Scerri v Commissioner for Consumer Affairs No. Scciv-02-776

SCERRI v THE COMMISSIONER FOR CONSUMER AFFAIRS
[2002] SASC 439
Full Court: Doyle CJ, Lander and Bleby JJ

DOYLE CJ. The facts and the relevant legislative provisions are set out in the reasons of Lander J. I will not repeat them.
I agree with Lander J that the first offence committed by the appellant was not a simple cannabis offence. Accordingly it attracted the operation of clause 1(1)(d) of the Security and Investigation Agents Regulations 1996 (“the Regulations”). That meant that the appellant was not entitled to be granted a licence under the Security and Investigation Agents Act 1995 (SA) (“the SIA Act”). Accordingly, if clause 1(1)(d) of the Regulations is valid, the appeal must be dismissed.
I consider that clause 1(1)(d) of the Regulations is valid for the following reasons.
Section 9(1)(b) of the SIA Act confers a power to specify offences which are such that an offender will not be entitled to be granted a licence under the SIA Act. It is a wide power. It can be exercised either by reference to particular functions or by reference to functions generally. I repeat what I said in Commissioner for Consumer Affairs v Standley (1998) 71 SASR 152 at 159-160, my remarks being referable to a different subclause of clause 1:
“I proceed on the basis that, to be valid, subcl (a) of the schedule must specify a class of offences that could reasonably be considered to have a connection with the suitability of a person to hold a licence, or with the appropriateness of granting a licence to a person. In my opinion, the regulation-maker could be equally concerned with the character or quality of the applicant, or with the impression that might be conveyed to the public by a decision to grant a licence under the Act to a person with a certain class of conviction. In my opinion it is necessary to bear in mind that the test of validity is the view that the maker of the regulation could reasonably adopt. It is not for this Court to substitute its own opinion on the matter, and in particular not for the court to substitute what was described as an ‘untutored judgment’ in South Australia v Tanner (at 168).”
That being the nature of the power, the next issue is the meaning and operation of the provision made under the power.
Subclause 1(1)(d) of the Regulations treats offences against the Controlled Substances Act 1984 (SA) (“the CSA”), if they involve a prohibited substance or a drug of dependence, as offences that will preclude the offender from being granted a licence under the SIA Act. The provision creates an exception in favour of a first offence against s 31 of the CSA, and an exception in favour of a simple cannabis offence. Offences against s 31 of the CSA are less serious than offences against s 32, and ordinarily a court will regard a first offence of a particular kind as less serious than a subsequent offence. The provisions of the CSA also make it clear that a simple cannabis offence is regarded as a less serious kind of offence. However, the provision draws a distinction between a first offence against s 31 involving a prohibited substance, such an offence being within the exception and not being a bar to the grant of a licence, and a first offence against s 31 involving a drug of dependence, such an offence not being within the exception and so constituting a bar to the grant of a licence.
In a case like this the appropriate next step is to consider whether the Regulation appears on its face to relate to the subject matter of the power, and to consider whether there is a sufficient connection between the subject of the power and the Regulation: Williams v Melbourne Corporation (1933) 49 CLR 142 at 155, Dixon J.
I have no difficulty in concluding that offences against the CSA involving a prohibited substance or a drug of dependence might be regarded as sufficiently serious, and of such a kind, as to be a bar to the grant of a licence under the SIA Act. I have taken into account the functions that can be performed by persons licensed under that Act. Generally they are functions that would cause one to have a concern about the probity of a licence holder, and to recognise that public confidence in the licensing system might be shaken if licences were granted to persons who had committed offences.
I have no difficulty in concluding that a first offence against s 31 of the CSA, and a simple cannabis offence, might be regarded as of lesser seriousness and so as not giving rise to a bar to the grant of a licence. Of course, such offences could still be considered in deciding whether, for the purposes of s 9(1)(d) of the SIA Act, the applicant was a fit and proper person to be the holder of the licence.
