Ereira v Roads & Traffic Authority [2009] NSWADT 299 (1 December 2009)

Last Updated: 4 December 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Ereira v Roads & Traffic Authority [2009] NSWADT 299


DIVISION:
GENERAL DIVISION

PARTIES:
APPLICANT
Daniel Ereira

RESPONDENT
Roads & Traffic Authority



FILE NUMBERS:
083347

HEARING DATES:
15 September 2009

SUBMISSIONS CLOSED:
10 November 2009



DATE OF DECISION:
1 December 2009

BEFORE:
Montgomery S - Judicial Member





LEGISLATION CITED:
Tow Truck Industry Act 1998
Tow Truck Industry Regulation 2008
Crimes (Sentencing Procedure) Act 1999
Interpretation Act 1987

CASES CITED:
APLA v The Law Society of New South Wales [2005] HCA 44; (2005) 224 CLR 322
R v Ingrassia (1996) 41 NSWLR 447
The Council of the Law Society of New South Wales v Australian Injury Helpline Limited & Ors [2008] NSWSC 627

TEXTS CITED:


APPLICATION:
Tow Truck Industry Act - tow truck operator or driver - disqualification - grant of licence or certificate – statutory interpretation – mandatory refusal

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
A Jamieson, Barrister
RESPONDENT
P O’Donnell, Barrister; A Wozniak, Solicitor


ORDERS:
The matter is to be listed for further directions at a date suitable to the parties and the Tribunal.


Reasons for Decision:

REASONS FOR DECISION

1 This is an Application for review of a decision made by the General Manager of the Respondent to disqualify the Applicant from holding a Tow Truck Drivers Certificate for a period of 10 years.

2 The matter came before me for hearing on 15 September 2009. On that day it became apparent that a preliminary issue would need to be resolved prior to the consideration of the substantive issues. A timetable was set for the parties to make written submissions in regard to the preliminary issue.

The preliminary issue.
3 It is common ground that the Applicant appeared at Hornsby Local Court on 17 October 2008 and that he pleaded guilty to an offence of assault, contrary to section 61 of the Crimes Act, 1900. He was convicted and fined $800.

4 The Tow Truck Industry Act 1998 ("the Act") and the Tow Truck Industry Regulation 2008 ("the Regulations") each make provision for consequences in regard to the holding of a drivers certificate where there has been a conviction or finding of guilt for a prescribed offence.

5 The Respondent contends that there is an inconsistency between the Act and Regulations. The Applicant says that there is no inconsistency.

Relevant provisions from the Act And Regulations.
6 Section 26 of the Act is in the following terms:

26 Restrictions on granting drivers certificate

(1) The RTA:

(a) must refuse to grant an application for a drivers certificate on mandatory grounds, and

(b) may refuse to grant an application for a drivers certificate on discretionary grounds.

(2) The mandatory grounds for refusing to grant an application for a drivers certificate are as follows:

(a) that the applicant is under the age of 18 years,

(b) that the applicant has, within the period of 10 years before the application for the drivers certificate was made:

(i) been convicted, or

(ii) been found guilty (but with no conviction being recorded),

by a court in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law and whether or not committed before the commencement of this section,

(c) that the applicant does not hold a full driver licence or does not, if the applicant resides in another State or Territory, hold a licence issued under the law in force in that State or Territory which, in the opinion of the RTA, is the equivalent of a full driver licence,

(d) that the applicant is disqualified from holding a drivers certificate,

(e) that the applicant is a controlled member of a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009,

Note. Controlled members are prohibited from applying for drivers certificates--see section 27 of the Crimes (Criminal Organisations Control) Act 2009.

(f) that the RTA has reasonable grounds to believe from information provided by the Commissioner of Police in relation to the applicant that the applicant:

(i) is a member of, or

(ii) is a close associate of, or

(iii) regularly associates with, one or more members of,

a declared organisation within the meaning of the Crimes (Criminal Organisations Control) Act 2009, and the nature and circumstances of the applicant’s relationship with the organisation or its members are such that it could reasonably be inferred that improper conduct that would further the criminal activities of the declared organisation is likely to occur if the applicant is granted a drivers certificate.

