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Chief Executive Transport and Main Roads v El Hayek & Anor[2019] QCATA 19

Chief Executive Transport and Main Roads v El Hayek & Anor[2019] QCATA 19

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Chief Executive Transport and Main Roads v El Hayek & Anor [2019] QCATA 19

PARTIES:

CHIEF EXECUTIVE TRANSPORT AND MAIN ROADS

(appellant)

 

v

 

NAKHLE EL HAYEK

(first respondent)

CHIEF EXECUTIVE, DEPARTMENT OF JUSTICE AND ATTORNEY-GENERAL
(second respondent)

APPLICATION NO/S:

APL230-18

ORIGINATING APPLICATION NO/S:

GAR014-18

MATTER TYPE:

Appeals

DELIVERED ON:

22 February 2019

HEARING DATE:

31 January 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Kanowski

ORDERS:

  1. The decision of the Tribunal made on 5 September 2018 in proceeding GAR014-18 is set aside.
  2. A decision is substituted to confirm the decision of the Chief Executive Transport and Main Roads to refuse the application by Nakhle El Hayek for a driver authorisation.

CATCHWORDS:

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – FUNCTIONS OF TRIBUNALS – where original decision-maker constrained by opinion of another official – whether the same constraint applies on review by  tribunal

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Transport Operations (Passenger Transport) Act 1994 (Qld), s 28B, s 104

Working with Children (Risk Management and Screening) Act 2000 (Qld) s 221(2), s 225(2)

El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457

Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41, applied

The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services (1992) 39 FCR 225, applied

APPEARANCES & REPRESENTATION:

 

Applicant:

H Carswell, Solicitor, Crown Law

First Respondent:

Second Respondent:

Self-represented

A Webber, Solicitor, Department of Justice and Attorney-General

REASONS FOR DECISION

Introduction

  1. [1]
    Mr El Hayek wishes to obtain a ‘driver authorisation’ so that he can work as an Uber driver. The Department of Transport and Main Roads refused his application for a driver authorisation. A critical factor in the Department’s decision was the fact that in the early 2000s, as a young man, Mr El Hayek had been convicted of a category B driver disqualifying offence (‘category B disqualifying offence’) within the meaning of s 28B of the Transport Operations (Passenger Transport) Act 1994 (Qld) (‘Passenger Transport Act’).
  2. [2]
    Mr El Hayek successfully sought review of the Department’s decision by the Tribunal: on 5 September 2018 the Tribunal set aside the decision of the chief executive of the Department, and substituted a decision that the Department must grant Mr El Hayek a driver authorisation.
  3. [3]
    This is an appeal against that decision of the Tribunal, brought by the chief executive Transport and Main Roads (‘chief executive (transport)’), on the ground that it was not legally open to the Tribunal to decide, in the circumstances of the case, that Mr El Hayek is eligible for a driver authorisation.

History of the matter

  1. [4]
    In March 2017 Mr El Hayek applied for a driver authorisation. He disclosed his criminal history.
  2. [5]
    Where an applicant has a conviction for a category B disqualifying offence that, as in the present case, is also a ‘serious offence or disqualifying offence’ under the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’), the chief executive (transport) must ask the chief executive (employment screening) whether he/she considers an ‘exceptional case’ exists.[1]
  3. [6]
    That procedure was followed in Mr El Hayek’s case. In October 2017 a delegate of the chief executive (employment screening) advised the delegate of the chief executive (transport) that she did not consider that an exceptional case exists. In those circumstances, by s 28B(6)(b) of the Passenger Transport Act, the chief executive (transport), cannot be satisfied that an exceptional case exists.
  4. [7]
    Accordingly, on 1 November 2017 a delegate of the chief executive (transport) refused Mr El Hayek’s application for a driver authorisation. In a letter to Mr El Hayek of the same date, the delegate stated that he was compelled to refuse the application on account of the opinion of the chief executive (employment screening) that an exceptional case does not exist.
  5. [8]
    After an internal review confirmed the delegate’s decision, Mr El Hayek applied to the Tribunal on 12 December 2017 for an external review. As we have mentioned, the Tribunal decided the matter in Mr El Hayek’s favour on 5 September 2018. The Tribunal was satisfied that an exceptional case exists because the offence in question, and some other offences committed at around the same time, had occurred many years ago and Mr El Hayek had since reformed himself. The Tribunal accepted that the chief executive (transport) is obliged to refuse an application when advised by the chief executive (employment screening) that he or she considers that an exceptional case does not exist. However, the Tribunal concluded that the same restriction does not apply to the Tribunal.[2]
  6. [9]
    The chief executive (transport) does not agree with that conclusion, arguing that the Tribunal is similarly obliged to refuse such an application when the chief executive (employment screening) has given an adverse advice. The chief executive (employment screening), who is a party to the proceeding under the title Director-General, Department of Justice and Attorney-General, concurs.
  7. [10]
    Mr El Hayek supports the conclusion that the Tribunal reached on 5 September 2018.

