Civil and Administrative Tribunal New South Wales

• Medium Neutral Citation: BHT v Roads and Maritime Services [2014] NSWCATAD 85
• Hearing dates: 20 May 2014
• Decision date: 25 June 2014
• Jurisdiction: Administrative and Equal Opportunity Division
• Before: A Scahill, Senior Member

Decision

Applicant does not presently satisfy medical criteria as she is required to do by section 12 of the PTA. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision.

• Catchwords: Medical criteria
• Legislation Cited: Administrative Decisions Review Act 1997; Civil and Administrative Tribunal Act 2013; Passenger Transport Act 1990; Passenger Transport Regulation 2007; Passenger Transport (Drug and Alcohol Testing) Regulation 2010.
• Cases Cited: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16; Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65; Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409; Howell v Macquarie University [2008] NSWCA 26; Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 9; Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298; Lo v Director-General, Department of Transport [2002] NSWADT 101; Lal v Director-General, Department of Transport [2001] NSWADT 74; Loye -v- Director General, Department of Transport [2000] NSWADT 145; Sobey v Commercial and Private Agents Board [1979] 22 SASR 70.
• Category: Principal judgment
• Parties: BHT Applicant; Roads and Maritine Servcies- Respondent
• Representation: Mr Lawler - Agent (Applicant); Smythe Wozniak Solicitors (Respondent)
• File Number(s): 1420138

reasons for decision

1 The Applicant has brought these proceedings seeking to review a determination by the Respondent that the Applicant's authority to drive buses be suspended under the provisions of the Passenger Transport Act 1990. This determination was made on 23rd January 2014.

2 The Applicant's driver authority was issued to her on 6th April 2011. She was employed by a private bus company. The Applicant had submitted to a random oral drug test on 17 January 2014 and returned a non negative result for amphetamines and meth amphetamines. When advised of the outcome of this test it appears that the Applicant resigned immediately and did not undertake the confirmatory blood or urine test set out in the employer's drug and alcohol policy. The Applicant's employer advised the result of the non- negative test to the Respondent on 17th of January 2014.

3 On 23rd January 2014 the Respondent wrote to the Applicant to advise her it had determined to suspend her driver authority on the basis of the oral non-negative drug test and asked her to show cause why her driver authority should not be cancelled.

4 The Applicant responded on 10th February 2014.

5 The Respondent advised the Applicant of the Internal Review decision to maintain the suspension by letter dated 5th March 2014. It did not cancel her driver authority.

6 The Applicant lodged her application with the Tribunal on 20th March 2014.

Suppression order section 64 of CATA

7 Of its own motion the Tribunal has determined to make a suppression order in this matter which would suppress the identification of the Applicant or any information which might lead to her identification. This matter was not raised with the parties. The Tribunal has taken this step however in order to protect the Applicant's identity as matters of her personal health were raised in the hearing and in this decision. Accordingly the Applicant is referred to as BHT and her former employer is not named.

Reasons for Suspension 23rd January 2014

8 The section 58 documents are confusing as they contain 2 letters dated 23 January 2014 advising the Applicant of her suspension. One also asks her to show cause why her driver authority should not be cancelled. It is probable that the Applicant responded to the latter letter at pages 84 and 85 of the section 58 documents suspending the Applicant and asking her to show cause. The Statement of Reasons for the Suspension and Show Cause is however probably the document at page 55.

9 The Statement of Reasons for the decision to suspend the Applicant referred to sections 11 and 14 of the PTA which relate to the grant and suspension of driver authorities. The RMS may suspend an authority having regard to the purpose of the authority.

10 The reasons refer to "Medical Guidelines" and the necessity of ensuring driver health as part of the RMS's safety role. The reasons rely on the standards set out in the Assessing Fitness to Drive - Commercial and Private Vehicle Drivers 2012 document. See www.austroads.com.au/driver-licences/assessing-fitness-to-drive

11 The decision maker was unable to attest to the Applicant being a fit and proper person until a satisfactory medical report was provided to RMS. It was appropriate for Transport for NSW to suspend the Applicant's driver authority until such time as

• she undertook a treatment program and had been in remission for 3 months, and

• there is an absence of cognitive impairments relevant to driving and there is an absence of end-organ effects that impact on driving; and

• you provide a satisfactory medical specialist form from an appropriate specialist that you meet the medical criteria for a public passenger vehicle driver,

• or the authority expires.

