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Cooper v Department of Transport and Main Roads[2024] QCAT 62

Cooper v Department of Transport and Main Roads[2024] QCAT 62

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Cooper v Department of Transport and Main Roads [2024] QCAT 62

PARTIES:

THOMAS JOHNATHAN COOPER

(applicant)

v

DEPARTMENT OF TRANSPORT AND MAIN ROADS

(respondent)

APPLICATION NO/S:

GAR600-22

MATTER TYPE:

General administrative review matters

DELIVERED ON:

1 February 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Lumb

ORDERS:

  1. The decision to cancel the Applicant’s driver authorisation made on 29 November 2022 is confirmed.

CATCHWORDS:

ADMINISTRATIVE REVIEW – where applicant’s driver licence cancelled – where Court directed that a restricted driver licence be issued to allow the applicant to drive for work purposes as an Uber driver – where respondent issued a regulation notice cancelling the applicant’s driver authorisation (used for work as an Uber driver) issued pursuant to the Transport Operations (Passenger Transport) Regulation 2018 (Qld) – whether reviewable decision – whether driver authorisation cancelled by operation of s 50(2) of the Regulation – whether applicant’s driver licence ‘cancelled’ for the purposes of that provision

Justices Act 1886 (Qld), s 4

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20

Transport Operations (Passenger Transport) Regulation 2018 (Qld), ss 23, 50, 260 and Schedule 6

Transport Operations (Passenger Transport) Act 1994 (Qld), ss 29, 32, 102. 103 and Schedule 2

Transport Operations (Road Use Management) Act 1995 (Qld) ss 79, 79B, 79D, 87, 91J, 91M, 91N, 91O, 127, and Schedule 4

CTA v Queensland Police Service [2018] QCAT 440

Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

REPRESENTATION:

Applicant:

Self-represented

Respondent:

Self-represented

APPEARANCES:

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the QCAT Act).

REASONS FOR DECISION

Introduction

  1. [1]
    On 29 November 2022, the Respondent issued to the Applicant a ‘Regulation Notice – Cancellation of Your Driver Authorisation’ (the Regulation Notice) in relation to the driver authorisation that had been held by the Applicant since 29 January 2021 for the purposes of working as an Uber driver.
  2. [2]
    The stated basis of the cancellation of the driver authorisation was that it had been cancelled by operation of s 50(2) of the Transport Operations (Passenger Transport) Regulation 2018 (Qld) (the PT Reg), as a result of the cancellation of the Applicant’s driver licence (as a consequence of a drink driving conviction).
  3. [3]
    The Applicant filed an Application to review a decision on 22 December 2022 (the Application). By the Application, the Applicant seeks a review of a decision of the Respondent to cancel his driver authorisation.

Nature of the review

  1. [4]
    The purpose of the review of a reviewable decision is to produce the correct and preferable decision.[1] The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[2] The Tribunal must have access to any information that could have been or was considered by the original decision‑maker, plus any other material that becomes available and may be lawfully considered.[3]
  2. [5]
    The Tribunal is not required to identify an error in either the process or the reasoning that led to the decision being made and there is no presumption that the original decision is correct.[4]

The history of the matter

  1. [6]
    On 7 October 2022, the Applicant’s driver licence was immediately suspended due to being charged with driving a motor vehicle whilst over the middle alcohol limit but not over the high alcohol limit.
  2. [7]
    On 13 October 2022, the Applicant lodged an immediate appeal of his driver licence suspension. The Magistrates Court authorised the Applicant to continue to drive motor vehicles under a replacement Queensland open licence for restricted hours for the purposes of working as an Uber driver.
  3. [8]
    On 10 November 2022, the Magistrates Court ordered a six month disqualification of the Applicant’s driver licence, effective from 10 November 2022 to 9 May 2023. The Court also directed that a restricted  licence be issued to allow the Applicant to drive for work purposes. That restricted licence was in the following terms:

UPON application being made by the abovenamed defendant under section 87 of the TORUM Act the Court made an order directing that a provisional licence be issued to the abovenamed defendant during the period of disqualification subject to the following restrictions:

I direct that a restricted licence be issued to the defendant during the period of disqualification authorising the defendant to drive motor vehicle of class C for purpose directly connected with the defendant’s means of earning the defendant’s livelihood as a [sic] Uber Driver

24 hours per day on each and every day seven (7) days per week

the applicant may carry customers as part of his Uber driving responsibilities.