That leaves the distinction drawn between a first offence against s 31 involving a prohibited substance, which is not a bar to the grant of a licence, and a first offence involving a drug of dependence, which remains a bar to the grant of a licence. There is no obvious reason for the drawing of that distinction. But that is not to say that there is no reason. For the purposes of the CSA drugs of dependence and prohibited substances are separate concepts, and although they are often dealt with in the same way, there are provisions of the CSA that distinguish between them. Lander J has summarised a number of those provisions.
It is surprising that neither party sought to put before the District Court or before this Court any information that would assist the court in understanding the basis upon which the relevant provision has been made: cf South Australia v Tanner & Ors (1989) 166 CLR 161 at 165.
It seems to me that the legislative distinction between a prohibited substance and a drug of dependence suggests that there might be a basis for distinguishing between them for licensing purposes. Another matter which I regard as significant is that at this level the Court is concerned with what is really a matter of detail in the Regulations. The Court is asked to hold the relevant provision invalid on the basis that a distinction is drawn between a first offence against s 31 involving a prohibited substance and a first offence against s 31 involving a drug of dependence. It seems to me that if the main scheme of the provision is valid, as I am satisfied it is, it would be going a long way to treat subclause 1(1)(d) as invalid simply because of the distinction it draws when identifying one category of offence as an offence which is not a bar to the grant of a licence. That involves making a judgment on the detail of the particular subclause. It is a judgment which does not go to validity, but to the merits of the subclause. Validity turns on broader aspects of the provision than this.
In the circumstances, I am not satisfied that this distinction is one that “… could not reasonably have been adopted as a means of attaining the ends of the power”: Williams v Melbourne Corporation at 155, Dixon J. Likewise, in view of the distinction drawn by the CSA between a prohibited substance and a drug of dependence, and in view of the minor place in the scheme of things of the relevant distinction, I am satisfied that “… the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose”: South Australia v Tanner at 165.
For those reasons I consider the relevant provision of the Regulations to be valid.
Subject to that, I agree generally with Lander J.
For those reasons it follows that the appeal should be dismissed.
LANDER J. This is an appeal from a decision of a Judge sitting in the Administrative and Disciplinary Division of the District Court in which he dismissed an appeal to that Court from a decision of the Commissioner for Consumer Affairs.
The appellant had applied to the Commissioner for Consumer Affairs for a restrictive security agent’s licence under the Security and Investigations Agents Act 1995 (SA) (the Act). The Commissioner refused the application on the basis that the appellant had been convicted of an offence of a class specified by the Regulations under the Act.
The appellant appealed to the District Court. Under s 42F of the District Court Act 1991 (SA) the Court may affirm the decision appealed against, rescind the decision and substitute a decision that the Court considers appropriate or remit the matter to the original decision maker for further consideration. The appeal was dismissed.
Section 9 of the Act provides:
“Entitlement to be licensed
9. (1) A natural person is entitled to be granted a licence if -
(a) the person has -
(i)the qualifications and experience required by regulation for the functions to be authorised by the licence; or
(ii)subject to the regulations, qualifications and experience the Commissioner considers appropriate having regard to the functions to be authorised by the licence and whether the licence is to be subject to an employee (supervision) condition¹; and
(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; and
(c)…
(d)the person is a fit and proper person to be the holder of the licence; and
(e)...”
Schedule 1 of the Security and Investigation Agents Regulations 1996 (SA) (the Regulations) under the Act provides:
“Licences - section 9(1)(b) and 9(2)(b)(i)
1.(1) For the purposes of section 9(1)(b) and 9(2)(b)(i) of the Act, the following offences are prescribed in relation to any function to be authorised by a licence:
(a)an indictable offence;
(b)if the conviction was within the previous 5 years - a schedule 3 offence within the meaning of the Summary Procedure Act 1921 (an offence of dishonesty), other than a first offence of simple larceny;
(c)common assault or any offence of violence, other than a first offence of common assault;
(d)an offence against the Controlled Substances Act 1984 involving a prohibited substance or a drug of dependence, other than
(i)a first offence against section 31 of that Act arising out of the possession, smoking, consumption or administration of a prohibited substance or the possession of equipment for use in connection with a prohibited substance or the preparation of a prohibited substance for smoking, consumption or administration; or
(ii)a simple cannabis offence within the meaning of section 45A of that Act;
(e)an offence against the Police Act 1952;
(f)an offence against the Listening Devices Act 1972;
(g)an offence against the Telecommunications (Interception) Act 1979 of the Commonwealth;
(h)an offence against the Act or these regulations or the repealed Commercial and Private Agents Act 1986 or regulations made under that Act;
(i)an offence substantially similar to any of the above offences against the law of another place.”
