Teuma v Director General, Department of Transport [2002] NSWADT 16 (11 February 2002)

Last Updated: 16 May 2002

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL GENERAL DIVISION

CITATION: Teuma -v- Director General, Department of Transport [2002] NSWADT 16

PARTIES: APPLICANT

Jamie Emanuel Teuma

RESPONDENT

Director General, Department of Transport

FILE NUMBERS: 013188

HEARING DATES: 24/10/2001

SUBMISSIONS CLOSED: 26/11/2001

DECISION DATE: 11/02/2002

BEFORE: Hennessy N (Deputy President)

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

Passenger Transport Act 1990

CASES CITED: Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144

R v Port of London Authority; ex parte Kynoch Ltd [1919] 1 KB 176

Australian Fisheries Management Authority v PW Adams Pty Ltd (19950 39 ALD 431

Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307

APPLICATION: Passenger Transport Act - public passenger vehicle - grant of authority

Public passenger vehicle - grant of authority

MATTER FOR DECISION: Principal matter

APPLICANT REPRESENTATIVE: APPLICANT

In person

RESPONDENT REPRESENTATIVE: RESPONDENT

A Wozniak, solicitor

ORDERS: 1. The Director General's decision to refuse Mr Teuma's application for an authority to drive a public passenger vehicle (motor tricycle) is set aside.

2. The matter is remitted to the Director General for reconsideration in accordance with the law.

Reasons for Decision:

Introduction

1 On 22 June 2001, the Director General, Department of Transport (Director General) refused Mr Teuma's application for an authority to drive a public passenger vehicle. The vehicle was a motor cycle with three wheels, commonly known as a motor tricycle. Mr Teuma intended to use the tricycle to convey paying passengers.

2 The reason for the refusal of Mr Teuma's application was that he did not have an unrestricted NSW rider's licence and six years on road riding experience. These requirements are not specifically provided for in the Passenger Transport Act 1990 (PT Act) or the Passenger Transport (General) Regulation 2000 (the Regulation). The Director General submitted that these requirements are not merely matters of policy, but are valid legislative requirements made under either s 12(2) or s 11B of the PT Act.

3 Mr Teuma's submission was that the Roads and Traffic Authority (RTA) allows a person to operate a motor tricycle that meets certain criteria as long as that person has a car licence. There are no additional requirements that the person must have had an unrestricted NSW rider's licence and six years on road riding experience before they can drive a motor tricycle.

4 Mr Teuma says that the Director General should not be able to impose stricter requirements in relation to the granting of a public passenger authority to drive motor tricycles than those imposed by the RTA. The respondent submitted that a driver's licence is not equivalent to a driver's authority under the PT Act and that the Director General has power to impose such requirements.

Issue

5 The ultimate issue to be determined is whether the Director General made the correct and preferable decision in refusing Mr Teuma's application: s 63 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Two initial questions arise. The first is whether the requirements imposed by the Director General are properly characterised as legislative requirements, conditions on the licence or policy guidelines. The second question is whether the requirements, however characterised have been validly imposed.

Jurisdiction

6 Section 38 of the ADT Act gives the Tribunal jurisdiction to review a decision if the enactment (in this case the PT Act) provides that applications may be made to it for a review of any decision by an administrator made under the enactment.

7 Section 52 of the PT Act gives the Tribunal jurisdiction to review the Director General's decision to refuse to grant Mr Teuma an authority to drive a motor tricycle. That section states that:

Any person whose application under Part 2, 4 or 4A has been refused, or whose accreditation, authority or authorisation has been varied, suspended or cancelled may apply to the Administrative Decisions Tribunal for a review of the refusal, variation, suspension or cancellation.

8 Mr Teuma's application under Part 2 of the PT Act was refused.

Relevant legislation

9 A tricycle comes within the meaning of a "public passenger vehicle" in PT Act. Section 3 defines "public passenger vehicle" to mean:

(a) a bus used to provide a public passenger service; or

(b) a ferry used to provide a regular passenger service; or

(c) a taxi-cab or private hire vehicle; or

(d) a vehicle declared by a regulation under section 6 to be a public passenger vehicle;

10 Clause 5(2) of the Regulation states that:

(2) For the purposes of section 6 of the Act:

(a) a tourist service vehicle is to be taken to be a public passenger vehicle for the purposes of the Act, and

(b) the provisions of the Act apply to all tourist service vehicles.

11 Clause 5(1) prescribes the kinds of vehicles which come within the definition of tourist service vehicles:

(1) For the purposes of the definition of tourist service in section 3 of the Act, the following vehicles are prescribed kinds of vehicle (and, when used to provide a tourist service, are tourist service vehicles for the purposes of this Regulation):

(a) motor cycles,

(b) 4-wheel drive tour vehicles.

