Application for Driver Accreditation Refused by CPVV
The applicant filed an application within Commercial Passenger Vehicles Victoria (CPVV) for a commercial passenger vehicle driver accreditation. CPVV, considering his previous criminal offence, refused his application. It was alleged that his offence constitutes a recent offending of a serious nature against his wife and warrants mandatory refusal. The Court assessed the relevance of use of violence and control against a family member and its possible risk to women and other vulnerable passengers.
Facts:
In December 2019, Mr Syed applied to CPVV for accreditation to drive commercial passenger vehicles. A National Police History Check for Mr Syed showed that on 11 July 2019, he was found guilty of three criminal charges: one charge of Make Threat to Kill and two charges of Unlawful Assault. The victim was his wife. Mr Syed's offences involved two separate assaults over several hours; continuation and escalation of the violence after Mr Syed slept; and a threat to kill made in conjunction with denying the victim access to her phone and taunting her about the fact that he could now do anything to her and she could not call anyone.
The CPVV refused his application. Mr Syed then applied to VCAT for an order directing CPVV to issue driver accreditation to him. His application was refused because the Court is not satisfied that he is a fit and proper person to provide a commercial passenger vehicle service and that making the order would not pose an unjustifiable risk to the safety of users of commercial passenger services. The CPVV's solicitor advised that CPVV would neither oppose nor consent to Mr Syed’s application.
Issue:
Whether or not an order granting the application would pose an unjustifiable risk.
Applicable law:
Commercial Passenger Vehicle Industry Act 2017 (Vic) - governs driver accreditation applications in Victoria. The objectives of the Act include promoting the safety of commercial passenger vehicle services, and public confidence in the safety of those services.
Commercial Passenger Vehicle Industry Act 2017 (Vic) s 69 - contains a specific ‘public care objective’, in s 69, which is the objective that:
the services provided by drivers of commercial passenger vehicles—
(a) be provided to persons using those services and to other persons, particularly children and other vulnerable persons—
(i) with safety; and
(ii) with comfort, amenity and convenience; and
(b) be provided in a manner that is not fraudulent or dishonest.
Commercial Passenger Vehicle Industry Act 2017 (Vic) s 253(3)(a) - allows the applicant to apply to VCAT for accreditation. VCAT must not, however, make an order to issue driver accreditation to Mr Syed unless certain requirements are met.
Commercial Passenger Vehicle Industry Act 2017 (Vic) s 253(4) - sets out the requirements on a Category 1 application:
(4) VCAT must not make an order under subsection (3) to issue or reinstate a driver accreditation unless—
(a) VCAT is satisfied of the matters set out in section 75(1)(b); and
(b) the applicant has demonstrated that the issue or reinstatement is appropriate having regard to the public care objective; and
(c) VCAT is satisfied that—
(i) the making of the order would not pose an unjustifiable risk to the safety of users of commercial passenger vehicle services; and
(ii) in all the circumstances, it is in the public interest to make the order.
Crimes Act 1958 s 20 - provides that a person who, without lawful excuse, makes to another person a threat to kill that other person or any other person—
(a) intending that that other person would fear the threat would be carried out; or
(b) being reckless as to whether or not that other person would fear the threat would be carried out—
is guilty of an indictable offence.
Summary Offences Act 1966 (Vic) s 23 - provides that any person who unlawfully assaults or beats another person shall be guilty of an offence.
Singh v Commercial Passenger Vehicle Commission[2019] VCAT 433 - held that attitudes about the roles of men and women and a willingness to control others and so interfere with their autonomy might be of concern in circumstances where a driver is transporting women, vulnerable persons or others who may be alcohol or drug affected.
El Sayed v Director of Public Transport[2011] VCAT 367 - provided that safety refers not only to physical safety but also mental safety.
XFJ v Director of Public Transport[2008] VCAT 2303 - where 'comfort’ has been considered to include ‘ease of mind’: of ‘reasonable persons, as distinct from wild prejudice’.
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 - requires an assessment of whether the applicant has the necessary qualities and character to permit him to be safely accredited to the public as a person to be entrusted with this work.
ZZ v Secretary, Department of Justice [2013] VSC 267 - where the ‘unjustifiable risk’ test involves evaluating the nature and degree of any risk, making a rational, objective and evidence-based assessment that addresses the specified considerations.
TLM v Secretary to the Department of Justice [2013] VCAT 1000 - provides that evidence of insight and remorse will be relevant in assessing the likelihood of the applicant committing another offence in the future.
FC v Director of Public Transport (FC)[2010] VCAT 437 - where there is a public interest in ‘offenders being encouraged to establish themselves as worthy citizens and people of good fame and reputation’, safety remains the predominant consideration.
Analysis:
The criminal offending by Mr Syed falls under Category 1 under the Act. Category 1 is the most serious which makes refusal mandatory. Issues such as the safety of the travelling public, assessment of risk, the nature and relevance of any offences to driver accreditation, the individual circumstances of the offending, and indications of rehabilitation will come under consideration no matter the category. Mr Sayed is agreed to be technically competent and sufficiently fit and healthy to drive a motor vehicle. However, the offences indicate that the applicant was capable of unprovoked aggression, violence, attempts at control, and actions causing fear.
The offences were committed in a place where the victim was entitled to feel safe from violence and should have been safe. A passenger is likewise entitled to feel safe from violence. Drivers will often carry out the service out of the sight or supervision of others and like Mr Syed’s wife, passengers may be vulnerable, defenceless, or otherwise unable to get help easily. The offences were relatively recent and serious offences involving unprovoked violence, aggression and control against a woman.
Conclusion:
The Tribunal is not satisfied applicant does not pose an unjustifiable risk to the safety of the travelling public. However, the Court is not satisfied that the applicant is currently a fit and proper person to provide a commercial passenger vehicle service. The application for an order directing the respondent to issue driver accreditation to the applicant is refused.
