Comacchio v Commissioner for Consumer Affairs
[2006] SADC 122
•29 September 2006
DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
In the Matter of SECURITY AND INVESTIGATION AGENTS ACT 1995
COMACCHIO v COMMISSIONER FOR CONSUMER AFFAIRS
[2006] SADC 122
Judgment of His Honour Judge Boylan
29 September 2006
PROFESSIONS AND TRADES - OTHER PROFESSIONS, TRADES OR CALLINGS - LICENSING OF PARTICULAR TRADES OR CALLINGS
Appellant held Security Agents Licence authorising him to perform crowd control work for 10 years - Appellant was charged with offence of robbery in April 2006 - respondent issued a suspension notice to appellant suspending his licence until further notice - robbery charge was dismissed for want of prosecution - new charge of common assault laid the day robbery charge was dismissed - respondent issued a further suspension notice - whether respondent has discretion not issue suspension notice - whether appeal is competant -Held: Appeal is competant - respondent does not have a discretion in this instance - decision of the respondent is affirmed.
Security and Investigation Agents Act 1995 ss 23A and 23B; Security and Investigation Agents Regulations 1996 Schedule 1A, Clauses 1 and 2, referred to.
COMACCHIO v COMMISSIONER FOR CONSUMER AFFAIRS
[2006] SADC 122
Mr Elio Comacchio has held a Security Agents Licence for over ten years. In April 2006, he was charged with a criminal offence and the Commissioner suspended his licence. Owing to the suspension, Mr Comacchio is losing income. He appealed against the order of suspension, arguing that he is to be presumed innocent until his guilt of the criminal charge has been proved. He says it is unjust to penalize him before there has been a finding of guilt.
I affirmed the Commissioner’s decision because the Commissioner was obliged to suspend the licence: he had no discretion. I now publish my reasons.
Mr Comacchio was granted his licence in October 1995. It authorises him to perform crowd control work only as an employee. On the 14th of April 2006, he was charged with an offence of robbery. The police informed the Commissioner and, acting on that information, the Commissioner, on the 23rd of May 2006, issued a written notice suspending Mr Comacchio’s licence until further notice. On the 31st of July 2006, Mr Comacchio lodged an appeal against that suspension.
On the 11th of August 2006, Dr Cannon DCM, sitting in the Magistrates Court at Adelaide, dismissed the robbery charge for want of prosecution. On the same day, the police laid a fresh charge of common assault. As a result of that fresh charge, the Commissioner on the 30th of August 2006,issued a further suspension notice. There is no appeal against that second suspension notice.
A Master of the Court extended the time within which Mr Comacchio could appeal.
There is a preliminary point about the competency of this appeal. I shall deal with that later in these reasons.
The Legislation
Sections 23A and 23B of the Security and Investigation Agents Act 1995 (“the Act”) read:
23A—Circumstances in which Commissioner may suspend security agents licence
(1) Subject to section 23B, if—
(a) the holder of a security agents licence, or a director of a body corporate that is the holder of a security agents licence, is charged with an offence of a class specified by regulation in relation to the functions authorised by the licence; or
(b) the Commissioner is satisfied, for any other reason, that it would be contrary to the public interest if the holder of a security agents licence were to continue to be licensed,
the Commissioner may, by notice in writing to the holder of the licence (a "suspension notice"), suspend the licence for a specified period or until further notice.
(2) Suspension of a licence under this section takes effect immediately on service of a suspension notice advising that the licence has been suspended.
(3) A person on whom a suspension notice has been served may, within the period of 21 days following service of the notice, make written representations to the Commissioner as to why his or her security agents licence should not be suspended.
(4) The Commissioner must, at the end of the period of 28 days following service of a suspension notice under this section—
(a) confirm or revoke the suspension; and
(b) advise the holder of the licence in writing of the Commissioner's decision; and
(c) if the holder of the licence has surrendered the licence and the Commissioner's decision is to revoke the suspension—return the licence to the holder of the licence.
(5) The Commissioner must, in determining whether to confirm or revoke suspension of a security agents licence, have regard to any representations received from the holder of the licence under subsection (3).
(6) The Commissioner may, at any time, on his or her own initiative, or on application by a person whose licence is suspended, revoke the suspension of a security agents licence under this section.”
“23B—Circumstances in which Commissioner must suspend security agents licence
(1) If the holder of a security agents licence that authorises the licensee to perform the function of controlling crowds is charged by a police officer or the Director of Public Prosecutions with an offence of a class specified by regulation in relation to the functions authorised by the licence, the Commissioner must, by notice in writing to the holder of the licence (a "suspension notice"), suspend the licence until further notice.
(2) Suspension of a licence under this section takes effect immediately on service of a suspension notice advising that the licence has been suspended.
(3) Suspension of a licence under this section may not be revoked by the Commissioner unless—
(a) the holder of the licence has been found not guilty by a court of the criminal charges relevant to the licence having been suspended, or those charges have been withdrawn or dismissed; and
(b) the Commissioner is satisfied that revocation of the suspension would not be contrary to the public interest.
(4) The Commissioner must, as soon as reasonably practicable after becoming aware that all charges relevant to suspension of a licence under this section have been finalised—
(a) confirm or revoke the suspension; and
(b) advise the holder of the licence in writing of the confirmation or revocation; and
(c) if the holder of the licence has surrendered the licence and the suspension is revoked—return the licence to the licence holder.”
