This is an application challenging a decision of the Commissioner of Police, NSW Police Force ("Respondent") to revoke a licence held by the applicant, following a conviction of the applicant in relation to the use of medicinal cannabis while driving.
[2]
Background
The applicant in this matter ("Applicant") had worked as a security guard for over 11 years. He had held a licence to work as a security guard. The licence was a Class 1A security licence under the Security Industry Act 1997 ("SI Act"). The licence had been issued on 10 May 2013.
The Applicant's evidence was that he had a prescription for the use of medicinal cannabis to manage chronic back pain.
On 25 December 2024, the Applicant was driving in the Sydney area. He was stopped for a roadside breath test. The breath test returned a negative result.
The evidence of the Respondent was that the Applicant was observed to have bloodshot eyes and slurred speech. There was a strong smell of cannabis in the Applicant's car. The Applicant admitted to having cannabis in the car. However, he presented a doctor's medical certificate for medicinal cannabis. The Respondent verified the certificate.
The Applicant then made admissions to the Respondent about smoking cannabis that morning. The Respondent then performed a roadside drug test which returned a positive result for cannabis.
The Applicant was then taken to a police station where he was formally detained. He provided a sample of oral fluid for testing. That sample returned a positive test for cannabis.
A conviction was made under s 111A(1) of the Road Transport Act 2013 (NSW) by the Local Court. That provision makes it an offence for a person to drive a motor vehicle while there is present in the person's oral fluid, blood or urine a "prescribed illicit drug". This includes delta-9-tetrahydrocannabinol (also known as THC) which is found in cannabis. The Applicant was found guilty of that offence and disqualified from driving for a period of three months. He was also issued with a fine of $350.00.
On 20 June 2024, the Respondent revoked the licence the Applicant held to work as a security guard.
The Applicant appealed against his conviction. On appeal, the District Court varied the orders of the Local Court, finding the Applicant guilty but dismissing the charge pursuant to s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (NSW). That provision allows a Court that finds a person guilty of an offence, to make an order directing that the relevant charge be dismissed without proceeding to conviction.
Subsequent to the orders made by the District Court, the Respondent amended the grounds for revocation of the Applicant's Class 1A security licence.
The Applicant seeks review, by application dated 11 September 2024, of the decision made by the Respondent revoking his security licence.
The Applicant gave evidence of the consequences of the revocation of his security licence, including unemployment, financial hardship and distress.
The Applicant had no prior history of convictions.
[3]
Applicant's right of review
Section 63 of the Administrative Decisions Review Act 1997 (NSW) ("ADR Act") confers on the Civil and Administrative Tribunal ("Tribunal") certain powers to review decisions of an administrator. It provides as follows:
"(1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following:
(a) any relevant factual material,
(b) any applicable written or unwritten law.
(2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision.
(3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide:
(a) to affirm the administratively reviewable decision, or
(b) to vary the administratively reviewable decision, or
(c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or
(d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal".
The Respondent accepts that the Tribunal has jurisdiction under s 63. That jurisdiction arises where "enabling legislation" provides that applications may be made to the Tribunal for an administrative review under the ADR Act of relevant decisions made by an administrator (s 9 of the ADR Act). "Enabling legislation" means legislation other than the ADR Act or any statutory rules made under the ADR Act, that provides for applications to be made to the Tribunal with respect to a specified matter or class of matters. The relevant enabling legislation is the SI Act. Section 29(1)(c) of the SI Act allows a person rights of review by the Tribunal in relation to a number of matters, including the revocation or suspension of a licence granted to the person.
The Respondent has made application for summary dismissal of the matter pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act") on the basis that the Respondent's application is misconceived and lacking in substance. This is the preliminary matter for determination. If the Tribunal does not dismiss the matter, the question remaining is whether the Respondent's decision under review should be affirmed or not.
[4]
Consideration
Section 26(1A) of the SI Act provides as follows:
"The Commissioner must revoke a licence where the Commissioner is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused".
Section 16 of the SI Act provides:
"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 -
……
(b) has, within the period of 5 years before the application for the licence was made, been found guilty (but with no conviction being recorded) by a court in New South Wales or elsewhere of an offence prescribed by the regulations in relation to the class of licence sought, whether or not the offence is an offence under New South Wales law, …."
Regulation 15 of the Security Industry Regulations 2016 (NSW) contains the relevant prescription. It is set out in Part 2 of those regulations, headed "Licences - general provisions". It provides:
"15 Offences and civil penalties that disqualify applicants
(1) Prescribed offences: section 16 (1) (a) and (b) For the purposes of section 16 (1) (a) of the Act, the following offences are prescribed offences regardless of whether they are committed in New South Wales -
……..
(b) Offences relating to prohibited drugs etc
An offence in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985, or a prescribed restricted substance within the meaning of the Poisons and Therapeutic Goods Regulations 2008, committed under -
(i) the law of any Australian jurisdiction, or
(ii) the law of any overseas jurisdiction (being an offence that, had it been committed in Australia, would be an offence under the law of an Australian jurisdiction)".