Must show your Uber phone application record, upon request by Queensland Police Service.

  1. [9]
    On 10 November 2022, the Respondent disqualified the Applicant’s driver licence for six months from 10 November 2022 to 9 May 2023 and applied an alcohol interlock condition from 10 November 2022 to 9 November 2027.
  2. [10]
    On 22 November 2022, the Applicant lodged an ‘Alcohol Ignition Interlock Program - Interlock Exemption Application’ accompanied by a ‘Medical Certificate for Interlock Exemption Application’.
  3. [11]
    On 25 November 2022, the Respondent issued the Applicant an ‘Alcohol Ignition Interlock Program - Interlock Exemption Approval Notice’ accompanied by an ‘Interlock Exemption Certificate’ under the Transport Operations (Road Use Management) Act 1995 (Qld) (the TORUM Act).
  4. [12]
    On 29 November 2022, the Respondent issued the Regulation Notice to the Applicant. The Regulation Notice stated:

This notice is to advise you that your driver authorisation, number 77248349, has been cancelled under section 50(2) of the Transport Operations (Passenger Transport) Regulation 2018 (TOPTR).

Section 50(2) of TOPTR states that if the driver licence of a person who holds driver authorisation is cancelled, the person’s driver authorisation is cancelled.

The facts and circumstances are that your driver licence was cancelled on 10 November 2022. Accordingly, the cancellation of your driver authorisation took effect immediately upon the cancellation of your driver licence.

When you are re-issued with a driver licence, your driver authorisation is not automatically reinstated. This means that you will need to attend a Department of Transport and Main Roads (TMR) customer service centre to reapply for driver authorisation. However, it is important to note that under section 23(2) of TOPTR you are not eligible to apply for driver authorisation while your driver licence is subject to an interlock condition.

Under section 49 of TOPTR. you are required to return your driver authorisation identification card and booked hire/taxi driver display card to the Department of Transport and Main Roads (TMR) as soon as practicable but within 14 days. Please complete the attached “'Return/Surrender Declaration” form F4836 and return it together with your driver authorisation identification card and booked hire/taxi driver display card to the address below.

Applicant’s case

  1. [13]
    In the Application, the Applicant stated, relevantly:[5]

I was issued with a work licence by the judge to continue driving for uber to save further financial hard ship as uber is the only job i can hold with the back injury i suffer from.

I have been certifyed safe to drive by my specialist and safe to operate a passanger vehical.

althou TMR have had decided to suspend my drivers athority stopping me from being able to follow the judges orders and contiue earning a living.

TMR have said that the reson for suspending and then canciling my drivers athoriy is because my drivers licence was cancilled however that is not the case, my drivers licence was never canciled as it was just changed to a work licence.

the other excuse TMR have made is that i cant have a drivers athority with an interlock condition on my licence. TMR have changed the maditory Interlock condition from high end drink driving offences to mid range offences but have also told me that they have not processed this new legistlation through the court systems, if this was the case the judge would of applied that the inerlock condion be removed so i could use the work licence issued by the judge.

further more I have been completely expempt from the interlock contion with an exeption certificate that has been issued to TMR so the actual conditon should be removed as it dosent apply to me.

…

In Conclustion My Drivers athoiity should remain current as my licence was never canceled. i still hold and open licence with a work licence contion to drive passanger vehical by the judge and i also hold an exeption to the interlock condition making the codition not aplicable to me so it should be removed alltogether and my drivers athority re instated so that im not put under any further hard ship and can continue to make a living through the only job i can do with my back injury.

esspesially when this is a new legistlation made by TMR is not yert prosessed through the court system. and my drivers athority and licence suspention was lifted only a few days after the origanal suspension was made and i was able to continue making a living by driving for uber under my work licence between the 10th of october and the 10th of november untill i reternd to court to have the work licence amended to more flexable hours.

althou after having the work licence amended TMR has decided to suspend and then further cancil my drivers athority after isuueing me with my new license with the new work licence condition attached and charging me over a $400 fee to have it processed, thus giving me fulse assurance that i could continue working as a passanger driver.

