Rahif v Commissioner of Police, NSW Police Force [2025] NSWCATOD 77

(1) On 14 January 2024, the Applicant was driving west on the M5 East Motorway in Kingsgrove NSW 2208.

(3) NSW Police administered a roadside breath test; and an oral fluid test. The Applicant returned presumptive positive results to both tests and underwent further testing.

(4) The Applicant returned a breath analysis result of 0.091 grams of alcohol in 210L of breath; and a positive result to delta-9-tetrahydrocannabinol being present in his oral fluid.

(5) The Applicant was charged with an offence of driving with mid-range prescribed concentration of alcohol with prescribed illicit drug in person's oral fluid, blood or urine (first offence) contrary to s 111A(2)(a) of the Road Transport Act 2013 (Offence).

(6) On 18 March 2024, at Liverpool Local Court, the Applicant entered a plea of guilty to the Offence and was convicted, and fined the sum of $500.00.

(7) At Parramatta District Court, the Applicant appealed against the severity of the sentence for the Offence imposed by the Local Court.

(8) On 23 April 2024, the Applicant's appeal was upheld, and he was sentenced to serve a conditional release order without conviction pursuant to ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 for a period of two (2) years.

(1) On 12 June 2010, the Applicant was granted a Class 1A security licence under provisions of the Security Industry Act 1997 (the Act). On 6 May 2015, the Applicant was granted a Class 2B security licence. The Security Licensing & Enforcement Directorate of the NSW Police Force (SLED) issued the Applicant a security licence bearing identifier: 410219355 in Classes 1A and 2B (Licence).

(2) On 19 November 2024, a delegate for the Commissioner issued the Applicant with a notice of revocation of licence for the Licence (Revocation Decision). The reasons provided for the Revocation Decision were as follows:

I AM SATISFIED THAT YOU HAVE BEEN FOUND GUILTY (BUT WITH NO CONVICTION BEING RECORDED) OF PRESCRIBED OFFENCE IN RESPECT OF PROHIBITED DRUG, PROHIBITED PLANT OR RESTRICTED SUBSTANCE.

(3) The Revocation Decision was based on a finding that the Applicant was found guilty of the Offence, with that Offence being captured by cl 15(IA) and 15(1)(b) of the Security Industry Regulation 2016. Accordingly, the delegate concluded that he/she enjoyed no discretion, and was bound to revoke the Licence pursuant to s 26(1A) of the Act.

(4) The Revocation Decision also disqualified the Applicant from holding a security licence for a mandatory period of five-years from the date of 23 April 2024.

(5) No other basis for the Revocation Decision was advanced by the Respondent or her delegates in the Revocation Decision.

(6) On 17 December 2024, the Applicant sought internal review of the Revocation Decision.

(7) On 8 January 2025, following internal review, a delegate for the Commissioner affirmed the Revocation Decision.

(a) delta-9-tetrahydrocannabinol is a prohibited drug within the meaning of s 3 and Schedule I to the Drug Misuse and Trafficking Act 1985; and

(b) he was found guilty, but with no conviction being recorded, by a court in New South Wales of the Offence.

(2) If the Tribunal finds that the Offence, contrary to s 111 A(2)(a) of the Road Transport Act 2013, is an offence 'in respect of' a psychoactive substance, prohibited plant or prohibited drug, this would be dispositive of the review, as it would follow that the Tribunal is bound to refuse to grant the Applicant with a security licence.

1. Section 26(1A) of the Act provides that 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 to be refused.
2. Relevantly, s 16(1)(b) of the Act provides:

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

(a) ...

(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.

1. The prescribed offences for the purposes of s 16(1)(b) of the Act are set out in the Security Industry Regulation 2016 (Regulation). Clause 15(1A)(1) of the Regulation sets out that, for the purposes of s 16(1)(b) of the Act, the offences which are prescribed offences, irrespective of whether they are committed in New South Wales and refers to cl 15(1)(b). Clause 15(1)(b) of the Regulation provides, relevantly:

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 ... committed under -

(i) the law of any Australian jurisdiction, or

... Tribunal emphasis

1. Delta-9-tetrahydrocannabinol (THC) is a prohibited drug within the meaning of s 3 and Schedule 1 to the Drug Misuse and Trafficking Act 1985 (DMT Act).
2. Section 111A(2)(a) of the Road Transport Act 2013 (Road Act) provides that it is an offence to drive a motor vehicle in the presence of both prescribed illicit drug in person's oral fluid, blood or urine and prescribed concentration of alcohol in person's breath or blood. Delta-9-tetrahydrocannabinol (also known as THC), is included in the definition of "prescribed illicit drug": s 4 of the Road Act.

