VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
administrative DIVISION
REVIEW AND REGULATION LIST	
vcat reference NoS. Z1041/2020	
CATCHWORDS	
Review and Regulation List –Application for driver accreditation following a mandatory refusal by the Respondent; s 253(2) of the Commercial Passenger Vehicle Industry Act 2017 ; and s 169N(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983; Category 1 offence; culpable driving causing death; 30 years since offending; exemplary record since offending; meaningful rehabilitation; insight and remorse; legislative tests satisfied; in public interest; Respondent directed to issue driver accreditation.	

APPLICANT
RESPONDENT	Jason Pigott
Commercial Passenger Vehicle Victoria	
BEFORE	Judge Jenkins, Senior Member	
HEARING TYPE	Hearing via Zoom	
HEARING DATE	9 July 2021	
DATE OF FINAL ORDER	19 July 2021	
CITATION	Pigott v Commercial Passenger Vehicle Victoria (Review and Regulation) [2021] VCAT 783	

ORDERS

Pursuant to s 253(3)(a) of the Commercial Passenger Vehicle Industry Act 2017 and s 169N(2)(a) of the Transport (Compliance and Miscellaneous) Act 1983 the Tribunal directs the Respondent to issue a driver accreditation to the Applicant.

Judge Jenkins
Senior Member			

TABLE OF Contents
ORDERS
TABLE OF CONTENTS
REASONS
NATURE OF APPLICATION
BACKGROUND
RELEVANT LEGISLATION
CPVI Act
TCM Act
DETAILS OF THE CATEGORY 1 OFFENCE
Fit and Proper Person
Tribunal’s Finding – Fit and Proper Person
Technically competent
Tribunal’s Finding – Technically Competent
Public care objective
Tribunal’s Finding - Public care objective
Unjustifiable risk to the safety of persons using the service
Tribunal’s Finding - Unjustifiable risk
The public interest
Tribunal’s Finding – Public Interest
CONCLUSION

	

REASONS
nature of application
1	This is an Application to the Tribunal dated 23 December 2020, pursuant to s 253(2) of the Commercial Passenger Vehicle Industry Act 2017 (CPVI Act) and s 169N(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983 (TCM Act) for an order that the Respondent issue the Applicant with driver accreditation following a mandatory refusal by the Respondent.
background
2	The Applicant filed a statement dated 16 May 2021, which sets out relevant personal background, referred to below.
3	The Applicant was born in 1970 and is now 51 years old.
4	On 4 February 2015, the Respondent refused a prior application by the Applicant by reason of a category 1 offence. In addition, pursuant to s 85 of the CPVI Act the Respondent imposed a period of disqualification of 5 years from applying for the issue of a driver accreditation.
5	On 6 November 2020, the Applicant again applied to the Respondent for driver accreditation in respect of the following class of vehicles: hire car, taxi and bus. 
6	A National Police History Check for the Applicant recorded that on 21 August 1991 the Applicant was convicted of culpable driving causing death (Category 1 offence).
7	As the Applicant had been found guilty of a category 1 offence, under the Acts, the Respondent was required to refuse his Accreditation Application pursuant to s 75(2)(b) of the CPVI Act and s 169(2)(b) of the TCM Act.
Relevant legislation 
8	For ease of reference the following provisions of the CPVI Act and the TCM Act are relevant to the current proceeding.
9	It will be readily apparent that it is necessary for the Tribunal to be satisfied as to a number of tests before the Tribunal may consider making an under s 253(3) of the CPVI Act.
CPVI Act
71	Application for driver accreditation
(1)	A person may apply to the regulator for the issue of a driver accreditation.
