24 June 2013

Character and Fitness

Law students are most familiar with the notions of 'good fame and character' and 'fit and proper person' in relation to requirements for admission as a legal practitioner. The notion is however evident in other professions and occupations.

One example is this month's NSW Administrative Decisions Tribunal (ADT) decision in Sodiki v Roads and Maritime Services [2013] NSWADT 145, with the ADT upholding revocation of Sodiki's authority to drive a taxi-cab.

The ADT states that -
The events that Mr Sodiki agreed to involved him, as the holder of an authority to drive a taxi-cab, making an improper sexual suggestion to a 17 year old youth. He effectively invited the youth to prostitute himself. Mr Sodiki made that suggestion in the course of his duties while driving a cab, albeit his passenger did not pay a fare. Mr Sodiki's motive for making the suggestion are unclear. He first said he made them because he was fearful, and later said that the comment was made jokingly. Whatever the motive, be it one of those suggested by Mr Sodiki or an attempt to procure, the suggestion he made was totally inappropriate, and should not have been made by him in any context, let alone by a taxi driver to his passenger.
The ADT notes that Section 33(3) of the Passenger Transport Act 1990 (NSW) sets out the purpose of an authority -
 (3) The purpose of an authority under this Division 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 taxi-cab, and (b) that the authorised person is considered to have sufficient responsibility and aptitude to drive a taxi-cab: (i) in accordance with the conditions under which the taxi-cab service concerned is operated, and (ii) in accordance with law and custom.
Section 33F of the Act provides that Roads and Maritime Services (RMS), the state regulatory agency, "may at any time vary, suspend or cancel any person's authority."