1. The Respondent submitted that the above provisions, taken together, operate such that it is a mandatory basis for revocation if a licensee has, within 5 years, been found guilty of an offence relating to a prohibited drug within the meaning of cl 15(1)(b).
2. The question for determination therefore is:

Was the revocation of the Applicant's security licence mandatory under s 26(1A) of the Security Industry Act 1997 on the basis that the Applicant was found guilty of an offence captured by clause 15 of the Security Industry Regulation 2016?

1. The Applicant provided an analysis of the changes to the Regulation since 2007. Suffice for the present purpose, I observe that the changes made by the Security Industry Amendment (Disqualifying Offences) Regulation 2017, specifically omitted the words "in respect of which the penalty imposed includes any term of imprisonment (whether or not suspended,) a good behaviour bond, a community service order or a penalty of 3500 or more, being an offence". The Explanatory Note provided that the "objects of [the] Regulation" were to:

Explanatory note

The objects of this Regulation are:

(a) to expand the range of drug-related offences that disqualify an applicant from being granted a licence under the Security Industry Act 1997 to include any drug-related offence of which the applicant is found guilty in the 5 years, or convicted in the 10 years, preceding the application (rather than only a drug related offence for which a particular threshold penalty is imposed.

1. The Explanatory Note confirmed that the amendment to the Regulation made a disqualifying "prescribed offence" regardless of the penalty imposed by the Court, including a non-conviction. The Applicant accepted that THC is a "prohibited drug", within the meaning of Schedule 1 of the DMT Act. However, there are many "prohibited drugs" in Schedule 1 of the DMT Act, that are not a "prescribed illicit drug" under the Road Act. It was unclear to me what point the Applicant sought to make by this observation.
2. The Applicant referred me to Jalil v Commissioner of Police, NSW Police Force [2024] NSWCATOD 132 at [23]- [28], in which SM Gatland reviewed cases in which an applicant sought to challenge whether a particular offence is captured by the Regulation. The Senior Member referred to Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861 at [32] per Bell J that "... the crime or offence the subject of the conviction must be one which answers that description without further inquiry".
3. It was submitted that on a textual construction of the Regulation_,_ the Tribunal must start with consideration of the words of the provision itself, but, the Applicant noted, words having apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete: R v A2; R v Magennis; R v Vaziri [2019] HCA 35 (Kiefel CJ and Keane J) at [32]. Having said that, the Applicant observed that the Road Act can stand alone and be self-contained, as the definition of the words "prescribed illicit substance" does not seek to refer or incorporate any terms contained in the DMT Act.
4. Accordingly, it was submitted, the Regulation could not have intended to capture an offence under the Road Act wherein "a psychoactive substance, prohibited plant [or] prohibited drug" is an ingredient; and a mere nexus through a definitional clause in the DMT Act, as asserted by the Respondent, is insufficient. This is because, it was said, the legislature could have, but chose not to, target the specific offences under the Road Act. As is clear, cl 15(1)(b) applies irrespective of where the relevant offence occurs in Australia. If the Road Act was specifically referred to, as the Applicant suggests was appropriate, each other similar relevant Act in each state and territory would need to similarly be mentioned. Clearly this was impractical.
5. The Applicant invited my attention to the recent Court of Criminal Appeal decision in R v Narouz [2024] NSWCCA 14 at [44]- [45] in relation to s 111A(2)(a) of the Road Act, determining that that an offence under that subsection is one of absolute liability. The Applicant observed that, unlike an offence under s111(1) of the Road Act - drug (only) driving, the offence under s111A(2)(a) may attract a term of imprisonment. The Applicant submitted that as s 111A(2)(a) of the Road Act is an absolute liability offence, a preferable construction is that the Regulation did not intend to capture it without expressly saying as much. Section 111A(2)(a) attracts penal consequences, and if the Respondent's contended construction is correct, then, it was submitted, an offence committed without the Applicant's knowledge, and when the Applicant may not necessarily be impaired from driving, would be unduly harsh as it would mete out a consequence that could not have been intended, that is, revocation of the Applicant's security licence. I observe though that an offence under s111(1) of the Road Act, to which the Applicant referred would also be a prescribed offence under cl 16(1)(b) of the Regulation. I do not accept that the consequence is unintended; the intention is clearly that offences of this kind are to have the consequence of the mandatory revocation of a security licence.