…

  1. [14]
    With respect to the issue of the ‘interlock condition’, the Applicant submits,[6] in response to the Respondent’s further submissions filed on 22 November 2023 (November 2023 submissions), that the contention that the condition ‘stays’ until 9 November 2027 was ‘untrue’ and that it ended on 9 November 2023 (and that he now holds a full driver licence without conditions).

Respondent’s case

  1. [15]
    By written submissions filed on 25 August 2023 (August 2023 submissions), the Respondent submitted:

Was the decision regarding Mr Cooper a reviewable decision?

Section 23 (2) Transport Operations (Passenger Transport) Regulation 2018 (TOPTA) specifies that a person whose driver licence is subject to an interlock condition or a non-Queensland interlock requirement is not eligible to apply for the grant or renewal of driver authorisation. Consequently, Section 29 Granting, renewing or refusing driver authorisation does not apply as a reviewable decision as stated under Schedule 2.

Mr Cooper successfully applied for a restricted work licence and an exemption from the Alcohol Ignition Interlock Program. Did this change his eligibility to apply for driver authorisation?

The Transport Operations (Road Use Management) Act 1995 states under 91M (1) (a) that an interlock period starts when the order is made, and ends when (b) (ii) the prescribed period ends. Under s 91N (1) (b) (ii) the prescribed period includes the period the person held a valid Queensland driver licence while interlock exemption has effect. Section 91S (d) states that the interlock exemption stops having effect when the interlock period ends.

While Mr Cooper had successfully applied for a restricted licence as well as an exemption from the Alcohol Ignition Interlock Program, he was not eligible to apply for driver authorisation while an interlock exemption was in place, and he was still within the prescribed interlock period.

Mr Cooper’s ineligibility to apply for driver authorisation is not a reviewable decision.

  1. [16]
    By the November 2023 submissions,[7] the Respondent submitted, amongst other matters:

…

  1. In response to the Tribunals directions of 14 November 2023 the following information in submitted;

…

  1. Under Section 23(2) of TOPTR a person whose driver licence is subject to an interlock condition, or a non-Queensland interlock requirement is not eligible to apply for the grant or renewal of driver authorisation. Also, under Section 239 of TOPTR a person must not drive a nominated vehicle fitted with a prescribed interlock to provide a public passenger service for which driver authorisation is required.

On 22 November 2022 the Applicant lodged an Alcohol Ignition Interlock Program – Interlock Exemption Application accompanied with a Medical Certificate for Interlock Exemption Application and a medical assessment conducted by Dr Jason Lo Tam from Clear Island Waters Health Precinct. A true copy of the documents have previously been submitted to the Tribunal.

On 25 November 2022 TMR issued the Applicant an Alcohol Ignition Interlock Program - Interlock Exemption Approval Notice accompanied with an Interlock Exemption Certificate under the Transport Operations (road Use Management) Act 1995. A true copy of the Alcohol Ignition Interlock Program - Exemption Approval Notice and Interlock Exemption Certificate has previously been submitted to the Tribunal.

An Alcohol Ignition Interlock Exemption provides an exemption only to the Applicant being required to have an alcohol interlock device installed in his vehicle. It does not remove or exempt the Application form having an Interlock condition recorded on his driver licence for the duration of the original order made by the court, until 9 November 2027.

Therefore, Section 23(2) of TOPTR continues to apply during this time in regard to the Applicant’s eligibility for a DA. There is no discretion provided to overrule this requirement by a Court or if an Alcohol Interlock Exemption has been approved by TMR.