(3) The discretionary grounds for refusing to grant an application for a drivers certificate are as follows:

(a) that the applicant is not, in the opinion of the RTA, a fit and proper person to hold a drivers certificate or is otherwise not competent to carry on the kind of towing work to which the proposed drivers certificate relates,

(b) that the applicant does not hold the qualifications and experience prescribed by the regulations in respect of the class of drivers certificate sought by the applicant,

(c) that the applicant has not satisfactorily completed such training courses as may be approved for the purposes of this section,

(d) that the granting of the drivers certificate would, in the opinion of the RTA, be contrary to the public interest.

(3A) The RTA is not, under this or any other Act or law, required to give any reasons for refusing to grant an application for a drivers certificate because of subsection (2) (f) to the extent that the giving of those reasons would disclose any criminal intelligence.

(4) The regulations may provide additional mandatory or discretionary grounds for refusing the granting of an application for a drivers certificate.

(5) A reference in subsection (2) (c) to a full driver licence is a reference to a driver licence other than a provisional licence, restricted licence or learner licence as referred to in the Road Transport (Driver Licensing) Act 1998.

7 The Act contains a general regulation making power at section 105, which permits the making of Regulations "not inconsistent" with the Act, in the following terms:

105 Regulations

(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2) In particular, the regulations may make provision for or with respect to the following matters:

(a) any matter connected with licences and drivers certificates, including qualifications for licences and drivers certificates,

(b) the use and operation of tow trucks,

(c) the advertising of the business of any tow truck operator,

(d) holding yards,

(e) the making and keeping of records by tow truck operators and drivers,

(f) the display of signs by tow truck operators and drivers,

(g) the particulars to be displayed on tow trucks,

(h) the furnishing by licensees or certified drivers of any information (including, in the case of licensees, particulars of any of their employees),

(i) the charging and payment of a fee for any inspection made or information supplied by the RTA,

(j) the conduct and duties of persons using, operating or driving tow trucks, and of persons employed on or about them or otherwise employed in the business of a tow truck operator,

(k) the conduct of persons in relation to the use or operation of tow trucks,

(l) the functions of tow truck operators,

(m) prescribing the conditions under which tow trucks may be used or operated,

(n) the disposal of unclaimed motor vehicles in the care or custody of tow truck operators,

(o) (Repealed)

(p) fees payable under this Act or the regulations.

(3) The regulations may create an offence punishable by a penalty not exceeding 50 penalty units.

(4) The regulations may adopt any document as in force from time to time.

8 Subsection 26(2)(b) provides for the prescription of specific offences which would create mandatory grounds for refusing to grant an application for a drivers certificate.

9 Clause 16 of the Regulations is in the following terms:

16 Offences that disqualify applicants for drivers certificates

(1) For the purposes of section 26 (2) (b) of the Act, the following offences are prescribed (regardless of whether they were committed in New South Wales):

(a) any offence involving an assault of any kind against a person,

(b) any offence relating to the possession or use of a firearm or other weapon,

(c) any offence involving the supply or possession of a prohibited drug, or the cultivation (for a commercial purpose), supply or possession of a prohibited plant, within the meaning of the Drug Misuse and Trafficking Act 1985,

(d) any offence involving fraud, dishonesty or stealing,

(e) any offence involving robbery (whether armed or otherwise),

(f) any offence involving the recruitment of another person to carry out or assist in carrying out a criminal activity within the meaning of section 351A of the Crimes Act 1900,

(g) any offence involving participation in a criminal group or participation in any criminal activity of a criminal group within the meaning of Division 5 of Part 3A of the Crimes Act 1900,

being an offence in respect of which the penalty imposed was imprisonment, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of any of those penalties.

