Ali v Department of Transport and Main Roads [2015] QCAT 157

CITATION: Ali v Department of Transport and Main Roads [2015] QCAT 157 PARTIES: Osama Mohammed Ali (Applicant) v Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR367-14 MATTER TYPE: General administrative review matters HEARING DATE: 30 April 2015 HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 1 May 2015 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Chief Executive of the Department of Transport and Main Roads to refuse driver authorisation number 94798771 for taxi services is confirmed. CATCHWORDS: APPLICATION FOR REVIEW – DRIVER AUTHORISATION – whether protection of children and vulnerable members of community compromised – where traffic history – where driving without blemish for 18 months – where criminal history – whether generally suitable having regard to passenger safety and reputation of public passenger transport – where conviction for serious assault – where offence committed while serving suspended sentence and charged with wilful damage – where more time needed to show deeper insight into behaviour – whether waiting period appropriate – where ability to earn income and financially help family affected – where positive steps taken to improve future – where waiting period of six years from being sentenced disproportionate to sentence Transport Operations (Passenger Transport) -- 1 of 6 -- 2 Act 1994, ss 2, 11, 23, 28A, 28B, 28C, 33, 33A Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 464 Bowden v Department of Transport and Main Roads [2013] QCAT 490 Hijazi v Department of Transport and Main Roads [2011] QCAT 575 Lowen v Chief Executive, Department of Transport & Main Roads [2010] QCAT 69 Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363 APPEARANCES and REPRESENTATION (if any): APPLICANT: Mr Osama Mohammed Ali appeared in person RESPONDENT: Mr Neil Weatherhead, Manager (Passenger Transport Operations) for the Department of Transport and Main Roads REASONS FOR DECISION What is this Application about? [1] Mr Osama Mohammed Ali has moved from Sudan to Australia to try to make a better life for himself. He previously worked as a delivery driver but this is now difficult, since he dislocated his shoulder in 2010. Mr Ali therefore applied to the Department of Transport for a ‘Driver Authorisation’, to allow him to drive taxis. [2] Unfortunately for Mr Ali, the Chief Executive of the Department of Transport and Main Roads refused to grant him ‘Driver Authorisation’ due to some convictions and his traffic history. Understandably, Mr Ali seeks a review of the Chief Executive’s decision. [3] In reviewing the Chief Executive’s decision, the issues for me to decide are:  whether the protection of children and other vulnerable members of the community are compromised by allowing Mr Ali to have ‘Driver Authorisation’;1  whether Mr Ali is a ‘suitable person’ to drive public passenger vehicles, given the need to provide for the personal safety of passengers, their property and the public;2  whether the reputation of public passenger transport is compromised by allowing Mr Ali to have ‘Driver Authorisation’;3and 1 Transport Operations (Passenger Transport) Act 1994, ss 23(4)(b), 33A. 2 Ibid s 23(2)(a). -- 2 of 6 -- 3  what is an appropriate ‘waiting period’ for Mr Ali? Background [4] The Transport Operations (Passenger Transport) Act 1994 provides for the refusal of ‘Driver Authorisation’ to protect the public, particularly children and the vulnerable.4 [5] According to the category of offence from most serious to least serious, the Chief Executive:  Must refuse the Authorisation (Category A);  Must refuse unless exceptional circumstances exist (Category B); or  Has a broad discretion to refuse (Category C).5 [6] Mr Ali’s circumstances fall within ‘Category C’,6 meaning the Chief Executive and therefore the Tribunal, has a broad discretion in deciding whether to refuse his ‘Driver Authorisation’. Is the protection of children and other vulnerable members of the community compromised by allowing Mr Ali to have ‘Driver Authorisation’?7 Driving history [7] In deciding whether to grant Mr Ali ‘Driver Authorisation’, protecting children and other vulnerable members of the community is paramount.8 [8] Preserving trust is the focus. Mr Ali has recent traffic history, including disobeying a ‘Left Turn Only’ sign and exceeding the speed limit in late 2013. These were not isolated incidents. In the last five years, Mr Ali has been convicted twice for driving under the influence of alcohol. He was disqualified from driving on both occasions. [9] Importantly, Mr Ali did not commit these offences while driving a taxi. Nevertheless, Mr Ali must be able to demonstrate that he can drive a private vehicle responsibly, before being allowed to drive a passenger- carrying vehicle, which has an inherently greater risk to others. [10] The offences are relevant to working as a taxi driver because they were committed while Mr Ali was driving a vehicle on public roads, thereby compromising the safety of others – including children and other vulnerable members of the community. 3 Ibid s 23(3). 4 Ibid ss 2,11; Lowen v Chief Executive, Department of Transport & Main Roads [2010] QCAT 69 at [18]; Bowden v Department of Transport and Main Roads [2013] QCAT 490 (Bowden) at [3]. 5 Transport Operations (Passenger Transport) Act 1994 ss 28A, 28B, 28C; Bowden at [4]. 6 Ibid s 28C. 7 Ibid ss 23(4)(b), 33A. 8 Ibid. -- 3 of 6 -- 4 [11] However, the most recent alcohol related offence was committed over three years ago. His 12 month Good Driving Behaviour Period expired on 9 February 2015. The Department conceded that if Mr Ali’s traffic history were the only consideration, Mr Ali would have had a reasonable chance of the Department approving his application. I agree with the Department’s assessment – Mr Ali has been driving without blemish for almost 18 months. Other history [12] Instead, the Department was more concerned with Mr Ali’s criminal history. In particular, Mr Ali was convicted of a serious assault in the last three years.9 It would appear that Mr Ali committed this offence while serving a suspended sentence10 for a similar offence of assault in 2011 and while he was waiting for the hearing of a charge of wilful damage, for which he was convicted one week later. [13] However, none of his criminal conduct involved children, the elderly or vulnerable members of the community. Because of this, his actions must be assessed according to his general suitability and the reputation of public passenger transport.11 General suitability:  Is Mr Ali a ‘suitable person’ to drive public passenger vehicles, given the need to provide for the personal safety of passengers, their property and the public?12  Is the reputation of public passenger transport damaged by allowing Mr Ali to have ‘Driver Authorisation’?13 [14] It is reasonable to infer that a person who commits a serious offence may breach other standards of community safety, including passenger safety. However, the circumstances of the offence must relate to passenger safety: It is a fair inference that a person who willingly engages in conduct which amounts to a serious crime may also be one who would be likely to breach other standards, including those relating (to) his work. However such conduct must be germane and relevant to his occupation. For example, a bus driver convicted of criminal driving offences is most relevant, where a conviction for say tax evasion is not.14 9 Queensland Police Service Person History dated 11 July 2014. 