Bowden v Department of Transport and Main Roads [2013] QCAT 490

CITATION: Bowden v Department of Transport and Main Roads [2013] QCAT 490 PARTIES: Mr Reginald Barry Bowden (Applicant) V Department of Transport and Main Roads (Respondent) APPLICATION NUMBER: GAR408-12 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: W LeMass, Member DELIVERED ON: 19 September 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The decision of the Respondent is confirmed CATCHWORDS: REVIEW – decision to cancel bus driver authorisation – Cannabis use The Transport Operations (Passenger Transport) Act 1994 (Qld) Section 23, 28, 33A RFL v Secretary to the Department of Justice [2012] VCAT 1063 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Mr Bowden is a bus driver from the Sunshine Coast who suffers chronic pain from 2 previous motor vehicle accidents. He is concerned that the decades of paracetamol use is permanently damaging his health. He self medicated with cannabis, was caught by police growing marijuana and subsequently prosecuted. -- 1 of 5 -- 2 [2] This is an application by Mr Bowden seeking review of a decision of the Chief Executive, Department of Transport and Main Roads to cancel his bus driver authorisation. The Department by submission confirms the QCAT jurisdiction. [3] The Transport Operations (Passenger Transport) Act 1994 (Qld) (the Act) provides for the cancellation or suspension of driver authorisation in certain circumstances. Its objects are the protection of the public, particularly children and the vulnerable.1 11 Purpose of operator accreditation The purpose of operator accreditation is to encourage the high quality operation of public passenger services by— (a) raising standards and awareness of operators in the areas of safety, service delivery and business acumen; and (b) ensuring public passenger service operators are held accountable for complying with appropriate standards. [4] Chapter 4 of the Act provides for 3 categories of offences on a sliding scale of seriousness2 for which the Chief Executive must either cancel, may not cancel only in exceptional circumstances, or has an unfettered discretion to cancel or suspend. Mr Bowden falls into this last category.3 [5] With respect to this categorization, the definition and schedules are remarkably difficult to interpret as the definition refers to schedules in ―parts‖ and no such parts exist and the definition is inconsistent, in some cases, referring to punishable by imprisonment for 1 year and in other places for which the maximum penalty is at least. category C driver disqualifying offence means any of the following that is not a category A driver disqualifying offence or a category B driver disqualifying offence— (a) an offence against a provision of the Criminal Code mentioned in schedule 1A, part 3; (b) an offence against the Drugs Misuse Act 1986 punishable by imprisonment for 1 year or more, even though a fine may be imposed in addition or as an alternative; [6] Nevertheless I am satisfied that the appropriate classification ―c‖ has been made and the Chief Executive jurisdiction thus enabled. [7] On 18 December 2012 the Chief Executive confirmed the original decision of 23 November 2012 to suspend and permanently cancel Mr Bowden’s driver authorisation from 24 December 2012. The department provided Mr Bowden with a copy of its policy as Annexure A to its decision; this policy does not have the force of law. 1 Section 2(c) promote the personal safety of persons using public passenger transport. 2 Section 28A, 28B, 28C. 3 Section 28C. -- 2 of 5 -- 3 Review [8] Mr Bowden seeks a review of the Chief Executive’s decision by this Tribunal pursuant to section 103 of the Transport Operations (Passenger Transport) Act 1994 (Qld). [9] The Tribunal’s jurisdiction to conduct a review is contained in Chapter 2 Part 1 of the Queensland Civil and Administrative Act 2009 (Qld), particularly s 20. Section 20 provides that the Tribunal must hear and decide the review of a reviewable decision by way of a fresh hearing on the merits. The purpose of the review is to produce the correct and preferable decision. [10] In exercising his discretion as to whether or not to cancel Mr Bowden’s authorisation the Chief Executive has submitted, must consider the pivotal objects of the legislation set out below in part; 23 Purpose of driver authorisation (1) The purpose of driver authorisation is to maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles. (2) Without limiting subsection (1), the purpose includes ensuring that drivers of public passenger vehicles— (a) are suitable persons to drive public passenger vehicles having regard to the need to provide for the personal safety of passengers and their property, and the public; and ... (3) Without limiting subsection (1) or (2), the purpose also includes ensuring that drivers do not damage the reputation of public passenger transport. (4) In deciding whether to grant driver authorisation to a person, or to renew or amend, impose a condition on, or suspend or cancel a person's driver authorisation, the chief executive must take into consideration— (a) the purpose of driver authorisation mentioned in subsections (1) to (3); and (b) the paramount principle mentioned in