  1. On 29 November 2022, TMR issued the Applicant a Regulation Notice – Cancellation of Your Driver Authorisation. A true copy of this notice has previously been submitted to the Tribunal. In this notice, the Applicant was advised that his DA was cancelled as a result of his driver licence being cancelled on 10 November 2022 and in accordance with Section 50(2) of TOPTR. This notice also informed the Applicant that when a driver licence is re-issued, his DA is not automatically reinstated, and he must reapply for a DA. However, it was also noted for the Applicant that under Section 23(2) of TOPTR he is not eligible to apply for driver authorisation while his driver licence is subject to an interlock condition.
  2. On 2 December 2022, the Applicant was further advised by email from a TMR Senior Advisor, Operator Accreditation and Authorisation, Industry Accreditation Policy, that an application for driver authorisation cannot be accepted by TMR from a person who has an interlock condition on their driver licence and TOPTR has no discretion to overrule this requirement.
  3. TMR records show that the Applicants driver licence was reinstated on 10 November 2022, however an active Interlock Condition is still in place until 9 November 2027. A true copy of the Applicant’s Traffic Record and Transport Licence History Summary is attached as Annexure 1.
  4. The Applicant may choose to make an application for the reissue of a DA, however TMR will be required to refuse the application in accordance with Section 23(2) of TOPTR.

The relevant statutory provisions

  1. [17]
    The PT Reg provides:
    1. by s 23:
  1. A person who is an individual may apply to the chief executive for the grant or renewal of driver authorisation that authorises the person to drive a vehicle used to provide—
  1. any public passenger service of a kind for which driver authorisation is required (a driver authorisation (booked hire and taxi)); or
  1. a public passenger service of a kind for which driver authorisation is required, other than a booked hire service or taxi service (a driver authorisation (general)).

Note—

Under section 28A of the Act, a person convicted of a category A driver disqualifying offence is ineligible to apply for or hold driver authorisation.

  1. However, a person whose driver licence is subject to an interlock condition or a non-Queensland interlock requirement is not eligible to apply for the grant or renewal of driver authorisation.

Note—

See the Transport Operations (Road Use Management) Act 1995, section 91K.

  1. The application must be—
  1. made in the approved form; and
  1. accompanied by—
  1. evidence that satisfies the chief executive that the person is—
  1. (A)
    an Australian citizen; or
  1. (B)
    a permanent resident; or
  1. (C)
    a New Zealand citizen who is the holder of a special category visa under the Migration Act 1958 (Cwlth), section 32; or
  1. (D)
    entitled, under a visa granted under the Migration Act 1958 (Cwlth), to work in Australia; and
  1. the fee stated in schedule 8.
  1. A fee payable under schedule 8, item 4 that relates to the renewal of a driver authorisation (booked hire and taxi) for a term is the fee in force on 1 July in the financial year in which the term starts.
  2. In this section—

driver authorisation does not include provisional driver authorisation or restricted driver authorisation.

interlock condition see the Transport Operations (Road Use Management) Act 1995, schedule 4.

non-Queensland interlock requirement see the Transport Operations (Road Use Management) Act 1995, schedule 4.

permanent resident means the holder of a permanent visa under the Migration Act 1958 (Cwlth), section 30(1).

  1. by s 50:
  1. If the driver licence of a person who holds driver authorisation is suspended, the person’s driver authorisation is suspended during the suspension of the person’s driver licence.
  2. If the driver licence of a person who holds driver authorisation is cancelled, the person’s driver authorisation is cancelled.
  3. If, on cancellation of a person’s driver licence, the person is disqualified from holding or obtaining a driver licence for a period, the person is disqualified from holding or obtaining driver authorisation for the period.
  1. by s 260:[8]

Sections 102 and 103 of the Act apply to a decision described in schedule 6 as if the decision were described in schedule 2 of the Act

  1. [18]
    Schedule 6 of the PT Reg provides:

Section

Description of decision

47(2)

imposition of condition when granting driver authorisation or amendment of driver authorisation imposing condition

90(4)

refusal to approve sign

120(4)

refusal of application for membership of taxi subsidy scheme

121

cancellation of approval under taxi subsidy scheme

161(4)

refusal of application for approval to transfer licence

162(4)

refusal of application for approval to lease licence

174

grant of substitute vehicle authority with conditions

176

refusal of application to issue substitute vehicle authority

178

cancellation of substitute vehicle authority

213(1)(a)

approval of vehicle security camera system with conditions

213(1)(b)

cancellation of approval for vehicle security camera system

271

exclusion of student from free travel

  1. [19]
    The PT Act provides, relevantly:
    1. by s 29(1):

A regulation may make provision about granting, renewing, or refusing to grant or renew, driver authorisation.