Applicant's Response to Suspension and Show Cause letter

12 The Applicant wrote to the Respondent on 10th of February 2014 seeking internal review of the decision of 23rd January 2014 to suspend her and asking her to show cause. The Applicant said she had performed her duties and responsibilities to high standards throughout her career, she had no criminal record or history of questionable behaviour with either her employer or Transport for New South Wales. She had never been warned or cautioned and did not have a similar incident during her career as a bus driver or prior to the incident. She attached a number of testimonials from individuals. She considered they demonstrated her reputation and fitness to hold an authority had not been compromised by her actions. She had not diminished their expectations of safe, reliable, efficient, friendly and helpful service by her. The testimonials demonstrated that she had a good reputation in the past and that her reputation had not been affected by the incident amongst those who knew her well. She had attended an appointment with the specialist forensic psychiatrist Dr Gordon Davies on the 11th February. She had undergone a urine drug screen and kidney/liver function test with Dr Davies and there would be a report forthcoming. She said that this was an isolated incident.

Internal Review reasons 5 March 2014

13 On 5th of March 2014 Transport for New South Wales advised that the internal review had affirmed the decision to suspend Ms BHT's authority to drive a public passenger vehicle. The internal reviewer referred to the non-negative oral test and the Applicant's immediate resignation which avoided the next stage of the employer's procedure - a confirmatory urine test. The reasons also referred to medical advice received on 22nd January 2014 that stated that BHT did not meet the required medical criteria. The Applicant was required to be of good repute and fit and proper. While the Applicant's drug taking may have been an isolated incident, a reasonable member of the travelling public being aware of her recent illicit drug use would question whether she was a fit and proper person to be the driver of a public passenger vehicle and may object to her being authorised to drive a public passenger vehicle in which that person or their children were passengers.

14 The internal reviewer stated it had also been determined that "you do not currently meet the medical requirements as described by the Assessing Fitness to Drive - Commercial and Private Vehicle Drivers 2012. It is therefore prudent that Transport for New South Wales suspend your authority to drive public buses whilst affording you the opportunity to follow the medical advice provided. The lifting of the suspension will be dependent on adhering to this advice and other medical assessment as deemed appropriate by Transport for New South Wales."

Relevant Legislation and Policy

15 The Passenger Transport Act (the Act) deals with the regulation of passenger transport in New South Wales. Its objectives include ensuring safety of the travelling public.

16 Section 11(1) of the Act requires a person who drives a public passenger vehicle to hold an authority.

Section 11 (2) sets out that the purpose of an authority is to attest:

(a) that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver of a public passenger vehicle, and

(b) that the authorised person is considered to have sufficient responsibility and aptitude to drive the vehicle or vehicles to which the authority relates:

(i) in accordance with the conditions under which a public passenger service is operated, and

(ii) in accordance with law and custom.

17 Section 12 of the PTA allows for grant of an authority having regard to the purpose of an authority and requires Applicants to satisfy criteria set out in regulations and any other matter RMS considers relevant. This appears to permit the imposition of medical criteria.

18 Section 14 of the Act gives the RMS power to vary, suspend or cancel any person's authority at any time having regard to the purpose of an authority.

19 A number of clauses in the Passenger Transport Regulation 2007 deal with medical fitness and the capacity for the respondent to require assessment. These clauses include:

• clause 29 2(d) which requires prior to authorisation that an applicant has passed an examination or assessment at a level determined by Transport the New South Wales in medical fitness.

• clause 24 which imposes an obligation on an operator to notify the Respondent of a detrimental change in a driver's medical condition.

• Clause 47 which permits RMS to require the driver of a public passenger vehicle to attend a medical practitioner specified for the purposes of undergoing medical fitness examination; and

• clause 98 which requires an authorised driver to provide a certificate from a medical practitioner in relation to their medical condition every 36 months.

20 The Passenger Transport (Drug and Alcohol Testing) Regulation 2010 permits random drug and alcohol testing of transport safety workers. It also provides for prosecution of authorised drivers who test positive for alcohol or drugs.