75	 Decision on application for driver accreditation
(1)	The regulator, having considered the matters referred to in section 73, may issue a driver accreditation if satisfied—
(a)	that it is appropriate to do so having regard to the public care objective; and
	(b)	that the applicant—
(i)	is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing commercial passenger vehicle services; and
(ii)	is a fit and proper person to provide a commercial passenger vehicle service; and
…
(2)	However, the regulator must refuse to issue a driver accreditation if aware that the applicant—
…
(b)	has been found guilty of a category 1 offence; or
…
(6)	In making a decision under subsection (3) or (4), the regulator may have regard to the following matters in relation to the category 2 offence or category 3 offence—
(a)	the nature and gravity of the offence and its relevance to the commercial passenger vehicle service to be provided by the applicant;
(b)	the period of time since the applicant committed the offence;
(c)	whether a finding of guilt or conviction was recorded;
(d)	the sentence imposed for the offence;
(e)	the age of the applicant when the offence was committed;
(f)	in relation to any sexual offence, the age of any victim;
(g)	whether or not the conduct that constituted the offence has been decriminalised since the offence was committed;
(h)	the applicant's behaviour since committing the offence;
(i)	the likelihood of the applicant committing another such offence in the future, in particular, any future threat to a child or other vulnerable person;
(j)	any information given by the applicant.

253	 VCAT orders in relation to category 1 offenders
(1)	This section applies to the following persons—
(a)	a person whose application for the issue of a driver accreditation is refused on a ground set out in section 75(2)(b) or (c);
…
(2)	The person may apply to VCAT for an order that the regulator issue or reinstate the driver accreditation or cancel the disqualification 
(as the case requires).
(3)	On an application under subsection (2) VCAT may by order direct the regulator to—
	(a)	issue a driver accreditation to the applicant; or
	(b)	reinstate the driver accreditation of the applicant; or
(c)	make a determination cancelling the disqualification of the applicant.
(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.
(5)	For the purposes of subsection (4)(c)(i), VCAT must have regard to the matters set out in section 75(6).
(6)	If VCAT refuses to make an order applied for under subsection (2), VCAT may by order disqualify the person from applying for a driver accreditation for a period not exceeding 5 years.
(7)	A period of disqualification under an order under subsection (6) may be in substitution of a period of disqualification imposed by the regulator.
69	Public care objective
The public care objective 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.
TCM Act 
169N	Jurisdiction of VCAT as to category 1 offenders
	(1)	A person—
(a)	whose application for the issue or renewal of a driver accreditation is refused on a ground set out in section 169(2)(b) or (c); or
(b)	whose driver accreditation is cancelled under section 169E; or
(c)	who is disqualified from applying for a driver accreditation under section 169C(1A)—
may apply to VCAT for an order that the licensing authority issue, renew or reinstate the driver accreditation or cancel the disqualification (as the case may be).
(2)	On an application under subsection (1) VCAT may by order direct the licensing authority to—
(a)	issue a driver accreditation to the applicant; or
(b)	renew the driver accreditation of the applicant; or
(c)	reinstate the driver accreditation of the applicant; or
(d)	make a determination cancelling the disqualification of the applicant.
(3)	VCAT must not make an order under subsection (2) to issue, renew or reinstate an accreditation unless—
(a)	VCAT is satisfied of the matters set out in section 169(1)(b); and
(b)	the applicant has demonstrated that the issue, renewal 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 persons using services provided by the drivers of private bus services, having regard to—
(A)	the matters set out in section 169C(3)(b)(i) to (x); and
(B)	any other matter that VCAT considers relevant to the application; and
(ii)	in all the circumstances, it is in the public interest to make the order.
(5)	The licensing authority must comply with an order made by VCAT under this section.
169	Matters to be considered by the licensing authority when issuing or renewing an accreditation
…
…
(b)	that the applicant – 
(i)	is technically competent and sufficiently fit and healthy to be able to provide the service; and
…
details of the category 1 offence
10	On 21 August 1991, in the County Court of Victoria, following a guilty plea, the Applicant was convicted of culpable driving causing death, committed on 2 September 1990, and sentenced to:
a.	3 months imprisonment, suspended for 12 months; 
b.	a community based order for 1 year, to perform 300 hours unpaid community work; and
c.	all licences cancelled and disqualified from applying for any driver’s licence for 3 years. 
11	‘Culpable driving’ is an offence under s 318 of the Crimes Act 1958, and a ‘category 1 offence’ under Schedule 1 of the CPVI Act and s 86(1)(c) of the TCM Act 
12	Section 318 of the Crimes Act 1958 (Vic), provides: 
318	Culpable driving causing death
(1)	Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 
13	As culpable driving is a category 1 offence, the Respondent must refuse an application under s 75(2)(b) of the CPVI Act.  
