Calabria v Department of Primary Industries

[2012] NSWADT 124

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Calabria v Department of Primary Industries [2012] NSWADT 124
Hearing dates:	12 June 2012
Decision date:	29 June 2012
Before:	Judge K P O'Connor, President
Decision:	Decision under review affirmed
Catchwords:	OCCUPATIONAL LICENSING - Conviction for Drug Related Offence - Revocation of Licence - Whether Mandatory or Discretionary - Held Mandatory - Hemp Industry Act 2008, s 16(2), s 9(4)
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Drug Misuse and Trafficking Act 1985 Hemp Industry Act 2008
Cases Cited:	Bourke & Ors v The Commissioner of Police [1998] NSWADT 1 Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994, unreported Commissioner of Police, NSW Police Force v Esber (GD) [2010] NSWADTAP 5 RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49 Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44
Category:	Principal judgment
Parties:	Patrick Calabria (Applicant) Department of Primary Industries (Respondent)
Representation:	Dr A Katelaris (Applicant - Agent) Mr D Anderson, Department of Trade & Investment, Regional Infrastructure & Services (Respondent)
File Number(s):	123082

REASONS FOR DECISION

1. The review applicant, Mr Calabria, a citrus farmer and plant breeder, has had a long involvement in the growing of hemp for lawful use. His qualifications include Bachelor of Horticultural Science with Distinction (University of Western Sydney, 1997).

1. On 5 December 2011, the administrator revoked the licence issued to him under the Hemp Industry Act 2008 (the Hemp Act) which permitted the cultivation of low-THC hemp and the supply of low-THC hemp, subject to various conditions. In the Hemp Act (s 3):

'THC means tetrahydrocannabinol' and

'low-THC hemp means any plant of the genus Cannabis, by whatever name that plant may be called, that has a concentration of THC in its leaves and flowering heads of no more than 1%, and includes the seed of any such plant and any product (such as oil or fibre) derived from any such plant.'

1. The administrator took this action following Mr Calabria's conviction at Griffith Local Court on 18 November 2011 for the offences of possess prohibited drug, namely cannabis (Drug Misuse and Trafficking Act 1985 (Drug Misuse Act), s 10), (12 month good behaviour bond); and cultivate a prohibited plant, namely cannabis (Drug Misuse Act, s 23(1)(a)), (3 year good behaviour bond).

1. The administrator issued the notice of revocation on the basis that he was duty-bound to do so, by dint of the provisions of s 16(2), and s 9(4) of the Act which read:

16 Revocation of licence

(2) The Director-General must revoke a licence if the Director-General is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused.

9 Suitability of applicant and close associates of applicant

(4) The Director-General must not grant a licence to a person if the person, or a close associate of the person, has been found guilty of a drug related offence.

1. Section 3 (definitions ) provides 'drug related offence means an indictable offence under the Drug Misuse and Trafficking Act 1985 or under a corresponding law.'

Review Application

1. Mr Calabria applied for internal review, unsuccessfully; and has now applied for external review by the Tribunal. The administrator's position is that he was obliged by law to revoke the licence, and had no discretion in the matter. The administrator's submission is that the Tribunal is similarly obliged.

1. At the directions list on 12 June 2012, Dr Andrew Katelaris, an advocate for developing industrial hemp production and for the medical use of cannabis, appeared by leave on Mr Calabria's behalf. He took the opportunity to make several oral submissions as to why Mr Calabria's licence should be restored. He also referred to his written submissions on Mr Calabria's behalf which referred to the significance of Mr Calabria's contribution to the development of hemp for lawful use. He depicted the offences as arising from breaches of an unduly strict licensing regime, and not deserving of the extreme punishment of forcing Mr Calabria out of the industry and depriving him of his main livelihood. The administrator submitted that the Tribunal could not take matters such as these into account.

1. As the arguments arose in the course of the directions list, I agreed to deal with the remainder of the matter without further hearing, and determine the matter on the papers as permitted by the Administrative Decisions Tribunal Act 1997 (ADT Act), s 76.

1. On the face of the legislation as presented to me, it would seem that such a conviction is a permanent bar to re-entry to the industry.

1. I have reviewed the court transcript. Mr Calabria promptly pleaded guilty to the charges, and co-operated with the authorities. At the local court, his barrister (Mr Stanton) acknowledged that the offences would lead to the 'ultimate revocation' of his licence. Both his barrister and the police prosecutor agreed that the case was unusual and that the circumstances were ones involving an established, licensed grower who had exceeded the conditions of his licence.

1. The magistrate, her Honour Magistrate Greenwood, accepted submissions that his offending involved breaches of conditions of his licence that had as its context his pursuit of experimental activity in relation to developing new strains of cannabis and the holding of quantities of seeds that exceeded the permissible limit. She said (ts p 9): '[t]his is where your poor judgment kicked in and you really got a bit carried away with your research in this area'.

