Calabria v Department of Primary Industries [2012] NSWADT 124

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Calabria v Department of Primary Industries [2012] NSWADT 124 Hearing dates: 12 June 2012 Decision date: 29 June 2012 Before: Judge K P O'Connor, President Decision: Decision under review affirmed Catchwords: OCCUPATIONAL LICENSING - Conviction for Drug Related Offence - Revocation of Licence - Whether Mandatory or Discretionary - Held Mandatory - Hemp Industry Act 2008, s 16(2), s 9(4) Legislation Cited: Administrative Decisions Tribunal Act 1997 Drug Misuse and Trafficking Act 1985 Hemp Industry Act 2008 Cases Cited: Bourke & Ors v The Commissioner of Police [1998] NSWADT 1 Commissioner of Police v Wilson & anor, Court of Appeal, 29 July 1994, unreported Commissioner of Police, NSW Police Force v Esber (GD) [2010] NSWADTAP 5 RTA v Sharp Towing Pty Ltd and ors (GD) [2008] NSWADTAP 49 Tran v Commissioner of Police, New South Wales Police [2005] NSWADT 44 Category: Principal judgment Parties: Patrick Calabria (Applicant) Department of Primary Industries (Respondent) Representation: Dr A Katelaris (Applicant - Agent) Mr D Anderson, Department of Trade & Investment, Regional Infrastructure & Services (Respondent) File Number(s): 123082

REASONS FOR DECISION 1The review applicant, Mr Calabria, a citrus farmer and plant breeder, has had a long involvement in the growing of hemp for lawful use. His qualifications include Bachelor of Horticultural Science with Distinction (University of Western Sydney, 1997). 2On 5 December 2011, the administrator revoked the licence issued to him under the Hemp Industry Act 2008 (the Hemp Act) which permitted the cultivation of low-THC hemp and the supply of low-THC hemp, subject to various conditions. In the Hemp Act (s 3): 'THC means tetrahydrocannabinol' and 'low-THC hemp means any plant of the genus Cannabis, by whatever name that plant may be called, that has a concentration of THC in its leaves and flowering heads of no more than 1%, and includes the seed of any such plant and any product (such as oil or fibre) derived from any such plant.' 3The administrator took this action following Mr Calabria's conviction at Griffith Local Court on 18 November 2011 for the offences of possess prohibited drug, namely cannabis (Drug Misuse and Trafficking Act 1985 (Drug Misuse Act), s 10), (12 month good behaviour bond); and cultivate a prohibited plant, namely cannabis (Drug Misuse Act, s 23(1)(a)), (3 year good behaviour bond). 4The administrator issued the notice of revocation on the basis that he was duty-bound to do so, by dint of the provisions of s 16(2), and s 9(4) of the Act which read: 16 Revocation of licence (2) The Director-General must revoke a licence if the Director-General is satisfied that, if the licensee were applying for a new licence, the application would be required by this Act to be refused. 9 Suitability of applicant and close associates of applicant (4) The Director-General must not grant a licence to a person if the person, or a close associate of the person, has been found guilty of a drug related offence. 5Section 3 (definitions ) provides 'drug related offence means an indictable offence under the Drug Misuse and Trafficking Act 1985 or under a corresponding law.'