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Queensland Judgments
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  • Unreported Judgment

Laing v Queensland Police Service

 

[2019] QCAT 276

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Laing v Queensland Police Service [2019] QCAT 276

PARTIES:

Trevor desmond laing

 

(applicant)

 

v

 

queensland police service

 

(respondent)

APPLICATION NO/S:

GAR160-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

4 September 2019

HEARING DATE:

29 October 2018

HEARD AT:

Brisbane

DECISION OF:

Member Allen

ORDERS:

The decision of the Queensland Police Service is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – where applicant sought to renew licence – decision to reject application to renew concealable weapon Category H licence – where applicant was genuine reason was use for rural purposes – where applicant used handgun to control feral animals and euthanize cattle – whether the characteristics of the property make it necessary to use a Category H firearm

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 19, s 20, s 21, s 24

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 11, s 13, s 18

Cseke v Queensland Police Service (Weapons Licensing Branch) & Anor [2005] QCA 466

Harm v Queensland Police Service [2010] QCAT 518

Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Senior Constable P Lindim

REASONS FOR DECISION

  1. [1]
    Mr Laing held a Category H Weapons licence which authorised him to possess a concealable weapon. His latest application to renew that licence was rejected and he has applied to the Tribunal to review that decision[1]. The weapon Mr Liang had authority to use was a Category H Strum/ Ruger .357MAG. I note from the material provided by the Police Service that Mr Laing is licensed in respect of 9 other Category A and B rifles.
  2. [2]
    When reviewing administrative decisions the Tribunal stands in the shoes of the original decision-maker with all of its powers and must decide the review in accordance with the Tribunal’s act and the enabling Act.[2]  The purpose of the review is to produce the correct and preferable decision[3] following a fresh hearing on the merits.[4] The role of the decision-maker is to assist the Tribunal to make its decision and as part of that role must provide the Tribunals with its reasons for decision and copies of all documents or things which are relevant to Tribunals review of the decision. The Tribunal may confirm or amend the original decision, set aside the decision and substitute its own decision or return the matter for reconsideration by the decision-maker.[5]
  3. [3]
    Mr Laing is in the business of primary production as a cattle farmer and has a property of 32 hectares described as undulating with timber areas that he resides on which was the primary property for the purpose of his gun licence. He also has an additional 309 hectares which he owns in partnership with his wife and son, which was confirmed by land tax notices. His application to renew did not disclose the additional land which he describes as having areas of rugged terrain and thick vegetation and he provided photos to illustrate this.
  4. [4]
    While acknowledging that his property is not as extensive as the one of 42,000 acres in the example by the decision-maker, Harm v Queensland Police Service,[6] Mr Laing stated that our need not to cause inhumane suffering to our sick stock remains the same. He stated that his property is smaller with rugged terrain and the delay in returning to retrieve a firearm such as a rifle would certainly cause inhumane suffering to any sick or dying cattle. That as stated in the Animal Care and Protection Act 2012 (Qld) and Animal Care and Protection Regulation 2012 (Qld) that animal cruelty includes causing pain that in the circumstances is ‘unjustifiable, unnecessary or unreasonable’. That it would be irresponsible as a primary producer not to have a pistol for these occasions when it is necessary to euthanise an animal in a timely and humane manner. At the hearing Mr Laing stated that he cannot ride a horse and uses a quadbike which he later acknowledged had a scabbard for the carriage of a rifle but he does not carry one normally as it upsets his neighbours. He also confirmed that that it was not far to go back home to get a weapon.
  5. [5]