A "prohibited plant" relevantly includes both "a cannabis plant cultivated by enhanced indoor means" or "a cannabis plant cultivated by any other means". A "prohibited drug" means any "substance, other than a prohibited plant, specified in Schedule 1". Schedule 1 includes "cannabis leaf" with certain exclusions that, on the evidence at hand, are not presently relevant (s 3 and Schedule 1 of the Drug Misuse and Trafficking Act 1985 (NSW)).
I find that an offence within the meaning of regulation 15 has been proved.
It is well established that where an offence of a kind captured by regulation 15 is proved, neither the Respondent nor the Tribunal has a discretion. Revocation of the security licence is mandatory (Dewan v Commissioner of Police, NSW Police Force [2020] NSWCATOD 6). In El-Ahmad v Commissioner of Police [2020] NSWCATOD 118, Lucy SM explained at [18] - [19]:
"… ss 16(1)(a) and 26(1A) of the Security Industry Act, read with regulation15(1)(b) of the Security Industry Regulation, require the Commissioner to revoke the applicant's licence. The Tribunal, standing in the Commissioner's shoes, if satisfied of the fact of the conviction, does not have any discretion to come to a different decision (Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 at[19]-[22]; Bourke v The New South Wales Commissioner of Police [1998] ADT)".
It is also well established that once conviction for an offence occurs, it is not permissible for the Tribunal to look behind a conviction to consider the underlying facts and circumstances of the Applicant's offending. Those facts and circumstances are irrelevant, as are "the findings of the court in relation to a contested hearing and the sentencing remarks" (Alexiou v Commissioner of Police [2021] NSWCATOD 8, at [34]).
It follows that if the finding of guilt in question falls within s 16, there is no discretion on the part of the Respondent, or the Tribunal and the revocation of the Applicant's licence is mandatory. The Respondent's submission, accordingly, is that once a finding of guilt for an offence of the relevant kind is proved, neither the Respondent nor the Tribunal has discretion. Therefore, the Respondent seeks summary dismissal of the application in this matter.
The Applicant, on the other hand, submitted that summary dismissal of his application was not warranted. In Alchin v Rail Corporation NSW [2012] NSWADT 142 at [20]- [22], which concerned dismissal of proceedings under s 102 of the Anti-Discrimination Act 1977 (NSW), the predecessor of the Tribunal noted that:
"The power to dismiss summarily a complaint or part of a complaint under s 102 should be exercised with extreme caution and the Tribunal must approach these applications on the basis that applicants should be given every reasonable opportunity to set out the content of their complaints and to produce evidence to support them - Rae v Commissioner of Police NSW (No 2) [2010] NSWADT 36 at [84] ff and Razaghi v Director-General, NSW Department of Health [2002] NSWADT 4 at [27] (although this decision deals with the previous provision corresponding to s 102, the principles are equally applicable to s 102).
As to the proper approach for the Tribunal to take, it was held in Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]:
28 In the absence of extraordinary circumstances disputed questions of fact should not be resolved in a summary dismissal application. Where there is factual dispute the applicant's version of the facts should be accepted for the purpose of determining whether the complaint should be summarily dismissed. Consequently, we must proceed on the basis that everything which the applicant has put in evidence is true (see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]). There is, however, a distinction between evidence advanced by the applicant and the conclusions which the applicant suggests can be reasonably drawn from that evidence. We are under no obligation in a summary dismissal application to accept, without question, the applicant's assertions about a conclusion which may be drawn from the evidence. The Tribunal may reach its own conclusions about that which may be drawn from the evidence."
Gatland SM, referring to the cases dealing with summary dismissal, made the following observations in Jalil v Commissioner of Police, NSW Police Force [2024] NSWCATOD 132, at [17]:
"These passages are oft-cited and unchallenged and underscore the level of caution required in exercising the Tribunal's power to deal with a matter on a summary basis. However those case are principally focused on facts which is a different question than that which is raised here. More to the point are the observations in Dey v Commissioner of Railways (1948) 78 CLR 62 at 91 per Dixon J:
The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process. [emphasis added]".
The question at issue in Jalil was whether a refusal of a security licence under the SI Act should be affirmed or not. The Respondent, the Commissioner of Police, NSW Police Force, had sought to dismiss the application in that matter summarily, because the Applicant was convicted of an offence that, the Commissioner argued, was a prescribed offence, the effect of which was that the Tribunal was not able to determine the matter in any other way than to affirm the original decision. The applicant in that case was refused a security licence in circumstances where the applicant had been convicted of a prescribed offence involving "assault of any description". Gatland SM said that there was more than one available construction to the meaning of this phrase. The particular construction allowed could determine whether or not s 16 of the SI Act applied. Because the issue was arguable, the Tribunal did not dispose of the matter by way of summary dismissal.
As in Jalil, the Applicant's submissions turn not on a dispute over facts but a question of law going to the proper construction of s 16 of the SI Act and regulation 15. His submission, as I understand it, is that the conviction against him falls outside the scope of s 16 of the SI Act and regulation 15 as properly construed.
