Right not to be Tried or Punished More than Once

Swain v Department of Infrastructure (General) [2008] VCAT 848 (9 May 2008) The Victorian Civil and Administrative Tribunal has held that a government authority’s refusal to issue a commercial driver’s licence on the basis of the applicant’s history of insurance fraud did not engage the applicant’s right to freedom from double punishment under s 26 of the Victorian Charter.  However, on the facts, the applicant was nevertheless found to be entitled to such a licence.


The applicant, Peter Swain, sought accreditation to drive a commercial passenger vehicle or a vehicle being used to provide a private bus service.  The Director of Public Transport (‘DPT’) found that it would not be appropriate to issue such accreditation in light of the ‘public care objective’ in s 169(3) of the Transport Act 1983 (Vic), and consequently refused it.  The ‘public care objective’ is defined in s 164(1)(b) and includes, among other things, that services provided by accredited drivers should ‘be carried out in a manner that is not fraudulent or dishonest’.

The DPT considered that to accredit Mr Swain would be inconsistent with the public care objective due to his 2007 conviction for attempting to commit insurance fraud.  The applicant had also been found guilty of six offences in the early 1980s, though these were not considered to be particularly relevant to the DPT’s decision.  The DPT was concerned that, although the applicant had led a ‘blameless life’ between these early offences and his conviction in 2007, he could not satisfy the ‘public care objective’ and ‘in particular, was not able to carry out the service in a manner that was not fraudulent or dishonest’.

The applicant sought review of the decision, in part arguing that the DPT had failed to comply with s 26 of the Victorian Charter.  Section 26 states that ‘[a] person must not be tried or punished more than once for a single offence in respect of which he or she has already been finally convicted or acquitted by law’.  The applicant argued that s 26 was applicable by virtue of ss 32 (interpretation), 4 and 38 (decision making by public authorities) of the Victorian Charter.  He asserted that, by denying him accreditation, the DPT was effectively punishing him again for a crime for which he had already received a final conviction (ie his insurance fraud).



At the outset, Megay SM stated that she believed that counsel for the applicant had ‘misconstrued’ the effect of ss 4 and 38.  She did not, however, go on to explain how she thought they had been misconstrued, and nevertheless proceeded to discuss the substance of the s 26 claim.

Megay SM held that s 26 was inapplicable in the circumstances.  She considered that it would be ‘entirely incorrect’ to view the dismissal of Swain’s application for accreditation as double punishment, because the decision was not punitive in character.  Rather, it was aimed at ‘the maintenance of standards and the public care objective as set out in the Act’.  Citing Murphy J’s reasoning in Inglese v Estate Agents Board (Unreported, Supreme Court of Victoria, 15 August 1989), Megay SM held that it was ‘clear law’ that such decisions were to be made for protective purposes, rather than punitive ones.

Ultimately, however, Megay SM found that it was not appropriate to refuse accreditation to the applicant.  Although she acknowledged the existence of the general risk of driver fraud, Megay SM concluded that all of the factors surrounding the applicant’s 2007 conviction suggested that it was ‘an unfortunate aberration, and one that will not be repeated’.


Similar provisions prohibiting double punishment are contained in art 14(7) of the International Covenant on Civil and Political Rights and art 4 of Protocol No 7 to the European Convention on Human Rights.  Both of these provisions are limited to criminal punishment.  Unlike s 26 of the Victorian Charter, art 4 of Protocol No 7 expressly refers to ‘criminal proceedings’.  Similarly, in Strik v The Netherlands (Communication 1001/2001, 1 November 2002) the UN Human Rights Committee held that mere ‘disciplinary measures’, in the absence of a criminal charge, were outside of the scope of art 14 of the ICCPR.  This suggests that, even if the DPT’s actions were characterised as disciplinary rather than protective, s 26 may still have been inapplicable as this was not a criminal case.

This case does little to clarify the way in which s 26 of the Victorian Charter will apply in cases of double punishment.  It is difficult to know what to make of Megay SM’s comment that counsel for the applicant ‘misconstrued’ the effect of ss 4 and 38 of the Charter.  Further, it is not clear why the DPT would not be considered a public authority under s 4.

This case does suggest that whether an action constitutes ‘punishment’ in relation to s 26 may depend on the legislative purpose set down for the decision-maker, rather than the substantive effect of the decision, which would be a regrettable position.  It remains unclear, however, whether actions that are disciplinary but not necessarily criminal in character fall within the ambit of the provision.

The decision is available at: http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/vic/VCAT/2008/848.html

Rachel Guthrie and Chris Thomas, Human Rights Law Group, Mallesons Stephen Jaques