On 21 March 2000, the appellant had been convicted of one count of producing cannabis and two counts of taking part in the production of cannabis and fined $300.
The Commissioner refused his application for a licence under the Act because those offences were prescribed offences within the meaning of paragraph 1(1)(d) of Schedule 1 of the Regulations.
The appellant contended, before the District Court and again on this appeal, that the Commissioner was in error in refusing the application. First because it was submitted that clause 1(1)(d) of Schedule 1 of the Regulations is ultra vires and invalid; secondly, that each of the appellant’s offences was a simple cannabis offence within the meaning of s 45A of the Controlled Substances Act 1984 (SA) and therefore exempted from the operation of the Regulation by clause 1(1)(d)(i); thirdly, the cultivation of the plants which led to the appellant’s convictions on counts 2 and 3 should be characterised as simple cannabis offences and therefore exempted by clause 1(1)(d)(ii).
The Judge in the District Court rejected all three submissions and dismissed the appeal.
The Regulation Is Ultra Vires
The appellant argues that the Regulation is ultra vires for two reasons. First, because it operates arbitrarily and indiscriminately. Secondly, he argues that the directness and substantiality of the connection between the likely operation of the Regulation and the statutory object is so exiguous that the Regulation could not reasonably have been adopted as a means of fulfilling the statutory object: State of South Australia v Tannerand Others (1989) 166 CLR 161 at 179. In the alternative it is submitted that the Regulation is “... too wide and exhibits such a want of proportionality that it could not have been reasonably adopted as a means of fulfilling the statutory object.” State of South Australia v Tanner (supra) at 182.
In my opinion, there is nothing in those submissions. Sections 9 and 48 of the Act empower the Governor to make Regulations to fix the qualifications and experience required for the licensing of a natural person to provide the functions authorised under the Act: s 9(1)(a)(i). Section 9 of the Act further empowers the regulation maker to prescribe, by Regulation, a class of offences which will disqualify an applicant from an entitlement to be licensed: s 9(1)(b). The purpose of s 9 of the Act of 1995 is to ensure, in the end result, that the persons to be licensed as security agents are ‘fit and proper’ persons to carry out that work: s 9(1)(d). As has already been observed by this Court in Commissioner forConsumer Affairs v Standley (1998) 71 SASR 152 at 159 the power conferred on the regulation maker is a wide one.
Regulation 9 is quite wide in its terms. It picks up a very wide range of offences which no doubt the regulation maker thought impacted upon the suitability of the person seeking the licence. In particular, it prescribes any offence under the Controlled Substances Act involving a prohibited substance or a drug of dependence apart from those mentioned in Regulation 1(1)(d).
The Regulation provides for exemptions for a first offence against s 31 of the Controlled Substances Act but provides that that exemption only operates in relation to a prohibited substance other than a drug of dependence. So that exemption only applies to first offences and first offences relating to the possession of a prohibited substance. Cannabis and cannabis resin are prohibited substances. Therefore, first offences for possession of cannabis are exempted from the offences prescribed in clause 1(1)(d) of Schedule 1.
The Regulation then exempts a simple cannabis offence if it is of the kind in s 45A of the Controlled Substances Act.
Section 45A of the Controlled Substances Act provides for the expiation of simple cannabis offences. For the purpose of this appeal it is relevant to note that a simple cannabis offence includes an offence arising out of not more than the prescribed number of cannabis plants: s 45A(8)(d) of the Controlled Substances Act.