    Mr Laing stated that at present he has approximately 50% of the 309 hectares accessible and usable for open grazing. That horses are extensively used in this terrain for cattle mustering. That the paddocks have creeks and gullies running through them that are inaccessible for 4 wheel drive vehicles due to them having steep banks with high density lantana infestation, thick undergrowth and vine coverage as depicted in the photos. That the Yandaran Creek which flows into the Kolan River runs through 4 of his paddocks for a distance of approximately 3 kilometres.
  6. [6]
    Mr Laing stated that access to locations on the properties is further impacted by wet weather events. Annually thunderstorms some of which are severe, cause significant localised damage to the roads, crossings and creeks on the paddocks. As result maintaining four wheel drive vehicle and quad bike access to the proportion of the property is impossible to maintain. On occasion he has had a cow and calf stuck in a creek and he has had to traverse down the steep slope to use his pistol to euthanize the animals. He is able to operate the handgun with one hand one hand which he would not be able to do with rifle, allowing him to restrain the animal, if necessary while shooting. He carries his pistol to protect his stock especially during the calving season when he has to maintain a ritual of walking through the creeks and gullies looking for feral animals or mauled cattle.
  7. [7]
    He stated that currently he runs 60 head of cattle with the intention of increasing the stock to 150 breeders within the next two years. That the calves are sold at approximately 6 months old. He has lost a number of calves and some mothers to the dogs and sometimes a pig. In 2017 he lost one calf. That the dogs breed in the ranges behind the property and travel down through the heavily timbered ridge country. They hunt in packs and are a major threat during calving season. He participated in the council baiting program but this became an issue because he had working dogs on the property. The pigs also carry zoonotic diseases which can be transferrable via watering holes and dams on the property.
  8. [8]
    He confirmed that he has carried a rifle on the quad bike to conduct pest management. However, the thick vegetation and heavily timbered ridges represent safety concerns. There is the added danger of ricochet and he is unable to use a high powered rifle for distance due to restricted target vision and distance. Also there is limited time to establish/set up a shot if you are travelling in a vehicle.
  9. [9]
    Mr Laing stated a pistol is a safer option for him to take on a quad bike. That the Weapons Act provides that ‘weapon possession and use are subordinate to the need to ensure public and individual safety’. Primary Produce Health and Safety have established safety concerns for the primary producer. A pistol is safer to transport on a quad bike or horse than a rifle. An area not discussed by the decision-maker was risk of injury if a firearm is accidently discharged for example while trying to use a rifle to euthanize a bogged beast. He also quoted statistics from Australian Institute of health and Welfare (fact sheet: 19 April 2017) which showed that rifles and shotguns were more commonly reported as used than handguns in cases of hospitalised injury and death. These figures do not though reflect the percentages of each type of firearm for which licences are held and so there is no way of knowing if the injuries or deaths are disproportionate to the percentage of each firearm for which licences are held.
  10. [10]
    Mr Laing states that based on the type of wild animals encountered on the property, the use of a 357 magnum is well justified for the purpose. Wild dogs and feral pigs are becoming an increasing and dangerous threat when encountered in close bush conditions where the use of a rifle is simply not practical. There had already been episodes on the property where wild dogs have presented themselves as a danger whereby a person was lucky to get away in time. When climbing through think bush land particularly around creeks. Rifles are not always a practical solution due to the extra length making it difficult to take a clear and unhindered firing stance when a situation presents itself. Rifles being larger to carry through thick bush are also more