Section 28B of the Passenger Transport Act

  1. [11]
    Section 28B of the Passenger Transport Act is set out below. References in the section to ‘chief executive’, as distinct from ‘chief executive (employment screening)’, are references to the ‘chief executive (transport)’.
  1. This section applies if the chief executive is aware that a person who is an applicant for driver authorisation or who holds driver authorisation has been convicted of a category B driver disqualifying offence.
  2. The chief executive must give the person written notice of the chief executive’s intention to refuse to grant or renew, or to cancel, the driver authorisation (the exclusion action) unless the person demonstrates to the chief executive’s satisfaction that an exceptional case exists.

Example of an exceptional case—

A person with no other criminal history was convicted of unlawful carnal knowledge 30 years ago and placed on a good behaviour bond after being involved in a consensual sexual relationship with a 15 year old when the person was 17.

  1. The chief executive must give the person a written notice about the exclusion action—
  1. identifying the category B driver disqualifying offence of which the person has been convicted; and
  2. stating the requirements of subsection (7); and
  3. giving the person an opportunity to make written representations about the category B driver disqualifying offence and the exclusion action within 28 days.

(3A)   Subsection (4) applies only if the person has been convicted of a category B driver disqualifying offence that is also a serious offence or disqualifying offence under the Working with Children (Risk Management and Screening) Act 2000 to the extent that any qualification under that Act applies to the serious offence or disqualifying offence.

(4)   The chief executive must ask the chief executive (employment screening) whether the chief executive (employment screening) considers an exceptional case exists.

(4A)   For subsection (4), the chief executive may give to the chief executive (employment screening) the information, including any written representations mentioned under subsection (3)(c), the chief executive reasonably considers necessary for the chief executive (employment screening) to consider whether an exceptional case exists.

(4B)   Also for subsection (4), the chief executive is taken to have made the request under that subsection if the chief executive obtains confirmation from the chief executive (employment screening) that a person is the holder of a current positive notice under the Working with Children (Risk Management and Screening) Act 2000.[3]

(5)   The chief executive (employment screening) may give the chief executive the advice requested under subsection (4).

(5A)   However, if subsection (4B) applies, the chief executive (employment screening) is taken to have advised the chief executive that the chief executive (employment screening) considers that an exceptional case exists.

(6)   Without limiting the chief executive’s power to take the exclusion action if the advice of the chief executive (employment screening) was requested under subsection (4), the chief executive—

(a)  must take the advice of the chief executive (employment screening) into account; and

(b)  can not be satisfied that an exceptional case exists if the chief executive (employment screening) advises the chief executive that the chief executive (employment screening) considers an exceptional case does not exist.

(7)   The chief executive must consider any written representations made by the person and must take the exclusion action unless the chief executive, subject to subsection (6) and the paramount principle mentioned in section 33A,[4] is satisfied that an exceptional case exists.

(8)  Nothing in this section limits action the chief executive may take under any other provision of this Act.

  1. [12]
    There is no dispute that section 28B applies in Mr El Hayek’s case; that is, that the relevant offence is both a category B disqualifying offence under the Passenger Transport Act and a serious offence or disqualifying offence under the Working with Children Act.
  2. [13]
    Mr El Hayek’s category B disqualifying offence relates to a conviction in New South Wales. However, it remains that it is a Category B disqualifying offence because such an offence includes an offence against the law of another jurisdiction that ‘substantially corresponds to’ the relevant Queensland offence. Equally, by s 167(1)(g) and 168(1)(f) of the Working With Children Act, it is a ‘serious offence’ or a ‘disqualifying offence’ for the purposes of that Act as it is an offence under a law of another jurisdiction that, had it been committed in Queensland, would have constituted a relevant offence under the Working with Children Act.
  3. [14]
    It should also be noted that s 28B(3A) of the Passenger Transport Act provides that the advice of the chief executive (employment screening) is required only if the person has been convicted of a category B disqualifying offence that is also a serious offence or disqualifying offence under the Working with Children Act ‘to the extent that any qualification under the Act applies to the serious offence or disqualifying offence’. The qualifications appear in column 3 of Schedules 2 and 3 of the Working with Children Act and serve to confine the applicability of the serious or disqualifying offences listed in column 1. For example, while unlawful homicide appears in column 1 of Schedule 2, in column 3 the qualification is: ‘only if the unlawful killing is murder’.  No qualification appears to the offence relevant to the present case.
  4. [15]
    The advice of the chief executive (employment screening) in Mr El Hayek’s case was that she considered that an exceptional case did not exist. That remained the position of the chief executive (employment screening) in the external review proceeding and at the time of the hearing of this appeal.
  5. [16]
    It follows that under section 28B(6)(b) of the Passenger Transport Act the chief executive (transport) could not be satisfied that an exceptional case exists. Under section 28B(7) of that Act, the chief executive (transport) must therefore take the ‘exclusion action’ described in section 28B(2). Relevantly, that is to refuse the application for a driver authorisation.