10 Ibid. 11 Bowden at [15]. 12 Transport Operations (Passenger Transport) Act 1994 s 23(2)(a). 13 Ibid s 23(3). 14 Bowden at [16]. -- 4 of 6 -- 5 [15] Assault is relevant to professional drivers, as the public must be confident that they can ride safely without the risk of violence.15 The Chief Executive would therefore quite reasonably have reservations about granting ‘Driver Authorisation’ to a person convicted of an offence of violence. [16] Committing a further offence while serving a suspended sentence for a similar offence and while awaiting court proceedings for another offence, does not suggest a respect for personal safety of property and the public. [17] I am mindful that the most recent offence occurred almost three years ago. However, during the hearing Mr Ali sought to deny or minimise his involvement in the offences, including even denying that he was the person identified by the independent witness in her statement to police about the most recent offence. The offences are not insubstantial and show a lack of respect for police officers, in whom the community reposes the unenviable responsibility of maintaining public safety. [18] Mr Ali did demonstrate some insight into his past behaviour. He has stopped drinking alcohol for almost five years, because he said it was a significant factor in his behaviour. This is consistent with his recent history of having committed no alcohol related offences for almost three years. [19] However, unfortunately for Mr Ali the evidence does suggest a pattern of antisocial conduct,16 for which he needs some more time to show a deeper insight into his actions and thereby regain the community’s trust in him not to compromise public safety. What is an appropriate ‘waiting period’ for Mr Ali? [20] Understandably, Mr Ali wants a ‘Driver Authorisation’ to better his position in life and to help look after his family in Sudan. The Tribunal has carefully considered Mr Ali’s evidence of how refusing him authorisation will affect his ability to earn an income. Mr Ali correctly points out that it has been almost three years since he committed any offence of violence. He adds that he has ‘stopped drinking alcohol forever’. [21] The Tribunal commends Mr Ali on his desire to better himself and look for ways to support his family as best as he knows how. It is undeniable that the impact of not allowing him ‘Driver Authorisation’ will be to deprive him of his best chance of being able to financially help his mother, brother and sister in Sudan. [22] However, the law requires that in considering whether to allow a person a ‘Driver Authorisation’, the public interest must take priority over an 15 Hijazi v Department of Transport and Main Roads [2011] QCAT 575 at [11] where the Tribunal noted that ‘behaviour which results in an assault conviction appears to be inimical to promoting public confidence in taxi drivers’. 16 Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363 at [12], citing with approval Bannan v Queensland Police Service Weapons Licensing Branch [2010] QCAT 464. -- 5 of 6 -- 6 applicant’s interests. Mr Ali needs some more time to demonstrate that he again deserves the trust of ordinary members of the community. [23] In saying this, I have noted the Department’s policy is for a waiting period of “up to 6 years”.17 During the hearing, the Department indicated an appropriate waiting period for Mr Ali would be six years from the expiry of his suspended sentence on 24 June 2013. This means that Mr Ali would be without ‘Driver Authorisation’ for a period of seven years from when he was sentenced. [24] Although I accept that the correct and preferable decision is to not grant ‘Driver Authorisation’ to Mr Ali at this time, I would consider that a waiting period of six years from the expiry of his suspended sentence is disproportionate to his actual sentence. I am guided by the comments of the learned Member LeMass in this regard: I do not accept, without ongoing reasons or factors that the period of cancellation could logically exceed the period of time which [the Applicant] may have spent incarcerated if he had been sentenced to 1 year in prison (suspended). The waiting period need be no longer than necessary to demonstrate his rehabilitation and suitability.18 [25] Although I consider Mr Ali needs some more time to demonstrate his rehabilitation, it is clear that he has already taken some positive steps to improve his future. Mr Ali is studying engineering. He has stopped drinking alcohol. He is seeking ways to earn an income, rather than relying upon Centrelink. He should be encouraged and supported in his endeavours, and given an opportunity to build on them. [26] In my view, a further period of 12 months could be considered to be sufficient for Mr Ali to demonstrate his rehabilitation, and reapply for ‘Driver Authorisation’. This would be almost four years from when he was convicted for his most recent offence, and almost five years from when the offence was committed. Conclusion [27] Unfortunately for Mr Ali, allowing him ‘Driver Authorisation’ at this time will not serve to provide for public safety or maximise public confidence in public transport.19 [28] The correct and preferable decision is therefore to confirm the decision to refuse Mr Ali’s ‘Driver Authorisation’. [29] However, although not part of my Orders, I do make the observation that a further period of 12 months could be considered an appropriate waiting period before Mr Ali is able to reapply for ‘Driver Authorisation’. 17 Transport Guidelines suggest a waiting period for up to six years before granting ‘Driver Authorisation’. 18 Bowden at [26]. 19 Transport Operations (Passenger Transport) Act 1994 s 23(1). -- 6 of 6 --