A simple cannabis offence cannot be prosecuted except by the Director of Public Prosecutions, a member of the police force or a person authorised in writing by the Director of Public Prosecutions to commence the prosecution; s 45A(1).
The intent of s 45A is to limit the circumstances in which a simple cannabis offence might be prosecuted.
That is made clear by s 45A(2) which provides:
“(2)Subject to this section, if a person (not being a child) is alleged to have committed a simple cannabis offence, then before a prosecution is commenced, an expiation notice must be given to the alleged offender under the Expiation of Offences Act1996.”
The intent of the section is to allow persons who have committed a simple cannabis offence to avoid prosecution by payment on an expiation notice of a sum of money determined by regulation.
Because the Regulation discriminates between a prohibited substance and a drug of dependence in clause 1(1)(d)(i) of the Regulations it only allows for an exemption in relation to a prohibited substance. The regulation maker must have considered an offence for a drug of dependence under s 31 of the Controlled Substances Act was more relevant to the licensing of a natural person than an offence relating to a prohibited substance.
In my opinion, it is not unreasonable for the regulation maker to determine, as part of the class of offences to be prescribed, all offences under the Controlled Substances Act. The purpose of the Controlled Substances Act is to regulate or prohibit the manufacture, production, sale, supply, possession, handling or use of certain poisons, drugs, therapeutic and other substances and of certain therapeutic devices.
It provides a regime whereby certain substances are described as poisons. A poison is a substance declared, by regulations, to be a poison for the purpose of the Act. It then provides for drugs of dependence which are poisons that are declared by regulations to be drugs of dependence. Thus it is, that a drug of dependence must be a poison. It provides for ‘prohibited substances’ which are substances declared by regulations to be a prohibited substances. A prohibited substance does not need to be a poison. It also provides for ‘prescription drugs’ A prescription drug is defined to be a poison declared to be a prescription drug by regulations. It also provides for therapeutic substances, volatile solvents and therapeutic devices.
The Act creates an Advisory Council whose function is to keep under review, substances and devices that are subject to the Act or may, in the opinion of the Advisory Council, need to be brought under the Act and any controls that or should be applicable to them: s 11.
Section 12 of the Controlled Substances Act provides a regime whereby the Governor may make regulations to declare individually or by class: (1) any substance to be poison; (2) a poison to be a prescription drug; (3) a poison to be a drug of dependence; (4) a substance to be a prohibited substance; (5) a substance to be therapeutic substance; (6) any device to be a therapeutic device; and (7) any substance to be a volatile solvent.
Regulations have been promulgated under that section.
Part 4 of the Act provides for general offences in relation to each of those substances except drugs of dependence and prohibited substances.
Part 5 deals especially with Drugs of Dependence and Prohibited Substances.
In particular s 31 makes it an offence for a person to have, in his or her possession a drug of dependence or a prohibited substance; or to smoke, consume or administer such a drug or substance; or to have in that person’s possession any piece of equipment for use in connection with the smoking or administration of such a drug or substance.
Section 31(2) provides the penalty for a person who has committed an offence in s 31(1). It discriminates between offences arising out of the possession, smoking or consumption of cannabis or cannabis resin and any other case. The penalty in relation to any offence arising out of the possession, smoking or consumption of cannabis or cannabis resin is significantly lower than that for possession of any other drug of dependence or prohibited substance.
Section 31 of the Controlled Substances Act does not, on the face of it, treat the possession of a drug of dependence as a more serious offence than the possession of a prohibited substance. A reading of s 31 above would suggest that anyone who commits an offence under s 31 in relation to either a prohibited substance or drug of dependence will be treated equally, at least in relation to the penalty for the offence. But s 31 cannot be read alone. It must be read in conjunction with Division 2 of Part 5 of the Controlled Substances Act because that part does discriminate between a prohibited substance and a drug of dependence.
