Rahif v Commissioner of Police, NSW Police Force

Texts Cited: Nil

Category: Principal judgment

Parties: Sam Rahif (Appellant)
Commissioner of Police, NSW Police Force (Respondent)

Representation: Counsel:
E Vuu (Appellant)
T Liu (Respondent)
Solicitors:
McGirr & Associates (Appellant)
NSW Police Force (Respondent)

File Number(s): 2025/00274350

Publication restriction: Nil

REASONS FOR DECISION

Introduction

1. Mr Rahif previously held licences under the Security Industry Act 1997 (NSW). Following his conviction for driving with a prescribed concentration of alcohol and cannabis, the Commissioner of Police, NSW Police Force, revoked those licences. Mr Rahif sought a review of that revocation decision in the Tribunal. He was unsuccessful in seeking that review and has now sought an internal appeal.

What is this appeal about

2. Mr Rahif has appealed from a decision of the Tribunal dismissing his application for an administrative review of a decision of the Commissioner of Police, NSW Police Force (the Commissioner) to revoke licences he held under the Security Industry Act 1997 (NSW). The application was dismissed under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW), which permits the Tribunal to dismiss a matter if it considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance.

3. The Tribunal found that the revocation of the licences was mandatory under s 26(1A) of the Security Industry Act on the basis that Mr Rahif had been found guilty of an offence captured by cl 15 of the Security Industry Regulation 2016 (NSW). There being no discretion available to the Tribunal to make a different decision, the Tribunal dismissed the application.

4. The appeal has been brought on a narrow question of law, formulated by his representatives as follows:

Did the Tribunal err in construing the conjunctive phrase “in respect of” in cl 15 of the Security Industry Regulation 2016 so as to capture 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 which meant that the revocation of the Appellant's security licence was mandatory under s 26(1A) of the Security Industry Act 1997?

5. For the reasons that follow, we do not consider that the Tribunal erred in its construction of the relevant statutory text, and the appeal is to be dismissed.

Background facts

6. The matter proceeded before the Tribunal on a set of agreed facts. Relevantly, the background to the matter was that:

7. On 14 January 2024, Mr Rahif was pulled over by police while driving and returned a breath analysis result of 0.091 grams of alcohol in 210L of breath and a positive result for delta-9-tetrahydrocannabinol (THC) being present in his oral fluid. THC is the psychoactive component of cannabis.

8. Arising from the testing result, the NSW Police charged Mr Rahif with the offence of driving with mid-range prescribed concentration of alcohol with prescribed illicit drug in a person's oral fluid, blood or urine (first offence). That is an offence contrary to s 111A(2)(a) of the Road Transport Act 2013 (NSW).

9. On 18 March 2024, Mr Rahif pleaded guilty to that offence. He was convicted and fined $500.

10. Mr Rahif then appealed against the severity of the sentence and, on 23 April 2024, his appeal was upheld and his sentence was reduced to a conditional release order without conviction pursuant to ss 9(1)(b) and 10(1)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for a period of two years.

11. On 19 November 2024, a delegate of the Commissioner notified Mr Rahif that his security licences were revoked.

12. The revocation decision was based on a finding that Mr Rahif had been found guilty of an offence captured by cll 15(1A) and 15(1)(b) of the Security Industry Regulation 2016 (NSW). Where an offence is captured by that clause, the Commissioner had no discretion and was bound to revoke the licence pursuant to s 26(1A) of the Security Industry Act. No other basis for the revocation decision was advanced.

13. The revocation decision also disqualified Mr Rahif from holding a security licence for a mandatory period of five years.

14. Mr Rahif sought an internal review of the revocation decision. On 8 January 2025, following an internal review, a delegate of the Commissioner affirmed the revocation decision.

