Knight v Commissioner of Police [1999] NSWADT 99 (28 October 1999)

Last Updated: 11 November 1999

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION: Knight -v- Commissioner of Police [1999] NSWADT 99

DIVISION: General

APPLICANT:

Robert John Knight

RESPONDENT:

Commissioner of Police

FILE NUMBERS: 993156

HEARING DATES: 27/09/99

SUBMISSIONS CLOSED: 27/09/1999

DECISION DATE: 28/10/1999

JUDICIAL MEMBER: P M Skinner Judicial Member

LAY MEMBER:

LAY MEMBER:

APPLICANT KEYWORDS: Review of a decision to refuse to issue a security industry licence

MATTER FOR DECISION: Principal matter

PRIMARY LEGISLATION CITED: Security Industry Act 1997

APPLICANT REPRESENTATIVE: In person

RESPONDENT REPRESENTATIVE: G Doherty, solicitor, Police Service

ORDERS: 1. Set aside the decision made by the delegate of the Commissioner of Police refusing the Applicant's application for a Class 1A, Class 1B and Class 1C licence under the Security Industry Act 1997.

2. Substitute the Tribunal's decision that a Class 1A, Class 1B and Class 1C licence be granted to the Applicant effective from the date of refusal.

3. No order as to costs made.

DECISION:

1 On 27 September 1999 this matter came on for hearing before me. The applicant appeared in person. The respondent was represented by Mr Doherty, solicitor.

2 The applicant relied upon the handwritten submissions that he had filed on 7 July 1999 supplemented by oral submissions to the same effect.

3 The respondent relied on the material that had been filed with the Tribunal supplemented by the oral submissions of Mr Doherty.

4 On 27 September 1998, the applicant applied for Class 1A, Class 1B and Class 1C licences under the Security Industry Act 1997 ('the Security Act').

5 Under s 16(1)(a) of the Security Act the respondent is obliged to refuse to grant a licence where the applicant has a conviction for an offence which falls within a category prescribed by the Security Industry Regulation 1998 ('the Security Regulation') and which has been imposed within 10 years prior to the application: see generally as to the legislative scheme Bourke & Ors v Commissioner of Police, ADT, General Division, 17 December 1998, unreported.

6 By notice dated 21 January 1999 the respondent notified the applicant of a decision to refuse to grant him any Class 1 licence on the ground that he had been convicted within the last 10 years of the offence of `possess cannabis' in Darwin. Section 16(1)(a) of the Security Act was cited as the basis for that decision.

7 Following a request by the applicant, the respondent conducted an internal review of the refusal of licence. The refusal was confirmed and the applicant was so notified by letter dated 17 February 1999.

8 In the hearing before me the respondent filed a copy of a computer record, apparently prepared by the Northern Territory Police, showing the applicant's conviction for `possess cannabis' by the Darwin Court of Summary Jurisdiction on 12 February 1991. The computer record also shows that the sentence imposed was a $200 fine, in default four days imprisonment, but says nothing as to the law under which the applicant was charged.

9 As the only jurisdiction able to be exercised by a Darwin court in criminal law is in respect of offences under Northern Territory law or Commonwealth law, it seems to me that the applicant must have been convicted under either s 9 of the relevant Northern Territory legislation in force in February 1991, the Misuse of Drugs Act, 1990, NT (`the NT Act'), or s 233B of the Customs Act 1901, Cth (`the Commonwealth Act').

10 The applicant did not dispute this record of his conviction, but made some submissions as to how it came about, both in his original written application to the Tribunal for review received on 7 July 1999, and orally before me in the hearing. The applicant described the circumstances of the offence as involving his possession of a `"foil" of marijuana' but this further information does not assist me in the resolution of the problem that I outline below.

11 The applicant is not legally qualified and accordingly, bearing in mind my duty under s 63 of the Administrative Decisions Tribunal Act 1997 (`the Tribunal Act') to `decide what the correct and preferable decision is having regard to the material then before [me and] . . . any applicable written or unwritten law', it fell to me to investigate and satisfy myself as to the applicable law without the benefit of submissions on that from the applicant.

12 The sole issue in this case is whether the conviction by the applicant in Darwin in 1991 excites the mandatory refusal provisions of s 16(1)(a) of the Security Act. The respondent does not rely on any other provision of the Security Act to refuse to the applicant a licence. The sole ground available to the applicant for the setting aside by this Tribunal of the decisions already made is that I, as the Tribunal, cannot be satisfied to the level required that the 1991 conviction falls within one of the prescribed categories giving rise to mandatory refusal.

