The Charter and bus fraud

Bus fraud? Swain v Department of Infrastructure (General) [2008] VCAT 848 is another recent VCAT decision where the Charter was raised, again vaguely. Swain is – or at least was – a reformed criminal who, after some unspecified ‘very serious’ offences, spent twenty-five happy years straight and, indeed, married and a licensed security company employee. Alas, things went downhill when his firm started going broke and he tried to scam an insurance money out of some cash. Now he just wants to drive a bus.

Alas, standing in the way of thatmodest goal is the Transport Act 1983:

169(3) The Director must not issue or renew a driver accreditation if the Director is aware that the applicant has been found guilty of a category 2 offence unless the Director is satisfied that the applicant has demonstrated that the issue or renewal of accreditation is appropriate having regard to the public care objective.

Attempted fraud is a cateogry 2 offence. And what are these public care objectives?:

164(1) The public care objective is the objective that the services provided by drivers of commercial passenger vehicles and vehicles used for the operation of private bus services-

(a) be provided- (i) with safety; and (ii) with comfort, amenity and convenience- to persons using the services and to other persons, particularly children and other vulnerable persons; and

(b) be carried out in a manner that is not fraudulent or dishonest.

Note Other vulnerable persons include elderly and disabled persons.

As the Minister explained in 2006 when these changes were introduced, the purpose was to keep bus passengers – who may be just a handful shivering in the back of a rogue driver’s bus – safe. The Minister wrote to Swain that: “………I am not satisfied that the issue of the accreditation is appropriate having regard to the public care objective, particularly of providing the service in a manner that is not fraudulent of dishonest.” Maybe Swain will try to defraud his insurers again while his passengers sit there terrified!

Anyway, Swain tried to rely on the Charter:

Refusal of driver accreditation should not be motivated by disapproval of Mr Swain’s past misconduct or a desire to punish him again for offences for which he has already been punished. The need to avoid any double punishment is emphasised by section 26 of the Charter of Human Rights and Responsibilities Act 2006, [the Charter Act] which is of relevance to the decision-making by the Tribunal by reason of section 32 (interpretation of legislation) and sections 38 and 4 (decision making by public authorities and tribunals acting in an administrative capacity) of the Charter.

Not exactly precise. What does Charter s. 26 emphasise? What word needs to be re-interpreted?

VCAT Senior Member Noreen Magay stated: “I consider that counsel might have misconstrued the effect in this case of sections 38 and 4 having regard to the definitions set out in section 4 of the Charter Act…” Well maybe counsel has, but I’m not convinced Magay has construed those sections properly either. Why isn’t the Director of Public Transport a public authority under Charter s. 4(1)(a) or (b)? And there’s an argument (in Pound & Evans) that VCAT, when it’s doing merits review of the Director’s decision, picks up not only the Director’s powers, but also the Director’s duties, under s. 51 of the VCAT Act. You’d think that this point would need to be worked out quick smart. The better argument might have been that, because the Director’s decision was made (late) last year, Charter s. 49(3) precluded the application of the conduct mandate to it and therefore its review.

Anyway, the rest of Magay’s judgment was fine:

…but in any event I will deal with the more substantive part of his submission. Section 26 of the Charter Act provides as follows:

A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with the law.

It is very clear law that in instances such as the one before the Tribunal, it is not a matter of “double punishment” that is meted out, rather it is the protection of the public that is to the forefront of occupational licensing decision-making. The most succinct statement in this regard was provided by Murphy J in Inglese v Estate Agents Board and Anor (Unreported Supreme Court of Victoria, 15 August 1988) is the following fashion –

If an estate agent is to be disqualified, the purpose which the Tribunal should have in mind is not the punishment of the individual (although it may appear to be a punishment to him) but the importance of protecting the public and the necessity to maintain standards in the conduct of an estate agent’s business.

His Honour’s clear statement has been cited with approval in the decades that have passed without any contradiction or amendment. Were Mr Swain to be disqualified in these proceeding it would be entirely incorrect to view that as “double punishment” – rather any disqualification or dismissal should properly been seen as the maintenance of standards and the public care objective as set out in the Act as well as the public protection issues canvassed in the second reading speech.

I would have thought looking at overseas and comparative judgments in light of Charter s. 32(2) would have been appropriate, but they all bear out Magay’s point. This isn’t a double jeopardy case.

Anyway, happilly for Swain – and hopefully for his passengers – Magay (Charter or not) gave him his licence, branding his insurance fraud an ‘unfortunate aberration’. Let’s hope VCAT’s Charter judgments similarly stay more or less on the straight and narrow.

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