehicles (s.11 to s.14) focus on qualities and attributes personal to an applicant. The continued possession of those qualities and attributes is necessary. In the application form issued by the administrator a specific question is directed to whether there are any criminal charges pending against an applicant for any criminal offence. The administrator has developed Taxi Driver Authorisation Standards in consultation with the NSW Taxi Council. They are dated 1 August 1996. Under that protocol, it stated that: "The driver must immediately report any conviction or charge in relation to criminal, traffic or any other kind of offence (other than parking offences) in NSW or elsewhere to [the administrator]." 32 A declaration acknowledging that an applicant has read and understood these standards is required to be signed as part of the application process. 33 These procedures, adopted in consultation with the Taxi Council, point to the significance which the industry gives to being kept informed of both charges and convictions. 34 The factors which favour the applicant in this case are the following: his previously unblemished criminal history; his unblemished taxi driving and taxi operating history; the lack of connection of the charges to the use of a taxi; and the restrictions placed on his bail which require him not to travel outside the Hunter Region, thereby avoiding the South Coast area where his wife and children now live. As noted earlier, the applicant also faces the real practical difficulty of conducting his taxi business; and that to be financially viable as an authorised operator he needs to be able to drive the cab. 35 The administrator did not deny these considerations, but argued that the sole fact of the charges was sufficient in its own right to justify suspension. Ordinarily it would not be acceptable for an administrator charged with looking into questions of good repute and character not to look at the broad picture and simply to rely on a single negative factor as conclusive (see, e.g. Haining v Commissioner of Police [1999] NSWADT 7). This case raises the difficult question of whether situations can arise where an administrator is permitted to form a conclusive negative view as to issues of repute and character based on a single factor. 36 In exercising its responsibilities for passenger transport regulation, the administrator must take account of likely perceptions of the travelling public. A member of the travelling public is likely to be concerned to know that the driver of their taxi is facing trial on a murder charge, albeit one involving soliciting rather than the act itself. One object of the power of suspension is to provide assurance to the travelling public that they will not unknowingly find themselves travelling with a person suspected of and charged with a serious criminal offence of violence. 37 A broadly similar approach was adopted by the ACT Administrative Appeals Tribunal in Maythisathit and Registrar of Motor Vehicles [1996] ACT 165. The applicant sought review of a refusal to grant a taxi driver's licence, the refusal being based on a criminal record revealing a number of convictions for offences involving dishonesty. The application was successful. The Tribunal was satisfied that the context that had given rise to the convictions, a gambling addiction, had been successfully addressed. It was satisfied as to the genuineness of the applicant's desire to rehabilitate himself. In the course of its decision the Tribunal (Professor LJ Curtis, President) put the test to be applied in relation to "fit and proper character" in the case of taxi driver licensing in this way, at [12]: "One must put oneself, so far as possible, in the position of a member of the public who might travel in a taxi driven by the applicant and ask whether that member of the public, knowing of the applicant's criminal record and what he has done in the past year to rehabilitate himself, would object to the applicant as the driver of the taxi." 38 Counsel for the applicant submitted that the grant of bail is a fact that could be considered positively in relation to the extent of any risk to the public that the accused presents. For present purposes I accept that the 'reasonable member of the travelling public' should be regarded as being apprised of that fact. I also acknowledge the force of counsel's point that one should not act out of the fear that reference in the charge to the word 'murder' might cause. 39 I also note counsel's submission that the offence fell into the neutral category of the Bail Act 1978 , not being affected either by the presumption against bail or the normal presumption in favour of bail. Equally, and counsel for the applicant acknowledged this point, the fact of the grant of bail does not provide any indication as to the strength or otherwise of a prosecution case. It involves a broad assessment of the appropriateness of permitting an individual to remain free and part of the community pending trial rather than being incarcerated. 40 A licence confers a right on an individual to pursue a regulated occupation. The considerations relevant to the exercise of an administrator's discretion in that context will be affected by the nature of the statutory scheme, the legislative objectives and the specific terms of statutory powers. 41 While the statement of reasons should, I consider, have addressed more fully the additional factors that I have mentioned (in particular the protective function likely to be performed in the present circumstances by strict adherence to the restrictions on travel outside the Hunter Region), I am satisfied that the ultimate decision made was the "correct and preferable" one in the circumstances (see Tribunal Act, s.63(1)). 42 This is a case, I consider, where a reasonable member of the travelling public, informed of the outcome of the bail hearing and the conditions imposed, would nevertheless be inclined to the view that the objective seriousness of the charge is sufficient in its own right to permit the administrator to suspend the licence. 