13 Section 16 of the Security Act is, relevantly, in the following terms:

`16 Restrictions on granting licence - criminal and other related history

(1) The Commissioner must refuse to grant an application for a licence if the Commissioner is satisfied that the applicant:

(a) has, within the period of 10 years before the application for the licence was made, been convicted in New South Wales or elsewhere of an offence prescribed by the regulations, whether or not the offence is an offence under New South Wales law, . . .'

14 Clause 11(b) of the Security Regulation relevantly provides that the following category of offence is a `prescribed offence' within s 16(1)(a) of the Security 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 ...".

15 The Drug Misuse and Trafficking Act 1985 (`the DMT Act') referred to is of course a New South Wales statute and the applicant relevantly comes within subs. 16(1)(a) of the Security Act if his 1991 conviction was in respect of a `prohibited drug' as that term is defined in NSW by the DMT Act.

16 At the conclusion of the hearing I reserved my decision as I was aware of the possibility of a recent amendment to the DMT Act following on from the NSW Drug Summit held at Parliament House between 17 and 21 May 1999, which may have affected the definition of `prohibited drug', particularly as to cannabis, in the DMT Act.

17 I have since seen a copy of the Drug Summit Legislative Response Bill 1999, but that proposed legislation is not relevant to this case. That Bill is of course not yet law (although possibly this is where the term `unwritten law' used in s 63(1)(b) of the Tribunal Act could have real effect) but in any event it contains no provisions affecting the legislative scheme with which I must deal.

18 Nonetheless, upon a close examination of the law applicable, in my opinion the ground for successful review, from the applicant's perspective, that I set out in paragraph 12 above is made out, for the following reasons.

19 `Prohibited drug' is specifically defined in s 3 of the DMT Act as `any substance, other than a prohibited plant, specified in Schedule 1'.

20 Relevantly to this case, that means `Cannabis leaf', `Cannabis oil' or `Cannabis resin' as those terms are defined in s. 3 of the DMT Act.

21 `Cannabis plant' however is specifically excluded from the definition of `prohibited drug' in the DMT Act and is specifically defined separately as a `prohibited plant' - see s. 3 of the DMT Act.

22 This dichotomy between `prohibited drug' and `prohibited plant' continues into Schedule 1 of the DMT Act where the heading to the first column is `Prohibited plant or prohibited drug'.

23 The mandatory provisions under the Security Act and the Security Regulation only apply to convictions for an offence in respect of a `prohibited drug' not to convictions for an offence in respect of a `prohibited plant' within the meaning of the DMT Act.

24 There is no material before the Tribunal upon which it can be satisfied to the level of comfort required for the application of these mandatory provisions of the Security Act (see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, but considered in the light of my comments thereon in DeLivera v Commissioner of Police [1999] NSWADT 87, and also my comments on penal provisions below) that the applicant was convicted in the Northern Territory in 1991 of an offence in respect of a prohibited drug within the meaning of the DMT Act, as opposed to an offence in respect of a prohibited plant or an offence as to some other part of the plant of the genus Cannabis which would be neither a prohibited drug nor a prohibited plant under the DMT Act .

25 The evidence as to the applicant's conviction is merely a reference in the computer record tendered to `possess cannabis'. `Cannabis' per se is not a prohibited drug or even a defined term (contrast the Commonwealth Act) in the DMT Act and there is no direct evidence before the Tribunal to indicate whether the `cannabis' that the applicant was in possession of was `cannabis leaf', `cannabis oil', `cannabis resin' or `cannabis plant' as those terms are defined in the DMT Act, or indeed `any fibre of any such plant or part from which the resin has been extracted' which is neither a prohibited drug nor a prohibited plant under the DMT Act (being specifically excluded from the definition of `cannabis leaf' in s 3 of that Act).

26 `[T]he established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of the subject' (per the High Court in Smith v Corrective Services Commission of New South Wales [1980] HCA 49; (1980) 147 CLR 134 at 139) means that the careful and precise definitions in the DMT Act are strictly applied in prosecutions, with appropriate evidence by way of analyst's certificates being tendered to prove that the substance in question is or contains (because the DMT Act provides for admixtures) the relevant prohibited drug or prohibited plant. There would be no basis for a conviction in NSW of `possess cannabis' simpliciter.

27 Further there is no inference to the necessary standard that can be drawn from a consideration of the phrase `possess cannabis', as appeared on the computer record, in the light of an examination of the NT Act.