Section 4 of the Controlled Substances Act defines “simple possession offences”:
“simple possession offence” means an offence against s 31, other than -
(a) an offence arising out of the possession of a prohibited substance, not being a substance declared by the regulations to be one that may lead to dependence in humans; or
(b) an offence arising out of the possession, smoking or consumption of cannabis or cannabis resin or the possession of equipment for use in connection with the smoking of cannabis or cannabis resin or the preparation of cannabis or cannabis resin for smoking or consumption.”

It can be seen that simple possession offences do not include offences arising out of the possession of a prohibited substance, except where the prohibited substance is one that might lead to dependence in humans. It can also be seen that simple possession offences do include offences relating to drugs of dependence.
Division 2 of Part 5 of the Controlled Substances Act provides a diversionary procedure for simple possession offences.
Section 35 empowers the Minister to accredit suitably qualified persons as drug assessment services or drug treatment services.
Section 36 requires a police officer, who alleges that a person has committed a simple possession offence, to refer the person to a nominated assessment service. Section 37 of the Act requires the assessment service to carry out and complete its assessment as expeditiously as reasonably practicable.
Section 38 allows the assessment service on the completion of its assessment to require the person alleged to have committed the offence to enter into a written undertaking relating to:
“(a)the treatment that the person will undertake; or
(b)participation by the person in a program of educative, preventive or rehabilitative nature; or
(c)any other matters that will, in the opinion of the service, assist the person to overcome any personal problems that may tend to lead, or that may have led, to the misuse of drugs.”
Section 40 of the Act provides that any prosecution which has been commenced for a simple possession offence cannot proceed unless the person has been referred to an assessment service.
Clearly enough Division 2 of Part 5 of the Act is designed to provide a regime whereby persons who have been alleged to possess drugs of dependence will come before an assessment service for the purpose of an assessment and for the purpose of treatment.
The Act clearly discriminates between those persons who are alleged to have committed an offence in relation to a prohibited substance and those who are alleged to have committed an offence in relation to drugs of dependence. In the second case the person may not be prosecuted except in accordance with Division 2 of Part 5 of the Act.
Because of the procedure in Division 2 Part 5 of the Act, simple possession offences will not come before the Courts except in accordance with the procedures in that part.
However, all offences relating to possession of prohibited substance offences will come before the court.
The Act clearly discriminates between the two types of offences.
The appellant argued that because the Controlled Substances Act does not treat offences under s 31 and s 32 for drugs of dependence and prohibited substances differently it was illogical for the regulation maker to only include, by way of exemption, first offences under s 31 relating to a prohibited substance. It was submitted that because the Controlled Substances Act treated drugs of dependence and prohibited substances alike, the exemption in clause 1 of Schedule 1 operated illogically by only exempting first offences relating to prohibited substances.
In support of that submission the appellant drew the court’s attention to those substances which had been declared to be prohibited substances and those poisons which had been declared to be drugs of dependence pursuant to s 12 of the Controlled Substances Act.
It was submitted that heroin was a prohibited substance. In those circumstances a person who had been convicted for a first offence under s 31 for possession of heroin, was exempted from clause 1(1)(d) of Schedule 1 of the Regulations. On the other hand a person who had been convicted of possession of amphetamines (which has been declared to be a drug of dependence) was not subject to the exemption.
Thus, it was submitted by the appellant that the Regulation operates arbitrarily. Of course, many regulations operate arbitrarily. It would not be enough for the appellant to merely point to the arbitrary nature of the Regulations. There must be more if the Regulation is to be ultra vires.
In my opinion the argument fails because it is based upon an incorrect premise. The premise that the Act does not discriminate between prohibited substances and drugs of dependence is not correct. The Act does treat those who are alleged to have committed a s 31 offence in relation to a drugs of dependence in a manner different to those who have committed a s 31 offence in relation to prohibited substance. The diversionary procedure in Division 2 of Part 5 means that the less serious offences relating to drugs of dependence will not come before the Court. That is in fact what the regulation maker has done in the Regulations under the Act.