section 33A that children and other vulnerable members of the community must be protected. (My emphasis added) 33A Protection of children and vulnerable members of the community (1) This section applies to the following when making decisions about driver authorisation— (a) the chief executive; (b) persons constituting a review panel under the Transport Planning and Coordination Act 1994; (c) a court hearing an appeal against a decision about driver authorisation. (2) If, because an applicant for, or a holder of, driver authorisation has been charged with or convicted of a driver disqualifying offence or for any other reason, the safety of children or other vulnerable members of the community becomes relevant, the paramount principle is that children and other vulnerable members of the community must be protected. (My emphasis added) [11] Mr Bowden’s conduct examined, in light of the above, is a person, whom in full knowledge of the law and its consequences chose to produce and possess a dangerous drug, he was caught and punished. [12] About this Mr Bowden says very little as follows:  he suffers chronic pain because of 2 former motor vehicle accidents -- 3 of 5 -- 4  he has managed that pain for decades with paracetamol  he believes that continued extensive paracetamol use will have adverse health outcomes  he decided to grow and self medicate with marijuana  he was never under the influence of marijuana whilst working. [13] His submission suggests that the cancellation of his driver authorisation will result in the loss of his job and ―the end of finding any gainful employment for the rest of my working life‖. We do not know any more about this. [14] Mr Bowden was requested to provide further submissions but did not. Mr Bowden did not attend a compulsory conference. Mr Bowden was contacted by telephone by a Registry case officer, whom he advised that he would not make further submissions. [15] Nevertheless, I accept that his actions were not of a variety carried out in the performance of his duties. Passengers were not actually at risk by a crime committed whilst working, children and the vulnerable were not involved. As such his actions must be judged upon his general suitability and the effect upon the reputation of the Act.4 [16] 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 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. [17] I believe that the issue of drugs, legal and otherwise, is most relevant to those entrusted to drive professionally on our roads and particularly those directly responsible for the safety of occupants, adults, children and the vulnerable. As such I consider that the Chief Executive’s consideration was warranted and to an extent his actions are justified. [18] I also consider that Mr Bowden’s offence is overstated in the Department’s submissions. [19] There are multiple charges but in fact, they all arise out of one circumstance. They are of the lowest category ―c‖. They are essentially victimless, there is no suggestion that the drug was other than for personal use. The circumstances surrounding the offenses are credibly explained by Mr Bowden as chronic pain relief. [20] We are not favoured with a transcript of the Magistrate Court proceedings but must accept that the Magistrate assessed the behaviour and effectively allowed Mr Bowden to walk from the Court without any penalty 4 Section 23. -- 4 of 5 -- 5 at all. Albeit, I acknowledge that substantial penalties will arise if he reoffends. [21] Contrast this with the stated position of the Chief Executive. He has permanently cancelled his authority and provided the Department’s policy statement to Mr Bowden.5 [22] Upon reading the policy it advises Mr Bowden that he can not apply for consideration for an authorisation for 6 or 9 years. Decision [23] For the reasons and considerations set out above, I accept that the decision to suspend and ultimately cancel the authority of Mr Bowden was the correct and proper decision, despite the severity of that decision resulting in the loss of his livelihood. The offending behaviour affects Mr Bowden’s suitability to retain the privilege of his authorisation and affects the reputation of public passenger transport. [24] I am also satisfied that the Chief Executive made the correct decision to cancel and not suspend the authority. This allows the opportunity to enquire as to rehabilitation or reoffending, if any, at the time of application to reissue and perhaps to impose relevant conditions to ensure public safety. [25] The decision of the Respondent is confirmed. Further comment [26] I do not however accept, without ongoing reason or factors that the period of cancellation could logically exceed the period of time which Mr Bowden 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. [27] Indeed this is a poor precedent. Had a proper case been pleaded I may have been convinced otherwise, along with a substantial body of authority as per the decision of the Vice President of VCAT, Her Honour Judge Jenkins, where under a similar regime, a continuing cannabis user was returned her authority to work with children.6 5 Annexure A referred to above - page 3 para ii and iii. 6 RFL v Secretary to the Department of Justice [2012] VCAT 1063. -- 5 of 5 --