The Applicant says that he held a lawful prescription for medicinal cannabis so that the use of this prescription should be distinguished from illicit substance use. This was because it was lawfully prescribed by a medical practitioner, through legal channels and its use was legally permissible under Australian law. The Applicant's submission was that s 16 and regulation 15 do not contemplate revocation of a security licence based on the medical use of prescribed cannabis. Further, in the Applicant's submission, medicinal cannabis, when used under medical supervision and prescription, did not fall within the legal framework of the Drug Misuse and Trafficking Act 1985 (NSW).
The Applicant's further submission was that despite his use of medicinal cannabis, there was no evidence of impairment on his part, affecting his ability to drive. The Applicant submitted that in the absence of impairment, revocation of the Applicant's security licence should not have occurred. He submitted, in this regard, that medicinal cannabis differed significantly from other substances like alcohol, where impairment was a more likely consequence of use.
The Applicant also submitted that when informed about the potential side effects of medicinal cannabis, he was not provided with sufficient or specific legal guidance regarding the consequences of driving with detectable levels of cannabis. The Applicant submitted that these circumstances gave rise to "procedural unfairness", as the Applicant was following his doctor's advice without adequate information about the legal consequences of use.
His submission is that, for these reasons, I should make a decision in his favour setting aside the Respondent's decision to revoke his security licence.
I understand the Applicant's submission, in summary, to be that, as a matter of law, his use of cannabis pursuant to a medical prescription, the alleged absence of impairment on his part and the allegations of failure to inform him of the legal consequences of his use of cannabis while driving have consequences. Those consequences are a reading down of the literal tenor s 16 of the SI Act and regulation 15, to exclude from their reach an offence occurring in the circumstances of his case.
I do not find that there is any warrant for reading down s 16 or regulation 15, so as to exclude from its reach the offence in question, whether by reason of the Applicant's use of cannabis legally pursuant to a medical prescription, the alleged absence of impairment, alleged "procedural unfairness" or a combination of two or more of these factors. The Applicant did not produce any relevant authority in the case law in support of the submissions he made requiring such a reading down. I cannot see any reason to infer any limits to the operation of regulation 15 in the absence of express language limiting its operation in the manner submitted by the Applicant, or otherwise evidence of statutory purpose that would require such limits.
It is not disputed that use of medicinal cannabis pursuant to a prescription may not, of itself, be unlawful. However, the ability to use medicinal cannabis in accordance with a prescription does not grant the user an unrestricted right to use the substance in a manner that breaches provisions of other legislation, such as s 111A(1) of the Road Transport Act 2013. Use of medicinal cannabis, through permitted when used under a prescription, still needs to occur in compliance with other laws, such as s 111A(1). I do not think that a contrary proposition is seriously arguable.
It would not be unreasonable to expect that a person should know that driving while using cannabis could create risk and would not meet ordinary community standards. Even if knowledge of this kind cannot be assumed in every case, I see no basis for reading down regulation 15 to exclude its operation in cases where the user of the relevant drug did so under a prescription, believing that such use did not produce impairment or that use could occur because the user had not been warned of the legal consequences of use while driving.
I accept that the Applicant has no prior record of convictions. However, I do not think this assists the Applicant. The Tribunal considered a revocation of a licence held by a person with no prior convictions in Dewan v Commissioner of Police, NSW Police Force [2020] NSWCATOD 6. Molony SM said, at [18]:
"If an applicant has been convicted of offences to which clause15(1) of the SI Regulation applies, then the Commissioner must revoke his security industry licence. This is so no matter how unblemished his previous record was, or how much he is esteemed by others. The legislation gives the Commissioner (and the Tribunal on review) no choice. It is mandatory: see Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114. It requires that a security industry licence be revoked when a holder is convicted of an offence to which s 15(1) applies".
I find for the reasons set out above that the application in this matter may be misconceived and lacking in substance. However, given that the Applicant has made submissions addressing the matters of law which I have gone on to consider, I am not inclined to make an order for summary dismissal of the application in this matter. Having considered the Applicant's submissions, for the reasons set at [25] and [35] above, I do not see any reason to set aside the Respondent's decision in this matter.
I accept the Applicant's evidence as to the impact on him of the decision under review. However, in circumstances where there is no discretion and the decision made by the Respondent is mandatory, the Tribunal is left with no power to set aside that decision.
Accordingly, the decision under review is affirmed.
[5]
Orders
1. The administrative decision under review is affirmed.
2. The parties having been given the opportunity to make submissions as to whether the Tribunal should dispense with a hearing, and being satisfied that the matter can be adequately determined in the absence of the parties, the Tribunal dispenses with a hearing pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013.
3. Pursuant to ss 64(1)(a) of the Civil and Administrative Tribunal Act 2013, the publication or broadcast of the names of the Applicant or his agent is prohibited.
[6]
I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal.
Registrar
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 19 November 2024