The regulation maker has recognised that the Controlled SubstancesAct includes a procedure to divert s 31 simple possession offences for drugs of dependency from the Courts. Thus, it is not necessary to recognise those offences in the exemption in clause 1(1)(d)(i) of Schedule of the Regulations.
It is, of course, not for this Court to substitute its opinion for the opinion of the regulation maker, rather the question is whether the regulation maker could reasonably adopt the class of offence: Commission for Consumer Affairs v Standley (supra).
It is not unreasonable, in my opinion, for the regulation maker to determine as part of the class of offences all offences under the Controlled Substances Act.
Moreover, it is not unreasonable, in my opinion, for the maker of the regulation to exempt those persons who have been convicted under s 31 of the Controlled Substances Act in relation to prohibited substances whilst at the same time not exempting those persons who have been convicted of an offence under that section in relation to a drug of dependence. That follows for the reasons already given. Further, it is not unreasonable for the regulation maker to use s 45A as a method of exempting the least serious offences in relation to drugs of dependence.
I do not agree that the exemption in clause 1(1)(d)(i) of Schedule 1 of the Regulations, operates arbitrarily and unfairly. Indeed, in my opinion, the Regulation is a logical recognition of the scheme of the Controlled Substances Act.
It is necessary in the exercise of the regulation making power that the class of offences which would disentitle a person to a grant of a licence should “... have a connection with the suitability of a person to hold a licence, or with the appropriateness of granting a licence to a person.” Commissioner For Consumer Affairs v Standley (supra) at 159 per Doyle CJ.
In my opinion, there is no doubt that the class of offence and the exemptions to the class of offence, could reasonably have been adopted by the regulation maker. They do have an appropriate connection with the suitability of the person to hold the licence.
There is an obvious connection between the object and purposes of the Act and the Regulation.
It is the appellant’s argument that the Regulation lacks proportionality as it could not have been reasonably adopted as a means of fulfilling the statutory object: The State of South Australia v Tanner (supra) at 179.
The test of proportionality was restated in The State of South Australia v Tanner (supra) at 165 where Wilson, Dawson, Toohey and Gaudron JJ said:
“In the course of argument, the parties accepted the reasonable proportionality test of validity (cf. Dean J. in the Commonwealth v Tasmania (The Tasmanian Dam Case)... , namely, whether the regulation is capable of being considered to be reasonably proportionate to the pursuit of the enabling purpose.”
I have already stated the purposes of the Act. In my opinion, the Regulation is reasonably proportionate to the pursuit of those purposes. I do not accept the argument that the Regulation must be invalid because the class of offence which has been prescribed is any offence under the Controlled Substances Act.
In my opinion, the maker of the Regulation could reasonably adopt the Regulation pursuant to the power given to the maker under the Act.
In my opinion, so also must the second argument in relation to the validity of the Regulations be rejected.
Each of the Appellant’s Offences Were s 45A Offences
Next it was argued that each of the appellant’s offences came within s 45A of the Controlled Substances Act and the appellant was therefore entitled to rely upon the exemption in clause 1(1)(d)(ii).
Section 45A of the Controlled Substances Act defines a simple cannabis offence. In particular s 45A(8)(d) provides that a simple cannabis offence means:
“(d)an offence arising out of the cultivation of not more than the prescribed number of cannabis plants.”
The appellant was convicted of the three offences on 29 March 2000. The first count of producing a controlled substance involved eight plants and was committed on 31 October 1999. The second and third counts, of taking part in the production of a controlled substance, each involved six plants and each occurred between 31 January 1999 and 1 November 1999.
The prescribed number of plants is defined by the Controlled Substances (Expiation of Simple Cannabis Offences) Regulations 1987 (SA) which were gazetted on 30 April 1987 to come into operation on that date. Originally the prescribed number of cannabis plants was ten. By Regulation No. 111 of 1999 the principal Regulations were varied by substituting the prescribed number of cannabis plants to three.
The 1999 Regulation was disallowed by the Legislative Council on 12 July 2000.
By Regulation No. 196 of 2000 the principal Regulations (i.e. the 1987 Regulations) were amended to reduce the prescribed number of cannabis plants from ten to three.