15. The following further matters agreed between the parties were (and remain):

16. Mr Rahif expressly accepts that:

(a) THC is a “prohibited drug” within the meaning of s 3 and Schedule 1 to the Drug Misuse and Trafficking Act 1985 (NSW); and (b) As a consequence of this appeal, he was found guilty of the offence, but with no conviction being recorded, by a court in New South Wales.

and

2. If the offence, contrary to s 111 A(2)(a) of the Road Transport Act, 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 Mr Rahif a security licence.

Relevant legislation

8. Before turning to the Tribunal’s decision and the grounds of appeal, it is useful to set out the legislative provisions of importance in this matter.

9. Section 26(1A) of the Security Industry Act requires the Commissioner to 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.

10. There are, unsurprisingly, restrictions on granting a licence based upon a person’s criminal and related history. Section 16(1)(b) of the S**ecurity Industry Act relevantly provides that the Commissioner must refuse to grant an application for a license if 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 ...

11. Clause 15(1) of the Security Industry Regulation sets out the offences prescribed for the purposes of s 16(1)(b) Security Industry Act.

12. Clause 15(1)(b) provides that an offence “in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985” committed under the law of any Australian jurisdiction or under 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), is a prescribed offence for the purposes of s 16(1)(b).

13. THC is a prohibited drug under s 3 and Schedule 1 to the Drug Misuse and Trafficking Act*.*

14. Section 111A(2)(a) of the Road Transport Act makes it an offence for a person to drive a motor vehicle while there is present in the person’s breath or blood the high range prescribed concentration of alcohol and present in the person’s oral fluid, blood or urine a “prescribed illicit drug”.

15. THC is included in the definition of “prescribed illicit drug” in s 4 of the Road Transport Act.

16. It appears that, to ensure the appropriateness and integrity of security industry licences, the Security Industry Act and the Security Industry Regulation have sought to catch offences that have occurred outside the jurisdiction of the State of New South Wales. In doing so, there is a difference in definition between the Security Industry Act and the Security Industry Regulation, on the one hand, and the offences under the Road Transport Act, on the other.

17. The essence of Mr Rahif’s appeal is that the reference to “prescribed illicit drug” in the Road Transport Act offence does not permit the Commissioner to determine, without further enquiry, whether such an offence falls within the definition of a prescribed offence for the purposes of the mandatory refusal provisions set out in the Security Industry Act.

The Tribunal’s decision at first instance

18. The issue to be determined at first instance concerned whether Mr Rahif had been found guilty of an offence captured by cl 15 of the Security Industry Regulation.

19. The Tribunal found, at [38], that, on a plain reading of s 111A(2)(a) of the Road Transport Act*,* the presence of a “prescribed illicit drug” was an essential element of the offence.

20. The Tribunal’s reasoning, which led it to the conclusion that Mr Rahif’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 Security Industry Regulation, was as follows:

(a) An essential element of an offence under s 11A(2)(a) of the Road Transport Act is that there is present in the person’s oral fluid, blood or urine “a prescribed illicit drug”, (b) The Road Transport Act defines THC to be a prescribed illicit drug in s 4 of the Act, (c) A mandatory disqualifying offence under s 16(1)(b) of the Security Industry Act and cl 15(1)(b) of the Security Industry Regulation is an offence in respect of “a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act”, (d) The phrase “in respect of” is generally given a wide meaning requiring a connection between two subject matters, (e) THC is a “prohibited drug” within the meaning of the Drug Misuse and Trafficking Act, (f) There is a clear connection, without further inquiry, 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 Drug Misuse and Trafficking Act, and, therefore, (g) Mr Rahif’s offence is one “in respect of” a “prohibited drug” and is a prescribed offence within the meaning of cl 15(1)(b) of the Security Industry Regulation.

21. In considering the phrase “in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985”, the Tribunal accepted that there was a clear connection, without further inquiry, that THC is a “prescribed illicit drug” for the purposes of s 111A(2)(a) of the Road Transport Act and also a “prohibited drug” within the meaning of the Drug Misuse and Trafficking Act. That conclusion was arrived at because THC is included in the definition of a “prescribed illicit drug” under s 4 of the Road Transport Act and is also a “prohibited drug” within the meaning of the Drug Misuse and Trafficking Act.