Powers of the Tribunal on external review

  1. [17]
    The question that arises in this appeal is whether the same restriction that applies to the chief executive (transport) applies to the Tribunal when it is conducting an external review. In other words, where the chief executive (employment screening) has given adverse advice, is it the case that the Tribunal too cannot be satisfied that an exceptional case exists, and therefore must confirm the refusal decision made by the chief executive (transport)?
  2. [18]
    The Tribunal at first instance concluded that the restriction does not apply to the Tribunal. This was said to be the case because there are no clear words in the legislation that so restrict the Tribunal. Also, the Passenger Transport Act provides that the chief executive (employment screening) is a party to the external review,[5] which, the learned member reasoned, would be unnecessary “if the DJAG decision on whether an exceptional case exists was final and binding on the Tribunal”.[6] The Tribunal held that it had power to review “the decision of … DJAG”[7] (on whether an exceptional case exists) and the decision of the chief executive (transport) in refusing the driver authorisation. The Tribunal considered that it was “standing in the shoes of both TMR and DJAG in reviewing their decisions”.[8]
  3. [19]
    On appeal, the chief executive (transport) and the chief executive (employment screening) submit, in summary:
    1. (a)
      under section 28B of the Passenger Transport Act, the chief executive (employment screening) is required to give advice rather than make a decision;
    2. (b)
      even if the giving of advice could be regarded as a decision, it is not a ‘reviewable decision’ listed in Schedule 2 to the Passenger Transport Act (whereas a decision to refuse to grant a driver authorisation is listed);
    3. (c)
      it is therefore not a decision that can proceed through the internal review process, and then the external review process before QCAT, under Chapter 10 of the Passenger Transport Act;[9]
    4. (d)
      therefore, the Tribunal is not able to review the giving of the advice by the chief executive (employment screening); and
    5. (e)
      the fact that the chief executive (employment screening) is a party to such proceedings does not mean that Parliament must have intended to allow for a review of the giving of such advice because there are reviews in which the participation of the chief executive (employment screening) would be meaningful.
  4. [20]
    An example to illustrate the potential role of the chief executive (employment screening) in an external review was given by Ms Carswell, appearing for the chief executive (transport). Ms Carswell said there could be cases where the advice of the chief executive (employment screening) was that an exceptional case exists, but the chief executive (transport), after taking that advice into account, reached his or her own conclusion that an exceptional case does not exist. On a subsequent external review of the decision of the chief executive (transport) to refuse the driver authorisation, the input of the chief executive (employment screening) would be helpful because of his or her expertise in assessing such issues.
  5. [21]
    We accept the submissions of the chief executive (transport) and the chief executive (employment screening) as outlined above. We agree that the only decision that the Tribunal can review in relation to section 28B of the Passenger Transport Act is the decision of the chief executive (transport) to refuse to grant a driver authorisation. It is not open to the Tribunal to review the giving of the advice by the chief executive (employment screening). That advice is not a ‘reviewable decision’.
  6. [22]
    Section 19 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) deals with the Tribunal’s review jurisdiction:

In exercising its review jurisdiction, the tribunal—

  1. must decide the review in accordance with this Act and the enabling Act under which the reviewable decision being reviewed was made; and
  2. may perform the functions conferred on the tribunal by this Act or the enabling Act[10] under which the reviewable decision being reviewed was made; and
  3. has all the functions of the decision-maker for the reviewable decision being reviewed.

Section 20 of the QCAT Act provides:

  1. The purpose of the review of a reviewable decision is to produce the correct and preferable decision.
  2. The tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.
  1. [23]
    In the present case, the ‘enabling Act’ is the Passenger Transport Act and review by the Tribunal is provided for in s 103 of that Act. There is nothing in either the Passenger Transport Act or the Working with Children Act that gives jurisdiction to the Tribunal to review the advice given by the chief executive (employment screening).
  2. [24]
    The requirement in section 19 of the QCAT Act for the Tribunal to decide a review in accordance with the relevant enabling Act suggests that any constraints that apply to the original decision-maker also apply to the Tribunal. Likewise, the reference to the Tribunal having the functions of the original decision-maker does not tend to suggest an expanded function for the Tribunal. Certainly, it is the standard that in merits review proceedings the Tribunal ‘stands in the shoes’ of the original decision maker. 
  3. [25]
    In Minister for Immigration and Ethnic Affairs v Pochi, which involved the review of a decision to deport a person because of a criminal conviction, Smithers J observed:[11]

… in reviewing a decision the Tribunal is to be considered as being in the shoes of the person whose decision is in question. It follows from this that in reaching a decision in review of a decision of an administrator the Tribunal should consider itself as though it were performing the relevant function of that administrator in accordance with the law as it applied to him …

The question for the determination of the Tribunal was whether the decision before it was the correct or preferable one on the material before the Tribunal. … It is subject to the same general constraints to which the administrative officer whose decision under review was subject ...