14	As the Applicant has been found guilty of a category 1 offence, this Application is made in the original jurisdiction of the Tribunal under s 253(2) of the CPVI Act and s 169N(1) of the TCM Act. These sections expressly confer jurisdiction on the Tribunal to make an order of the kind being sought by the Applicant. 
15	The Tribunal has jurisdiction under s 253(3)(a) of the CPVI Act, by order, to direct the Respondent to issue a driver accreditation to a person with a prior conviction for a category 1 offence, but must not do so unless satisfied of the following legislative elements: 
a.	That the Applicant is a fit and proper person and is technically competent and sufficiently fit and healthy to provide a commercial passenger vehicle service; 
b.	That the granting of a driver accreditation to the Applicant would be appropriate having regard to the public care objective set out in section 69 of the CPVI Act; 
c.	That the granting of a driver accreditation to the Applicant would not present an unjustifiable risk to safety considering the factors set out in section 75(6) of the CPVI Act; and 
d.	That the granting of a driver accreditation to the Applicant would, in all the circumstances, be in the public interest. 
Fit and Proper Person
16	For the purpose of s 253(4)(a) and s 75(1)(b)(ii) of the CPVI Act; and s 169N(3)(a) and s 169(1)(b)(ii) of the TCM Act, it is necessary to examine how the ‘fit and proper person’ test should be applied. 
17	An appropriate starting point is the interpretation given by the High Court in Australian Broadcasting Tribunal v Bond, where Toohey and Gaudron JJ. held:  
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. 
18	In a different context, a person’s strength of character and past conduct are relevant considerations: 
What is meant by that expression is that...he is possess of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails. 
19	The Supreme Court has also recognised that a person’s character can manifest in behaviours that are inconsistent with the qualities, character and conduct required to be ‘fit and proper’ to provide the relevant service. Failure to accept responsibility for one’s own actions and a failure to show remorse, insight or take rehabilitative steps indicates that a person is not a fit and proper person. 
Is the Applicant a fit and proper person to provide commercial passenger vehicle services? 
20	The onus is upon the Applicant to demonstrate that he is a fit and proper person to provide commercial passenger vehicle services. 
21	The circumstances of the category 1 offence involved the Applicant driving a motor vehicle whilst severely intoxicated and losing control of the vehicle which was driven into fixed railway crossing furniture, which resulted in the male passenger sustaining fatal injuries. The Applicant was subsequently tested to have a blood alcohol concentration of 0.160%. 
22	The nature, gravity and consequences of the offence are directly relevant to the Respondent’s capacity and suitability to perform the relevant services. Clearly the Applicant could not be regarded as a ‘fit and proper person’ following the commission of the offence.  
23	Accordingly, the focus must be upon the intervening period and whether:
a.	The passage of 30 years since the offending is an adequate period after which an appropriate assessment can be made;
b.	There has been any relevant offending subsequent to the Category 1 offence; and
c.	the Applicant has demonstrated remorse or insight into his offending. 
24	In his written submission the Applicant states:
At the time I was 20 years of age and made a life changing mistake, that will stay with me for the rest of my life. 
…
The conviction of culpable driving was the lowest point in my life and not only did I let myself down, but I hurt many people, including my family and friends. It was a time in my life that I was not proud of and I will be forever remorseful. The worst part of all was that I lost a mate as a result of one stupid and immature decision.
…
After the accident, I had counselling and completed a drug and rehabilitation course. I worked hard to make myself a better person and complete my apprenticeship as a diesel mechanic. I got married and went on to have 3 children, whom I am very proud of. I have always worked hard for my family and involved myself in the local community. I played football and cricket for many years and competed in the Australian triathalon series. I served as president of the local cricket club for many years and went on to become president of the local basketball club that my 2 sons played for. I participated in many fundraising events to help the community and my family. I continue to support my 3 children in their chosen sports, offering assistance in any way I can. I have been married for 27 years and have always been employed full time, supporting my family and my friends. I have learnt a lot over many years and feel I have turned my life around in many positive ways. I have never reoffended with culpable driving or any other offense since. I obtained 1 minor speeding fine in an unfamiliar area. I have taught 2 of my children how to drive and both obtained their licences without any difficulties. I look forward to teaching my youngest son how to drive this year.