6. The Applicant observed that the "current legislative landscape" towards "prohibited drugs" or "prohibited plants" is not as "hostile" as it was in 2006, with the legislature having introduced the element of discretion in the charging process for low-level drug offences under the DMT Act. The Applicant referred in particular to the NSW Government's initiative in January 2024, the "Early Drug Diversion Initiative" (EDDI), to introduce a diversion program that provided "on the spot fines" and free health support for low-level drug offences in lieu of criminal prosecution: https://www.nsw.gov.au/money-and-taxes/fines-and-fees/support-and-community-services/early-drug-diversion-initiative. The Applicant submitted that the EDDI is directed to diverting from Courts persons who would have otherwise committed "low level drug offences" in relation to personal drug use and "small quantity drug possession" offences under the DMT Act by allowing Police to issue an on-the-spot fine - a Criminal Infringement Notice: see Criminal Procedure Act 1986 ss 332(1), 333 and 334(1). This applies to "prohibited drugs" (with an exception for the quantum for MDMA), which do not exceed a "small quantity" under Schedule 1 of the DMT Act: Criminal Procedure Regulation 2017, Schedule 4(2). Paying a penalty notice does not attract any form of criminal sanction: Criminal Procedure Act 1986 s 338(1). I observe though that, according to the EDDI website drug driving offences are excluded from the scheme. That being the case, the Applicant's submissions that he may not have been caught by cl 15(1)(b) of the Regulation, falls away. The logic behind this exclusion is inescapable: the prohibition against drug driving is a safety issue for the benefit of the other members of the public, whereas low level personal drug usage may not be of such concern to the public.
7. The Applicant noted that there is also broad discretion for police officers to charge or divert persons from the criminal justice for other offences, including low-range stealing offences; and "knife-related offence(s)": Criminal Procedure Regulation 2017, Schedule 4(2). I do not regard a submission in relation to prosecutorial discretion in that context to be relevant to the matter at hand.
8. In summary, the Applicant submitted that on its proper construction, an offence contrary to s 111A(2)(a) of the Road Act is not "without further inquiry" an offence in respect of a "psychoactive substance, prohibited plant or prohibited drug".

1. The Applicant submitted that the phrases "in relation to" or "in respect of" have been held to "do no more ... than signify the need for there to be some relationship or connection between two subject matters". The High Court in Travelex Ltd v Federal Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510, 519-520 (French CJ and Hayne J) held:

[25] It may readily be accepted that "in relation to" is a phrase that can be used in a variety of contexts, in which the degree of connection that must be shown between the two subject matters joined by the expression may differ. It may also be accepted that "the subject matter of the inquiry, the legislative history, and the facts of the case" are all matters that will bear upon the judgment of what relationship must be shown in order to conclude that there is a supply "in relation to" rights.

1. It was submitted by the Applicant that what emerges from the authorities is that when construing the phrase "in respect of", the Tribunal must undertake an analysis of the subject matter of the inquiry, the legislative history of the subject matters said to be joined; and the facts of the case. I agree.
2. The Respondent submitted that cl 15(1)(b) requires that the relevant offence be "in respect of" a prohibited plant or prohibited drug. This clause does not require that the relevant offence be an offence under the DMT Act, merely that it be "an offence in respect of a prohibited plant... within the meaning of" the DMT Act.
3. The expression "in respect of" has a wide meaning which has been considered extensively in authorities in various contexts. For example, in AMACA Pty Ltd (under NSW administered winding up) v McGrath (as liquidators of the HIH Group of Companies) [2012] NSWSC 1523, the Supreme Court said at [28]:

... The words "in respect of" have a wide meaning, and are probably the widest of any expression intended to convey some connection between two related subject-matters_..._