  1. [26]
    The Hospital Benefit Fund of Western Australia Inc v Minister for Health, Housing and Community Services[12] was a case involving a Minister’s decision about the rules of a health insurer. The Court observed:[13]

It is, of course, well established that the Tribunal determines what was the correct or preferable decision having regard to the whole of the evidence placed before it. It is not confined to the evidence which was before the primary decision-maker. The Tribunal is, however, obliged to address the same question as was before the primary decision-maker.

  1. [27]
    Mr El Hayek has drawn our attention to a number of cases. Many of them deal with the question of whether people with convictions should be permitted to pursue certain occupations, including driving. However, none of them were decided under section 28B of the Passenger Transport Act, and they do not address the central point that we must address in this case as to whether an administrative tribunal conducting a merits review can exercise powers other than those available to the original decision-maker.
  2. [28]
    In our view, in conducting a review the Tribunal is constrained by section 28B(6) of the Passenger Transport Act. Because adverse advice had been received from the chief executive (employment screening), the Tribunal, standing in the shoes of the chief executive (transport), could not be satisfied that an exceptional case exists. Therefore, the only legally-available outcome was to confirm the decision of the chief executive (transport) to refuse Mr El Hayek’s application for a driver authorisation.

Outcome of the appeal

  1. [29]
    We are therefore satisfied that the Tribunal made an error of law.
  2. [30]
    Mr El Hayek submitted that it would have been open to the Tribunal to have granted the driver authorisation with conditions, if it had concerns about his suitability to be an Uber driver. However, conditions may be attached only to a decision to grant a driver authorisation.
  3. [31]
    The appeal is on a question of law only. The appropriate course, under section 146(b) of the QCAT Act, is to set aside the decision of the Tribunal made on 5 September 2018 and to substitute a decision confirming the decision to refuse Mr El Hayek’s application for a driver authorisation.
  4. [32]
    We make the following orders:
  1. The decision of the Tribunal made on 5 September 2018 in proceeding GAR014-18 is set aside.
  2. A decision is substituted to confirm the decision of the Chief Executive Transport and Main Roads to refuse the application by Nakhle El Hayek for a driver authorisation.

Footnotes

[1]  The Passenger Transport Act defines ‘chief executive (employment screening)’ as the chief executive of the department in which the Working with Children (Risk Management and Screening) Act 2000 (Qld) (‘Working with Children Act’) is administered: see Passenger Transport Act, Schedule 3 Dictionary. That department is the Department of Justice and Attorney-General.

[2] El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457.

[3]   A ‘current positive notice’ refers to what is commonly known as a blue card for working with children. However, the provision is of background relevance only in this case, because Mr El Hayek does not hold a blue card.

[4]   The ‘paramount principle’ applies when the safety of children or other vulnerable persons becomes relevant. The principle is that children and other vulnerable persons must be protected.

[5]Transport Operations (Passenger Transport) Act 1994 (Qld), s 104.

[6] El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457, 3[7].

[7] El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457, 3[8].

[8] El Hayek v Chief Executive of Transport and Main Roads & Anor [2018] QCAT 457, 3[4].

[9]Transport Operations (Passenger Transport) Act 1994 (Qld), s 102(1).

[10]  See the definition of ‘enabling Act’ in s 6(2)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

[11]  (1980) 44 FLR 41, 46. While Smithers J was in the minority in that case, the observations made in relation to the nature of merits review is not controversial and are commonly noted in the case law.

[12]  (1992) 39 FCR 225. The Tribunal in that case was the AAT. That tribunal operates under a similar framework to QCAT in its review jurisdiction, in that it may ‘exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision’: Administrative Appeals Tribunal Act 1975 (Cth), s 43(1).

[13]  Ibid 234, citing Freeman v Secretary, Department of Social Security (1988) 19 FCR 342 per Davies J.

Close

Editorial Notes

  • Published Case Name:

    Chief Executive Transport and Main Roads v Nakhle El Hayek, Chief Executive Department of Justice and Attorney-General

  • Shortened Case Name:

    Chief Executive Transport and Main Roads v El Hayek & Anor

  • MNC:

    [2019] QCATA 19

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Kanowski

  • Date:

    22 Feb 2019

Appeal Status

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

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