Moore v Commissioner for Consumer Affairs - [2011] SADC 109

DISTRICT COURT OF SOUTH AUSTRALIA
(District Court Administrative and Disciplinary Division)
MOORE v COMMISSIONER FOR CONSUMER AFFAIRS
[2011] SADC 109
Judgment of His Honour Judge Tilmouth
22 July 2011
PROFESSIONS AND TRADES - LICENSING OR REGULATION OF OTHER PROFESSIONS, TRADES OR CALLINGS - COMMERCIAL, SECURITY AND INVESTIGATION AGENTS
Section 9(1)(b) of the Security and Investigation Agents Act 1995 (SA) entitles any person to apply for a security agents' licence if the person "has not been convicted of an offence of a class specified by Regulation". In January 2006 the appellant was convicted of an offence of cultivating cannabis including three plants grown by hydroponic means. He applied for and was refused the licence on the grounds that this was a "prescribed" offence for the purposes of s 9(1)(b). Schedule 1 to the Security and Investigation Agents Regulations 1996 prescribed offences against the Controlled Substances Act 1984 (SA), other than simple cannabis offences within the meaning of s 45A of that Act.
Held: Although the definition of a "simple cannabis offence" differed at times, it never applied to cannabis grown hydroponically, so that the applicant was not entitled to a security agents' licence by force of Statute, irrespective of whether s 9(1)(b) referred to an offence as it was defined as of the date of commission, date of conviction, or the date of licence application.
Controlled Substances Act 1984 (SA) s32(1)(a), s33K(3) s45A; Security and Investigation Agents Act 1995 (SA) s9; Security and Investigation Agents Regulations 1996 (SA) Schedule 1; Controlled Substances (General) Regulations 2000; Scerri v Commissioner for Consumer Affairs (2002) 139 A Crim R 299; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Coco v The Queen (1994) 179 CLR 427; Maxwell v Murphy (1957) 96 CLR 261; Coleman v Shell Co of Australia Ltd (1943) 45 SR (NSW) 27, referred to.
Commissioner for Consumer Affairs v Standley 71 SASR 152; Samuels v Songaila (1977) 16 SASR 397, applied.

MOORE v COMMISSIONER FOR CONSUMER AFFAIRS
[2011] SADC 109
The issue

Christopher Moore pleaded guilty to a charge of producing cannabis. Upon conviction he was released on a good behaviour bond for a period of three years, to come up for sentence if called upon. On 9 July 2010 he applied for a security agents’ licence, which the Delegate of the Commissioner for Consumer Affairs refused, on the basis that this conviction was for a “prescribed offence”, thereby disentitling him to hold such a licence. It is from this decision that Mr Moore appeals to this court.
The underlying offence
On 9 July 2010, Mr Moore applied for a security agents’ license to perform “guard, crowd control and canine handling work” as an employee. The offence for which he was convicted in the Elizabeth Magistrates Court on 16 May 2006, was the production of cannabis contrary to s 32(1)(a) of the Controlled Substances Act 1984 (SA). At all relevant times cannabis was a controlled substance pursuant to the successive forms of the Controlled Substances (Prohibited Substances) Regulations 2000.
His particular offence involved the production of eight cannabis plants at his home on 6 January, 2006. Five were grown outside in a fenced-off cage in the rear yard. Three were grown hydroponically in a shed. He made admissions to tending the plants and that he grew them to smoke himself, in order to ease chronic back pain. This version of the events was not disputed on appeal and it is one wholly consistent with the penalty imposed.
The statutory framework
The Commissioner’s Delegate dealt with his offence as ‘prescribed’ under the Security and Investigation Agents Act 1995 (SA). In his reasons dated 18 October 2010, the Delegate considered Mr Moore was “not entitled to be granted a licence” because it was prescribed “for the work functions of security guard work and canine handling”.
Section 9 of the Security and Investigation Agents Act provides for the entitlement to be licensed:
9(1) Subject to section 9A, a natural person is entitled to be granted a licence if - …
(b) the person has not been convicted of an offence of a class specified by regulation in relation to the functions to be authorised by the licence …
The balance of s 9A is otherwise irrelevant, as it simply enumerates the factors to be taken into account in deciding whether to grant the application.
