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- Unreported Judgment
Biancotto v Department of Transport and Main Roads QCAT 33
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Biancotto v Department of Transport and Main Roads  QCAT 33
Department of Transport and Main Roads
General administrative review matters
6 February 2020
On the papers
TRAFFIC LAW – LICENSING OF DRIVERS – QUEENSLAND – DISQUALIFICATION, CANCELLATION OR SUSPENSION OF LICENCES – where disqualification from driving in another State – where Queensland driver licence cancelled – whether tribunal can review
ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where tribunal has jurisdiction to review some driver licensing decisions – whether tribunal can review cancellation of driver licence based on interstate disqualification
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9(1)
Transport Operations (Road Use Management) Act 1995 (Qld), s 127(3A), s 131
Transport Operations (Road Use Management – Driver Licensing) Regulation 2010 (Qld), s 124, s 125, s 132
REASONS FOR DECISION
- On 12 November 2019 the Department of Transport and Main Roads wrote to Mr Biancotto advising that his Queensland driver licence had been cancelled on and from that date. The letter said that the cancellation was based on information from Victoria indicating that he had been disqualified from holding or obtaining a driver licence in that state for the period 27 October 2019 to 26 August 2020. The letter said that the Victorian disqualification was a ground to cancel the Queensland licence, under section 127(3A) of the Transport Operations (Road Use Management) Act 1995 (Qld) (‘TORUM Act’). That section says:
(3A) If, under a law of another State, a person is disqualified absolutely or for a specified period from holding or obtaining a driver licence in the other State, each subsisting Queensland driver licence held by the person is, by virtue of the disqualification, cancelled on and from the date the person became disqualified.
- On 18 December 2019 Mr Biancotto filed in the Tribunal an application to review the Department’s decision. At the same time he filed an application to stay the decision, and an application for leave to be legally represented.
- The Tribunal sought submissions on whether it has jurisdiction to conduct a review. The Department filed a statement of reasons on 31 January 2020, contending that the Tribunal lacks jurisdiction. Mr Biancotto’s lawyers filed a submission on 3 February 2020, contending to the contrary. The matter was discussed at a directions hearing on 3 February 2020, and I advised that I would decide the question of jurisdiction, and the fate of the applications, on the papers.
Summary of Department’s submissions
- The Department argues that no ‘administrative or reviewable decision’ was made by it, or by any delegate of the Department’s chief executive, in respect of Mr Biancotto’s licence. Rather, the Department merely advised Mr Biancotto of the automatic effect of section 127(3A) of the TORUM Act. In the absence of a reviewable decision, the Department contends, the Tribunal lacks jurisdiction to conduct a review.
Summary of Mr Biancotto’s submissions
- Mr Blaxland for Mr Biancotto submits that the Departmental officer who sent the notice on 12 November 2019 must have made a decision on behalf of the chief executive of the Department.
- Further, section 127(3A) of the TORUM Act is penal, and it therefore should be interpreted in the way most favourable to Mr Biancotto. A licence should not be taken away without giving the licensee an opportunity to object. A show cause procedure is provided for in sections 124(d) and 125 of the Transport Operations (Road Use Management - Driver Licensing) Regulation 2010 (Qld) (‘TORUM Regulation’). That procedure should have been used here. The Department’s argument that a decision of this nature can be made with no review or appeal rights should not be accepted. Section 131 of the TORUM Act clearly expresses an intent that an administrative (as distinct from a judicial) cancellation of a driver licence should be reviewable.
- Further, section 127(3A) of the TORUM Act is beyond Parliament’s power: it purports to enact that a conviction in another state is automatically a conviction in Queensland. Yet the Queensland legislature has no jurisdiction to adopt and enforce the conviction of another state.
- Mr Blaxland also cites authorities on the need for clear language before Parliament will be taken to be abrogating fundamental rights, and about the risks of excessive reliance on ministerial speeches in interpreting Acts of Parliament. Mr Blaxland raised that second point because the Department in its statement of reasons had included extracts from the Explanatory Note to the Bill which sought to insert section 127(3A) into the TORUM Act.
Does the Tribunal have jurisdiction?
- It is important to say at the outset that even if the Tribunal has jurisdiction, it would not be the role of an administrative tribunal such as QCAT to rule on whether a statutory provision is beyond the power of Parliament. That is a judicial function.
- The TORUM Act confers review jurisdiction on the Tribunal. As will become apparent, the Act must be read in conjunction with the TORUM Regulation.
- Curiously, the TORUM Act contains two review pathways. One pathway is under sections 65 and 65A. That pathway provides for internal review by the Department in section 65, and then external review by the Tribunal in section 65A. However, this pathway relates only to the types of decisions listed in Schedule 3. These do not include decisions about driver licences. Therefore the first pathway is not applicable in this case.
- The second pathway is via section 131. Section 131 deals with licences. It says, relevantly:
131 Reviews and appeals with respect to issue of licences etc.
(2) A person aggrieved by … the … cancellation of a licence by the chief executive or commissioner … may apply, as provided under the QCAT Act, to QCAT for a review of the … cancellation …
(3) Subsection (2) does not apply to a … cancellation … that is a licensing decision.