22. Accordingly, the Tribunal concluded that the offence for which Mr Rahif had been convicted was one “in respect of” a “prohibited drug” and therefore a prescribed offence within the meaning of cl 15(1)(b) of the Security Industry Regulation.

23. The Tribunal rejected Mr Rahif’s submission that, on its proper construction, an offence contrary to s 111A(2)(a) of the Road Transport Act is not “without further inquiry” an offence in respect of a “psychoactive substance, prohibited plant or prohibited drug”. In arriving at its conclusion, the Tribunal examined the phrase “in respect of” in cl 15(1)(b) in order to determine whether an offence under s 111A(2)(a) of the Road Transport Act is an offence “in respect of a psychoactive substance, prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985” committed under the law of any Australian jurisdiction.

24. The Tribunal agreed with Mr Rahif 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: at [21] and referred to several authorities in which the expression “in respect of” had been considered and which held that the phrase must be interpreted in its statutory context and will generally be given a wide meaning requiring a connection between two subject matters: Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510; AMACA Pty Ltd (under NSW administered winding up) v McGrath (as liquidators of the HIH Group of Companies) [2012] NSWSC 1523; Technical Products Pty Ltd v State Government Insurance Office (QId) (1989) 167 CLR 45; Doughty v Martino Developments Pty Ltd (2010) 27 VR 499.

25. The Tribunal’s statutory interpretation analysis was orthodox and considered and reflected the submissions of the parties at first instance.

The appeal

26. Internal appeals may be made as of right on a question of law, and otherwise with leave of the Appeal Panel: s 80(2) of the NCAT Act.

27. In this matter, Mr Rahif raises one ground of appeal which we are satisfied is a question of law, being the appropriate construction of a statutory provision and that there is a causal or dispositive connection between that issue and the outcome of the proceedings: see Bianco Walling Pty Ltd v Construction, Forestry, Maritime, Mining and Energy Union (2020) 275 FCR 385; [2020] FCAFC 50 at [66]; Donohoe v Albulario [2025] NSWSC 9 Basten AJ at [30]-[32].

28. As noted above, the appeal is advanced on the following ground:

Did the Tribunal err in construing the conjunctive phrase “in respect of” in c115 of the Security Industry Regulation 2016 so as to capture 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 which meant that the revocation of the Appellant's security licence was mandatory under s 26(1A) of the Security Industry Act 1997?

Consideration

29. In Barber v Law Society of New South Wales (No 2) [2001] NSWSC 861 (Barber), where Bell J, at [32] stated that:

“… the crime or offence the subject of the conviction must be one which answers that description without further inquiry”.

30. That passage from Barber was particularly noted by the Tribunal at first instance and the parties before us accepted the statement of Bell J in Barber at [32] applies here.

31. The parties differ, however, on the application of that statement and in their interpretation of how the phrase “in respect of” is to be interpreted and applied.

Appellant’s argument on appeal

32. Mr Rahif argues that the Tribunal misconstrued the statutory provision when it held that there was a clear connection and overlap between the meaning of “prescribed illicit drug” for the purposes of s 11A(2)(a) of the Road Transport Act and a “prohibited drug” within the meaning of the Drug Misuse and Trafficking Act. He submits that the Tribunal’s conclusion is wrong because a textual reading of the Security Industry Regulation speaks against a mere nexus, compelled by definition alone, being a sufficient connection.

33. Rather, it was submitted for Mr Rahif, phrases “in relation to” or “in respect of” have a wide meaning and have been held to “do no more ... than signify the need for there to be some relationship or connection between two subject matters”: Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549; (2001) 114 FCR 472 at 487. The submissions for Mr Rahif particularly refer to the decision of the High Court in Travelex Ltd v Federal Commissioner of Taxation (2010) 241 CLR 510, where 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 (emphasis added).