It can be seen that the section is expressed in tense-neutral terms, so that it is silent as to when it operates. Had the section read “convicted of an offence which is specified”, or “convicted of an offence which was specified” for instance, it would be tolerably clear that Parliament intended to refer to the offence as defined at the time of application, or at the time of the offence, respectively. As presently expressed does s 9(1)(b) apply to a specified class as at the date of the offence, the date of conviction, or as of the date of application for a security agents’ licence?
It was put by counsel for the respondent that the offence as presently defined applied because of s 14B(3) of the Acts Interpretation Act 1915 (SA). This provides that a reference to some other Act will be construed, “as a reference to that other Act … as amended from time to time”, unless the contrary intention appears. The difficulty with this submission is that it begs the same question, at what time? Hence s 14B(3) fails to resolve the inherent ambiguity thrown up by s 9(1)(b).
It has been held that s 9(1) erects a statutory obligation on the Commissioner (or his Delegate) to refuse the application where an offence of a prescribed kind was committed, in Commissioner for Consumer Affairs, v Standley:[1]
The reference to the functions to be authorised by the licence has nothing to do with the decision-making process of the Commissioner. It is merely part of the description of the power to make regulations. The only function of the Commissioner is to decide whether an offence, specified (or prescribed) by the Regulations, has been committed. And, as I have already indicated, in my opinion, such an offence has been committed.
In my opinion the District Court Judge misunderstood the effect of s 9(1)(b). He further erred in concluding that there was a discretion to be exercised.
[1] 71 SASR 152 at 159, Doyle CJ, with the concurrence of Matheson and Prior JJ
Accordingly, if Mr Moore was convicted of an offence to which s 9(1)(b) applies, he is then automatically disentitled to be granted a licence under the Security and Investigation Agents Act, irrespective of the merits. He put a number of matters to the court during his appeal, which were exclusively merits based. As it was conceded by the Commissioner that if the Delegate erred, the matter would have to be remitted to be determined according to the merits, it is not necessary to deal with the points raised by Mr Moore. Thus the outcome of the appeal rests squarely on the narrow question of whether his conviction was for a ‘prescribed offence’, within the meaning of s 9 of the Security and Investigation Agents Act.
Schedule 1 to the Security and Investigation Agents Regulations 1996 (SA) specifies for the purposes of granting a licence under s 9 of the Security and Investigation Agents Act, the offences prescribed “in relation to any functions … other than the function of controlling crowds”. Such offences must have been committed within “the previous 10 years”: (s 11(c)). For the purposes of this case, “an offence against the Controlled Substances Act 1984 involving a controlled drug, other than a simple cannabis offence within the meaning of s 45A of that Act”, is so prescribed: Schedule 1, s 1(2)(c).
As s 9(1)(b) is inherently ambiguous, the question would stand to be resolved according to the basic principles of statutory construction. This process begins by reference to the language of the section taken in its context: Project Blue Sky Inc v Australian Broadcasting Authority.[2] As we have seen the provision and the prescribing regulations throw no light on the subject.
[2] (1998) 194 CLR 355 at 381
As s 9 of the Security and Investigation Agents Act creates primary entitlement to be granted a licence, such right should not be curtailed unless there is a clear intention to so curtail that right: Coco v The Queen,[3] and CTM v The Queen.[4] Furthermore there is the presumption at common law that legislation affecting pre-existing substantive rights is not to be construed so as to have retrospective operation: Samuels v Songaila.[5] In this instance if the offence was not prescribed when committed by Mr Moore, to regard it as prescribed according to the current definition, would have the effect of impairing the prima facie right to obtain a licence, so it should not be so construed: Maxwell v Murphy[6] and Coleman v Shell Co of Australia Ltd.[7] As the Full Court pointed out in Samuels v Songaila,[8] had the retrospective effect been favourable, it by no means follows that the construction would be to the same effect. However for reasons to become apparent, it is not necessary to reach a concluded view as to this issue.