1. Earlier she had said (transcript, p 8):

'I would place your seriousness towards the lower end, because it seems to me there is no contention of any kind that you were other than licensed and authorised to grow hemp. The real problem is your non-compliance with the conditions of that licence.'

1. Her Honour went on to refer positively to the testimonials presented on his behalf, his general standing in the local community and his standing as a plant breeder.

Mandatory Revocation

1. In the first published decision of the Tribunal, I dealt with the question of whether the Tribunal had any discretion available to it in cases where the administrative decision under review was mandatory, and to which no discretion could be brought: Bourke & Ors v The Commissioner of Police [1998] NSWADT 1 (17 December 1998).

1. I accepted, in light of Court of Appeal authority (Commissioner of Police v Wilson & anor, Court of Appeal (Clarke, Meagher and Powell JJA), 29 July 1994, unreported) that if the reviewable decision was mandatory the Tribunal was obliged to approach the issue in the same way, notwithstanding the apparent breadth of the power given to the Tribunal by s 63(1) and (2) of the ADT Act:

63 Determination of review by Tribunal

(1) In determining an application for a review of a 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 enactment on the administrator who made the decision.

1. As later noted by the Appeal Panel in RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49:

14 If action is taken against an authority on a mandatory ground, the Tribunal has accepted that it is restricted when reviewing decisions to the question of whether any pre-conditions for the mandatory decision are made out. If that is the case, it has no independent discretion, unless the Tribunal is expressly given a discretion on review not enjoyed by the administrator responsible for the primary decision: see Bourke & ors v The Commissioner of Police [1998] NSWADT, and the case upon which it relied, Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994, unreported. There was no separate discretion given to the Tribunal in this case.

1. See also Commissioner of Police, NSW Police Force v Esber (GD) [2010] NSWADTAP 5 at [20]; Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44 esp my remarks at [9]-[11].

1. I acknowledge the submission made on Mr Calabria's behalf that the fact of a right to seek review in the Tribunal would suggest to a review applicant that the broad, discretionary power normally available to the Tribunal can be availed of. However, for the reasons given this is not the case in situations of mandatory exercise of powers.

1. In 1999 the Commonwealth Administrative Review Council commented on this issue to similar effect in its paper, What decisions should be the subject of merits review? at [3.12] as follows:

3.12. Where ... there is scope for disagreement about whether or not particular facts have occurred, the automatic or mandatory character of the decision flowing from those facts will not mean that the decision is inappropriate for review, although the review will necessarily be confined to ascertaining whether or not the relevant facts have occurred.

1. I can understand that a review applicant may feel misled, and for that reasons some administrators include paragraphs in their letters of advice warning of the qualification on the ordinary powers of the Tribunal in cases where the reviewable decision is, in the administrator's opinion, one seen as mandatory as distinct from discretionary.

1. Mr Calabria's agent sought to draw some support for his submission that the Tribunal did have a discretion from the requirement on the Tribunal 'to give effect to any relevant Government policy' (ADT Act, s 64). The submissions referred to the importance of supporting the lawful hemp growing industry, and the social purposes that served. 'Government policy' has a narrow meaning under s 64(4):

Government policy means a policy adopted by:

(a) the Cabinet, or

(b) the Premier or any other Minister,

that is to be applied in the exercise of discretionary powers by administrators.

1. No policy of the kind described in paras (a) and (b) was drawn to my attention. In any case it will be seen that the meaning is restricted to policies that bear on the 'exercise of discretionary powers by administrators'.

1. For the reasons given this case does not involve the exercise of a discretionary power.

1. Unless there were significant countervailing considerations flowing from the scheme and context of the relevant statute, the use of the word 'must' in relation to the way an administrator is to perform a power would ordinarily be interpreted as imposing an inflexible duty to exercise the power subject to satisfaction of any relevant preconditions. There are no countervailing considerations in this case.

Conclusion

1. The first offence was a summary offence, and is therefore not a drug related offence for the purpose of s 9 of the Hemp Act.

1. However, I am satisfied that the second offence was an indictable offence. Section 22(1) of the Drug Misuse Act provides:

22 Indictable prosecution

(1) Subject to the provisions of this Division and the Criminal Procedure Act 1986, an offence under this Division is to be prosecuted on indictment.

1. The Division is headed Indictable Offences and s 23 falls within that Division. The offence is able to be disposed of summarily (s 32(1)(a)), as occurred here. But that does not affect its character as an indictable offence.

1. Accordingly the second offence is a drug related offence for the purpose of s 9(4) of the Hemp Act. The administrator was obliged by s 16(2), read in conjunction with s 9(4), to revoke the licence.

1. In these circumstances and in light of the law outlined, the Tribunal has only one course open to it, to affirm the decision.

Order

Decision under review affirmed.

Decision last updated: 29 June 2012