1. In Technical Products Pty Ltd v State Government Insurance Office (QId) [1989] HCA 24; (1989) 167 CLR 45, the High Court considered the meaning of "in respect of" in the context of the Motor Vehicles Insurance Act 1936 (QId). Brennan, Deane and Gaudron JJ (in the majority) stated, at 47:

The words 'in respect of' have a very wide meaning. Indeed, they have a chameleon-like quality in that they commonly reflect the context in which they appear. The nexus between liability and motor vehicle which their use introduces in section 3(1) [of the Motor Vehicles Insurance Act 1936 (QId)] is a broad one which is not susceptible of precise definition. That nexus will not, however, exist unless there be some discernible or rational link between the basis of liability and the particular motor vehicle.

1. Dawson J, also in the majority, stated (at 51) that "[t]he words 'in respect of' require some material connexion between the two matters referred to".
2. In Doughty v Martino Developments Pty Ltd [2010] VSCA 121; (2010) 27 VR 499, Nettle JA (Mandie JA and Emerton AJA agreeing) stated at [6] that "the meaning of 'in respect of' varies according to context. But, conceptually, it has the widest possible meaning of any expression intended to convey some connexion or relation between two subject-matters".
3. It was submitted that, while the meaning of "in respect of" must therefore be interpreted in its statutory context, it will generally be given a wide meaning requiring a connection between two subject matters. It was submitted that in the context of cl 15(1)(b) of the Regulation, the "offence" must be "in respect of" a psychoactive substance, prohibited plant or prohibited drug within the meaning of the DMT Act. There must therefore be a connection between the offence and "a psychoactive substance, prohibited plant or prohibited drug" in order for the offence to be a prescribed offence within the meaning of cl 15(1)(b). While the drug must be one within the meaning of the DMT Act, there is no requirement that the offence be one under that Act. Had the regulation intended otherwise, it was submitted, it would have been expressed so as to specify that the offence must be one under the DMT Act.
4. In the present case, the relevant offence was under s 111A(2)(a) of the Road Act, which provides:

(2) Offence - middle range prescribed concentration of alcohol and presence of prescribed illicit drug

A person must not, while there is present in the person's breath or blood the middle range prescribed concentration of alcohol and present in the person's oral fluid, blood or urine a prescribed illicit drug -

(a) drive a motor vehicle

1. The text of the above provision, the Respondent submitted, makes plain that it is an essential element of an offence under s 111A(2)(a) that there be the presence of a "prescribed illicit drug", which, is defined in s 4 of the Road Act to include, relevantly, THC. It was not in dispute that THC is also a prohibited drug within the meaning of DMT Act. There is therefore a clear connection and overlap between the meaning of a "prescribed illicit drug" for the purposes of s 111A(2)(a) and a "prohibited drug" within the meaning of the DMT Act. It follows that the Applicant's offence is one 'in respect of' a "prohibited drug" and is therefore a prescribed offence within the meaning of cl 15(1)(b) of the Regulation.
2. It was further submitted that this interpretation is also consistent with the intent of the Act which places strict licensing requirements on applicants and licensees to maintain high standards of competence, integrity and accountability in the professional security industry: Feuerstein v Commissioner of Police, NSW Police [2007] NSWADT 114, at [11]. The observations of the Tribunal there are relevant in the present case in circumstances where the Act explicitly excludes persons who have been found guilty, without conviction, of a prescribed offence from holding a security licence.