24This approach was criticised by the Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16. The paragraphs of concern in the above passage appear at [36] and [42]. 25In that case the administrator refused to grant an application for a taxi driver authority. The administrator did so on the ground that the applicant had relatively recently been convicted of assault occasioning actual bodily harm while in the company of others and sentenced to two years' imprisonment, with a non-parole period of 18 months. The Tribunal granted the application. The administrator appealed on questions of law. The Appeal Panel dismissed the appeal. The applicant was still in prison at the time of the appeal decision. 26In Murray the administrator submitted to the Appeal Panel that the Tribunal should have approached the issue of whether the review applicant was of good reputation and in all other respects a fit and proper person to be granted a licence by applying the test said to have been favoured in Farquharson , i.e. that of the views of a reasonable member of the travelling public. 27The Appeal Panel held that this was an erroneous approach to the making of an assessment of whether a person was of fit and proper character. It referred to authority in the ACT and elsewhere, before and after the case of Maythisathit in which an approach of that kind had not been taken to the assessment of a person's present fitness. The Appeal Panel concluded at [20]: When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; 94 ALR 11. Otherwise, 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. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson , to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an applicant is a fit and proper person. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public. 28The administrator notes that the terms used in the Act are not limited to 'fit and proper' but start with the requirement of 'good repute' and then go on to refer to the other attributes. The administrator's submission is that this is a broad set of requirements, not to be interpreted narrowly and to be treated as a composite expression. As we have observed above, the entire expression is an expansive one. 29The way Farquharson has been appealed would appear to have led, at least on some occasions, to a single-ground style of decision making that allowed the administrator simply to decide the issue by reference to the mind of a reasonable member of the travelling public rather than attending to the direct evidence relevant to the person's repute, fitness and propriety. 30In Murray there was a good deal of direct evidence. There were no outstanding charges or unresolved matters. The courts had imposed a sentence of imprisonment. The applicant was still in prison. The primary tribunal's reasons show that the applicant was a young man, the incident giving rise to the conviction was fuelled by alcohol, it was aberrant - to that point he had been a person of good reputation - and the testimonials in his support were all given knowledgeable of the conviction and sentence, and spoke to his good character. The Tribunal also noted his deep contrition for his conduct. (See Murray v Department of Transport and Infrastructure [2010] NSWADT 295.) 31T here are a number of leading cases in the field of professional discipline which lend support to the approach taken in Murray . Great care should be taken not to be unduly influenced by popular perceptions as to the wrongness of the conduct of concern when considering whether to deregister a licensee or renew a registration. 32For example, the High Court has twice allowed a struck-off solicitor to return to practise within a short time after being imprisoned for a serious criminal offence unconnected with the practice of law: see A Solicitor v Council of the NSW Law Society [2004] HCA 1; 216 CLR 253; 204 ALR 8; 78 ALJR 310; and Ziems v Prothonotary of the Supreme Court of NSW (by majority with Dixon CJ and McTiernan J in dissent) [1957] HCA 46; (1957) 97 CLR 279. 33In both cases the Court had regard to the isolated nature of the conduct, extenuating factors and the remorse of the offender. It also had regard to informed testimonials. In the 2004 case, the solicitor had been convicted and served a short term of imprisonment for sexual assault offences involving young girls who were the daughters, by a previous relationship, of a woman with whom he had formed a relationship and who he later married. These High Court cases are discussed in the recent Appeal Panel decision, Brandusoiu v Commissioner of Police, NSW Police Force (GD) [2011] NSWADTAP 47. 34Arguably, the recent Victorian Court of Appeal decision, Director of Public Transport v XFJ [2011] VSCA 302 (11 October 2011) adopts a similar approach to Miller . There the administrator of taxi driver licensing refused a licence application from a person who in all respects satisfied the eligibility criteria on the ground that the fact that he once killed a person (he was acquitted of murder by reason of insanity) meant that he should not be granted a licence. The Court of Appeal upheld the review tribunal's decision to overturn the administrator's decision and grant the licence. Maxwell P said at [60]-[61]: 61 The undoubted importance of maintaining public confidence in the taxi industry does not, however, mean that the 'public confidence' question must be addressed separately when individual applications for accreditation are being considered. The Act itself makes no mention of public confidence. This is hardly surprising, since the informing principle of the entire accreditation scheme - as applied both to drivers and to industry participants - is the need to establish and maintain public confidence. 