  1. by s 32:
  1. A regulation may make provision about amending, suspending or cancelling driver authorisations.
  1. (1A)
    Without limiting subsection (1), a regulation may authorise the chief executive to amend, including immediately amend, a person’s driver authorisation by imposing a condition on the authorisation.
  1. Without limiting subsection (1), a regulation may authorise the chief executive to suspend or cancel a person’s driver authorisation if the person is convicted of a category B or category C driver disqualifying offence.
  1. Without limiting subsection (1), a regulation may authorise the chief executive to immediately suspend a person’s driver authorisation if the person is charged with a driver disqualifying offence or the chief executive otherwise considers it necessary in the public interest.
  1. by s 102:
  1. A person whose interests are affected by a decision described in schedule 2 (the original decision) may ask the chief executive to review the decision.
  2. The person is entitled to receive a statement of reasons for the original decision whether or not the provision under which the decision is made requires that the person be given a statement of reasons for the decision.
  3. The Transport Planning and Coordination Act 1994, part 5, division 2—
  1. applies to the review; and
  1. provides—
  1. for the procedure for applying for the review and the way it is to be disposed of; and
  1. that the person may apply to QCAT to have the original decision stayed.
  1. by s 103:
  1. If a reviewed decision is not the decision sought by the applicant for the review, the chief executive must give the applicant a QCAT information notice for the reviewed decision.
  2. The applicant may apply, as provided under the QCAT Act, to QCAT for a review of the reviewed decision.

Note—

The QCAT Act, section 22(3) provides that QCAT may stay the operation of the reviewed decision, either on application by a person or on its own initiative.

  1. In this section—

QCAT information notice means a notice complying with the QCAT Act, section 157(2).

reviewed decision means the chief executive’s decision on a review under section 102.

  1. by Schedule 2, the ‘Reviewable Decisions’ include:
  1. a reference to s 29 and ‘refusal to grant or renew driver authorisation or the imposition of a condition on driver authorisation’;
  1. a reference to s 32 and ‘amendment, suspension or cancellation of driver authorisation or the imposition of a condition on driver authorisation’.
  1. [20]
    The TORUM Act provides:
    1. by s 79(1F):

Any person who, while the person is over the middle alcohol limit but is not over the high alcohol limit—

  1. drives a motor vehicle, tram, train or vessel; or
  1. attempts to put in motion a motor vehicle, tram, train or vessel; or
  1. is in charge of a motor vehicle, tram, train or vessel;

is guilty of an offence and liable to a penalty not exceeding 20 penalty units or to imprisonment for a term not exceeding 6 months.

  1. by s 87, relevantly:
  1. If a person is convicted by a court of an offence under section 79 or 80(5A) and—
  1. by order of the court, is disqualified from holding or obtaining a Queensland driver licence; or
  1. by operation of law and without specific order, is disqualified from holding or obtaining a Queensland driver licence;

the court may, where it has received an application from the person, make an order directing that the person be issued with a restricted licence.

…

  1. (3A)
    To remove doubt, it is declared that if a court makes an order under subsection (1) directing that a person be issued with a restricted licence, the person—
  1. is disqualified from holding or obtaining a Queensland driver licence, other than the restricted licence; and
  1. may not drive a motor vehicle during the period of the disqualification unless the person applies for and obtains the restricted licence the court ordered be issued.

…

  1. A court that grants an application must make an order directing that a restricted licence be issued to the applicant during the period of the applicant’s disqualification subject to restrictions specified in the order—
  1. which must restrict the use of the restricted licence by the applicant to specified circumstances directly connected with the applicant’s means of earning the applicant’s livelihood; and
  1. which may include, but are not limited to the following—
  1. the class of vehicle which may be driven;
  1. the purpose for which a vehicle may be driven;
  1. the times at which or period of time during which a vehicle may be driven.

Note—

A restricted licence issued to an applicant convicted of an offence against section 79(1F) involving a motor vehicle is subject to the interlock condition. See section 91K.