[3] (1994) 179 CLR 427 at 437
[4] (2008) 236 CLR 440
[5] (1977) 16 SASR 397 at 400
[6] (1957) 96 CLR 261
[7] (1943) 45 SR (NSW) 27 at 31
[8] Above at 403, 420-421
In its form at the time of Mr Moore’s offence, under s 45A of the Controlled Substances Act 1984 (SA),[9] his offence might have been a “simple cannabis offence” dealt with by way of expiation notice. At first glance he satisfied the description of a simple offence on account of having less than the “prescribed number of cannabis plants”, which at that time stood at 10, under the Controlled Substances (Expiation of Simple Offences) Regulations 1987 (SA), as it did pursuant to Regulation 8 of the Controlled Substances (Prohibited Substances) Regulations 2000.[10] This number was reduced to three by Regulation 96 of 2000 (SA Government Gazette 24 August 2000 p 833), and then to one by Regulation 249 of 2001 (SA Government Gazette 29 November 2001 p 5250), for expiation purposes. However the prescribed number did not apply to cultivation by hydroponic or “artificially enhanced means”: s 45A(8)(d) of the Controlled Substances Act. It follows that the cultivation of the three hydroponic plants took Mr Moore’s case outside the definition of a “simple cannabis offence”.
[9] Applicable from 30.09.2004 - 11.01.2006
[10] Applicable from 10.04.2003 - 02.12.2007
Although it is extraordinarily difficult to trace the multiple and confusing regulatory changes over the years, it is tolerably clear that the cultivation of no more than five plants was retained for the purposes of sentence under s 32(6) (now s 33K) of the Controlled Substances Act, and in contrast just one for the purposes of expiation under s 45A(8), thereof. For the sake of completeness it might also be added that s 32(6) of the Controlled Substances Act provided at the time of Mr Moore’s offence, involving as it did no more than the prescribed number of 10 cannabis plants, upon the court being satisfied they were cultivated for own use or consumption, a penalty not exceeding $500 applied.
It might only be added that if the former Narcotic and Psychotropic Drugs Act 1934-1974 (SA) was rightly regarded as “a re-patched patchwork quilt” as Bray CJ considered it to be in The Queen v Manos; Ex parte Normanville,[11] one hesitates to think how he might have described the present statutory and regulatory jungle!
[11] (1977) 16 SASR 78 at 80
The current regime is somewhat different. Cultivation of cannabis is now dealt with by s 33K of the Controlled Substances Act, effective from 3 December 2007.[12] This furnishes the equivalent charge to that which Mr Moore faced in 2006. The maximum penalty prescribed by s 33K(1) is $2,000, or imprisonment for two years, or both. A ceiling of $1,000 or imprisonment for six months or both applies, where a person cultivates “not more than the prescribed number of cannabis plants”. However if the offence fits the definition of a “simple cannabis offence” within the meaning of s 45A of the Controlled Substances Act, the sentencing court “must not impose any sentence of imprisonment”: s 33K(3).
[12] Controlled Substances (Serious Drug Offences) Act No 800 of 2005, section 14
Here, once again, hydroponically produced plants are excluded from the current definition of a “simple cannabis offence”: s 45A(8). In the result the prescribed number of cannabis plants for the purposes of s 33K of the Controlled Substances Act was reduced from 10 to 5 effective from 3 December 2007, and in contrast from 29 November 2001, the prescribed number for the purposes of simple cannabis offences capable of disposal by way of expiation, was reduced to one.
Resolution on the merits
It can be seen then, whether the elements of the offence of cultivating cannabis were picked up as prescribed by s 9(1)(b) of the Security Investigation Agents Act as they stood when Mr Moore committed the offence, was convicted of it, or as at the date of his application for a security agents licence, the result is the same. This is because the pertaining definition throughout of a “simple cannabis offence”, precluded cannabis plants artificially enhanced by means of hydroponic cultivation. It is inescapable therefore that Mr Moore’s offence was prescribed on either the historical or the current statutory regimes, so that he was simply not entitled to be granted a security agents licence by dint of s 9(1)(b) of the Security Investigation Agents Act. This conclusion is wholly consistent with the decision of the Full Court in Scerri v Commissioner for Consumer Affairs.[13]
[13] (2002) 139 A Crim R 299
Conclusion and orders
As the offence committed by Mr Moore in January 2006 involved three hydroponically produced cannabis plants, he was convicted of an offence other than a “simple cannabis offence” as defined by the Controlled Substances Act, at all relevant times. Such an offence was prescribed then and now, for the purposes of s 9(1)(b) of the Security and Investigation Agents Act, thus preventing him from being eligible for a security agents’ licence. The appeal must therefore be dismissed. There will be no order as to costs: s 42 District Court Act 1991 (SA).