62 As pointed out earlier, s 130 of the Act explicitly assumes that the provision of 'safe, reliable and efficient taxi-cab services' will meet reasonable community expectations. In this way, public confidence will be maintained and improved. The criteria of driver suitability specified in s 169(1) - in particular, the ability to meet the public care objective - are expressly directed at the provision of safe, reliable and efficient services and, hence, the promotion of public confidence. In short, once the decision-maker is satisfied that the applicant is suitable in all relevant respects to provide the service, there is no occasion for separate consideration of public confidence. 35We note that the Victorian taxi driver accreditation scheme is more variegated and complex than the NSW scheme: see Part VI of the Transport (Compliance and Miscellaneous) Act 1983 (Vic). It deals in greater detail with eligibility matters, and importantly it has mandatory interim suspension provisions in relation to certain categories of charges for serious offences: see paragraph 169K(2)(a) of the Victorian Act. The decision in XFJ must therefore be approached and applied with care in considering the operation of the NSW scheme. 36The President, sitting at first instance, has suggested that public perception still has some role to play in relation to the matter of 'good repute' which is the primary part of formulation used in s 33F: see Nasour v Director-General, Transport NSW [2011] NSWADT 9 at [29]-[33]. Nasour was a suspension case. There the driver had been charged (not reported but discovered on data matching) with assault occasioning actual bodily harm; common assault, and use etc of an offensive weapon (a tyre lever) with intention to commit an indictable offence. (In addition there was a lengthy adverse disciplinary and traffic record.) 37The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly costrued or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' ( Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. For reasons explained in the two decisions in Farquharson , cited above (and not challenged in Murray ), neither the administrator nor the Tribunal can be expected to look behind this material that founds the allegations (typically the charge sheet and the particulars suppied by the facts sheet) and directly appraise the quality of the evidence.

Use of Suspension as an Interim Measure 38In the present case, the Tribunal referred accurately to Farquharson , Murray and Nasour and some other relevant decisions. 39The exercise of power under s 33F forms part of a statutory scheme in which the reasonable expectations of the community for safe transport services has a central place. The power of suspension can not, as we see it, be divorced in the administration of the NSW Act from the underlying goals of passenger transport regulation, in particular, the object found in s 3 of the Act: (e) to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, 40Objective (e) refers, as we see it, to the perspective reflected in the approach adopted in Farquharson . In our view, the public safety objective of passenger transport regulation remains one of relevance to the exercise of suspension powers. Protection of the public and the broader public interest may justifiy the exercise of the power of suspension.

The Present Case 41In this case the alleged offences were ones that, if made out, involved a fundamental violation of the trust of a child. Even though the fact sheets placed the events in a domestic context unrelated to taxi driving, clearly they went to circumstances involving mutual trust, and to a situation that drivers will sometimes be in, being alone with a vulnerable person such as a child, a person with disabilities or a frail aged person. 42While the person facing the charges may have an otherwise impeccable life history, charges of this kind will ordinarily, we think, be seen as requiring immediate action to protect the public pending their resolution. 43In our view, the observations made in Miller and XFJ apply more strongly to cases of outright refusal or outright cancellation - where there is a full record and there are no outstanding matters. It is more difficult to apply them to a suspension case. 44The reality of high volume licensing schemes is that an application for a licence is normally processed favourably if the relevant particulars are in order and nothing is revealed by criminal record checks. The approach is a beneficial one from the point of view of applicants. If the applicant meets the skills and competency requirements, the only issue that remains is that of his intrinsic personal and moral characteristics as relevant to the licence. The truth is that nothing is usually known to the administrator in any meaningful sense about the person's probity and character. 45The laying of a serious criminal charge, especially one suggesting exploitation of an immediate relationship with a vulnerable person, will therefore frequently be the first time anything adverse of relevance becomes known about a driver. In these circumstances it would be normal, we think, for a conscientious administrator to have regard to the function of public protection served by the power of suspension. The administrator would ordinarily give the licensee an opportunity to be heard before acting. But in cases such as the present the position is more difficult. The duty to advise of the criminal charge was not carried out. Had that occurred there may have been an opportunity to be heard. If there is no report and the administrator learns of the charge from another source (such as from data matching outputs), he or she may decide to act peremptorily. In cases like this, often the first interchange takes place at the steps of the Tribunal. 46In its reasons, the Tribunal, we feel, accurately summarised the way the principles have developed in the previous case-law. 47But for the reasons given above, we consider that the case-law has not previously drawn a sufficient distinction between the exercise of the power of suspension and the exercise of final powers such as refusals of applications or cancellations. 