25	The Applicant also said in his written submission that he was encouraged to apply for driver accreditation by his employer:
I have been asked by my employer (Nuline Charter) to obtain my driver accreditation (DC) to assist when there is a shortage of bus drivers. I would also like to obtain my DC license to allow me to become a full time bus driver in my later years of my working career, as my current role as a mechanic is physically demanding and is taking a toll on my body.
26	By reference to the Applicant’s written submissions, in relation to the issue of insight and remorse:
… the Respondent takes a neutral position as to whether the Tribunal could reach the required level of satisfaction that the Applicant has adequate insight into his past offending to present a sufficiently low risk of further offending in order to make a finding that the Applicant meets the fit and proper person requirement. 
27	However, the Respondent places particular significance upon the circumstance of the Applicant’s criminal history, as described above and the apprehension which the offending would raise in the general community. If the accreditation is granted, can the general community have confidence that the Applicant will provide safe commercial passenger vehicle services? 
28	Having regard to the nature, gravity and consequences of the offending, the Respondent submits that the Applicant is not a fit and proper person to provide commercial passenger vehicle services, by reason that:
… the Applicant, as a person convicted of culpable driving causing death, has been responsible for a loss of life whilst driving a motor vehicle. This could generate an adverse public perception as to the level of safety afforded to passengers of commercial passenger vehicles due to the Applicant’s prior offending. 
Tribunal’s Finding – Fit and Proper Person
29	Whilst there is no question that the Applicant was not a fit and proper person at the time of committing the category 1 offence, the relevant assessment must be made now, in light of how the Applicant has behaved in the intervening period and how he now presents. For the reasons further identified below, in my view he is now a fit and proper person to provide commercial passenger vehicle services. 
Technically competent 
30	For the purpose of s 253(4)(a) and s 75(1)(b)(i); and s 169N(3)(a) and s 169(1)(b)(i), the Applicant must demonstrate that he is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing a commercial passenger vehicle service. 
31	The Respondent submits that the Applicant’s conviction for the offence of culpable driving causing death raises questions as to his technical competence for the purpose of driving a commercial passenger vehicle. 
32	The particulars of the offence state that the Applicant was driving a motor vehicle in a manner that was either: negligent, or at a time where the Applicant was under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. The Applicant must prove that he is technically competent to operate a motor vehicle whilst providing commercial passenger vehicle services in light of his past criminal behaviour. 
33	The Applicant gave oral evidence that since completing an apprenticeship as a diesel mechanic in about 1992:
a.	He worked as a mechanic, on trucks and tractors, in his father’s market gardening business for about 14 years;
b.	He worked as a supervisor for DNS Landscaping for about 4 years;
c.	He worked for BM Coaches as a Workshop Manager (both on and off the tools) for 10 years; and
d.	Since 2019, he has worked as a Workshop Manager for Nuline Charter and is currently a full time permanent employee.
34	The Applicant is licensed to drive heavy duty vehicles, such as trucks and buses, but not to carry passengers. He gave evidence of extensive experience driving buses, for the purpose of mechanical servicing and repair as well as delivering buses Australia wide for Nuline. He also drives from Bacchus Marsh to Melbourne every day for his work.
35	The Applicant also confirmed that he has not been involved in any motor vehicle accidents and except for one minor speeding offence (3 kph over the limit), has had a totally clean driving record since the 1990 offence.
36	In his written submission the Applicant also said:
I have held workshop manager positions over a 10 year period, where I have been respected as a senior manager, often mentoring less experienced staff and apprentices.  In my most recent position a Workshop manager at Nuline Charters, I have maintained my honest and hardworking reputation and feel that having my DC licence would be an asset to the company and myself.
Tribunal’s Finding – Technically Competent
37	Having regard to the Applicant’s evidence and the reference of Mr Vickers of Nuline (referred to below), I am comfortably satisfied that the Applicant is technically competent and sufficiently fit and healthy to drive a motor vehicle for the purpose of providing a commercial passenger vehicle service.
Public care objective
Is accreditation appropriate having regard to the public care objective? 
38	The Applicant must demonstrate that the granting of his accreditation is appropriate having regard to the public care objective, set out in s 69 of the CPVI Act, which is extracted above.
39	In the context of the Applicant’s criminal history the Respondent submits that his prior conviction for the offence of culpable driving raises questions about his ability to provide a commercial passenger vehicle service to members of the Victorian public that is consistent with the public care objective. In particular, drivers providing the services of commercial passenger vehicles must be capable of providing the service to persons using those services and to other persons, particularly children and other vulnerable persons, with safety; and with comfort, amenity and convenience.