34. We note that the Tribunal at first instance specifically the above passage from Travelex at [25].

35. Mr Rahif states that Travelex and other authorities make clear that, when construing the phrases “in respect of” or “in relation to”, 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. At first instance, the Tribunal at [21] agreed with a similar submission.

36. Mr Rahif’s primary ground of appeal is that the Tribunal erred in its construction of the phrase “in respect of” in cl 15(1)(b). As we understand the argument, this is because the Tribunal’s conclusion that the degree of connection required between the two subject matters was satisfied by a mere nexus between definitional provisions is not supported by the legislative history of the Security Industry Regulation and its text, contrary to Travelex.

37. Mr Rahif’s submissions set out, in some detail, the legislative history of what is now cl 15(1)(b) of the Security Industry Regulation. He refers to the agreement reached by the Council of Australian Governments (COAG) in 2008 to implement nationally consistent standards governing the security industry. He notes that changes to the relevant NSW Regulation were introduced in 2008, which, among other things, excluded persons who have received a fine of $500 or more or a term of imprisonment for certain drug offences. The relevant regulation, cl 18(1)(b) of the Security Industry Regulation 2007, provided that a disqualifying offence was:

An offence in respect of a prohibited plant or prohibited drug within the meaning of the Drug Misuse and Trafficking Act 1985 … in respect of which the maximum penalty imposed is imprisonment for 6 months or more, or a penalty of $2,200 or more or both, being an offence 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).

38. In the Second Reading Speech introducing the current regulation, the Hon. Angela D’Amore stated the purpose of the amendment to the 2007 Regulation was to align NSW with the national standards agreed through the COAG process, including:

to exclude from obtaining a security licence those persons who have received a fine of $500 or more, a term of imprisonment, or both, for drug offences under the Drug Misuse and Trafficking Act 1985 … (emphasis added).

39. Mr Rahif notes that at the time of this amendment there was no equivalent in what was then the Road Transport (Safety and Traffic Management) Act 1999 of the offence he has been found guilty of under s 111A(2)(a) of the Road Transport Act. This is because the offence was only inserted into the Road Transport Act in 2021.

40. The 2007 Regulation was replaced by the current regulation in August 2016. By that time, the threshold penalty provisions had been reduced. Amendments made in December 2017 removed the penalty provisions altogether, so there was no threshold for the operation of the regulation.

41. Mr Rahif states that there is no reference to the Drug Misuse and Trafficking Act in s 111A of the Road Transport Act. That section refers to a “prescribed illicit drug”. That term, however, does not appear in the Drug Misue and Trafficking Act. As noted above, the Drug Misuse and Trafficking Act refers instead to a “prohibited drug”.

42. Mr Rahif submits that, at the time the Security Industry Regulation was first amended to include the relevant offence provision, the fact that the term “under” was used in the Second Reading Speech strongly indicates that the offence must be one under the Drug Misuse and Trafficking Act. He submits that a mere nexus between the provisions in the Road Transport Act and the Drug Misuse and Trafficking Act through the definitional provisions in each Act is an insufficient connection between the two subject matters to meet the test of being “in respect of” without “further inquiry”.

43. In addition, Mr Rahif states that a construction whereby a mere nexus is sufficient may lead to differing outcomes across jurisdictions that endorsed and passed legislation in response to the COAG reforms to the industry.

44. Mr Rahif refers to provisions enacted in Tasmania which are different to those in NSW. He states that a person who commits a similar offence in Tasmania may be able to retain their security licence in Tasmania, as the offence is not a “prescribed offence” in that State, but would not be permitted to apply for a licence in NSW as it would be an offence captured by cl 15(1)(b) of the Security Industry Regulation; as cl 15(1)(b) applies regardless of where the offence is committed.