12 Clause 5(3) defines "motor cycles" to mean:

a motor vehicle that complies with the Australian Design Rules vehicle category definition for any of the following:

(a) motor cycles (LC Vehicles),

(b) motor cycles and side-cars (LD Vehicles),

(c) motor tricycles (LE Vehicles).

13 The Director General relied on s 11B and/or s 12(2) of the PT Act as the source of power to impose the requirements relating to authorities to drive motor tricycles. Those provisions, and other related provisions, are set out below.

14 Section 11B relates to the imposition of conditions on authorities and provides that:

(1) An authority is subject to:

(a) the conditions prescribed by the regulations, and

(b) such additional conditions as the Director-General, having regard to the purpose of an authority, may from time to time impose on the authority.

(2) Conditions in force under subsection (1) (b) may be varied (whether by amendment, addition, revocation or suspension of one or more conditions) by the Director-General from time to time by notice served on the holder of the authority.

(3) The holder of an authority who contravenes or fails to comply with a condition of the authority is guilty of an offence.

Maximum penalty: 100 penalty units.

(4) A variation of conditions imposed on an authority by the Director-General under subsection (1) (b) is, for the purposes of Division 3 of Part 5 (Appeals), a variation of the authority.

15 Section 12(1) gives the Director General discretion to grant an authority to persons applying for them. Section 12(2) provides that a person must satisfy the Director General as to any matter he considers relevant. The provision states that:

(1) Having regard to the purpose of an authority, the Director-General may grant authorities to persons applying for them.

(2) Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant.

(3) Procedures for the purposes of this section may be settled by the Director-General, subject to any provision in that behalf made by the regulations.

16 The "purpose of an authority" which is a matter referred to in both s 11B and s 12, is set out in s 11(2) of the PT Act:

(2) 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 public passenger vehicle; and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated; and

(ii) in accordance with law and custom.

Evidence

17 The relevant evidence in this case consists of two documents. The first document is entitled "NSW Department of Transport - Interim Standards for Motor Cycle Rider (Driver) Authorisation - January 1993." This document states, in part, that:

To remain authorised, a driver must continue to meet the requirements of the Act and the standards for authorisation as prescribed by the Director General of the Department of Transport.

The standards of authorisation may be varied by the Director General from time to time. Persons granted authorisation will be required to comply with those revised standards if and when introduced by the Director General.

18 The document goes on to set out "standards" relating to matters including good repute, fitness and propriety, medical fitness and an authorised driver's obligations and responsibilities to passengers. Under the heading, "Applicant requirements" the following material appears:

You must:

Hold a full current motorcycle riders' licence issued by the NSW Roads and Traffic Authority (RTA)

Be not less than 25 years old

Have a minimum of six years riding experience; and

Have a satisfactory driving record.

19 The second relevant document is a form produced by the Department of Transport entitled "Motor Cycle, Application for a driver authority under the Passenger Transport Act, 1990 to drive a public passenger vehicle." There is a statement at the top of the form which says that: "You must have at least 6 years on road riding experience and hold an unrestricted NSW rider's licence." The "Declaration by Applicant" which accompanies the form asks the applicant to declare that "I have six years on road riding experience."

Reasons and decision

20 Conditions on the licence. The first ground on which Mr Wozniak relied in submitting that the Director General has the statutory power to impose the requirements under consideration was that under s 11B(1)(b) the Director-General, may impose additional conditions on an authority. I am not satisfied that the requirements under consideration in this case are additional conditions that the Director General has imposed on an authority. In the documents referred to above, they are expressed as being pre-requisites to the obtaining of a licence, not conditions which must be observed once a licence has been granted. Consequently, Mr Wozniak's first submission is not accepted.

21 Relevant matters. Mr Wozniak's second submission is that the Director General has power to impose the relevant standards pursuant to s 12(2) of the PT Act. That sections states that "Applicants must meet any criteria set forth in the regulations and must satisfy the Director-General as to any matter the Director-General considers relevant." The question to be determined is whether the requirements imposed on Mr Teuma have been validly imposed pursuant to this section.

22 I am not satisfied that this section provides the Director General with the necessary statutory power to require that an applicant for a motorcycle driver authority must have a full current motorcycle riders' licence and a minimum of six years riding experience. My reasons for this conclusion are set out below.