(2) However, if in the case of an applicant for a subsequent drivers certificate, the applicant, or a close associate of the applicant, was convicted of an offence specified in subclause (1):

(a) before 1 December 2006 (being the commencement date of the Tow Truck Industry Amendment (Miscellaneous) Regulation 2006), and

(b) in respect of which the only penalty imposed was a direction under a community service order that the offender perform community service work for 100 or more hours,

that offence is not, in so far as the application is concerned, a prescribed offence for the purposes of section 26 (2) (b) of the Act.

(3) In subclause (2), applicant for a subsequent drivers certificate means a person who applies for a drivers certificate before, or within 10 days of, the expiry of his or her drivers certificate.
10 The Interpretation Act 1987 relevantly provides:

31 Acts and instruments to be construed so as not to exceed the legislative power of Parliament

(1) An Act or instrument shall be construed as operating to the full extent of, but so as not to exceed, the legislative power of Parliament.

(2) If any provision of an Act or instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the legislative power of Parliament:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the Act or instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an Act or instrument in addition to, and without limiting the effect of, any provision of the Act or instrument.

32 Instruments to be construed so as not to exceed the powers conferred by the Acts under which they are made

(1) An instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made.

(2) If any provision of an instrument, or the application of any such provision to any person, subject-matter or circumstance, would, but for this section, be construed as being in excess of the power conferred by the Act under which it is made:

(a) it shall be a valid provision to the extent to which it is not in excess of that power, and

(b) the remainder of the instrument, and the application of the provision to other persons, subject-matters or circumstances, shall not be affected.

(3) This section applies to an instrument in addition to, and without limiting the effect of, any provision of the instrument or of the Act under which it is made.
Relevant provisions from the Crimes (Sentencing Procedure) Act 1999.
11 Section 10 of the Crimes (Sentencing Procedure) Act 1999 provides:

10 Dismissal of charges and conditional discharge of offender

(1) Without proceeding to conviction, a court that finds a person guilty of an offence may make any one of the following orders:

(a) an order directing that the relevant charge be dismissed,

(b) an order discharging the person on condition that the person enter into a good behaviour bond for a term not exceeding 2 years,

(c) an order discharging the person on condition that the person enter into an agreement to participate in an intervention program and to comply with any intervention plan arising out of the program.

(2) An order referred to in subsection (1) (b) may be made if the court is satisfied:

(a) that it is inexpedient to inflict any punishment (other than nominal punishment) on the person, or

(b) that it is expedient to release the person on a good behaviour bond.

(2A) An order referred to in subsection (1) (c) may be made if the court is satisfied that it would reduce the likelihood of the person committing further offences by promoting the treatment or rehabilitation of the person.

(2B) Subsection (1) (c) is subject to Part 8C.

(3) In deciding whether to make an order referred to in subsection (1), the court is to have regard to the following factors:

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed,

(d) any other matter that the court thinks proper to consider.

(4) An order under this section has the same effect as a conviction:

(a) for the purposes of any law with respect to the revesting or restoring of stolen property, and

(b) for the purpose of enabling a court to give directions for compensation under Part 4 of the Victims Compensation Act 1996, and

(c) for the purpose of enabling a court to give orders with respect to the restitution or delivery of property or the payment of money in connection with the restitution or delivery of property.

(5) A person with respect to whom an order under this section is made has the same right to appeal on the ground that the person is not guilty of the offence as the person would have had if the person had been convicted of the offence.
12 Penalties to which the Crimes (Sentencing Procedure) Act refers are imposed on an ‘offender’. Section 3 of the Crimes (Sentencing Procedure) Act relevantly provides:

3 Interpretation

...

(1) In this Act:

offender means a person whom a court has found guilty of an offence.

13 Penalties to which the Crimes (Sentencing Procedure) Act refers are imposed on an ‘offender’. Section 3 of the Crimes (Sentencing Procedure) Act relevantly provides:

14 Fines as an additional penalty to good behaviour bond

(1) A court may impose a fine on an offender in respect of whom it has made an order that provides for the offender to enter into a good behaviour bond if the offence to which the bond relates is an offence for which the penalty that may be imposed (otherwise than under this section) includes a fine.