(4) A person aggrieved by a decision of the chief executive on a reconsideration of a licensing decision may apply to QCAT for a review of the decision on the reconsideration.
(24) In this section—
licensing decision means a decision of the chief executive to—
(b) … cancel the person’s Queensland driver licence …
- It is undisputed that ‘chief executive’ refers to the chief executive of the Department. ‘Commissioner’ means ‘the commissioner of the police service’.
- It is then necessary to appreciate that the powers given to the chief executive in relation to driver licences – such as the powers to grant, suspend or cancel – are conferred by the TORUM Regulation. For example, section 124(d) of the TORUM Regulation provides that a ground for cancelling a Queensland driver licence is that the licensee has been disqualified from holding or obtaining a driver licence in another country. Section 125 of the TORUM Regulation sets out the procedure by which the chief executive may cancel the person’s Queensland driver licence if the chief executive believes that the ground for cancellation exists. This involves sending a show cause notice and considering any representations made in response before deciding whether to cancel. When cancellation has occurred under section 125, section 132 of the TORUM Regulation gives the affected person the right to apply to the chief executive for a reconsideration. When the reconsideration has been done, the chief executive must give the person a notice stating the reconsidered decision and that, under section 131(4) of the TORUM Act, the person may apply to the Tribunal for a review.
- It can be seen that the TORUM Act confers jurisdiction on the Tribunal to review certain decisions made by the chief executive in relation to licences, after reconsideration by the chief executive. The cancellation of a person’s Queensland driver licence because of an overseas disqualification would be such a decision.
- However, the cancellation of a Queensland driver licence because of an interstate disqualification does not, under the legislative scheme, depend on any decision of the chief executive (or a delegate) or the commissioner. Rather, section 127(3A) of the TORUM Act serves to cancel by virtue of an event i.e. the interstate disqualification itself. I therefore accept the Department’s submission that section 131 of the TORUM Act does not confer review jurisdiction on the Tribunal. Section 131 relates only to cancellations by the chief executive or the commissioner. The cancellation in Mr Biancotto’s case did not involve a cancellation by any official.
- The Department’s letter of 12 November 2019 was not correctly expressed, in my view. It said that the Department ‘has cancelled your Queensland driver licence’, when it would have been more accurate to say that the licence had been cancelled by force of section 127(3A) of the TORUM Act. The letter also said that Mr Biancotto’s Queensland licence had been cancelled from 12 November 2019, but under section 127(3A) the licence was cancelled from 27 October 2019 when the Victorian disqualification took effect. Nonetheless, it was clear enough from the letter that the basis of the cancellation was section 127(3A).
- I have considered Mr Blaxland’s submission that the show cause procedure in sections 124 and 125 of the TORUM Regulation should have been used in this case. Significantly, however, section 124(d) was amended with effect from 12 September 2019. Prior to that date, section 124(d) provided that a ground for cancellation was that ‘the licensee has been disqualified from holding or obtaining a driver licence in another State or another country’. With effect from 12 September 2019, the words ‘another State or’ were removed. This meant that the show cause procedure ceased to apply in cases of interstate disqualification. This change coincided with the insertion of section 127(3A) into the TORUM Act and, no doubt, reflected the intended automatic operation of section 127(3A).
- Although I have taken into account Mr Blaxland’s submissions about how legislation should be interpreted, I am not satisfied that any reading of the legislation could confer review jurisdiction on the Tribunal. It is clear that in enacting section 127(3A) of the TORUM Act, Parliament intended cancellation to occur without the need for any decision by an official. In the past, a show cause procedure and a decision by the chief executive were required for a cancellation on the basis of interstate disqualification. That changed on 12 September 2019. I do not accept Mr Blaxland’s submission that there must have been a decision made on behalf of the chief executive on 12 November 2019. The legislative scheme expressly provides for a number of decisions that can be made by the chief executive, but section 127(3A) is a provision of a different nature.
- The only provisions that could potentially confer jurisdiction on the Tribunal are sections 65A and 131 of the TORUM Act. I have explained above why neither applies in the circumstances of Mr Biancotto’s case.
- The Tribunal lacks jurisdiction to conduct a review in this matter. It follows that the application to review a decision should be dismissed as misconceived, under section 47 of the QCAT Act. The stay application should also be dismissed as misconceived. The Tribunal has power to stay only a ‘reviewable decision’. A reviewable decision is one which the Tribunal has jurisdiction to review. The application for leave to be represented should be refused because the proceeding is now at an end.
Mr Blaxland’s submission cites R v Lavender (2005) 222 CLR 67,  on the interpretation of penal provisions.
Coco v R (1994) 179 CLR 427.
Lacey v Attorney-General (Qld)  HCA 10.
QCAT Act, s 9(1).
Ibid, s 6(2).
 TORUM Act, s 65(1).
 TORUM Act, Schedule 4, definition of ‘commissioner’.
 TORUM Regulation, s 132(2).
 Ibid, s 132(5).
 QCAT Act, s 22.
 Ibid, s 17.
- Published Case Name:
Biancotto v Department of Transport and Main Roads
- Shortened Case Name:
Biancotto v Department of Transport and Main Roads
 QCAT 33
06 Feb 2020