21 The tribunal notes that a prosecution was not undertaken in this matter.

Tribunal's Power to Review

22 The tribunal's jurisdiction to hear and determine this application for review is found in section 52 of the Passenger Transport Act 1990 and section 30 of the Civil and Administrative Tribunal Act 2013.The hearing is a hearing "de novo" - meaning that the Tribunal may consider the matter from the start including taking into account fresh evidence brought before the Tribunal. The Tribunal is not restricted to the consideration of the material that was before the Respondent, but may have regard to any relevant material before it at the time of the review: Drake v Minister for Immigration and Ethnic Affairs [1979] AATA 179; (1979) 46 FLR 409.

23 The authorities accept that the Tribunal's review is for the purpose of determining the correct and preferable decision by way of a merits review. See Sterjovski v Director-General, Department of Transport [2002] NSWADT 10 at paragraphs 10, 11 and 12.

24 The Tribunal may affirm, vary or set aside the original decision.

Requirement to apply government policy

25 Section 64(4) of the Administrative Decisions Review Act 1997 allows the Tribunal to have regard to any policy applied by the administrator in relation to the matter provided it does not bring about an unjust decision.

Relevant policy

26 The Tribunal sets out below the relevant policies which appear to be involved in the decision-making in this matter.

Ministry of Transport Process for Handling of Drug and Alcohol Notifications from Bus Operators.

27 The section 58 documents include an undated 2 page document headed Ministry of Transport Process for Handling of Drug and Alcohol Notifications from Bus Operators. The policy foresees that there will be a relevant blood or alcohol sample analysis. In this matter the Tribunal understands the initial test was an oral test. The result of this was reported by the employer.

28 Paragraphs 5 - 10 apply to First Offences. The Tribunal understands this is the Applicant's "first offence". Paragraph 5 reads as follows

"First Offence

(Each case is dealt with on its individual merits however steps 5 to 10 will generally apply)

5. If the positive result is in the high range or the person tenders their resignation following the test, the Ministry will immediately suspend their Driver Authority. The Ministry will write to the driver and the operator advising that the driver authority is suspended until such time as a driver presents a negative test and/or meets any other medical requirements or until the expiry of the authority."

29 This policy is not referred to specifically in either sets of Reasons for Decision. It appears to be a mode of giving effect to a notification from a bus operator of a drug test result in clause 24 of the PTR. The policy envisions reacting to a blood or urine test, but it appears to have been applied by the initial decision-maker. The initial decision maker by responded to the Applicant's oral non-negative result and immediate resignation by suspending her.

Assessing Fitness to Drive - Commercial and Private Vehicle Drivers 2012

30 Transport for New South Wales have referred to the Assessing Fitness to Drive - Commercial and Private Vehicle Drivers 2012 policy and procedure. The Respondent advised that this is a policy widely accepted by participants in the transport industry. The Applicant's agent from the Transport Workers Union did not disagree with this.

31 That document appears in the section 58 documents in extract and refers to chapter "9. Substance Misuse". The extract focusses mainly on regular heavy use of and dependence on alcohol and other substances (including illicit and prescription or over-the-counter drugs). The medical standards for licensing refer to "commercial standards for drivers of public passenger vehicles".

32 The commercial standards are set out at p114 of the document, page 118 of the section 58 documents:

"a person is not fit to hold an unconditional licence if there is an alcohol or other substance use disorder such as substance dependence or heavy frequent alcohol use or other substance use that is likely to impair safe driving. A conditional licence may be considered by the driver licensing authority subject to periodic review, taking into account the nature of the driving task and information provided by an appropriate specialist (such as an addiction medicine specialist or addiction psychiatrist) as to whether the following criteria are met;

the person is involved in a treatment program and has been in remission for at least three months; and

there is an absence of cognitive impairments relevant to driving; and

there is an absence of end organ effects that impact on driving."

33 Remission is defined::

"remission is attained when there is abstinence from use of impairing substances or the substance use has reduced in frequency to the point where it is unlikely to cause impairment. Remission may be confirmed by biological monitoring of the presence of drugs."

34 The document deals predominantly with chronic drug use but acknowledges occasional use:

"9.2.1 occasional use of these drugs also requires very careful assessment. In particular, the health professional should be satisfied that their usage is not going to affect a commercial vehicle driver in the performance of their duties."