45. Mr Rahif also refers to the mutual recognition scheme relating to occupational licences and states that the interpretation put forward by the Tribunal would be contrary to that scheme and produce an anomaly.

46. Mr Rahif refers particularly to Victorian Building Authority v Andriotis [2019] HCA 22, (2019) 268 CLR 168 where the High Court held that the provision in the relevant Victorian legislation requiring an applicant for registration in the construction industry to be of “good character” was a law based on the possession of a qualification or experience relating to fitness to carry on an occupation within the meaning of s 17(2)(b) of the Mutual Recognition Act 1992 (Cth): at [79]. As such, Victoria could not conduct its own assessment of whether a person was of good character and refuse to grant a licence under the mutual recognition scheme to a man who was already registered in NSW. The licence obtained in the second State cannot be revoked unless the law governing revocation is not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation: s 20(4)(b) Mutual Recognition Act.

47. In this context Mr Rahif also refers to the Tribunal’s decision in Farooq v Commissioner of Police, New South Wales Police Force [2025] NSWCATOD 73 at [98] – [105] where the Tribunal discussed the relationship between relevant provisions of the Mutual Recognition Act and the Security Industry Act in relation to the Commissioner’s powers to revoke a licence issued under the mutual recognition scheme.

48. The Tribunal noted that s 20(4) of the Mutual Recognition Act stipulates that the continuance of registration is subject to the laws of the second State to the extent to which those laws apply equally to all persons carrying on or seeking to carry on the occupation under the law of the second State and are “not based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation”. In Farooq the revocation decision was made on the basis that it is not in the public interest for the applicant to continue to hold a security licence. The Tribunal held that the power to revoke on public interest grounds is not based on the possession of a qualification or experience relating to fitness to carry on and occupation within the meaning of the Mutual Recognition Act: at [104].

49. The Tribunal also referred to s 20(4A) of the Mutual Recognition Act*,* which provides that “a law imposing a public protection requirement is not a law based on the attainment or possession of some qualification or experience relating to fitness to carry on the occupation”. The Tribunal considered that the central aspect of the revocation power on public interest grounds is the protection of the public at [105]. The Tribunal held that the relevant provisions of the Mutual Recognition Act did not prevent revocation under the Security Industry Act.

50. We do not consider that matters concerning the legislated mutual recognition scheme for certain occupations are determinative of any issues in this appeal. There is no suggestion that Mr Rahif obtained his licence in another state. Even if it could be said that mutual recognition principles apply, it is apparent from the Mutual Recognition Act itself that there are certain carve-outs, meaning that different states can reach different conclusions regarding the registration of a person in a particular occupation. In this matter, the revocation of Mr Rahif’s licence was because he had committed a crime. As in Farooq, revocation on that basis was not based on the possession of a qualification or experience relating to fitness to carry on and occupation within the meaning of the Mutual Recognition Act.

51. The same reasoning applies to the submissions made by Mr Rahif about the decision by COAG in 2008 to implement nationally consistent standards governing the security industry. The fact that there may be some differences across jurisdictions does not, in our view, have any bearing on how the phrase “in respect of” should be interpreted in the Security Industry Act currently in force in NSW.

52. We do not consider that the use of the word “under” in the Second Reading Speech can be taken to mean that the offence must be one under the Drug Misuse and Trafficking Act. The plain words of the provision argue against such a construction. If it was intended that an offence be only those under the Drug Misuse and Trafficking Act, there would be no need to include the phrase “in respect of”. In addition, the reference to the relevant offence being committed under the law of any Australian jurisdiction or under 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), makes plain that the offence need not be under the Drug Misuse and Trafficking Act. The Tribunal clearly and correctly reached that conclusion in its decision.