The Schedules
Clause 1 of Schedule 1A to the Security and Investigation Agents Regulations1996 reads as follows:
“Schedule 1A—Classes of offences (regulation 12C)
1—Offences for the purposes of section 23A
(1) For the purposes of section 23A(1)(a) of the Act, an offence to which this subclause applies is prescribed in relation to the following functions authorised by a licence:
(a) controlling crowds;
(b) protecting or guarding a person or property;
(c) installing or maintaining security alarm or surveillance systems.”
(2) Subclause (1) applies to the following offences:
(a) an indictable offence;
(b) common assault or an offence of violence;
(c) a summary offence against Part 5 of the Criminal Law Consolidation Act 1935 ;
(d) an offence against the Controlled Substances Act 1984 involving a prohibited substance or a drug of dependence, other than a simple cannabis offence within the meaning of section 45A of that Act;
(e) an offence against the Firearms Act 1977 , other than an offence against section 15C, 18, 21A, 21AB or 26 of that Act;
(f) an offence against section 15 or 15A of the Summary Offences Act 1953 ;
(g) an offence against the Police Act 1998 ;
(h) an offence against the Listening and Surveillance Devices Act 1972 ;
(i) an offence against the Telecommunications (Interception) Act 1979 of the Commonwealth;
(j) an offence against the Act or these regulations;
(k) an offence substantially similar to any of the above offences against the law of the Commonwealth, another State or a Territory, or a place outside Australia.
Clause 2 of Schedule 1A reads as follows:
“2—Offences for the purposes of section 23B
For the purposes of section 23B(1) of the Act, the following offences are prescribed in relation to the function of controlling crowds authorised by a licence:
(a) common assault or an offence of violence;
(b) an offence against the Controlled Substances Act 1984 involving a prohibited substance or a drug of dependence, other than a simple cannabis offence within the meaning of section 45A of that Act;
(c) an offence against the Firearms Act 1977 , or any offence involving the use of a firearm;
(d) an offence substantially similar to any of the above offences against the law of the Commonwealth, another State or a Territory, or a place outside Australia.
(Robbery is an offence of violence because one of its elements is the use of force or the threat of force against another. See Criminal Law Consolidation Act, 1935, section 137.)
Sections 23A and 23B are new. They were enacted as part of a series of extensive amendments in 2005. Those amendments introduced stricter regulations of the security industry. Before the amendments, only the court could suspend a licence and it could do so only on the hearing of a complaint in disciplinary proceedings. There was no power to order suspension upon only a charge of a criminal offence.
The new section gives the Commissioner power to suspend. Sections 23A and 23B distinguish between circumstances in which the Commissioner may suspend and those in which he must suspend. The word “may” in Section 23A indicates that the Commissioner has a discretion. It is to be noted that Section 23A is to be read subject to Section 23B.
Section 23B provides that the Commissioner must suspend an agent’s licence if the agent is charged with an offence prescribed in Clause 2 of Schedule 1A. Section 23B applies only to agents licensed to perform crowd control work. Mr Comacchio is such an agent. Use of the word “must” (in contra-distinction to the use of “may” in Section 23A) demonstrates a clear intention on the part of the legislature that the Commissioner is to have no discretion in the case of agents who have been charged with offences prescribed in Clause 2 of the Schedule. In such cases, the Commissioner is obliged to suspend the licence upon being notified of the fact of the agent having been charged. For that reason, the appeal could not succeed.
In deference to Mr Comacchio’s submissions, I simply repeat the point that I made to him during the hearing. The court cannot change a law validly made by the Parliament. It is not for me to comment on Mr Comacchio’s submissions about the fairness or otherwise of a provision obliging the Commissioner to suspend even though there has been no finding of guilt.
I mentioned earlier a preliminary point about the competency of theappeal. The appeal is against the notice of suspension issued by the Commissioner in May 2006. As I noted earlier, the charge which grounded that notice of suspension was dismissed on the 6th of August. In those circumstances, it might seem that there is no subsisting suspension against which an appeal could be brought. The answer lies in Section 23B(3). That subsection reads:
“(3) Suspension of a licence under this section may not be revoked by the Commissioner unless—
(a) the holder of the licence has been found not guilty by a court of the criminal charges relevant to the licence having been suspended, or those charges have been withdrawn or dismissed; and
(b) the Commissioner is satisfied that revocation of the suspension would not be contrary to the public interest.”
It is clear from subsection (3) that revocation of the order of suspension does not depend only upon the dismissal of the relevant charge. The Commissioner must, before he can revoke the suspension, be satisfied that its revocation would not be contrary to the public interest. In this case, the dismissal of the charge of robbery coincided with the laying of a fresh charge of common assault. There is no dispute that both the robbery charge and the common assault charge arose out of the same incident. In effect, a charge of common assault was substituted for the robbery charge. In those circumstances, even though the charge which founded the notice of suspension had been dismissed, the fact that there was a new charge of common assault arising out of the same instant is a sufficient basis for the Commissioner’s being satisfied that revocation would be contrary to the public interest. The first notice of suspension still subsists. Accordingly, in my view, there is no doubt that the appeal is competent. Of course, this is all somewhat academic. The Commissioner issued a fresh notice based upon the laying of the charge of common assault. Nevertheless, I thought it should be dealt with it as the appeal was against the original notice of suspension.
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