Employer's Policy and Procedure

35 Section 9C of the PTA makes it a condition of an operator's accreditation that it has a drug and alcohol program for its workers which complies with gazetted guidelines. The relevant employer has a document headed Policy and Procedure Alcohol and Other Drugs May 2010.

36 The employer's policy affirms the use of random drug testing. It emphasises that the employer will deal with any drug problems that are identified with the focus to be on professional counselling and rehabilitation through the employee assistance program. The policy does not include a requirement to have oral testing. It deals with blood and urine testing. The first non-negative result is to be followed by the offering of information and counselling and requirement to undergo further testing. Further breaches of the policy could lead to the review of employment status which may lead to termination.

Chronology of events

37 The Tribunal has assembled this chronology of the relevant events to assist it in understanding the decisions made.

(1) On or prior to 17th of January- BHT uses illicit drug

(2) 17th of January 2014

• BHT is subject to a random oral swab

• BHT's random oral swab shows non-negative result

• BHT resigns

 

• BHT's employer advises Transport for New South Wales of BHT's non-negative result of oral swab.

 

(3) 20th of January 2014 BHT advises decision maker's delegate at Transport for New South Wales that she took an ecstasy tablet or tablets.

(4) 21 January 2014 BHT undertakes urine test

(5) 22 January 2014 Transport for New South Wales conducts on the papers medical review of BHT suggesting next steps.

(6) 23rd of January 2014 pathology lab reports outcome of BHT's urine test of 21 January 2014 as being positive for amphetamines and meth amphetamines

(7) 23rd of January 2014 Transport for New South Wales suspends BHT and asks her to show cause on the basis of (amongst other matters) the non-negative result of oral swab.

(8) 28th of January 2014 Transport for New South Wales requests BHT to provide a medical report in relation to her positive test for amphetamines and meth amphetamines

(9) 10th of February 2014 BHT provides submission to Transport for New South Wales concerning suspension and show cause

(10) 3rd March 2014 Dr Davies provides report in relation to BHT to BHT

(11) 5th March 2014 Internal Review determined.

(12) 14 March 2014 Transport for New South Wales conducts second on the papers medical review of BHT

(13) 20th March 2014 Applicant files review application in NCAT.

Report of Associate Prof Gordon RW Davies

38 The Applicant consulted Associate Professor Gordon Davies an adult general and forensic psychiatrist on the 13th of February 2014 and he provided a report of 3rd March 2014. Associate Professor Davies related the history provided to him by Ms BHT. She had told him that she had not generally been a drug user although she had experimented with some marijuana in her youth. The recent use had occurred at a party with friends when she had been drinking about five days prior to testing non-negative.

39 Associate Professor Davies said that Ms BHT presented reasonably with a slightly embarrassed manner. She was not depressed or agitated and there was no evidence of any thought disorder or perceptual abnormality. She had scored in the normal range on the depression, anxiety and stress scale. Associate Professor Davies had arranged for Ms BHT to have a further urine drug screen which was negative for all illicit substances and liver function tests which were normal.

40 Associate Professor Davies quoted Ms BHT's substance abuse history as being that she drank rarely and avoided illicit drug use - apart from the recent episode. He said that there was no history to suggest that she was a regular user of amphetamines. He thought that it was reasonable for her to regain her commercial licence and that there should also be further periodic urine drug screens. He did not refer to either Ms BHT's employer's policy and procedure in relation to alcohol and other drugs or the Assessing Fitness to Drive - Commercial and Private Vehicle Drivers 2012 document relied upon by the Respondent.

Evidence and Submissions of the Applicant

41 Ms BHT did not give evidence in the matter. She relied upon the contents of her response to the notification of suspension and show cause set out on 10th February 2014. She relied on submissions made by her representative Mr Lawler.

42 Mr Lawler's submissions were that Ms BHT had cooperated with the random drug test and that she had not been familiar with her employer's drug and alcohol policy and procedure. She said that she had resigned immediately after receiving the non-negative result on the advice of an officer of her employer. Once she had consulted the employer's drug and alcohol policy she wrote to her employer rescinding her resignation. She had not resigned to avoid deliberately the second phase in drug testing which would have been urine or blood testing.

