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Liban v Department of Transport and Main Roads QCAT 293
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Liban v Department of Transport and Main Roads  QCAT 293
department of transport and main roads
General administrative review matters
26 September 2019
24 September 2019
The decision to refuse the grant of a driver authorisation is confirmed.
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – GENERALLY – review of a decision to refuse a driver authorisation required to drive taxis – whether driver authorisation should be granted – where driver’s licence requirement not met – whether unsuitable where substantial traffic infringement history demonstrating a disregard for the law – whether necessary in the public interests having regard to legislated purpose
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Transport Operations (Passenger Transport) Act 1994 (Qld), s 23, s 24
Transport Operations (Road Use Management) Act 1995 (Qld), Schedule 4
Transport Operations (Passenger Transport) Regulation 2018 (Qld), s 21, s 23(1), s 24, s 30, s 32
Kehl v Board of Professional Engineers of Queensland  QCATA 58
APPEARANCES & REPRESENTATION:
Ms S Williams, Acting Manager (Passenger Transport Operations)
REASONS FOR DECISION
- Mr Liban seeks to earn income as a taxi driver to support his wife and children. He is required to hold a driver authorisation. Mr Liban recently applied for the grant of a driver authorisation to drive a vehicle to provide public passenger services. His application was refused by Regulation Notice dated 26 July 2019. He unsuccessfully applied for internal review of the original decision. The internal review confirmed the original decision. Mr Liban was notified of the review decision by letter dated 1 August 2019.
- Mr Liban seeks external review by the Tribunal of the decision to refuse the grant of the driver authorisation.
- On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own or set aside the decision and return it for reconsideration. The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits. There is no presumption that the decision under review is correct.
- Mr Liban previously held a driver authorisation allowing him to earn income as a taxi driver. He contends that during the time he was a taxi driver he was not involved in any accidents nor was he the subject of any customer complaints. There is no independent evidence of these matters before me nor is there any evidence to the contrary. Mr Liban did not file any statements of evidence or other documents upon which he wished to rely. In these circumstances, I gave Mr Liban a number of opportunities during the hearing to inform me of matters which he wished me to consider.
- He says he is not entitled to Australian social security payments and claims the decision is causing him financial hardship. The Department accepts that Mr Liban has dependents and financial commitments but contends that driving a taxi is not Mr Liban’s only possible means of earning income.
- The facts presented by Mr Liban and the Department in its Statement of Reasons are not in dispute.
Does Mr Liban hold a required driver’s licence?
- I find Mr Liban does not hold a driver’s licence as is required to apply for a driver authorisation.
- The applicant for a driver authorisation must hold either an open licence or a restricted licence issued under the Transport Operations (Road Use Management) Act 1995 (Qld) (the Act) or a corresponding Australian licence.
- The Department contends that he is not presently entitled to a driver authorisation because he holds a probationary licence, which is in fact suspended, so that he has no current driver’s licence.
- The Transport Operations (Passenger Transport) Regulation 2018 (Qld) (the Regulations) adopt the definitions of open licence, probationary licence and restricted licence contained in the Act.
- An open licence is defined as a licence to drive a motor vehicle issued under the Act that is not, amongst other things, a probationary licence.
- A probationary licence is defined as a licence to drive a motor vehicle issued under the Act that is first issued after the person has, under an order made by an Australian court, served a period of disqualification from holding or obtaining a licence.
- Mr Liban acknowledges that since he was disqualified for unlicensed driving he has held a probationary licence, which as at the hearing date was suspended for an inability to pay fines for traffic contraventions. He accepts that therefore he currently does not hold a driver’s licence. He gave evidence that he is commencing community service shortly and the suspension will be lifted, possibly later on the day of hearing or shortly after.
- He does not dispute that upon the lifting of the suspension that he will hold a probationary licence until sometime in February 2020. The Department noted that the probationary period will be extended by the current period of suspension.
- I find that Mr Liban’s application does not comply with the licence requirements for a driver authorisation currently and will not comply while he holds a probationary licence.