53. Relevant to the primary argument of Mr Rahif in relation to the degree of connection required between the two subject matters, the Court of Appeal in Chief Commissioner of State Revenue v Uber Australia Pty Ltd [2025] NSWCA 172; 343 IR 243 at [347] has recently stated in respect of the phrase “in relation to”:

The phrase “in relation to” is one 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”: Travelex at [25]. The nub of the issue raised here is as to the nature and strength of the required relationship between the amounts paid or payable on the one hand and the performance of work under the contract on the other, such that those amounts are taken to be wages pursuant to s 35(1). The answer to the question lies in consideration of the role the phrase is intended to play in the statutory scheme in question: see the authority referred to above at [328]. However, a court should be cautious in answering such a question beyond the extent needed, as French CJ explained in Khazaal at [31] …

54. In R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 French CJ stated at [31]:

Relational terms such as "connected with" appear in a variety of statutory settings. Other examples are: "in relation to"; "in respect of"; "in connection with"; and "in". They may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases. A more comprehensive approach may be confounded by subsequent cases.

55. We do not consider that the fact that, at the time cl 15(1)(b) was enacted, there was no equivalent of the offence under s 111A(2)(a) of the Road Transport Act means that the legislature could not have intended the offence to be caught by cl 15(1)(b). If it were the case that no changes to the law could ever be caught by the provision, the legislature would need to continually amend the provision to capture those changes. That cannot have been the intention of the Parliament.

Commissioner’s argument on appeal

56. At appeal, the Commissioner argues that the authorities do not support an approach which in fact analyses the “subject matter of the inquiry” and the “facts of the case” to determine whether Mr Rahif has been convicted of a prescribed offence for the purposes of clause 15(1)(b). The Commissioner submits that the authorities instead support an “elements only” approach when considering prescribed offences. In support of that submission, the Commissioner refers to Barber at [32]; Farah v Director General, Department of Finance and Services [2014] NSWCATAP 23 at [42]; and Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191 at [65] ff.

57. As we understand the Commissioner’s submission, it is that so long as one of the elements of the offence of which a person has been convicted is an element of the prescribed offence, the offence is “in respect of” a prescribed offence. In our view, this formulation in respect of the authorities referred to in the previous paragraph is unnecessarily reductive and does not deal with Mr Rahif’s submissions, which are primarily directed to whether the conviction is one “in respect of” the prescribed offence.

Consideration of the decision in Barber

58. In our view, Mr Rahif has misconstrued the statement by Bell J in Barber at [32] that the crime or offence the subject of the conviction must be one which answers the relevant description “without further inquiry”. That statement must be read in context.

59. The facts in Barber involved a solicitor who held monies on behalf of Mr Barber. Mr Barber had been arrested and later convicted of an offence concerning the manufacture of prohibited drugs. His assets were seized at the time of his arrest, which prevented Mr Barber from recovering his money from the solicitor. Mr Barber argued that the failure by the solicitor to account for money held by him “arises from an act or omission of the solicitor for which the solicitor has been convicted of a crime or an offence involving dishonesty” as required by s 79A(2)(a) of the Legal Profession Act 1987 (NSW). It was Mr Barber’s submission that the “failure to account” need not be caused by the acts for which he was convicted, but there must exist a reasonable relationship between the two. It was submitted that the solicitor’s inability to repay the monies received from or entrusted to him by Mr Barber arose from the confiscation of his property following his arrest. The solicitor’s subsequent conviction for the drug offence was said to bring this claim within the terms of s 79A(2)(a) of the Act.

60. Bell J rejected Mr Barber’s contention that the phrase “arises from” should be construed as requiring no more than a “non-coincidental” nexus between the failure to account and the act or omission of the solicitor for which he had been convicted of a crime or an offence involving dishonesty. After referring to the general nature of offences which involve dishonesty, Bell J stated that even on a generous interpretation of the concept of a crime or offence involving dishonesty, an offence concerning the manufacture of prohibited drugs did not properly come within the terms of an offence involving dishonesty. Bell J stated that the crime or offence the subject of the conviction must be one which answers the relevant description “without further inquiry”.