43 He said that Ms BHT was not a drug user and so therefore did not consider that the provisions of the Assessing Fitness to Drive document applied to her. That document referred to a person with a "substance abuse" issue and that this did not relate to her. She did not understand that it was necessary for her to participate in a three-month drug program or to be in remission for three months as the drug use had been an isolated event.

44 Ms BHT had submitted to a urine test when she consulted Dr Davies in February 2014 which again had been negative. Further she had undertaken another urine test in April 2014 when Transport for New South Wales wrote to her indicating that it was necessary for her to do so. She understood that this had also been negative but she had not received a copy of the report. She understood that it had been sent to Transport for New South Wales. This result was not put before the Tribunal by either party. Mr Lawler submitted that Ms BHT would cooperate with any program suggested by RMS to demonstrate her fitness to drive a public passenger vehicle and that she did not use illicit drugs.

Respondent's Submissions

45 The Respondent submitted that BHT did not meet the fitness and propriety requirements for a bus driver's authority. The Respondent relied on the Assessment of Fitness to Drive -- Commercial and Private Vehicles 2012 document which had been endorsed by a number of bodies in the transport industry.

46 The material filed by the Applicant fell short of the positive attestation that was required for a bus driver of a public passenger vehicle. She did not meet the medical standards nor the honesty and integrity requirements.

47 The facts were that the Applicant had undertaken a random test for drug and alcohol. She had then been directed to undergo a further test and had resigned. This meant that she was not prosecuted for driving under the influence of an illicit drug. She would have faced a minimum disqualification for a conviction of six months. It was fortunate that there had been no accident as a result of the Applicant taking amphetamines. Members of the travelling public would be concerned particularly if she had been driving schoolchildren in the circumstances.

48 There was little material about the Applicant other than the report of Associate Professor Davies which relied entirely upon the Applicant's own history.

49 The Applicant had lied to the regulator in relation to her application for an authority to drive a bus in February 2011. She had told the regulator that she had not had her driver licence suspended, cancelled or disqualified although she had been disqualified from driving for one year in February 1996 for a high range PCA. This lack of honesty placed her in conflict with the principles of fitness and propriety set out in Bond's case. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

50 The Applicant had been driving only for 2 ½ years. Her authority had been granted on 6 April 2011 with a warning that had noted the Applicant's conviction for assault in 2008 and suspension due to driving with a high range PCA in 1996.

51 The Respondent referred to the Applicant's complaints history. There were four complaints - one of being stressed and shouting at passengers; another of being aggressive to another driver; one of missing a stop and another of overcharging a schoolchild - the last of which was not upheld. The Applicant had also received a compliment for the "great job" she did from a member of the public.

52 The Applicant had not provided any of the material sought in the decision of 23rd January 2013 to suspend. The Statement of Reasons noted that it was suspending the Applicant until such time as (she undertook)

a treatment program and have been in remission for at least three months, and there is an absence of cognitive impairments relevant to driving and there is an absence of end - organ effects that impact on driving and you provide a satisfactory medical specialist form from an appropriate specialist that you meet the medical criteria for a public passenger vehicle driver.

53 The report from Associate Professor Davies was not a report from an addiction specialist. He had related the Applicant's own history. He had not referred to the Assessing Fitness to Drive.... standards nor any others. He had not treated the Applicant and had not conducted any relevant tests.

54 To be the holder of a driver authority the Applicant is required to be of good repute. The references provided by the Applicant all referred to "the incident." It was not clear what the referees had known when they provided the reports. In this respect the Respondent referred to the findings in Loye's case where the Tribunal said at 42:

"There is only limited recent evidence of Mr Loye's reputation, and I give less weight to that evidence because it does not show that the person expressing the view is aware of Mr Loye's criminal history. Nor does it show that the person expressing the view was aware of the purpose for which they were expressing it. "

55 See Loye -v- Director General, Department of Transport [2000] NSWADT 145.

56 The Respondent also referred to Murray's and the AIC case - see Department of Transport and Infrastructure v Murray (GD) [2011] NSWADTAP 16 and the Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. The Respondent submitted that these matters indicated that the testimonials only provided real value when they disclosed a full knowledge in the referee of the conviction and sentence. This had not been made out by the Applicant.