40	Safety refers not only to physical safety but also mental safety. Similarly, ‘comfort’ has been considered to include ‘ease of mind’ of ‘reasonable persons as distinct from wild prejudice’. 
41	In assessing this criterion, it is relevant to inquire whether a reasonable passenger, considering an applicant’s criminal history, would feel safe and reach the required level of comfort and ‘ease of mind’. 
42	The Respondent submits that:
a.	A reasonable passenger knowing of the incident that occurred on or about 2 September 1990, and the Applicant’s prior conviction in relation to it, would not feel safe nor comfortable using the Applicant’s commercial passenger vehicle service; 
b.	The perceived risk to the safety of the public inherent in the granting of a commercial passenger vehicle driver accreditation to a person with a prior conviction for culpable driving is significant; 
c.	The ease of mind of reasonable persons travelling in a commercial passenger vehicle would be significantly impacted by the knowledge that the driver of that service had a prior conviction for culpable driving, despite the significant passage of time since the offence; and
d.	 Causation is a relevant element of culpable driving, in that the death of a person has been caused by the driving of the convicted person. In the context of the commercial passenger vehicle industry, the offence of culpable driving is one of the most serious offences that can be committed whilst using a motor vehicle and is therefore highly relevant for the purposes of any decision about a person’s accreditation under the Acts. 
43	Accordingly, the Respondent submits to the effect that a prior conviction for culpable driving is inconsistent with the requirements of both physical and mental safety for passengers of commercial passenger vehicle services and does not satisfy the public care objective. 
Tribunal’s Finding - Public care objective
44	In my view, the Respondent is correct to highlight the above aspects of the public care objective and the potential fear and indeed alarm, in members of the public generally and commercial passenger users in particular, at the prospect of knowing that a driver had a history of culpable driving. 
45	However, I am comfortably satisfied, by the evidence before the Tribunal, that the public care objective is met in this case having regard to the following:
a.	I accept the Applicant’s evidence to the effect that he is physically and technically capable and competent to deliver a service safely and with comfort, amenity and convenience;
b.	There has been no suggestion that the service would be provided in a manner that is fraudulent or dishonest;
c.	If members of the public generally and commercial passenger users in particular were informed of the relevant factual circumstances which have occurred since the commission of the culpable driving offence: namely, the Applicant’s total lack of any subsequent offending of any kind; his excellent driving record; his voluntary abstinence from alcohol; his stable family life and contributions to his local community; and the significant lapse of time since the offending; I am satisfied that there is no reasonable expectation that the public or users would be affronted, uneasy or uncomfortable.
Unjustifiable risk to the safety of persons using the service
46	For the purpose of s 253(4)(c)(i) of the CPVI Act and s 169N(3)(c) of the TCM Act, the Tribunal must be satisfied that the making of the order sought would not pose an unjustifiable risk to the safety of users of commercial passenger vehicle services, having regard to the matters set out in s 75(6) of the CPVI Act and s 169C(3)(b) of the TCM Act. 
47	The ‘unjustifiable risk’ test involves evaluating the nature and degree of any risk and is set out by Bell J in ZZ v Secretary to the Department of Justice:
The test of ‘unjustified risk’ requires the specified considerations to be addressed. As part of that consideration, the Secretary (and the tribunal) must make a rational, objective and evidence-based assessment of the nature and degree of the risk (if any) which giving the notice would pose. That assessment must be rational in the sense of balanced and not arbitrary and refusing to give a notice must be a proportionate decision in the circumstances. 
48	The ZZ case was decided under the Working with Children Act 2005. Whilst the ‘unjustifiable risk’ test under s 253(4) of the CPVI Act substantially reflects the ‘unjustifiable risk’ test under s 13(2) of the Working with Children Act 2005 (Vic), the enquiry under s 253(4) goes beyond looking at safety of children to any person using the services provided by accredited drivers.
49	‘The seriousness of potential harm must also be assessed against the probability of occurrence’, so that even a small risk of serious harm may be ‘unjustifiable’. The probability of harm occurring must be assessed in the particular circumstances. 