23 The requirements in question cannot be characterised as statutory standards. The PT Act contains provisions which give the Director General specific power to make standards in relation to certain matters. For example, section 7 provides that standards relating to financial viability; safety of passengers and vehicle maintenance for accredited service operators may be prescribed by the regulations or, to the extent that they are not so prescribed, may be determined and published by the Director-General. Section 31E(2) authorises the Director General to "determine service standards with which accredited taxi-cab operators are required to comply." Section 34E authorises the Director General to determine service standards with which authorised taxi-cab network providers are required to comply. Significantly, there are no provisions in the PT Act which authorise the Director General to determine standards for motorcycle driver authorisation. Given the difference in wording between s 12(2) on the one hand and s 7, s 31E and s 34E, on the other, parliament must have intended that being satisfied as to any matter was different from determining standards.

24 The next question is whether, even if the requirements are not legislative standards, that have nevertheless been validly imposed by the Director General because they are "relevant matters." Section 12(1) gives the Director General discretion to grant authorities to persons applying for them having regard to the purpose of an authority. The only matters that the Director General could consider relevant in determining whether to grant an authority are matters which relate to the purpose of an authority. These are that the person is considered:

to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle;

to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates in accordance with the conditions under which a public passenger service is operated; and in accordance with law and custom.

25 Matters which are relevant to these issues may be taken into account by the Director General in exercising his discretion under s 12(1) to grant (or refuse to grant) an authority. A relevant matter cannot be a requirement, because that would mean that, rather than exercising his discretion under s 12(1), the Director General would be applying a binding and inflexible standard.

26 In my view the document "Interim Standards for Motor Cycle Rider (Driver) Authorisation" contains matters which can be characterised as "relevant matters" under s 12(2) and matters which cannot be so characterised. For example, whether or not a person has a conviction or charge pending for a criminal, traffic or other offence, is a matter that is relevant to the Director General's determination of whether that person is a fit and proper person to be issued with an authority. Similarly, the result of a medical examination is relevant to a determination of whether the person has sufficient aptitude to be authorised to drive a public passenger vehicle. The Director General cannot determine in advance that a conviction for a certain kind of offence or the fact that a person is suffering from a certain kind of illness means that the person cannot be issued with an authority. In all cases, the Director General must exercise his discretion under s 12(1) in determining whether to grant an authority.

27 Standards, on the other hand, are binding on the person to whom they are directed and must be specifically authorised by the statute. Where the legislation itself authorises the formulation of standards or principles, the Tribunal is obliged as a matter of law to apply those principles. (Ali v Minister for Immigration, Local Government and Ethnic Affairs [1992] FCA 453; (1992) 38 FCR 144 at 148-149.) That is not the situation in this case.

28 For these reasons, I am not satisfied that the requirements in question are either standards authorised by the legislation or "relevant matters" pursuant to s 12(2).

29 Policy. Another possibility is that the requirements are policy requirements. That is, as a matter of policy, any person who does not meet the requirements does not have sufficient aptitude to be issued with a motorcycle driver authority. If, contrary to the Director General's submissions, the requirements are matters of policy, then s 64 of the ADT Act applies. That provision states that:

In determining an application for a review of a reviewable decision, the Tribunal must give effect to any relevant Government policy in force at the time the reviewable decision was made except to the extent that the policy is contrary to law or the policy produces an unjust decision in the circumstances of the case."

30 "Government policy" is defined as "a policy adopted by the Cabinet, or the Premier or any other Minister, that is to be applied in the exercise of discretionary powers by administrators." There is no evidence that the Premier or any other Minister has adopted the requirements under consideration as policy. Furthermore, if the requirements can be characterised a matters of policy, they are contrary to law. As the Director General is exercising discretionary power under s 12(1) of the PT Act in determining whether to grant an authority, he will be acting ultra vires if the discretion is exercised inflexibly by the application of a policy without regard to the merits of each case. (See R v Port of London Authority; ex parte Kynoch Ltd [1919] 1 KB 176.) If the Tribunal reaches a decision by applying a government policy that is not valid, it will have made a wrong decision. (Australian Fisheries Management Authority v PW Adams Pty Ltd (19950 39 ALD 431.)

31 The requirements imposed by the Director General in this case are either beyond the statutory power of the Director General or are policy matters which are contrary to law. In either case a decision based on these requirements is utra vires and invalid. The decision is nevertheless reviewable by this Tribunal. (See ADT Act s 6(3) and Collector of Customs v Brian Lawlor Automotive Pty Ltd [1979] FCA 21; (1979) 24 ALR 307.) In these circumstances I set aside the Director General's decision and remit the matter to be reconsidered by him in accordance with law.

Orders

1. The Director General's decision to refuse Mr Teuma's application for an authority to drive a public passenger vehicle (motor tricycle) is set aside.

2. The matter is remitted to the Director General for reconsideration in accordance with the law.