Hollands v Commissioner for Consumer Affairs - [2008] SADC 100

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
HOLLANDS v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 100
Judgment of Her Honour Judge Cole
14 August 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 drug test of the appellant - appellant's circumstances discussed - Held: appeal dismissed and the decision to cancel security agents licence affirmed.
Security and Investigations Agents Act 1995; Controlled Substances Act 1984; District Court Act 1991 s 42E(3), referred to.

HOLLANDS v COMMISSIONER FOR CONSUMER AFFAIRS
[2008] SADC 100

This is an appeal by Mr Hollands against the cancellation by the Commissioner for Consumer Affairs of the security agent’s licence he held pursuant to the Security and Investigations Agents Act 1995 (“the Act”).
The Facts
The facts of the matter are not disputed, and are set out in the affidavit of Graham Philip Close, the Manager of Licensing Operations, Business and Occupational Services Branch, Office of Consumer and Business Affairs.
At the relevant time, Mr Hollands held a restricted security agents licence, endorsed for the work functions of “security guard work as an employee”, “crowd control work as an employee” and “canine handling as an employee”.
On Wednesday 16 May 2007, Senior Constable Batten of the Mt Gambier Police issued Mr Hollands with a direction pursuant to s 23J of the Act to provide a urine sample for drug testing the following day. The sample was provided. A screening test was positive for tetrahydrocannabinol. Subsequently testing at the Forensic Science Centre confirmed the presence of tetrahydrocannabinol. The presence of tetrahydrocannabinol in urine indicates that the person from whom the sample came has consumed cannabis in some form. Tetrahydrocannabinol is a prescribed drug pursuant to reg 12E of the Security and Investigation Agents Regulations. Mr Hollands’ sample was therefore a non-complying sample pursuant to reg 12E of the Regulations and s 23O of the Act.
Notification of the test result was given to the Commissioner for Consumer Affairs by the police. The Commissioner, on 9 August 2007, notified Mr Hollands that the Commissioner proposed to cancel his licence on account of the positive drug test and gave Mr Hollands an opportunity to show cause by 31 August 2007 as to why his licence should not be cancelled. This date was later extended to 14 September 2007 at the request of Mr Hollands.
The Commissioner received a submission from Mr Hollands on 14 September 2007 in the following terms:
I am writing to you in regards to the matter of my security license, I submitted a urine sample in which an amount of tetrahydrocannabinol (marijuana) was detected. Although this is a prohibited substance, I do not consume it before or during a work day (evening or shift). I did not and have not denied smoking marijuana as after a night crowd controlling, I feel it relaxes me and helps me sleep, thus never effecting [sic] my work. I have been a security guard for 13 years and a security manager in excess of 7 years, consequently managing the controllers with the aid of several security supervisors (one per venue). I also hold a current liquor license and that requires a bit of responsibility, requiring me to be 150% on “the ball”, therefore I feel what is confined to my own home should not be taken into account of whether or not I hold a security license.
I look forward to further discussion with you over this matter.
A report was prepared by the Supervisor of Security Licensing, Ms Dixon, for Mr Close. Mr Close says, at paragraph 21 of his affidavit:
I read the memo prepared by Ms Dixon and I personally assessed the material which she refers to in that Memorandum including the information provided by the South Australia Police and the submission lodged by the appellant. I considered all the matters raised by the appellant in his submission. I also considered the purpose of the Act, the potential public risk from having people who possess and 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. Having taken all of these matters into consideration, on 9 October 2007 I decided to cancel the appellant’s licence.
Mr Close has delegated power from the Commissioner of Consumer Affairs in relation to decisions to cancel and suspend licences.
A letter dated 9 October 2007 was sent on behalf of the Commissioner for Consumer Affairs to Mr Hollands, notifying him that a decision had been made to cancel his licence, and that the cancellation would take effect on 26 October 2007. A cancellation notice was enclosed, dated 9 October 2007. The licence was cancelled pursuant to s 23O which says:
(1)    The Commissioner may, subject to this section, cancel a security agents licence if—
(a)the licensee fails, without reasonable excuse, to comply with—
(i)a notice or direction under section 23J; or
(ii)a requirement or direction under section 23K; or
(b)a sample of the blood or urine of the licensee taken in accordance with section 23J is found on analysis to be a non-complying sample (within the meaning of the regulations); or
(c)the results of a breath analysis undertaken in accordance with this Division demonstrate that the prescribed concentration of alcohol was present in the licensee's blood at a time when the licensee was performing the function of controlling crowds.
(2)    The Commissioner must, before exercising powers under subsection (1) in relation to a licensee—
(a)give written notice to the licensee of the proposed cancellation, including a statement of the reasons that the Commissioner considers justify the cancellation; and
(b)allow the licensee a period of 14 days (or such longer period as the Commissioner may in a particular case allow) to show cause why the licence should not be cancelled.
(3)    At the end of the period allowed by the Commissioner under subsection (2), the Commissioner must—
(a)determine, having regard to any response received from the licensee, whether or not to proceed with cancellation of the licence; and
(b)advise the licensee by notice in writing of the Commissioner's determination.
(4)    A notice under subsection (3)(b) must, if the licence is to be cancelled, specify the date from which the cancellation is to take effect (which must be not less than 14 days from the date of the notice) and the grounds for the Commissioner's determination.
Mr Hollands appealed from the decision of the Commissioner for Consumer Affairs, on the grounds that he had wrongly exercised his discretion.
At the hearing of the matter, no evidence was adduced on behalf of Mr Hollands except for the second reading speech in relation to amendments to the Act in 2004. Mr Allen, Mr Hollands’ counsel, attempted to rely on Mr Hollands’ assertion in his response to the Commissioner for Consumer Affairs that he used cannabis only in the evenings, after work, at his home. Mr Hollands did not give evidence, so I am unable to make any findings of fact as to when and in what circumstances Mr Hollands used cannabis.
Mr Allen went through some extracts from the second reading speech in his argument. As I understand his argument, it was to the effect that there is an emphasis in the second reading speech upon the dangers in the use of amphetamines by crowd controllers, and as there is no allegation of amphetamine use against Mr Hollands, his licence should not have been cancelled. Mr Allen argued that, although tetrahydrocannabinol is included as a prohibited substance for the purposes of s 23O of the Act, a special category of offences, called simple cannabis offences, is created by s 45A of the Controlled Substances Act 1984 in relation to the possession of a small quantity of cannabis. Mr Allen seemed to be implying that it was not intended by the legislation that cannabis use be caught by s 23O. This argument fails. The Act is unambiguous. Clearly, it was intended that the presence of “any trace” of tetrahydrocannabinol would render a urine sample non-complying for the purpose of s 23O. Simple cannabis use is not exempted from that.
Mr Allen’s final submission was that there was no evidence that Mr Hollands was a danger to the public. For the purposes of s 23O, there is no need to show that he is, or could be.
The District Court Act 1991 at s 42E(3) says:
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.
In this matter, there has been no suggestion that the decision of the Commissioner for Consumer Affairs is defective in any respect. Mr Allen has argued that the discretion should have been exercised differently. He has, however, put forward no evidence or argument that would form the basis for a different decision.
The appeal is dismissed.