By Regulation No. 249 of 2001 the principal Regulations were further amended by reducing the prescribed number of cannabis plants from three to one.
The prescribed number of plants has been altered by Regulation from time to time as follows:
30 April 1987 to 2 June 1999  10 Plants
3 June 1999 to 11 July 2000   3 Plants
12 July 2000 to 23 August 2000  10 Plants
24 August 2000 to 28 November 2001 3 Plants
29 November 2001 to present date                  1 Plant
The first count involved eight plants and was committed when the prescribed number of plants was three. The second and third counts involved six plants and were committed during two periods, part of which, the prescribed number of plants was three and for the other part the prescribed number of plants was ten.
As can be seen the prescribed number of plants reduced on 3 June 1999 from ten to three. The prescribed number increased again from 12 July 2000.
As I have explained the reason for the increase was that on 12 July 2000 the Legislative Council disallowed the Regulation which had been made on 3 June 1999 which had reduced the prescribed number of plants from ten to three: Regulation No. 111 of 1999.
The appellant argued that the revocation of that Regulation meant that the previous Regulation was revived: s 12 Acts Interpretation Act 1915 (SA). In those circumstances, it was said that during the relevant period the prescribed number of plants was ten and in respect of all three offences that number had not been exceeded. Therefore, it was said that all three offences were s 45A offences.
As the appellant argued, it is right that where a Regulation revokes another Regulation, as is the case here, and that second Regulation is disallowed, the previous Regulation sought to be revoked revives. That is the effect of s 12 the Acts Interpretation Act. However, the question is on what date does the previous statutory instrument revive.
Section 16(1)(b) of the Acts Interpretation Act provides:
“(1)Where an Act is repealed or amended, or where an Act or enactment expires, then, unless the contrary intention appears, the repeal, amendment or expiry does not -
...
(b)affect the operation of the repealed, amended or expired Act or enactment, or alter the effect of the doing, suffering or omission of anything, prior to the repeal, amendment or expiry; or”
Section 16, which is part of Part IV of the Act, applies also to Regulations. Section 14A which is also part of Part IV of the Acts Interpretation Act provides:
“14A(1) The provisions of this Part apply both to Acts and statutory instruments.
(2)For the purposes of the application of this Part to statutory instruments -
(a)a reference to an Act or an enactment extends to a statutory instrument; and
(b)a reference to the passing of an Act extends to the making of a statutory instrument; and
(c)a reference to the repeal of an Act extends to the revocation of a statutory instrument; and
(d)a reference in section 16 to the repeal of an Act extends to the disallowance of a statutory instrument.”
In my opinion, where a Regulation which has revoked a previous Regulation is subsequently disallowed, the Regulation which has been disallowed has effect during the period between its promulgation and its disallowance as provided for in s 16(1)(b). After its disallowance the previous Regulation, which had been purportedly revoked, resumes its operation but only from the date of the disallowance of the revoking Regulation. In my opinion, in those circumstances, the prescribed number of plants between 3 June 1999 and 11 July 2003 was three.
Section 12 is not inconsistent with that construction. Section 12 is only concerned with ensuring that the previous Regulation revives. It does not speak to the date upon which it follows the revival occurs.
During part of the period in relation to counts 2 and 3 the prescribed number of plants was 10.
As I have already stated, the second and third counts were alleged to have occurred between 31 January 1999 and 1 November 1999 and during part of that time the prescribed number of plants was ten.
The appellant therefore argues that in respect of those two counts the exemption should apply because the offence may have been committed at a time when the prescribed number of plants was ten and therefore they were s 45A offences.
Assuming that to be correct that does not help the appellant because the first offence was committed on 31 October 1999 and for the reasons already mentioned s 45A has no application to that offence. The appellant would still have been convicted an offence which made him ineligible to be granted a licence under the Act.