50	The Respondent acknowledges that the Applicant has not engaged in similar or any other relevant offending behaviour since the offence of culpable driving. However, the Respondent submits that there is a potential risk of physical harm if the Applicant were to again drive a motor vehicle negligently or under the influence of alcohol. Even if the Tribunal were to find this risk to be of a low likelihood, if the Applicant did again engage in such behaviour the potential degree of harm is of a serious nature. 
51	The Respondent further submits that the Applicant’s prior conviction poses a potential risk of mental harm to passengers if the Applicant were granted the accreditation, as passengers driven by the Applicant may suffer mental distress or anguish upon becoming aware of the Applicant’s past criminal behaviour, and the resulting harm may be serious in nature, depending on the affected individual passenger. 
Nature and gravity of the offence and its relevance to the service to be provided
52	The nature and gravity of the offending in this matter is at the more serious end of the spectrum of possible offending behaviour that can occur in the motor vehicle context. The seriousness of the offending is evident in that the Applicant was convicted of culpable driving causing the loss of the life of the victim, with the offence being dealt with in the County Court. 
53	The offending is of direct relevance to the potential provision of commercial passenger vehicle services by the Applicant. As indicated above, the offence was particularised to state that the Applicant was driving a motor vehicle in a manner that was either: negligent, or at a time where the Applicant was under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle. This criminal behaviour is directly relevant to considering whether the Applicant can safely operate a motor vehicle whilst providing commercial passenger vehicle services. 
54	Whilst the Applicant was not providing a commercial passenger vehicle service at the time of the offending, the offence did take place in a driving context and occurred in circumstances where he was driving a motor vehicle registered in his name, where he had a passenger on board. 
The period of time since the Applicant committed the offence 
55	The Respondent accepts that a significant period of time has elapsed since the Applicant committed the offence, on 2 September 1990.
Whether a finding of guilt or conviction was recorded 
56	The Applicant was convicted of the offence on 21 August 1990. 
The sentence imposed for the offence 
57	As a result of this category 1 offence, the Applicant was sentenced to 3 months imprisonment, fully suspended for 12 months; a community based order for 1 year to perform 300 hours unpaid community work; as well as having all motor vehicle licences cancelled and being disqualified for a period of 3 years.
The age of the Applicant when the offence was committed 
58	The Respondent acknowledges that the Applicant was only 20 years of age when he committed the offence and is now 51 years of age. 
In relation to any sexual offence, the age of the victim
59	Not applicable. 
Whether or not the conduct that constituted the offence has been decriminalised since the offence was committed 
60	The conduct constituting the offence has not been decriminalised and remains an offence under s 318 of the Crimes Act 1958 (Vic). 
The Applicant’s behaviour since committing the offence 
61	As far as the Respondent’s records show, the Applicant has not committed any further offences of concern since the incident of 2 September 1990. The Applicant’s subsequent driving history does not pose an additional concern to the Respondent. 
The likelihood of the Applicant committing another such offence in the future, in particular any future threat to a child or other vulnerable person: 
62	The Tribunal must consider any evidence of the Applicant’s insight into and his remorse for his offending, and any rehabilitative steps taken by the Applicant which may demonstrate that he has taken responsibility for his offending. 
63	In TLM v Secretary to the Department of Justice, the Tribunal stated: 
Remorse for past behaviour may be good evidence that it will not be repeated in the future. Lack of remorse leads to lack of confidence that the anti-social behaviour will not be repeated. 
64	Similarly, insight has similar relevance: Kyrou J held in the Maleckas case, in the context of an application for a Working with Children Check Assessment Notice: 
As a matter of common sense, an offender who has no understanding that the offence of violence that he or she committed was wrong, may pose a greater risk to the safety of children than an offender who has shown insight and remorse in relation to such offence. 
65	The Applicant pleaded guilty to the offence at the earliest opportunity. A plea of guilty can be an indication of remorse. 
66	The Respondent acknowledges that the Applicant has shown some level of remorse in his written submissions, stating: 
At the time I was 20 years of age and made a life changing mistake, that will stay with me for the rest of my life. The conviction of culpable driving was the lowest point in my life and not only did I let myself down, but I hurt many people, including my family and friends, It was a time in my life that I was not proud of and I will be forever remorseful. The worst part of all was that I lost a mate as a result of one stupid and immature decision. 