61. As was stated by Walker JA in Waters v Diesel Holdings Pty Ltd [2024] VSCA 77 at [55], in referring to the fact that the offence must answer the description without further inquiry, Bell J “was rejecting a broad approach which involved consideration of the factual circumstances of the particular offending”.

Farah

62. The strict, or narrow approach from Barber was followed by the Appeal Panel in Farah v Director, Department of Finance and Services [2014] NSWCATAP 23 where at [42] it stated:

… it is the offence itself that must “involve dishonesty”. It is not permissible to look behind the conviction for that offence to consider the particular facts of the case. The agreed facts on which a guilty plea is based, the findings of the court in relation to a contested hearing and the sentencing remarks are not relevant. Those matters cannot be relied on to find that the person has engaged in dishonest conduct or behaviour or had a particular state of mind which was dishonest. In the words of Bell J, the offence must be one which involves dishonesty “without further inquiry”.

63. That case dealt with whether a particular offence involved dishonesty. The Appeal Panel noted that the relevant statutory provision does not have to contain the word “dishonest” or “dishonesty”: Farah at [31].

Luk, Casella and White

64. In Luk v Commissioner of Police, NSW Police [2019] NSWCATAP 23 at [36]-[37] the Appeal Panel agreed with the statements by the Tribunal in Gabriel v Commissioner of Police, New South Wales Police Force [2018] NSWCATOD 69 at [38] that, in deciding whether the particular offence of which a person has been convicted falls within the description in the relevant statute, the Tribunal’s consideration should be confined to the offence itself and not to some broader considerations, such as the person’s conduct or behaviour.

65. This approach was affirmed more recently in Casella v Commissioner of Police, NSW Police Force [2025] NSWCATAP 191 at [45].

66. As the Appeal Panel stated in Commissioner of Police, NSW Police Force v White [2025] NSWCATAP 30 (another case dealing with dishonesty), the question is not whether the “particular conduct or the subjective mind” of the offender was dishonest but whether the particular offence itself involves dishonesty: at [64]. It is therefore not permissible to look behind the conviction for the offence to the particular facts of the case.

67. However, as was stated in Gabriel and Luk, a narrow approach should not be taken to construing the words that constitute the offence. Rather, the words describing the offence should be given their ordinary meaning.

Conclusion

68. In our view, the different tests applying to the tasks which must be undertaken in assessing whether a particular offence is caught by a statutory provision such as that in s 16(1)(b) of the Security Industry Act and cl 15(1)(b) of the Security Industry Regulation should not be conflated in the manner submitted by either party.

69. What the above authorities demonstrate is that the Tribunal must determine the degree of connection required by the use of a particular statutory phrase; for example, "arising from", "in respect of", "in relation to", between the offence for which the person has been convicted and the offence or subject matter contained in the relevant statutory provision.

70. As Hill J in Australian Competition & Consumer Commission v The Maritime Union of Australia [2001] FCA 1549; 187 ALR 487 at [68] stated, "the extent of the relationship required will depend upon the context in which the words are used".

71. In determining the degree of connection required, the subject matter of the inquiry, the legislative history, and the facts of the case will be matters that bear upon the degree of connection between the two subject matters that must be shown: Travelex at 519-520. That was what the Tribunal at first instance did.

72. In determining whether an offence the subject of the person’s conviction is “in respect of” (or similar statutory formulation) a disqualifying offence set out in the statute, it may be necessary to analyse the nature of the offence the subject of the conviction.

73. The analysis of whether the offence has the requisite degree of connection is to proceed by reference to accepted principles of statutory interpretation, as the Tribunal has done in many cases, which may include a legislative definition or, in the absence of such a definition, recourse to other sources, such as legal dictionaries or previous cases, to ascertain the ordinary meaning of the word or phrase.