1. The Respondent observed that the Tribunal has found on multiple occasions that an offence under the Road Act for driving with the presence of a prescribed illicit drug committed by a holder of a security licence is a prescribed offence which requires the revocation of the licensee's security licence under s 16 of the Act. I was referred to GTB v Commissioner of Police, NSW Police Force [2024] NSWCATOD 186 (GTB), Vlahos v Commissioner of Police, NSW Police Force [2019] NSWCATOD 113 (Vlahos), and my decision in Halligan v Commissioner of Police, NSW Police Force [2019] NSWCATOD 202 (Halligan), which all referred to offences under s 111A(1) of the Road Act.
2. In GTB, the applicant's security licence was revoked after he was convicted of an offence for driving a motor vehicle while there was present in his oral fluid, blood or urine a "prescribed illicit drug", being THC. On appeal to the District Court, the applicant's sentence was varied and he was found guilty without conviction. The Tribunal accepted at [23] - [25] that where an offence of a kind captured by cl 15 of the Regulation is proved, neither the respondent (nor the Tribunal on review) has a discretion, and revocation of the security licence is mandatory. Further, if the finding of guilt falls within s 16 of the Act, there is no discretion on the part of the respondent, (nor the Tribunal on review) and the revocation of the applicant's licence is mandatory. The Tribunal found at [39] - [41] that the decision to revoke the applicant's licence was mandatory and the Tribunal therefore had no power to set aside the decision.
3. Similarly, in Vlahos the applicant was convicted after he was pulled over whilst driving and subjected to a random drug test which returned a positive result for THC. The Tribunal found at [17] that a conviction under s 111(1)(A) of the Road Act was an offence in respect of a prohibited drug within the meaning of the DMT Act. The Tribunal found that it did not have discretion to set aside the decision to revoke the applicant's licence, as the revocation was mandatory.
4. In Halligan, I followed Vlahos. At [19], I observed that the only substantive difference between the facts of those cases was that, while Mr Vlahos was convicted of the offence, Mr Halligan was subject to a finding of guilt for the offence, without conviction. I was satisfied that there was a finding of guilt for an offence (as required by clauses 15(1A) and 15(1)(b) of the Regulation) to which s 16 of the Act applied: at [25]. I found that I was therefore bound by s 26(1A) of the Act and concluded that Mr Halligan's security licence must be revoked and there was therefore "no discretion whatsoever not to do so".
5. The Respondent submitted that the facts in the present matter are materially the same as in the decisions in GTB, Vlahos and Halligan, and that those cases should be followed.
6. The Applicant submitted, however, that these cases were unreliable as precedents because in each, the applicant was unrepresented. I was referred to Lazarus v Independent Commission Against Corruption [2017] NSWCA 37; (2017) 94 NSWLR 36, 57 (Leeming JA, with whom McColl and Simpson JJA agreed) that a decision or judgment which did not engage or receive the benefit of fulsome argument does not stand as binding precedential authority. The issue of construction of "in respect of" in cl15(1)(b) of the Regulation was not raised before the Tribunal in those cited cases.
7. In addition, it was submitted that the doctrine of stare decisis does not apply to this Tribunal, such that earlier decisions made by the Tribunal must be followed: Independent Liquor and Gaming Authority v D & D Natural Health Pty Ltd [2021] NSWCATAP 170 at [51] (Hennessy ADCJ and SM Dubler SC). I accept that I am not bound by previous decisions of the Tribunal. Furthermore, the Applicant observed, none of the cases was decided by a Deputy President; there is authority for the suggestion that if the Tribunal is constituted by the President or Deputy President, the Tribunal is bound to follow that decision: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2022] NSWCATAP 220 at [99] (President Armstrong and SM Bishop). On appeal, the NSW Court of Appeal did not criticise this statement of principle: Thomas and Naaz Pty Ltd v Chief Commissioner of State Revenue [2023] NSWCA 40. This observation does not assist the Applicant; it remains open to me to decide the matter according to law, and to apply previous cases if appropriate to do so.
8. On a plain reading of s 111A(2)(a) of the Road Act it is an essential element of the offence that there be the presence of a "prescribed illicit drug". THC is included in that definition: s 4 of the Road Act. THC is also a prohibited drug within the meaning of DMT Act. I accept that there is a clear connection, without further enquiry, that THC is a "prescribed illicit drug" for the purposes of s 111A(2)(a) and also a "prohibited drug" within the meaning of the DMT Act. I accept that the Applicant's offence is one 'in respect of' a "prohibited drug" and is therefore a prescribed offence within the meaning of cl 15(1)(b) of the Regulation.
9. The answer then to the question for determination, namely whether the revocation of the Applicant's security licence was mandatory under s 26(1A) of the Security Industry Act 1997 on the basis that the Applicant was found guilty of an offence captured by clause 15 of the Security Industry Regulation 2016, is yes.

(1) The preliminary question raised by the parties is answered in the affirmative.

(2) The Applicant's application for review is dismissed pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013.

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.

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.