57 The Applicant did not give evidence before the Tribunal. In Howell v Macquarie University [2008] NSWCA 26 at 98 the Court of Appeal had found that Jones v Dunkel principle applied before the Tribunal. This meant that the Tribunal was entitled (though not required) to draw an inference that Ms BHT's evidence would not have assisted her. See Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

58 The AIC case required a positive attestation to the Applicant being of good repute and fit and proper. See Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65. This had not been made out.

Findings of Fact

Medical criteria

59 The Respondent's letter of 23rd January 2014 to BHT states it suspended her on the basis of the oral swab result. The decision maker relied on BHT not meeting the medical standards set out in the Assessing Fitness to Drive document in Chapter 9.Substance Misuse. There was no evidence before the decision maker or the Tribunal as to the significance of an oral swab. None of the policies or the relevant legislation contemplate oral swabs. The Applicant did not however raise objections to the use of an oral swab at hearing.

60 Further as observed in the Respondent's documents - there may have been chain of custody issues in relation to the testing of the oral swab.

61 However the Applicant did contact an officer of the Respondent on 20th January 2014 and advise that she had taken ecstasy. On 21st January the Applicant undertook a urine test which was reported as positive for amphetamines and methamphetamines on 23rd January 2014. The Tribunal is satisfied that there are good reasons to accept that the Applicant did use an illicit drug on at least one occasion on or prior to 17th January 2014. Subsequent to this the Applicant presented to work. There is no evidence before the Tribunal that the Applicant's performance was influenced by the use of ecstasy.

62 The Tribunal understands - but has not had evidence put before it - that since this time the Applicant has returned further negative urine tests in relation to drugs.

63 Associate Professor Davies reports on 3rd March 2014 that Ms BHT undertook a further negative urine drug screen and normal liver function test at his instigation.

64 In the absence of direct evidence from the Applicant and objective evidence such as urine tests - the Tribunal makes no other factual conclusion about the Applicant's use of drugs.

65 The decision to suspend was based in part on the Applicant's failure to satisfy medical criteria. The first Transport for New South Wales medical review on the papers dated 22nd of January 2014 at p 65 of the section 58 documents does not draw any conclusion about the Applicant's medical fitness. Despite this the Respondent's Reasons for Decision on Internal Review of 5th March 2014 refers to advice received on 22nd January 2014 that the Applicant does not meet the required medical criteria. Page 64 of the section 58 documents is missing and may contain this conclusion. The Tribunal cannot be sure.

66 However the second medical review at page 142 on 14 March 2014 declares that Ms BHT does not meet the medical criteria. The requirements then set out seem to reflect the Assessing Fitness to Drive Chapter 9. Substance Misuse criteria in relation to commercial drivers. The review notes that a specialist form from an addiction medicine specialist or addiction psychiatrist is required. It refers to the person being involved in a treatment program and in remission for at least three months. It appears that the medical review has taken account of the findings of Associate Professor Davies. However it still draws the conclusion that BHT does not meet the medical criteria.

67 The tribunal was not presented with evidence directly contesting the validity of the medical criteria or the conclusions in relation to Ms BHT's satisfaction of them. Associate Professor Davies does not deal with these in his report of 3rd March 2014.

Fit and Proper

68 The Respondent questions whether the Applicant is fit and proper based on what the opinion of a member of the travelling public may be given knowledge of Ms BHT's recent illicit drug use. The meaning of fit and proper person in the context of issuing a driver authority was considered by Deputy President Hennessy of the NSW ADT Appeal Panel in the matter of Department of Transport and Infrastructure v Murray [2011] NSWADTAP 16 at 20.

"When deciding whether a person is a 'fit and proper person', the question of whether the community would have confidence that any improper conduct will not re-occur is relevant: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11. Otherwise, the determination of fitness and propriety is a question of fact for the decision maker to determine objectively on the basis of the all evidence. That question is not to be determined through the eyes of a reasonable member of the travelling public. Nor is it correct, as was suggested in Farquharson, to take account of the likely perceptions of the travelling public as one of the relevant factors in deciding whether an Applicant is a fit and proper person."

69 This Tribunal considers that whether the Applicant is fit and proper is a matter for the decision maker - taking into account a range of factors.