The ADT  states that -
In determining a review of a decision to cancel an authority the Tribunal's focus is not on disciplining or punishing the authority holder, but on protecting the public interest. As Kirby P explained in Pillai v Messiter [No.2] (1989) 16 NSWLR 197 at 201, albeit he was concerned with a medical practitioner:- "... The public needs to be protected from delinquents and wrong-doers within professions. It also needs to be protected from seriously incompetent professional people who are ignorant of basic rules or indifferent as to rudimentary professional requirements. Such people should be removed from the register or from the relevant roll of practitioners, at least until they can demonstrate that their disqualifying imperfections have been removed ..."
It goes on to comment that
Assessment of whether a person is fit and proper to be the holder of a licence is different from, but related to, an assessment of whether a person is of good character.
In Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, Chief Justice Mason explained that, at 380: 'The question whether a person is fit and proper is one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.' Toohey and Gaudron JJ said at 380: "The expression "fit and proper person", standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of "fit and proper" cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question."
A person's fitness is to be gauged in the light of the nature and purpose of the activities that the person will undertake. In Hughes and Vale Pty Ltd v New South Wales (No. 2) (1955) 93 CLR 127 the High Court said (at 156-7):
The expression 'fit and proper' is of course familiar enough as traditional words when used with reference to offices and perhaps vocation. But their very purpose is to give the widest scope for judgment and indeed for rejection. 'Fit' (or 'idoneus') with respect to an office is said to involve three things, honesty, knowledge and ability ... When the question was whether a man was a fit and proper person to hold a licence for the sale of liquor it was considered that it ought not to be confined to an inquiry into his character and that it would be unwise to attempt any definition of the matters which may legitimately be inquired into; each case must depend upon its own circumstances."
In Sobey v Commercial and Private Agents Board 20 SASR 70 Walters J said:
In my opinion what is meant by that expression is that the applicant must show not only that he is possessed of a requisite knowledge of the duties and responsibilities evolving upon him as the holder of a particular licence ... but also that he is possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public ... as a person to be entrusted with the sort of work which the licence entails."
Fitness and propriety are flexible concepts. A consideration of whether a person is fit and proper involves an assessment of their knowledge, honesty and ability in the context of the role they are seeking to undertake.
In Saadieh v Director General, Department of Transport [1999] NSWADT 68, Hennessey DP set out the factors to be taken into account in determining a person's suitability and fitness to obtain a taxi authority. They are:
  • the nature, seriousness and frequency of any criminal offences for which the applicant has been arrested or convicted; 
  • the applicant's reputation in the community; and 
  • the likelihood that the applicant will re-offend, be the subject of further complaints or commit further traffic offences.
The role that the perceptions of the travelling public play when making assessments of character and reputation was considered by an Appeal Panel in Department of Transport and Infrastructure v Murray (GD) [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) 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. The Tribunal decided that Mr Murray is a fit and proper person to be the driver of a hire car taking into account relevant factors. It did not err by failing to determine Mr Murray's fitness and propriety through the eyes of a reasonable member of the travelling public.
In Director General, Transport NSW v AIC (GD) [2011] NSWADTAP 65 a differently constituted Appeal Panel agreed with this approach but added that public perceptions have a role to play when assessing "repute" given the objects of the PTA, particularly that in s 4(e) -
... to encourage public passenger services that meet the reasonable expectations of the community for safe, reliable and efficient passenger transport services, and
The Appeal Panel said at [67]
The courts have emphasised the connection that assessment of repute, fitness and propriety have in a regulated context with public interest considerations. Repute, fitness and propriety involve concepts that should not be 'narrowly construed or confined' and may extend to 'any aspect of fitness and propriety that is relevant to the public interest' (Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 (26 July 1990) at [64] per Mason CJ. ....
It also emphasised the greater role that public perceptions have when determining decisions to suspend, rather than cancel, a driver authority.
The discretion vested in a decision maker in determining whether a person is fit and proper, in any given context, was said by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589 at 389, per Northrop, Miles and French JJ, to "give wide scope for judgement and allow broad bases for rejection."
As was made clear by Toohey and Gaudron JJ in Bond, issues of character and reputation may play a determinative role in deciding whether a person is fit and proper. Their Honours also clearly highlighted that there is a difference between the two. They explained that an assessment of character is relevant because it is an indicator of a person's likely future conduct when considering how a person might act in the context of the role they are seeking to undertake. Reputation on the other hand, provides an indication of the public perception of future conduct in that role. In Re T and the Director of Youth and Community Services [1980] 1 NSWLR 392, Waddell J explained, at 393:
'A distinction must be drawn between "repute" or "reputation" and "character" or "disposition". The word "character" is sometimes used as meaning a person's reputation, but "reputation" is not ordinarily used to mean character. The distinction has been referred to in many decisions of the courts."
In Melbourne v The Queen [1999] 198 CLR 1 at 15 McHugh J explained:
"... character refers to the inherent moral qualities of a person or what the New Zealand Law Commission has called "disposition - which is something more intrinsic to the individual in question". It is to be contrasted with reputation, which refers to the public estimation or repute of a person, irrespective of the inherent moral qualities of that person."