prone to damage due to being hit against branches and when being transported around the property on quad bikes. The revolver stows much easier in a case and creates less of an obstruction while travelling. At close range the .357 revolver has proven an effective tool against dangerous animals such as pigs and dogs whilst maintaining tolerable recoil when compared to larger bores such as the .44 magnum. Removing the .357 revolver from the property will only increase the difficulty in dealing with the described wild animals under such conditions and create more danger to the person trying to deal with them particularly when it comes to personal protection.
  11. [11]
    Mr Laing confirmed at the hearing that he did not use the handgun to shoot targets and when he wasn’t looking for feral animals it was in the safe. After his handgun licence was taken there was an incident where he needed to use a weapon and he had it on his shoulder, luckily while unloaded, and it was pulled off by a vine. He stated that he was 64 years old and he had trouble accessing some areas and the pistol made it easier. He had lost 2 cows and 3 calves to wild dogs. He confirmed that he is currently carrying a rifle on the quadbike. He said he will investigate if he hears dogs or sick cows. He said he carried the pistol in a pouch when going into inaccessible areas. He was asked if he had tried other firearms such as the Little Badger, which was illustrated in the s 21 documents, and is a fold up weapon. Mr Laing stated that he had a 243 breakdown but it is impractical because you can’t strap it to your side and the animals are gone by the time you have put it together. He said that he could not say if the break down would work. He said he had not tried the badger but could not afford to buy one. I note that currently Mr Laing is in full time employment as a security officer.
  12. [12]
    Mr Laing confirmed that it is was more convenient to carry the handgun and that safety issues were critical. That the handgun makes the job quicker and easier. If he hears cows bellowing he can get there quickly and it takes three times longer otherwise.
  13. [13]
    Mr Laing’s son Matt Laing provided a statement to the Tribunal in support of his father. He stated that he had a property directly next door to his father and could verify the difficulties encountered in this area with thick hilly terrain with lots of creeks. He said that he did not have a Category H licence and found it difficult at times to carry rifles around particularly on horseback or bikes where vehicles have no access. He said that he owned a Browning lever action rifle in the takedown version. That this rifle when broken down certainly reduces the size it occupies on a bike, however carrying it in this way is ridiculously impractical due to the time lost to reassemble the rifle if required in a hurry. He said he has witnessed over the years how useful the revolver has been to his father due to it being so accessible in difficult country, especially climbing into creeks etc. to reach stuck or injured livestock. He said that it concerned him to think that he would have to now manoeuver a rifle down very steep slopes and through scrub that thick. He understands that his father only owns one Category H weapon, being a basic .357 revolver, which complements his needs extremely well when needed, especially dealing with dangerous, feral animals in thick terrain. This revolver is a reliable and well proven tool which has been used effectively and responsibility (in accordance with good firearms practice) over the years. the loss of this tool will not only hinder his ability to maintain his land and livestock, but also potentially place him at greater risk of an injury when accessing steep and thick terrain, particularly as he gets older.
  14. [14]
    It is clear from the decision of Chesterman J in Cseke v Queensland Police Service (Weapons Licensing Branch) & Anor[7] that decisions made under the Weapons Act in regard must have regard to its principles and objects which are set out in s 3 of the Act. The section provides:
  1. (1)
    The principles underlying the Act are as follows –
  1. (a)
    Weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    Public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
  1. (2)
    The object of this Act is to prevent the misuse of weapons.