  1. by s 91J, relevantly:
  1. This division applies to a person who—
  1. is convicted of a drink driving offence; and
  1. is disqualified, other than under a prescribed provision, by or because of the conviction or offence, or under the penalty imposed for the offence, for a particular period (the disqualification period) from holding or obtaining a Queensland driver licence
  1. For subsection (1)(b), a reference to a person who is disqualified from holding or obtaining a Queensland driver licence includes a person who is—
  1. disqualified as a result of a conviction for an offence against section 79(1F) involving a motor vehicle; and
  1. the subject of an order made under section 87 in relation to the disqualification.

…

  1. by s 91M(1):

For a person mentioned in section 91J(1) who is the subject of an order under section 87 in relation to the disqualification, the interlock period is the period—

  1. starting when the order is made; and
  1. ending when whichever of the following happens first—
  1. a period of 5 years elapses after the order is made;
  1. the person’s prescribed period ends;
  1. the person’s restricted licence is cancelled under section 127 because of a further disqualification for a drink driving offence.
  1. by s 91N:
  1. The prescribed period for a person is the period of 12 months during which—
  1. the person held a valid Queensland driver licence and had—
  1. a nominated vehicle fitted with a prescribed interlock; or
  1. an interlock exemption that had effect; or
  1. the person, while driving under the authority of a valid non-Queensland driver licence—
  1. complied with a non-Queensland interlock requirement; or
  1. had an exemption from the non-Queensland interlock requirement that had effect; or
  1. the person satisfied paragraph (a) for part of the period and satisfied paragraph (b) for the balance of the period.

Example—

The prescribed period may comprise 3 months during which the person satisfies paragraph (a)(i), 3 months during which the person satisfies paragraph (a)(ii), 3 months during which the person satisfies paragraph (b)(i) and 3 months during which the person satisfies paragraph (b)(ii).

  1. However, if a person’s prescribed period is extended under division 4, the prescribed period for the person is the period comprising—
  1. the period of 12 months mentioned in subsection (1); and
  1. each period—
  1. by which the period mentioned in subsection (1) is extended under division 4; and
  1. during which the person meets the requirements of subsection (1)(a), (b) or (c).

Example—

If a person’s prescribed period is extended under division 4 for a period of 4 months, the person’s prescribed period is the period of 16 months during which the person meets the requirements of subsection (1)(a), (b) or (c).

  1. The prescribed period need not be continuous.
  1. In this section—

valid means—

  1. in relation to a Queensland driver licence other than a restricted licence—
  1. the licence has not expired; or
  1. the licence has not been cancelled, suspended or surrendered; or
  1. the licensee is not disqualified from holding or obtaining a Queensland driver licence; or
  1. (ab)
    in relation to a restricted licence—
  1. the licence has not expired; or
  1. the licence has not been cancelled, suspended or surrendered; or
  1. the licensee is not, after the restricted licence is granted, disqualified from holding or obtaining a Queensland driver licence because of a conviction for another offence; or
  1. in relation to a non-Queensland driver licence—
  1. the licence has not expired; or
  1. the licence has not been cancelled or suspended; or
  1. the licensee is not disqualified from holding or obtaining the licence in the jurisdiction in which it may be issued.
  1. by s 91O:

The interlock condition ends when the interlock period ends.

  1. by s 127(2A):

Where under this or any other Act a judge of the Supreme Court or District Court or justices orders or order that any person shall be disqualified absolutely or for a specified period from holding or obtaining a Queensland driver licence, each subsisting Queensland driver licence held by that person shall, by virtue of such order, be and be deemed to be cancelled on and from the date upon which that person became so disqualified.

Is there a reviewable decision?

  1. [21]
    In correspondence from the Respondent to the Applicant dated 2 December 2022,[9] the Respondent asserted that because the ‘cancellation action’ occurred under s 50 of the PT Reg, it was not reviewable (the first issue). In that correspondence, the Respondent also stated that when a driver authorisation is cancelled, a person must reapply as a new applicant to obtain driver authorisation again and, further, under s 23(2) of the PT Reg, such an application cannot be accepted by the Respondent where a person has an interlock condition on their driver licence because there is no discretion to overrule this requirement (the second issue).
  2. [22]
    The Respondent’s contention in relation to the second issue was repeated in the August 2023 submissions. Under the heading ‘Was the decision regarding [the Applicant] a reviewable decision?’, the Respondent submitted:

Section 23 (2) Transport Operations (Passenger Transport) Regulation 2018 (TOPTA) specifies that a person whose driver licence is subject to an interlock condition or a non-Queensland interlock requirement is not eligible to apply for the grant or renewal of driver authorisation. Consequently, Section 29 Granting, renewing or refusing driver authorisation does not apply as a reviewable decision as stated under Schedule 2.