70 The meaning of "fitness and propriety" has been considered in a range of cases. See Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; 94 ALR 11; 64 ALJR 462; 21 ALD 1; Toohey and Gaudron JJ at 380; Hughes & Vale Pty Ltd v State of New South Wales [1955] HCA 28; (1955) 93 CLR 127 at 9; Sobey v Commercial and Private Agents Board [1979] 22 SASR 70 .

71 This Tribunal's synthesis of the meaning of fit and proper in this matter is that an Applicant's fitness and propriety must be determined in the light of the role the Applicant is to undertake as a public passenger bus driver. The Tribunal must consider the evidence before it about the Applicant's honesty, knowledge and ability as it relates to the specific role of bus driving. It is a determination to be made by the decision maker taking into account and weighing up matters both contrary to and in favour of the Applicant.

Safety Objects of Passenger Transport Act

72 The objects of the Passenger Transport Act include "to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services." The purpose of an authority for a driver includes that the authorised person is considered to be of good repute and in all other respects a fit and proper person to be the driver a public passenger vehicle, and that they have sufficient responsibility and aptitude to drive the vehicle in accordance with law and custom. Applicants for an authority must meet any criteria set forth in the regulations and must satisfy RMS as to any matter RMS considers relevant.

73 At first blush the suspension of the Applicant on the basis of a non-negative test may appear peremptory. It is clear from the aspects of the Act and Regulations referred to above however that Transport for New South Wales has a responsibility to ensure the safety of public passenger services. It also has the power to impose medical criteria in furthering this purpose.

74 Recreational illicit drug use may well be common within the community. It is clear from the quoted objects of the Passenger Transport Act and the capacity for Transport for New South Wales to impose criteria on the authority of passenger transport drivers that this is an area in which an authorised driver's private behaviour may be subject to public scrutiny.

75 Having received a non-negative result for an illicit drug for an authorised driver the decision maker then needs to be satisfied of a negative proposition - that is that the driver does not present a risk to safety of passengers as a result of having a "substance misuse disorder" as set out in the Assessing Fitness to Drive document.

76 The employer's policy, the Assessing Fitness to Drive document and the Ministry of Transport Guidelines appear to contemplate that an initial non-negative drug test would not necessarily lead to immediate suspension. Proof of active rehabilitation will enable an authorised driver to continue driving in certain conditions.

77 It appears however that the Respondent may have determined on the basis of the Ministry of Transport Guidelines that the Applicant's immediate resignation should be followed by suspension.

78 The status of these Guidelines is not clear. It is not clear whether they are of public knowledge in the transport industry. The Tribunal does not know if the Applicant was aware of these Guidelines prior to deciding to resign subsequent to her non-negative oral swab. In the circumstances the Tribunal declines to apply them in its decision making process.

79 This leaves the Tribunal with the question of what is the appropriate decision in relation to the Applicant's driver authority in the circumstances.

80 Certain conditions were set out in the Respondent's notification of suspension dated 23rd of January 2014 and the internal review outcome of the 5th of March 2014. Compliance with these may have led to the lifting of the Applicant's suspension.

81 The Respondent has invited the tribunal to draw the inference that the Applicant having failed to give evidence, her evidence would not have assisted her. The tribunal has not needed to draw this inference in reaching its decision.

82 The tribunal is in a similar situation to the original decision maker. The tribunal has not been provided with evidence from the Applicant. In those circumstances the Tribunal does not have information from the Applicant that might contradict the safety concerns raised by the Applicant's non-negative drug result, her resignation and the confirmed presence of amphetamines and methamphetamines.

83 The tribunal accepts the Respondent's finding that the Applicant did not satisfy the medical criteria which followed from the initial non-negative test outcome, the subsequent admission of having taken ecstasy and the confirmation by urine testing result of 23rd January 2014. The Applicant has not provided the material set out in the Respondent's suspension letter of 23rd January 2014 or the Internal Review outcome of 5th March 2014.

Decision

84 In the circumstances it appears that the Applicant does not presently satisfy medical criteria as she is required to do by section 12 of the PTA. The decision to suspend under section 14 for failure to satisfy the criteria was the correct and preferable decision.

85 Accordingly it is unnecessary for the tribunal to determine whether the Applicant is currently fit and proper or of good repute as required by section 11 of the Passenger Transport Act 1990.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar

Decision last updated: 25 June 2014