In Ex Parte Tziniolis; Re Medical Practitioners Act (1966) 67 SR (NSW) 448 Walsh JA, at 450, said that in determining questions of character: "... the court is required to consider matters affecting the moral standards, attitudes and qualities of the Applicant and not merely to consider what is his general reputation." That case was concerned with an application for registration of a medical practitioner. His Honour went onto explain that the Court was entitled to inquire into personal misconduct, as well as professional misconduct, in considering whether the applicant was a man of good character:
"... whilst recognizing that there may be some kinds of conduct deserving of disapproval which have little or no bearing on whether or not it shows the applicant for registration as a medical practitioner is a person of good character. In this respect, I think, that some assistance can properly be obtained as to the mode of approach to be made from the observations made in cases where the was whether or not that a person was fit and proper to be a barrister, such as those in Ziems v Prothonatory of the Supreme Court of NSW (1957) 97 CLR 279."
Thus, as with fitness and propriety, assessment of character is to be made in the context of the nature and purpose of the activities that the person is seeking to undertake. In Director General, Department of Transport v Z (No.2) (GD) [2002] NSWADTAP 37 the Appeal Panel explained:
'Good repute' refers to the way reasonably-minded people assess an individual's current reputation, with reasonably precise knowledge of those matters that put the person's reputation in doubt. The fact that the person produces evidence from witnesses who vouch in general terms for the person's reputation cannot be conclusive. Equally, care must be taken, as we see it, not to use the 'good repute' requirement as a way of bringing into consideration stereotypes or assumptions which offend, for example, against human rights or anti-discrimination standards.
In the present case the regulated activity is that of a taxi driver providing taxi services in a large and very busy city. When doing so, drivers are entrusted with ensuring the safety and comfort of their passengers. Those passengers are of diverse ages and backgrounds, and some are more vulnerable than others.
The ADT concludes -
In the present case I am satisfied that the real cause underlying the decision to cancel Mr Sodiki's authority are the events of 26 March 2013. While the Agency also relied on Mr Sodiki's complaints and driving history the reality is that those matters alone did not caused it to move against his authority, as the renewal of his authority in May 2013 demonstrates. In my view, the real issue is whether in the light of the events of the night of 26 March 2013 the correct and preferable decision is to cancel Mr Sodiki's driver authority.
In Haideri -v- Director General, Department of Transport [1999] NSWADT 61 the Tribunal considered the case of a taxi driver who was convicted of failing to behave in an orderly manner and with civility and impropriety towards a passenger under section 24(b) of the Passenger Transport (Taxi-Cab Services) Regulation 1995. The driver had spoken to the passenger in a sexually explicit manner and propositioned her. In affirming the decision to cancel the driver's authority Hennessey DP said at [24]:
"The findings of fact by the Local Court, which the Tribunal has accepted, are sufficient to establish that the applicant has not behaved in an orderly manner or with civility and propriety. I would go further than this. The applicant's conduct constitutes a serious case of sexual harassment. In my view, the public would be justifiably outraged if they knew that a taxi was being driven by a person found to have behaved in such a manner. Because the applicant denied that he engaged in such conduct, he has not pointed to any matter which would tend to put this behaviour in a different light."
A similar conclusion was reached in Georgiou v Ministry of Transport [2007] NSWADT 123.
In Abdou -v- Director General, Department of Transport [1999] NSWADT 98 the taxi-driver had been convicted of an act indecency when he placed his hand on the breast of a female passenger. Wilson JM at [15] referred to the decision on Haideri and concurred with the sentiment that:
"... where an applicant's conduct constitutes a serious case of sexual harassment the public would be justifiably outraged if they knew a taxi was being driven by a person found to have behaved in such a manner. In that case the sexual harassment consisted only of verbal indications of sexual activities that the driver desired to engage in. The more so in this case where the actions went past the verbal and to the physical and resulted in a criminal conviction."
In Sikder -v- Director General, Department of Transport [2002] NSWADT 148 the complaints related to a taxi driver who had engaged "in a pattern of conduct, especially in relation to female passengers, which displays rudeness, dishonesty and the use of sexual innuendo." The Tribunal observed that at [31], "These characteristics are totally unacceptable to the travelling public."
More recently in Inaizi v Roads and Maritime Services [2013] NSWADT 45 a case in which a driver had made inappropriate comments of a sexually explicit nature to a sole female passenger, Huntsman JM wrote, at [ 65] -
... The authorities indicate that the tribunal should have regard to the objects of the Act, in assessing fitness and propriety, and one of the objects of the Act is to 'encourage public passenger services that meet the reasonable expectations of the community for safe ... passenger transport services' (s 4(e)). To allow taxi drivers to continue to be authorised who have been sexually inappropriate to a female passenger and placed that passenger in fear, is not consistent with the objects of the Act. Having regard to the sexually inappropriate conduct in the course of the regulated activity to a female passenger alone in the taxi at night, the tribunal cannot attest to the applicant being a fit and proper person to be authorised to drive a taxi cab, nor can the tribunal attest to the applicant having sufficient aptitude to drive the vehicle in accordance with law and custom. For these reasons the tribunal finds that the applicant's authority to drive taxicabs should be cancelled and accordingly the decision of the respondent should be affirmed.
In my view the Judicial Member's comments are equally applicable irrespective of the gender or sexual orientation of the passenger.