67	The Respondent also referred to the additional particulars available in the Victoria Police Antecedent dated 2 September 1990 which states that at the time of the incident the Applicant “appeared genuinely remorseful” and “demeanour – co-operative.” 
68	The Respondent takes a neutral position as to whether the Applicant’s level of remorse and insight at this time would indicate that the Applicant would not pose an unjustifiable risk to safety if the application were granted. 
69	In his oral evidence, the Applicant provided the following relevant information to the context of the offending and his subsequent efforts at rehabilitation:
a.	On the evening of the offence he had attended a local football club function;
b.	He knew that he was intoxicated when he drove his car;
c.	He has little memory of how the accident occurred other than he drove into a railway crossing (hence a single vehicle collision);
d.	He was uninjured; he contacted police and the ambulance as soon as possible; and he believes that his passenger died at the scene;
e.	Subsequently, his then girlfriend (now his wife) provided significant support;
f.	He attended a drug and alcohol course, which lasted about 2 months. He recalls attending meetings, but little else;
g.	He undertook counselling for a few months with a local health professional; and
h.	He ceased all social consumption of alcohol.
Any Information provided by the Applicant 
70	The following references were tendered on behalf of the Applicant. 
71	Mr Geoff Vickers, a Director of Nuline Charter Pty Ltd., states that:
Jason joined our company as the workshop manager of our Spotswood depot in 2019. I have however known Jason for about 10 years as [a] result of his employment at Bacchus Marsh Coaches.
72	Mr Vickers describes the Applicant as follows:
I had meet Jason numerous times at industry functions and then once on the side of the road on a very cold evening when the vehicle I was driving seized a water pump and left me stranded. Our workshop manager Ash Walker also knew Jason very well and knew he lived close so rang him and he came out to assist after hours.
The reason I bring this up is because that represents and explains the calibre of Jason . There was no obligation on him to do this, but he knew it was the "right thing to do".
73	Mr Vickers further confirms to the effect that the Applicant was highly recommended prior to being employed and since working with him, Mr Vickers has no hesitation in describing the Applicant as “honest, hardworking, ethical and of exemplary character”.
74	Mr Adam Skrobalak is the Applicant’s brother-in-law whom he also describes as a close friend. He describes their relationship as follows:
I currently hold the position of Assistant Coach at the St Kilda Football Club (AFL)  and have held coaching positions there for  the last 7 years, as well as this I own a custom sportswear company that makes sports uniforms for local sporting teams Australia wide.
Jason has supported me through many stages of my life, he is extremely supportive, caring and responsible, we as a family have always been able to depend on Jason no matter what the circumstance.
He has always been very hard working, dedicated and has always gone above and beyond what is required.
He has always been very hard working, dedicated and has always gone above and beyond what is required.
Jason is an amazing father and role model to his 3 children who have grown into young adults. He is the type of father I strive to be.
Jason is well respected within the Bacchus Marsh community and a leader within our family.
75	All the materials that have been provided by the Applicant were addressed by the Respondent in the Submissions. 
76	The Respondent submits that owing to the nature and gravity of the offence and given the fact that a conviction was recorded, the balance of factors under s 75(6) of the CPVI Act does not justify the making of an order for a driver accreditation to be granted in favour of the Applicant. 
Tribunal’s Finding - Unjustifiable risk
77	I am comfortably satisfied that the Applicant does not pose an unjustifiable risk to the safety of persons, of all ages, using a commercial passenger vehicle service, for the following reasons.
78	First, whilst there is no question that the Applicant posed an unacceptable risk at the time of the offending conduct, the assessment must be made now, having regard to relevant facts and circumstances which have occurred since September 1990.
79	Secondly, as indicated above, I accept that the Applicant is technically competent and physically able to drive a commercial vehicle and indeed has extensive relevant experience for that purpose.
80	Thirdly, the Applicant’s driving record in the intervening 30 years has been impeccable and in the context of continuing to drive regularly and often over very long distances for work.
81	Fourthly, he attests to a close, stable and supportive family. He is also directly involved with his children’s sporting activities and in the local community. This inter-connectivity is also relevant to a sense of social responsibility.