(2) A fine imposed as referred to in subsection (1) must not exceed the maximum fine that may be imposed apart from this section.

(3) Despite subsection (1), a court may not impose a fine on an offender if it has made an order that provides for the offender to enter into a good behaviour bond referred to in section 10 (1) (b).

The alleged Inconsistency.
14 Section 26 of the Act creates a regime of mandatory refusal where a driver is found guilty of any offence identified in Clause 16 of the Regulations, regardless of whether the Court has imposed a conviction.

15 Clause 16 (1) identifies those offences that attract a mandatory refusal, but creates an additional requirement as to the quantum of penalty. Mr O’Donnell, counsel for the Respondent asserts that this additional requirement as to quantum of penalty is inconsistent with, and renders otiose, the provisions of section 26(2)(b) of the Act.

16 The Respondent submits that if, for example, a tow truck driver was found guilty of assault, but was discharged with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act 1999, the finding of guilt would satisfy the requirements of section 26(2)(b) of the Act, and as to the finding of guilt, and the requirements of clause 16(1)(a) of the Regulations as to the nature of the offence. However, it would not, nor could it ever, satisfy the quantum of penalty provisions in Clause 16 of the Regulations.

17 Mr O’Donnell submits that a dismissal under section 10 of the Crimes (Sentencing Procedure) Act cannot be accompanied by any fine, imprisonment, or community service order. As Gleeson CJ (as his Honour then was) observed in regard to the comparable powers conferred by section 556A of the Crimes Act 1900 in the Court of Criminal Appeal in R v Ingrassia (1996) 41 NSWLR 447 at 450:

It is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a court. No doubt, legislation expressed in sufficiently clear terms may displace that principle, but that has not been done by the language of s 556A. The conditions which may be imposed (or, more accurately, to which an offender may be required to submit) under s 556A(1)(b), cannot be of such a nature that they involve punishment for an offence of which, by hypothesis, the offender has not been convicted.
18 The Respondent submits that the consequence of the inconsistency between the Act and Regulations in this case is that a portion of Clause 16 of the Regulations is beyond the grant of delegated regulatory power: section 32 of the Interpretation Act.

19 The operation of section 32 of the Interpretation Act has been considered by Courts on a number of occasions. In The Council of the Law Society of New South Wales v Australian Injury Helpline Limited & Ors [2008] NSWSC 627 Adams J considered whether Regulations made pursuant to the Legal Profession Act 2004 were invalid. In doing so he applied the law on this point as determined by the High Court in APLA v The Law Society of New South Wales [2005] HCA 44; (2005) 224 CLR 322.

20 The Respondent submits that the propositions that emerge from these judgements are firstly, that prima facie, delegated legislation is to be construed as being within the grant of legislative power granted by Parliament; and secondly, that if part only of the delegated legislation is beyond the grant of legislative power then, where it is possible to do so, it may be severed from that portion which is within power.

21 At Paragraph 27 of his Judgment in The Council of the Law Society of New South Wales v Australian Injury Helpline Limited & Ors Justice Adams referred to comments in APLA where McHugh J said at 370-372:

Severability

[92] The question then is whether the invalid part of the Regulation is severable. ... ‘fundamental rule of construction that the legislatures of the federation intend to enact legislation that is valid and not legislation that is invalid.’ However, severability will only save legislation if the Court is able to uphold certain parts of that legislation without itself being required to legislate. When a court applies a severability provision and declares that so much of an invalid enactment is valid, it does so by a process of construction. It determines whether the law would be valid if it had been enacted without that part of it that is invalid. And it determines, as a matter of construction, that what remains after the severance gives effect to what the legislature intended to be the law on the subject. Expressly or by inference, therefore, the enactment must contain ‘a standard or test that can be applied so as to confine the enactment within constitutional power.’ For a court to give effect to its own ideas of how a valid law should operate would require the court to legislate.
22 The Respondent submits that the following passage can be severed from Clause 16(1) of the Regulations:

"being an offence in respect of which the penalty imposed was imprisonment, a direction under a community service order that the offender perform community service work for 100 or more hours or a monetary penalty of $1,000 or more, or a combination of any of those penalties."