74. What is clearly impermissible, in making such a determination, is the taking into account of matters such as the applicant’s conduct, motive or behaviour or the context in which the offence occurred. That is, there must be no “further inquiry” into the circumstances of the offending; rather, it is the elements of the charge that are only matters to which regard might be had: Barber; Farah; Luk; Casella and the authorities cited in Jalil v Commissioner of Police, NSW Police Force [20204] NSWCATOD 132 at [23]-[28].

75. We do not consider that the Tribunal erred in its approach to the questions to be decided. As we have noted elsewhere in these reasons, the Tribunal at first instance cited the relevant paragraph of Travelex with approval and agreed 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 matter said to be joined and the facts of the case. The Tribunal noted the submissions which had been made by Mr Rahif concerning the legislative history of the relevant provisions in the Security Industry Regulation, but rejected any submission that it could not have been the intention of the legislature that offences under the Road Transport Act were not intended to be captured by the mandatory revocation provision in the Security Industry Act.

76. The Tribunal accepted the submissions that were made by both parties on the construction of the phrase “in respect of”. The Tribunal also referred to the prohibitions against drug driving as being a safety issue for the benefit of the public.

77. It is apparent from the Tribunal’s reasons that it accepted the submissions of the Commissioner that a broad interpretation of the term “in respect of” is also consistent with the intent of the Security Industry 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].

78. In our view, there was no error in the approach of the Tribunal in determining the degree of connection required between the offence and the requirement in cl 15(1)(b) of the Security Industry Regulation that it be an offence “in respect of a psychoactive substance, prohibited plant or prohibited drug” within the meaning of the Drug Misuse and Trafficking Act. To use the words of French CJ in Khazaal, the Tribunal considered the statutory context and purpose of the provision in determining the nature and breadth of the relationship between the two subject matters. In our view, the Tribunal went as far as was necessary to determine the application of the phrase to the class of cases under review. The arguments advanced by Mr Rahif in this appeal would have required the Tribunal to undertake a far-reaching analysis, which, in our view, was unnecessary and ultimately would not have changed the conclusion reached.

79. The Tribunal was correct in holding that there must be a connection between the offence and “a psychoactive substance, prohibited plant or prohibited drug” for the offence to be a prescribed offence within the meaning of cl 15(1)(b).

80. We also consider that the Tribunal’s approach to statutory construction of s 111A(2)(a) of the Road Transport Act to determine if there is a connection to the requisite degree between the offence and “a psychoactive substance, prohibited plant or prohibited drug” was correct. The Tribunal’s analysis started with the ordinary meaning of the text, which it stated 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”. The Tribunal was then required to determine, by recourse to s 4 of the Road Transport Act, whether, relevantly, THC is a “prescribed illicit drug”. That approach was in accordance with ordinary rules of construction.

81. The Tribunal’s conclusion that THC is also a prohibited drug “within the meaning” of the Drug Misuse and Trafficking Act is clearly correct, and so much is conceded by Mr Rahif.

82. The steps taken by the Tribunal in concluding that there was a clear connection and overlap between the meaning of a “prescribed illicit drug” for the purposes of s 111A(2)(a) of the Road Transport Act and a “prohibited drug” within the meaning of the Drug Misuse and Trafficking Act such that Mr Rahif’s offence therefore is one “in respect of” a “prohibited drug” and is therefore a prescribed offence within the meaning of cl 15(1)(b) of the Security Industry Regulation, did not involve “any further inquiry”. Rather, the Tribunal dealt with the ordinary meaning of the offence forming the basis of Mr Rahif’s conviction and the disqualifying offence in cl 15(1)(b). There is no support for the contention that the Tribunal went behind the elements of the offence to inquire into the circumstances of the offence or Mr Rahif’s state of mind or belief.

83. For these reasons, there was no error on a question of law in the Tribunal’s decision.

Order

84. For the above reasons, we make the following order:

85. Appeal dismissed.

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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

[2025] NSWCATAP 30