82	Finally, and in my view, very significantly, the Applicant attests to having ceased consuming alcohol subsequent to his offending conduct, which he said ‘helped a lot’. He will now have an occasional drink only at a birthday or similar function. Such a response to his offending, in itself constitutes a meaningful insight into the cause of the tragic consequences of his offending as well as remorse for it.
The public interest
83	If the Tribunal is satisfied of the matters in ss 253(4)(a), (b) and (c)(i) of the CPVI Act and 169N(3)(a)(b) and (c)(i) of the TCM Act, it must then consider whether in all the circumstances it is in the public interest to direct the Respondent to issue the accreditation sought. 
84	In the matters relating to the provision of commercial passenger vehicle service, the predominant public interest is the interest of the traveling public. Other factors include recognition that ‘offenders were encouraged to establish themselves as worthy citizens and people of good fame and reputation’. 
85	The Respondent submits that in light of the seriousness of the Applicant’s conduct and its direct relevance to the provision of this type of service, unless the Applicant presents satisfactory evidence to address the issues of his insight and rehabilitation effort, the Tribunal cannot be satisfied that the Applicant has established that he is a fit and proper person to provide an accredited driver service; is able to provide the service as required under the public care objective and does not pose an unjustifiable risk to the safety of the travelling public. These matters outweigh any private interest the Applicant has in having his accreditation granted. 
86	The Respondent submits that the factors articulated in its written Submissions and incorporated above, are relevant to the question of whether the granting of a driver accreditation in favour of the Applicant would be in the public interest. In particular, the Respondent submits that the impact that the Applicant’s criminal history would have on the safety, comfort and ‘ease of mind’ of a reasonable passenger, together with the impact it would have upon the public perception of the level of safety afforded to passengers of commercial passenger vehicles, is such that the granting of this accreditation would not be in the public interest. 
87	In conclusion, the Respondent submits that the public care objective and public interest cannot be satisfied by the granting of a driver accreditation to a person with a prior conviction for culpable driving causing death, owing to the gravity of the offence itself. Accordingly, the Respondent submits that the occurrence of this offending justifies opposing the Tribunal making an order under section 253(3) to direct the Respondent to issue driver accreditation to the Applicant. 
88	The Respondent has again identified matters of relevant consideration for the Tribunal, in light of the nature and grave consequences of the offending conduct. As indicated, the focus must be upon the public interest as distinct from the private interest of any applicant.
89	In this case, I am satisfied that it is in the public interest for the Applicant to be granted driver accreditation.
90	For the reasons given above, I am satisfied that:
a.	 The public care objective is met;
b.	 The Applicant does not pose an unjustifiable risk; 
c.	The Applicant is now a fit and proper person to be issued driver accreditation;
d.	The Applicant has demonstrated insight and remorse into his offending conduct and achieved an impressive turn around in his life, since the commission of the offence, consistent with a meaningful rehabilitation; and
e.	He has maintained consistent and stable employment; a stable and supportive family; and made significant contributions to his local community.
Tribunal’s Finding – Public Interest
91	In my view, notwithstanding the nature and gravity of the offence, there is no imperative that such offending should remain a permanent barrier to the Applicant demonstrating his current eligibility and suitability for driver accreditation. The intention of the CPVI and TCM is not punitive but to protect the travelling public. 
92	In light of the above circumstances and achievements of the Applicant, and the significant passage of time since the offending, it is clearly in the public interest to allow the Applicant to be issued driver accreditation and to direct the Respondent accordingly. 

CONCLUSION
93	For the reasons given:
a.	Under the CPVI Act, the Tribunal has had regard to the matters set out in s 75(6) for the purposes of subsection 253(4)(c)(i) and is satisfied as to all the requisite matters set out under s 75(1)(a), s 69 and s 253(4);
b.	Under the TCM Act, the Tribunal is satisfied as to the requisite matters set out under s 169N(3)(a)(b) and (c)(i); and has considered matters under s 169(i); and
c.	Under s 253(4)(c)(ii) of the CPVI Act and s 169N(3)(c)(ii) of the TCM Act, the Tribunal is satisfied in all the circumstances, that it is in the public interest to make the order.
94	Accordingly, pursuant to s 253(3)(a) of the CPVI Act and s 169N(2)(a) of the TCM Act the Tribunal will, by order, direct the Respondent to issue a driver accreditation to the Applicant.

Judge Jenkins
Senior Member