  1. [23]
    I consider it convenient to deal with the second issue first.

The second issue

  1. [24]
    In my view, in circumstances where the Applicant has not, as far as the material indicates, made an application for the issue of a fresh driver authorisation, the occasion has not arisen for the making of a decision by the Respondent in relation to the issue of a fresh driver authorisation. Subsection 23(1) of the PT Reg provides that an individual may apply to the chief executive for, relevantly, the grant of a driver authorisation. In my view, a refusal to grant a driver authorisation is a reviewable decision under the PT Act having regard to ss 29, 102, 103 of, and Schedule 2 to, the PT Act. However, I am further of the view that until an application has been made under s 23(1) of the PT Reg (and refused), there is no decision which can constitute a ‘reviewable decision’.
  2. [25]
    For completeness, I note that if I had formed the view that the Respondent had made a reviewable decision in relation to the statement that it would be required to refuse an application for a driver authorisation[10] (until after 9 November 2027), I would have sought additional submissions from the parties. In my respectful view, having regard to the current submissions of the Respondent,[11] it is not self-evident that the Applicant’s driver licence presently remains (and will remain until 9 November 2027) subject to an ‘interlock requirement’ because the ‘interlock period’ has not ended.[12] However, I express no view in relation to this issue, provisional or otherwise.

The first issue

  1. [26]
    The essence of the Respondent’s contention is that the Tribunal has no jurisdiction to review the cancellation of the driver authorisation because the cancellation occurred by operation of s 50(2) of the PT Reg consequent upon the cancellation of the Applicant’s driver licence. The Applicant contends that his driver licence was not cancelled. A necessary corollary of the Respondent’s argument is that, if it were assumed that the Respondent had erred in concluding that the Applicant’s driver licence had been cancelled, the cancellation of the driver authorisation would be beyond review
  2. [27]
    Although it is not entirely clear, I conclude that the cancellation of the driver authorisation involved a ‘reviewable decision’ under the PT Act.
  3. [28]
    The Regulation Notice issued to the Applicant referred to ‘CANCELLATION OF YOUR DRIVER AUTHORISATION’.
  4. [29]
    Schedule 2 to the PT Act (which is referred to in s 102 of that Act) includes, relevantly, ‘cancellation of driver authorisation’ (with reference to s 32 of the PT Act).
  5. [30]
    Subsection 32(1) provides (broadly) that a regulation may make provision about amending, suspending or cancelling driver authorisations. Each of subsections 32(1A), (2) and (3) commences with the words ‘Without limiting subsection (1) …’. As a consequence, I consider that s 32(1) should not be read narrowly. I consider that s 50(2) of the PT Reg is a provision ‘about’ cancelling a driver authorisation. It follows, in my view, that the cancellation of the driver authorisation, being the subject of the Regulation Notice, constituted a ‘reviewable decision’ for the purposes of the PT Act.
  6. [31]
    The next issue is whether, as the Respondent contends, the driver authorisation was cancelled by operation of s 50(2) of the PT Reg.

Was the Applicant’s driver authorisation cancelled by operation of the PT Reg?