48In cases where a suspension is being considered pending finalisation of charges the administrator, and the Tribunal, should, we think, have regard to all that is known to date about the applicant's repute, fitness and propriety, take into account the view it might form on that matter if the charges are proven, and assess the degree of risk to the public that is involved in leaving the driver on the road pending disposal of the charges. It should also take note of the personal hardship that might be caused to the driver. But the ultimate determinant is the public interest. 49It is noteworthy that in the case of Commissioner for Motor Transport v Leo , BC 8600704 (10 September 1986, McInerney J), upon which the decision in Farquharson drew, the passenger transport law of the time squarely referred to the public interest as a criterion for the exercise of the power of suspension (see Transport (Public Vehicles) Regulations 1930 , cl 19(1)(5)(b) - 'The Commissioner may suspend for such period as he thinks fit any licence held by any person ... (b) if, having regard to any of the matters referred to in CL(1), the Commissioner considers such action desirable in the public interest'.) The Tribunal's interim order power does the same (ADT Act s 60(3)). In our view, the omission of an express reference to the public interest in s 33F does not preclude the administrator from taking the public interest into account. In our view the public interest is relevant to any exercise of a power of suspension of a general kind in a licensing scheme. 50There are some other matters that appear to have been seen by the Tribunal as relevant considerations which we think can only be given marginal or no weight in a case of the present type. 51We refer to the following passages: 26 In AIC's case there is no doubt that the charges laid against him are objectively serious. They are not, however, recent and did not occur in the regulated environment of the taxi industry. There is no suggestion of any allegations of misbehaviour or impropriety by him in the 12 years since those events are alleged to have occurred, or, indeed, before then. He is 65 years old, Importantly, no suggestion of misbehaviour or impropriety had been made against him in the context of the taxi industry. AIC intends to fight the charges against him. It is likely to be a considerable time before they are heard. His record as a taxi driver is a good one. The direct evidence I have concerning AIC's repute, shows that despite the charges levelled against him, he is well regarded by those with whom he associates, including persons who use his services as a driver. There is nothing in the evidence before me which points to a likelihood of AIC misbehaving, committing improper acts or offences, now or in the period leading up to his trial, either generally or in the context of the taxi industry. 27 In those circumstances I do not accept that the perceptions of a reasonably minded member of the public would be such that they would necessarily or obviously object to AIC as a taxi driver, although I do accept that some might. What limited evidence I have from those who do use his services, suggest that this is not the case. The likely perceptions of the public, while relevant to an assessment of whether a driver is of "good repute" or has the 'aptitude and responsibility' to continue driving, are not determinative of the issue. 28 In AIC's case I am not persuaded that the likely perceptions of some members of the public outweigh the other factors to which I have had regard. The charges against AIC in these circumstances are, in my opinion, insufficient to justify a finding that he is not of good repute, or that he no longer has the 'aptitude and responsibility' to continue driving a taxi-cab. 52We do not agree with the Tribunal's emphasis in its para [26] in two respects. In cases of the present type (child sexual abuse allegations) we think that little or no regard should be given to the lack of recency of the events the subject of charge. It is not unusual for complaints of sexual abuse to be raised many years after the event by the alleged victims after they have become adults. 53So far as the time to hear the charges is concerned, we see that as an issue if there is some undue delay on the part of the prosecution, but little allowance can be made for the time that is ordinarily involved in responding to serious charges. An issue would arise if the period of delay was such that it became disproportionate to any likely disciplinary sanction in the event that the applicant was found guilty. 54We also think that the fact that the driver will fight the charges is of no relevance. It may be that this was simply mentioned in passing but it is better we think that if it is mentioned it is specifically accorded no weight.

Conclusion 55For the above reasons, we decided on 28 November 2011 to set aside the decision on error of law grounds, and consequently restored the suspension pending finalisation of the charges. We allowed for the possibility that there might be an extension of the appeal to the merits. We listed the matter for further consideration on 13 December 2011. 56As noted earlier, the charges were by that time finalised in favour of the respondent. Accordingly, the administrator's decision as varied by the Tribunal has lapsed. There is no utility now as we see it in the application for review being pursued. Consequently, we have listed the application for dismissal at the next directions list on 24 January 2012. The parties will have the opportunity then to raise any alternative view.

Order Order made 28 November 2011 1. Decision under appeal set aside. 2. Suspension decision of the administrator is restored with the addition of the words 'until such time as the charges are finalised'. Further order 3. Application for review to be listed for dismissal, 24 January 2012. Liberty to the parties to apply for such an order earlier.

********** 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: 23 December 2011