Cloros v Commissioner for Consumer Affairs

[2008] SADC 88

District Court of South Australia

(District Court Administrative and Disciplinary Division)

CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS

[2008] SADC 88

Judgment of Her Honour Judge Cole (ex tempore)

9 July 2008

PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS

Appeal from the cancellation of a security agents licence due to appellant being found guilty of an offence in the Adelaide Magistrates Court  -  Court does not have jurisdiction to reinstate the licence  -  no right of appeal exists  -  appeal dismissed.

Security and Investigation Agents Act 1995 s 23G, referred to.

CLOROS v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 88

1. This is a purported appeal against the cancellation of a security agents licence under s 23G of the Security and Investigation Agents Act 1995.

2. Mr Cloros held security agents licence ISL 164797. On 14 August 2007, Mr Cloros was charged with an offence pursuant to s 134 of the Criminal Law Consolidation Act. Such an offence is prescribed by regulation for the purposes of s 23G of the Security and Investigation Agents Act 1995, pursuant to the Security and Investigation Agents Regulations 1996, Schedule 1A 3(b)(iv). Mr Cloros pleaded guilty to the offence under s 134 of the Criminal Law Consolidation Act.

3. The Adelaide Magistrates Court record was Exhibit GC4 to the affidavit of Graham Close. Mr Cloros has now tendered a further record which is Exhibit A1. It is clear from both of those records that Mr Cloros was discharged on a bond without conviction and without penalty in relation to the offences under s 134 of the Criminal Law Consolidation Act. The record also shows, however, that Mr Cloros was found guilty, which is not surprising as he pleaded guilty.

4. Section 23G(1) of the Security and Investigation Agents Act says:

   If the holder of a security agents licence is found guilty of an offence of a class specified by a regulation in relation to the functions authorised by the licence, the licence is cancelled and the licensee must, within seven days of that finding, surrender the licence (if it has not already been surrendered) to the Commissioner.

5. The prerequisite for automatic cancellation was met, upon the Adelaide Magistrates Court accepting Mr Cloros’ guilty plea. The legislation then automatically cancelled Mr Cloros’ licence.

6. The class specified by regulation is assigned to a particular security agent’s licence. It is not a valid reading of s 23G that the offence needs to be in relation to the functions performed under the licence, as Mr Cloros argued. He is mistaken there.

7. There is no appeal from this cancellation, which is not surprising because it is not an administrative decision; it is the automatic operation of legislation. Section 23E provides for an appeal against a suspension of a licence under s 23A or s 23B, but s 23E does not provide for an appeal in this case. Mr Cloros is confused about the characterisation of what occurred in the Adelaide Magistrates Court. He does not accept that there is a difference between a finding of guilty and a conviction. This is unfortunate, but it does not assist his case.

8. Mr Cloros has many reasons which he has put forward as to why his licence should not be suspended. I do not have jurisdiction to reinstate the licence. The legislation now imposes a very high standard upon those who hold security agents licences. Cancellation, in these circumstances, is automatic and not appealable. There is no right of appeal in this case. Mr Cloros’ purported appeal is dismissed.