  1. [32]
    Subsection 50(2) of the PT Reg is in clear terms: ‘If the driver licence of a person who holds driver authorisation is cancelled, the person’s driver authorisation is cancelled’. In my view, if the Applicant’s driver licence was cancelled, it follows that the driver authorisation was cancelled by operation of s 50(2).
  2. [33]
    The critical question is whether the Applicant’s driver licence was ‘cancelled’ (for the purposes of s 50(2) of the PT Reg).
  3. [34]
    In my view, the Applicant’s driver licence was cancelled notwithstanding that the Court granted him a restricted licence on 10 November 2022.
  4. [35]
    There is no dispute that the Applicant was convicted of an offence under s 79(1F) of the TORUM Act, and that a period of disqualification was imposed for a period of six months from 10 November 2022. I am satisfied that the order made on 10 November 2022 was an order of a ‘justice’ having regard to the definition of ‘justices’ (and ‘justice’) in s 4 of the Justices Act 1886 (Qld) which includes a Magistrate and, where necessary, a Magistrates Court. In my view, by operation of s 127(2A) of the TORUM Act, upon the disqualification of the Applicant for the specified period, the Applicant’s subsisting Queensland driver licence was, and was deemed to be, cancelled on and from 10 November 2022.
  5. [36]
    I also find that the issue of the restricted licence on the same day as the disqualification did not affect the deemed cancellation of the driver licence. A ‘restricted licence’ is defined in Schedule 4 to the TORUM Act to mean ‘a licence to drive a motor vehicle, issued under this Act to give effect to a court order under s 87, that authorises the holder to drive only in stated circumstances directly connected with the person’s means of earning a living’.[13] In my view, the issue of the restricted licence under s 87(1) of the TORUM Act (on application by the Applicant) involved the issue of a discrete licence from the existing driver licence held by the Applicant (which was deemed to be cancelled). This is the plain meaning of s 87(1) of the TORUM Act (having regard to the definition of ‘restricted licence’), and this conclusion is reinforced by the terms of s 87(3A) of the TORUM Act which provision declares that if a person is issued with a restricted licence, the person is disqualified from holding or obtaining a Queensland driver licence, ‘other than the restricted licence’. In the case of the Applicant, I consider that the issue of the (separate) restricted licence had no effect or impact on the operation of s 127(2A) of the TORUM Act in relation to the Applicant’s previously held driver licence, or on the operation of s 50(2) of the PT Reg.
  6. [37]
    For the above reasons, I reject the Applicant’s argument that his driver licence was never cancelled. I find that his driver licence was cancelled and, by operation of s 50(2) of the PT Reg, his driver authorisation was cancelled.

Conclusion

  1. [38]
    For the above reasons, I confirm the decision to cancel the Applicant’s driver authorisation.

Order

  1. [39]
    The decision to cancel the Applicant’s driver authorisation made on 29 November 2022 is confirmed.

Footnotes

[1]  Subsection 20(1) of the QCAT Act.

[2]  Subsection 20(2) of the QCAT Act. See also Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34, [7].

[3]CTA v Queensland Police Service [2018] QCAT 440, [11].

[4]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[5]  I have set out the submissions verbatim without identifying spelling errors with ‘[sic]’.

[6]  Applicant’s email sent to the Tribunal on 22 November 2023.

[7]  Filed pursuant to directions of the Tribunal.

[8]  Subsection 103(2) of the Transport Operations (Passenger Transport) Act 1994 (Qld) (the PT Act) provides that an applicant may apply, as provided for in the QCAT Act, for a review of the ‘revised decision’ (as defined in s 103(3)).

[9]  Respondent's Statement of Reasons, Annexure 5.

[10]  By reason of s 23(2) of the PT Reg.

[11]  See the Respondent’s August 2023 submissions and also paragraphs 5(b), 6 and 8 of the Respondent’s November 2023 submissions.

[12]  In this respect, I note s 91M(1) (including s 91M(1)(b)(ii)), s 91N and s 91O of the TORUM Act.

[13]  The reference to s 87 is a reference to s 87 of the TORUM Act.

Close

Editorial Notes

  • Published Case Name:

    Cooper v Department of Transport and Main Roads

  • Shortened Case Name:

    Cooper v Department of Transport and Main Roads

  • MNC:

    [2024] QCAT 62

  • Court:

    QCAT

  • Judge(s):

    Member Lumb

  • Date:

    01 Feb 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
CTA v Queensland Police Service [2018] QCAT 440
2 citations
Jump To
Cite 1 - [2018] QCAT 440
Cite 2 - [2018] QCAT 440
Factory Direct Pools Pty Ltd v Queensland Building Services Authority [2013] QCAT 34
2 citations
Jump To
Cite 1 - [2013] QCAT 34
Cite 2 - [2013] QCAT 34
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58

Cases Citing

Case NameFull CitationFrequency
Hassid v Department of Transport and Main Roads [2024] QCAT 2862 citations
1

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