Krab v Commissioner of Police, NSW Police Service [1999] NSWADT 29 (5 May 1999)

Last Updated: 21 May 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Krab v Commissioner of Police, NSW Police Service [1999] NSWADT 29

REVISION DATE:

DIVISION: General

APPLICANT:

Kerren Ann Krab

RESPONDENT:

Commissioner of Police, NSW Police Service

FILE NUMBERS: 983043

HEARING DATES: 09/03/99

SUBMISSIONS CLOSED: 09/03/1999

DECISION DATE: 05/05/1999

JUDICIAL MEMBER: Judge K P O'Connor President

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Review of refusal of licence

MATTER FOR DECISION: Whether prescribed ground

PRIMARY LEGISLATION CITED: Security Industry Act 1997

APPLICANT REPRESENTATIVE: L N Dunn, Solicitor

RESPONDENT REPRESENTATIVE: N Marsic, Solicitor

ORDERS: 1. Application dismissed.

DECISION:

1 The Commissioner of Police (`the administrator') is obliged to refuse to grant a licence under the Security Industry Act 1997 (`the Act') where the applicant has a conviction for an offence which falls within a category prescribed by the Security Industry Regulation 1998 (`the regulation') and has been imposed within 10 years prior before the application: see generally as to the scheme Bourke v Commissioner of Police, General Divison, 17 December 1998, unreported.

2 The applicant's sole ground of appeal is that the offence upon which the administrator relies does not fall within one of the prescribed categories giving rise to mandatory refusal.

3 By notice dated 14 December 1999 confirmed by a further notice dated 4 January 1999 following an internal review, the administrator refused to grant Ms Krab (`the applicant') a licence on the ground that she had been convicted within the last ten years of the offence of `possession of a pipe used in connection with the smoking of a dangerous drug'. The offence arose under Queensland law, and the conviction was imposed by the Brisbane Local Court on 12 July 1989. (The administrator's original notice of refusal also relied on a different type of conviction recorded in 1991 but that ground was abandoned by the administrator prior to the hearing.)

4 At hearing the administrator filed a copy of the Queensland Police Department court brief. It indicated that the applicant, then aged 17, was arrested on 11 July 1989 and charged with "unlawfully [having] in her possession a thing namely a pipe that she had used in connexion with the smoking of a dangerous drug" in contravention of s.10(2)(b) the Drugs Misuse Act 1986 (Queensland). The summary of facts attached to the cover page of the court brief indicated that the applicant had stated that the instrument had been used by her the previous night to smoke marijuana. A conviction was recorded the next day, 12 July 1989, with a penalty of 60 hours community service being imposed.

5 Clause 11(b) of the regulation relevantly provides that the following category of offence is subject to mandatory refusal under section 16(1)(a) and (b) of the Act:

"Offences relating to prohibited drugs

An offence in respect of a prohibited drug (within the meaning of the Drug Misuse and Trafficking Act 1985) committed under:

(i) the law of any Australian jurisdiction ...".

6 The Act referred to is, of course, a New South Wales one. The meaning of prohibited drug under that Act is ascertained by referring to the list in Schedule 1. That Schedule includes a number of products of cannabis.

7 The applicant contends that the offence relied upon by the administrator to justify the refusal does not fall within the category specified in cl.11(b) i.e. "an offence in respect of a prohibited drug" (emphasis added).

8 The applicant, through her solicitor, argued that her offence was one in respect of possession of an instrument (albeit one capable of being used for the ingestion of a prohibited drug) and not one in respect of a prohibited drug as such. The applicant submitted further that the provision should be construed strictly because of its penal character. The administrator, through his legal representative, replied that the provision was not penal in character in the strict sense in that it did not affect the liberty of the subject or impose criminal penalties.

9 The applicant's case proceeded on the assumption that her offence merely involved possession of a prohibited instrument. Mere possession was at the relevant time dealt with by s.10(2)(a) of the Queensland Act as follows:

"A person who unlawfully has in his or her possession anything ... (a) for use in connection with the administration, consumption or making of a dangerous drug ... commits an offence against this Act."

But as noted above (para 4), the court brief makes it clear that the offence charged in fact related to para.(b) of s.10(2) which provided at the relevant time:

"A person who unlawfully has in his or her possession anything ...(b) that the person has used in connection with such a purpose [i.e. the purpose referred to in (a) being in this instance consumption of a dangerous drug] ... commits an offence against this Act."

10 For an offence to be proven under s.10(2)(b), not only must possession be shown but also use. As noted in para. 4 above, the charge was found proven, an outcome consistent with the applicant's admissions.

11 I consider that an offence which requires as an element of the proof that there be use of a prohibited drug clearly falls within cl.11(b) of the regulation.

12 In light of this conclusion it is not necessary for me to consider closely the question of whether a mere possession offence would fall within the scheme. As the matter was argued, I offer the following brief observations.

13 The phrase "in respect of" is used frequently in legislation as a means of connecting two subject matters, one being more general in scope than the other. Other phrases playing a similar role are "in relation to", "with respect to" and "in connection with"; while a word that sometimes performs that role is "for".

14 There are many decisions dealing with the use of the phrase "in respect of". Generally it has been regarded as a phrase which seeks to express a wide connection between the principal and more specific subject-matter. On the continuum of similar expressions to which I have referred, it has been seen as wider in its import than the phrase "in relation to" which in turn has been seen as wider than the word "for": see generally Trustees Executors Agency v Reilly [1941] VR 110 at 111 per Mann CJ; Powers v Maher [1959] HCA 52; (1959) 103 CLR 478 at 484-5 per Kitto J; and Evans v Button (1988) 13 NSWLR 51 at 72 per Mahoney JA. The High Court has cautioned, however, that regard should always be had first to the context in which a term such as "with respect to" appears: Workers' Compensation Board of Queensland v Technical Products Pty Ltd [1988] HCA 49; (1988) 165 CLR 642.

15 The security industry licensing scheme attaches significant consequences to conviction for offences in respect of a prohibited drugs. While the legislation is not penal in the strict sense, it does affect the ability of individuals to engage in work of the kind which is regulated. A person with a conviction that falls within the prescribed category, however minor, is excluded from obtaining a licence for 10 years.

16 While the present case provides an example of a youthful transgression of a minor nature, it would not be appropriate to strain the ordinary meaning of a term or phrase simply to avoid a harsh consequence.

17 In my view the reference to offences "in respect of a prohibited drug" can not be reasonably construed as being confined to the primary types of conduct connected with the handling of prohibited drugs, such as cultivation, manufacture, use, possession or trafficking. The reference must also be construed as covering associated conduct, such as the possession of instruments or items that facilitate the commission of the primary offences. This conclusion is, I consider, reinforced by noting the other instrument-possession offences contained in later sub-sections of the Queensland Act (sub-ss.(3),(4) and (5)), ones typical of regulatory schemes relating to prohibited drugs. They concern the supply and possession of hypodermic syringes or needles.

18 The application is dismissed.