- The Regulations provide that after receiving an application the chief executive, or the Tribunal in the chief executive’s place, must consider it and decide, if the applicant does not comply with all of the requirements under the Act about granting or renewing, to grant a provisional driver authorisation or to refuse the application.
- The licence requirements are couched in mandatory language i.e. the section uses the word ‘must’. Ordinarily that would indicate that there is no discretion to exercise if there is non-compliance with this requirement.
- The Department contends that I should consider this non-compliance and exercise my discretion in conjunction with a consideration of other relevant matters addressed below.
Is Mr Liban unsuitable to hold a driver authorisation having regard to his driving history?
- I find that Mr Liban is unsuitable to hold a driver authorisation having regard to his driving history. Mr Liban’s driving history demonstrates a long term disregard for laws and the safety of other road users and his passengers.
- An application for grant of a driver authorisation may be refused if the person is unsuitable to hold driver authorisation having regard to their driving history.
- The undisputed evidence before me is that Mr Liban has a lengthy history of driving infringements during an extended period of time i.e. 2005 to 2019. The history shows a range of contraventions of traffic laws and quite a number of suspensions, due to non-payment of fines imposed. As previously mentioned Mr Liban was disqualified for unlicensed driving.
- Mr Liban accepts that all but two of the infringements occurred while he held a driver authorisation and was driving a taxi. Mr Liban contends that he is human, has made mistakes and he should be given another chance to show he will comply with the laws. He suggested that restrictions could be imposed e.g. regulating the hours during which he could operate as a taxi driver.
- I am not satisfied that imposing such restrictions would ensure or encourage compliance with traffic laws. This is not a case of a limited number of infringements over a short time nor is it a case where there had been infringements followed by a reasonable period of compliance with traffic and other laws.
Is it necessary to refuse the driver authorisation in the public interest having regard to the purpose of driver authorisation?
- I find it is necessary in the public interest to refuse the driver authorisation having regard to the legislated purpose.
- I am required to consider the purpose of driver authorisation in assessing an application.
- Section 23 of the Transport Operations (Passenger Transport) Act 1994 (Qld) provides:
- (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
- (b)conduct themselves responsibly with passengers and the public; and
- (c)are responsible in the act of driving and are capable of safely operating the relevant type of vehicle; and
- (d)are aware of their customer service responsibilities; and
- (e)are held accountable for complying with appropriate standards.
- (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.
- Having regard to my findings in respect of Mr Liban’s driving history, I am not satisfied that granting a driver authorisation to Mr Liban would maximise public confidence in public passenger services in relation to the drivers of public passenger vehicles, including because Mr Liban’s contraventions are inconsistent with being responsible in the act of driving.
- Holding a driver authorisation is a privilege not a right. Whilst I accept Mr Liban’s evidence that he is experiencing a degree of financial hardship, the public’s safety and ensuring the purposes of driver authorisation are achieved take precedence over any personal hardship that such a decision imposes upon Mr Liban and his family.
- The decision to refuse the grant of a driver authorisation is confirmed.
 Transport Operations (Passenger Transport) Act 1994 (Qld), s 24.
 Transport Operations (Passenger Transport) Regulation 2018 (Qld) (the Regulations), s 23(1).
 Exhibit 2, Annexure 1.
 Ibid, Annexure 6.
 Filed 22 August 2019.
 Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), s 24.
 Ibid, s 20.
 Kehl v Board of Professional Engineers of Queensland  QCATA 58, .
 Exhibit 2, filed 18 September 2019.
 The Regulations, s 24(1).
 Ibid, s 21.
 The Act, Schedule 4.
 The Regulations, s 30.
 Ibid, s 32.
 Ibid, s 32 (1)(a).
 Ibid, s 30(1).
 Ibid, s 32(1)(f).
 Exhibit 2, Annexure 4.
- Published Case Name:
Abdulrahman Liban v Department of Transport and Main Roads
- Shortened Case Name:
Liban v Department of Transport and Main Roads
 QCAT 293
26 Sep 2019