28 Again, there was no offence under the NT Act (which is expressed in its preamble as being intended to consolidate the law in relation to the misuse of drugs and hence impliedly covers the field) of `possess cannabis' simpliciter.

29 The NT Act created by s 9 an offence for unlawfully possessing a `dangerous drug'. However, the definition of `dangerous drug' in that Act is not the same as the definition of prohibited drug in the DMT Act. It is in the following terms:

`"dangerous drug" means a substance or thing specified in Schedule 1 or 2 or, where the substance or thing so specified is a prohibited plant, any part of the plant, being a part not specified in Schedule 1 or 2, from which a substance or thing referred to in Schedule 1 or 2 can be extracted or obtained'.

30 `Prohibited plant' is defined as follows:

`"prohibited plant" means a plant, any part of or extract from which is specified in Schedule 1 or 2'.

31 Schedule 2 then includes in the column headed `Dangerous drug or prohibited plant' `Cannabis leaf', `Cannabis oil', `Cannabis plant' and `Cannabis resin'. These terms are not defined separately in the NT Act, unlike in the DMT Act.

32 From these definitions, particularly the inclusion in the (with respect to the draftsman somewhat circular and confusing) definition of `dangerous drug' of references to prohibited plants or any part thereof, it seems to me that even if I assume that the `possess cannabis' conviction of the applicant was under s 9 of the NT Act and therefore he had been in possession of a `dangerous drug' as defined in the NT Act, the substance in question could still equally have been a prohibited drug or a prohibited plant or not a prohibited substance at all under the DMT Act, being fibre `from which the resin has been extracted' (as the NT Act includes in the definition of `dangerous drug' any part of the cannabis plant other than cannabis leaf from which cannabis oil or cannabis resin `can be extracted or obtained').

33 Finally there is no inference to the necessary standard that can be drawn from a consideration of the phrase `possess cannabis', as appeared on the computer record, in the light of an examination of the Commonwealth Act and an assumption that the applicant was convicted of an offence under that Act.

34 In that Act the term `Cannabis' is defined essentially as including any part of a cannabis plant living or dead except cannabis resin or cannabis fibre containing no active constituent. It clearly embraces therefore both `cannabis leaf', i.e. a prohibited drug, and `cannabis plant', i.e. not a prohibited drug but a prohibited plant, as those terms are defined in the DMT Act, and a conviction then under s 233B of the Commonwealth Act for `possess cannabis' could refer to either category.

35 I cannot rely on the record of the applicant's conviction, 'cannabis' per se not being a prohibited drug under the DMT Act, and on therefore going behind that record, to the extent that I can, the different possibilities for the basis of the applicant's 1991 conviction make it impossible for me to be satisfied to the required standard as to whether he was convicted of an offence in respect of a prohibited drug within the meaning of the DMT Act. In short, without an analyst's certificate there is no way that I can know what the `cannabis' or `foil of marijuana' was within the terms of the DMT Act.

36 The definitions and scheme of the DMT Act must be read into the Security Act and applied in the same way as they are applied under that penal Act, the DMT Act, to give them their meaning `within' the DMT Act (see reg. 11(b) of the Security Regulation).

37 Further the Security Act itself, whilst not penal in the strict sense, does affect the ability of individuals to earn their livelihood (see also Krab v Commissioner of Police [1999] NSWADT 29 at para 15). A strict approach to the definitions of offences said to excite the mandatory refusal provisions of s 16 of the Security Act seems to me to be consistent with a search for the `correct and preferable decision' under s 63 of the Tribunal Act having regard to the `written or unwritten law' that underpins the strict approach taken to the interpretation and application of penal statutes, and to be not inconsistent with the policy and intent of the security industry licensing scheme.

38 Accordingly, evidence of a conviction for an offence of `possess cannabis' without more does not satisfy me to the required standard that the applicant has been convicted within the last 10 years of an offence in respect of a prohibited drug within the meaning of reg. 11(b) of the Security Regulation.

39 There being no other material before me or relied upon to establish that the applicant is otherwise not a person to whom a licence under the Security Act should be granted, in any of the categories applied for, the Tribunal's determination pursuant to s.63 of the Tribunal Act is to:

1. Set aside the decisions made by the delegate of the Commissioner of Police refusing the applicant's application for a Class 1 licence under the Security Industry Act 1997; and

2. Substitute the Tribunal's decision that a Class 1A licence be granted to the applicant effective from the date of refusal;

and in relation to s. 88 of the Tribunal Act:

3. No order as to costs is made.