Gagliardi v Commissioner for Consumer Affairs - [2008] SADC 50

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
GAGLIARDI v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 50
Judgment of Her Honour Judge Cole
2 May 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 detection of illegal drugs during a ramdom drug test of the appellant - appellant's circumstances discussed - Held: appeal dismissed and the decision to cancel security agents licence affirmed.
Security and Investigation Agents Act 1995; Controlled Substances Act 1984; District Court Act 1991, referred to.

GAGLIARDI v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 50

This is an appeal from the cancellation of a security agents licence pursuant to s 23O(1)(b) of the Security and Investigation Agents Act 1995 (“the Act”).
Many of the facts of this matter are set out in the affidavit of Mr Graham Close, the Manager, Licensing Operations, in the Business and Occupational Services Branch of the Office of Consumer and Business Affairs.
Mr Gagliardi held security agents licence no. ISL 144888. He had worked as a security officer for nearly 12 years. On Saturday 6 October 2007, Mr Gagliardi was required to provide a urine sample for a random drug test, pursuant to s 23J of the Act. The sample was tested on 8 October 2007 by a senior forensic scientist at Forensic Science SA. It was found to contain methylamphetamine and amphetamine.
Pursuant to s 23O(1)(b) of the Act, the Commissioner for Consumer Affairs may cancel a security agents licence if a sample of the licensee’s blood or urine, taken in accordance with s 23J, is found to be a “non-complying sample”. Pursuant to reg. 12E(b) of the Security and Investigation Agents Regulations 1996 (“the Regulations”), a “non-complying sample” is a sample of blood or urine containing any trace of a “prescribed drug”. Pursuant to reg. 12E(a) of the Regulations, a “prescribed drug” includes a “controlled drug” within the meaning of the Controlled Substances Act 1984. The Controlled Substances Act 1984, in s 4, defines “controlled drug” to include a “drug of dependence”. “Drugs of dependence” are listed in Part 2 of Schedule 1 of the Controlled Substances (General) Regulations 2000. Both amphetamine and methlyamphetamine are listed as “drugs of dependence”. Mr Gagliardi’s urine sample was thus a “non-complying sample” within the meaning of s 23O(1)(b) of the Act.
The Commissioner for Consumer Affairs was notified of the result of Mr Gagliardi’s drug test. By letter dated 12 December 2007, the Commissioner advised Mr Gagliardi of the result of his test, outlined the possible consequences in relation to his security agents licence, and gave him the opportunity to give written submissions. By letter of 31 December 2007, Mr Gagliardi made the following submissions:-
On 6^th October 2007 at Roxby Downs SA I undertook a urine test at the Roxby Downs Police Station. I was notified that my sample had returned a positive reading for Methylamphetamine and amphetamine.
I was very surprised at that result as I am not a user of either of those substances. I explained to the officer that notified me of the result that I had attended at a party on Monday 1^st October 2007 and had ingested a number of alcoholic drinks only. I was unable to sleep properly after that party and was suspicious that one of my drinks might have been ‘spiked’. The positive result to the test on the 6^th might have been as a result of a residue of that spiking substance remaining in my system. I am informed that the trace detected in my urine sample on the 6^th was very small and that it could have been residue from the earlier date.
I reiterate that I am not a user of either of those illegal substances and believe that its presence in my system resulted from a ‘spiking’ of one of my drinks at the party on the 1^st.
I have been a licensed Security Officer since 6/3/1996 and have never been charged with any offence - much less a drug related issue.
Mr Gagliardi also provided favourable references from his employer, Sundown Protection Services, and from the Security Manager of HQ/Newmarket Complex, for whom he has worked.
The Office of the Commissioner for Consumer Affairs was in possession of general advice from the Manager, Toxicology, dated 30 November 2006. An extract from this advice said the following:
Methylamphetamine:
Methylamphetamine undergoes metabolism to amphetamine, which is its major active metabolite. Elimination of methylamphetamine is highly dependent on urinary pH. During normal conditions up to 43% of the dose is eliminated unchanged in the 24 hour urine with about 4 – 7% as amphetamine. In acid urine up to 76% of the methylamphetamine is found unchanged in the 24 hour urine with about 7% as amphetamine whereas in alkaline urine the corresponding values are 2% and less than 0.1%. In most subjects methylamphetamine is unlikely to be detected in urine after 1-2 days however in long-term abusers this may be much longer.
The decision was taken to cancel Mr Gagliardi’s licence. Mr Gagliardi was notified of that decision by letter and notice dated 25 January 2008. The cancellation notice said, in part:
I have taken into account all the matters put by Mr Gagliardi in his written submission received on 3 January 2008. I also take into account the purpose of the Security and Investigations Agents Act, the potential public risk from having people who use illegal drugs in the security industry, and the need to protect the public and maintain the public confidence in both the industry and the licensing scheme. In light of all this information I am satisfied that Raffaele James Gagliardi’s licence should be cancelled.
Mr Gagliardi appealed against the cancellation of his licence pursuant to s 23Q of the Act. In his notice of appeal, he repeated the substance of his submission to the Commissioner.
At the hearing of the appeal, Mr Gagliardi did not call any evidence. By way of submission, he asserted that it was his understanding that two other people were tested at the same time as he was, that they also had non-complying samples, but that they did not have their licences cancelled. Mr Gagliardi said that he suspected that the test result was false. He had no hypothesis as to how that might have come about, or why. Mr Gagliardi has, of course, been unable to work in his usual employment as a result of the cancellation of his licence, and is suffering considerable financial hardship as a result. He thinks he may shortly be forced into bankruptcy.
Ms Colbert appeared as counsel for the Commissioner. She referred to s 42E(3) of the District Court Act 1991, which provides:
42E(3)The Court must, on an appeal, give due weight to the decision being appealed against and the reasons for it and not depart from the decision except for cogent reasons.
The Act provides for a very tough regime in relation to the conduct of the holders of security agents licences. Mr Gagliardi has not produced any evidence which casts doubt upon the result of the drug test. Mere suspicion is not sufficient. Mr Gagliardi has been unable to provide evidence of any basis upon which I could depart from the decision of the Commissioner for Consumer Affairs. The appeal is dismissed. The decision of the Commissioner for Consumer Affairs to cancel security agents licence ISL 144888 is affirmed.