However, the appellant argues that if the assumption is to be correct then the District Court Judge and the Commissioner have proceeded on an error of law and the appeal should be allowed. In my opinion, even if that argument were correct it would be inappropriate to allow the appeal. The appeal would be allowed only for the purpose of remitting the matter to the Commissioner for Consumer Affairs for reconsideration, conformably with the decision of this Court. The Commissioner for Consumer Affairs would inevitably have to refuse the application because the appellant has been convicted of an offence of a class specified by Regulation. There would be no point in this Court proceeding upon that basis.
However, the respondent argues that in any event the two counts of taking part in the production of cannabis occurred within the relevant period. The counts allege production over the period from 31 January 1999 to 1 November 1999. The offences are created by s 32(1)(b) of the Controlled Substances Act 1984 which makes it an offence to take part in the production of cannabis.
Section 4 of that Act defines ‘produce’:
“produce”, in relation to a substance, means to produce by any method whatsoever, including cultivation, and ‘production’ has a corresponding meaning;”
It was argued that because the production involved cultivation it was necessarily a continuing activity. It was argued that an offence involving a continuing activity should be regarded as an offence committed throughout the period concerned: R v Ianculescu (2000) 2 Qd R 521.
In that case the Court of Appeal in Queensland was concerned with trafficking drugs which the Court considered was a continuing offence. Cullinane J (with whom Pincus JA and Ambrose J agreed) said at paragraph 44:
“In my view a continuing offence constituted by a course of conduct such as the count of carrying on the business of unlawfully trafficking in a dangerous drug must be regarded as an offence committed throughout the period concerned.”
I am inclined to think that would ordinarily be the case but it would lead to the conclusion in this case, that the appellant committed an offence which is governed by s 45A for part of the period and not governed by that section for the other part. However, having regard to my view that the appeal cannot be allowed because the first offence was one not governed by s 45A it is unnecessary to determine the respondent’s argument on this issue.
In my opinion, the District Court Judge was right to dismiss the appeal.
It follows that this appeal must also be dismissed.
BLEBY J: As to the validity of clause 1(1)(d) of Schedule 1 of the Security and Investigation Agents Regulations 1996 (“the SIA Regulations”) I agree with the reasons of the Chief Justice.
The distinction in the Regulations between a first offence under the Controlled Substances Act 1984 involving a prohibited substance or a simple cannabis offence, on the one hand, and a first offence involving a drug of dependence, on the other hand, is one based on the provisions of the Controlled Substances Act itself, and not upon regulations made under that Act.
A prohibited substance is defined in s 4 of the Controlled Substances Act as meaning “a substance declared by the regulations to be a prohibited substance for the purposes of this Act.” On the other hand, a drug of dependence is defined as meaning “a poison declared by the regulations to be a drug of dependence”, and “poison” is defined as meaning “a substance declared by the regulations to be a poison for the purposes of this Act”. Already, one can discern a possible need in the Controlled Substances Act for prescribing differing levels of responsibility for the care, control and consumption of a prohibited substance on the one hand and of a drug of dependence on the other. The fact that the current regulations under the Controlled Substances Act do not make such a distinction is immaterial.
The maker of the SIA Regulations could reasonably adopt the view that a person should be disqualified from holding a licence if convicted of an offence against the Controlled Substances Act involving a prohibited substance or a drug of dependence. The maker of the SIA Regulations could also reasonably adopt the view that an offence against s 31 of the Controlled Substances Act is less serious than an offence against s 32, and that a first offence against s 31 involving a prohibited substance is likely to be less serious than a first offence involving a drug of dependence.
As the Chief Justice has said, to analyse the difference any further is to descend into the detail and to make the distinction dependent upon regulations made under the Controlled Substances Act. Those may change from time to time. On the appellant’s argument that would mean that the validity of the SIA Regulations would depend on the content and effect not of the Controlled Substances Act but of regulations made under that Act. It would be an absurd result if the SIA Regulations were valid when made and yet happened to be rendered invalid by some change in the regulations under the Controlled Substances Act.
In all other respects I agree with the reasons of Lander J. It follows that, in my opinion, the appeal should be dismissed.

[2002] SASC 439

20 December 2002