Section 4 explains how the Act’s object is to be achieved and relevantly s 4(c) states: ‘requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm’.

  1. [15]
    The Weapons Act reflects its principles and object in the requirements for the issue of a licence which are dealt with in section 10 which at s 10 (2)(f) licence may be issued to an individual only if the person has a reason mentioned in section 11 to possess the weapon or category of weapon. Section 11 includes subsection (c) as a reason for possession of a weapon: ‘an occupational requirement, including an occupational requirement for rural purposes’.
  2. [16]
    Chesterman J noted that section 18 deals specifically with the renewal of licences. By subsection 5 the authorised officer who considers the application for renewal of a licence may consider ‘anything at the officers’ disposal’. By subsection 9 the limitations on the issue of licences in section 10 apply to the renewal of licences. Chesterman J summarised the effect of these provisions as:

…the applicant’s request to renew his licence to possess and use his pistol for the purposes of animal control could not be granted unless there was an occupational requirement for it. That is to say it had to be a requirement of the applicant’s occupation that he have and be able to use a pistol. Moreover the occupational requirement had to be genuine.[8]

  1. [17]
    In that case the applicant failed to show that there was a genuine occupational requirement because he had ceased the employment with a circus where he was designated as the person to disable or kill animals which might escape or were showing signs of aggression and that he had previously volunteered to charities to kill injured large wildlife. Chesterman J stated ‘it is not to the point to argue, as the applicant did that the potential for such use might arise in the future.’
  2. [18]
    It is clear from earlier decisions that ‘it is uncontroversial that good animal husbandry requires control of feral animals and the ability to humanely euthanize them’.[9] I am satisfied that for Mr Laing, as a primary producer, grazing cattle has an occupational requirement for rural purposes to possess firearms. He currently has a licence and holds nine firearms under that licence and rides a quad bike with a scabbard for a firearm to access his property. Mr Laing’s evidence is that he can carry out his occupational requirements safer and more effectively with a handgun as opposed to a rifle having regard to the rugged terrain and the need to go back and get a weapon if he comes across an injured livestock. I note that this was seen as sufficient to enable Mr Harm to meet the requirements for a Category H licence. I note in passing that while the decision in Harm talks of ‘special need’ there is no requirement in the Weapons Act to establish a special need though that requirement may exist in other jurisdictions such as in New South Wales.
  3. [19]
    The latter decision of Shaxson makes it clear that under s 13(5) of the Act, if the reason is an occupational requirement, the applicant for the licence must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment. The Member in Shaxson set out the following definition of necessary:

‘Necessary,’ according to common usage, connotes something which is required, rather than something which is merely convenient or a matter of preference. In the context, it reasonably connotes that the requirement can not be met in some other way, and can not currently be appropiately [sic] met.

  1. [20]
    Mr Shaxson had a property of a similar size to Mr Laing’s trapped wild dogs and due to rugged terrain in the areas he needed to go to were inaccessible by quadbike carried equipment and his rifle with him. He stated that he had fallen as a result of his rifle being caught on foliage. He was applying for a new licence to enable him to have a category H weapon. The Member found that his current licences and permitted weapons have been adequate to euthanize the feral dogs he has trapped on his property notwithstanding that he may find it more convenient to carry and use a handgun. The member noted the safety issues raised by Mr Shaxson which relate to falls for him, and the potential for ricochet off the steel traps and found that this related to how he carried the weapon which he could ensure that this did not eventuate and that ricochet could occur with rifles or handgun. While a handgun may have been desirable it was found that it was not necessary.[10]
  2. [21]
    The Queensland Police Service representative at the hearing noted the comparison with Shaxson and the requirement to show that use of a Category H weapon is necessary to meet the occupational requirement for rural purposes.
  1. [22]
    While I accept the evidence of Mr Laing that it is more convenient to use the handgun. He has other weapons available to him which he can carry on his quadbike. I do not accept that there is a need to return to his home to retrieve a weapon because it upsets his neighbours is a sufficient reason for not having his rifle with him on his bike when he doing his farm work. It is also for him to ensure that he carries those weapons safely including when he is on foot. I am not satisfied that it is necessary for Mr Laing to have a Category H licence to meet his requirements for a weapon for rural purposes.
  2. [23]
    The decision of the Queensland Police Service is confirmed.

Footnotes

[1] Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’), s 17; Weapons Act 1990 (Qld), s 142.

[2]  QCAT Act s 19.

[3]  QCAT Act s 20(1).

[4]  QCAT Act s 20(2).

[5]  QCAT ACT s 24.

[6]  [2010] QCAT 518.

[7]  [2005] QCA 466.

[8]  Ibid [12].

[9] Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309, [5]; a similar statement was made in Harm v Queensland Police Service [2010] QCAT 518, [5].

[10] Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309, [29]-[31].

Close

Editorial Notes

  • Published Case Name:

    Trevor Desmond Laing v Queensland Police Service

  • Shortened Case Name:

    Laing v Queensland Police Service

  • MNC:

    [2019] QCAT 276

  • Court:

    QCAT

  • Judge(s):

    Member Allen

  • Date:

    04 Sep 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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