23 The Respondent submitted that the effect of such severance would be to make the abridged portion of the Regulation consistent with the provisions of the parent Act at section 26(2). The consequence would then be that as there was a conviction for assault, the mandatory grounds in section 26(2)(b) of the Act apply.

24 Mr Jamieson, counsel for the Applicant, submits that the approach urged by the Respondent must be wrong. He submits that it is not simply a matter of reading of the Act and the Regulations in isolation and that further matters need to be considered. A starting point is discerning the legislative intention. He says that the legislative intention seen from section 26(4) of the Act is that the Regulations may provide additional mandatory or discretionary grounds.

25 The Applicant says that there is no inconsistency because the Regulations seek to add additional discretionary grounds. The additional discretionary grounds concern a lower end of the scale fine for an assault that, in effect, gives rise to a consideration of the lower degree of criminality.

26 The Applicant agrees that section 10 of the Crimes (Sentencing Procedure) Act cannot be accompanied by any fine but he submits that that is not the end of the matter. A Court may grant the benefit of section 10 for a serious assault whereas the Regulations, when dealing with a lower monetary limit, may envisage a minor degree of criminality. For example, the benefit of section 10 may be granted for an assault involving substantial provocation. There may be many other appropriate circumstances that could be considered "special" when granting the benefit of section 10 even though the offence may be serious.

Discussion.
27 I do not agree with the assertion that there is an inconsistency between the Act and Regulations.

28 As Gleeson CJ noted in R v Ingrassia, legislation expressed in sufficiently clear terms may displace that principle that it is contrary to common law principle that a person who has not been convicted of an offence should be punished by order of a court. He expressed the view that the legislation with which he was dealing did not do so. In my opinion, the clear terms of the Crimes (Sentencing Procedure) Act do displace that principle.

29 I do not agree that an order under section 10 of the Crimes (Sentencing Procedure) Act cannot be accompanied by a penalty. It is clear from section 14 of that Act that a court may impose a fine on an offender. It is equally clear from section 5 of that Act that a penalty of imprisonment may be imposed on an offender. A person whom a court has found guilty of an offence falls within the definition of an offender provided in section 3 of the Crimes (Sentencing Procedure) Act. Section 5A of that Act makes a distinction between an ‘offender’ and a ‘convicted offender’.

30 It is apparent that the legislature intended that consideration be given to all of the offences prescribed by the Regulations where there has been either a conviction or a finding of guilt for a 10-year retrospective period. This is clear from the explanatory note relating to the Tow Truck Industry Bill 1998 as introduced into Parliament which states:

Clause 26 outlines the mandatory and discretionary grounds for refusing to grant an application for a drivers certificate. In particular, the [Tow Truck Authority] must refuse an application if the applicant has, in the 10-year period before the application was made, been convicted or found guilty of a prescribed offence, or if the applicant does not hold a full driver licence. The TTA may refuse an application if the applicant is not a fit and proper person to hold a drivers certificate or if the granting of the certificate would be contrary to the public interest.

31 It seems to me that the references to penalty were intended to apply to those matters where a penalty has been recorded. However, in my view, each of the prescribed offences referred to in Clause 16(1) of the Regulations is an offence to which an order under section 10 of the Crimes (Sentencing Procedure) Act could apply.

32 I do not agree with Mr O’Donnell’s submission that a tow truck driver found guilty of assault, but discharged with no conviction recorded under section 10 of the Crimes (Sentencing Procedure) Act, could never satisfy the quantum of penalty provisions in Clause 16 of the Regulations.

33 That is consistent with the intention that refusal is to be mandatory in matters where there has been either a conviction or a finding of guilt but with no conviction being recorded. Therefore the two provisions can both stand.

34 It follows, in my view, that in the present matter there are no mandatory grounds for refusing to grant an application for a drivers certificate.

35 The matter should therefore be listed for further directions to determine its future conduct.

Order
The matter is to be listed for further directions at a date suitable to the parties and the Tribunal.