Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

McConnel v Queensland Police Service (Weapons Licensing Branch)

 

[2019] QCATA 156

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156

PARTIES:

CHRISTOPHER DAVID MCCONNEL

(applicant/appellant)

 

v

 

QUEENSLAND POLICE SERVICE (WEAPONS LICENSING BRANCH)

(respondent)

APPLICATION NO/S:

APL035-19

ORIGINATING

APPLICATION NO/S:

GAR312-17

MATTER TYPE:

Appeals

DELIVERED ON:

15 November 2019

HEARING DATE:

23 August 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson

Member Hughes

ORDERS:

  1. Leave to appeal in relation to grounds 5(a), 6 and 8(a) of the appeal is refused
  2. The appeal is dismissed

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – ERROR OF LAW – where appeal of decision by Tribunal to confirm decision of respondent to refuse application for category H weapons licence – whether Tribunal made error of law

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCING AND REGISTRATION – whether occupational requirement – whether denial of procedural fairness – whether adequate reasons for decision – whether decision supported by the evidence – whether failure to take account of relevant considerations – whether decision unreasonable

Acts Interpretation Act 1954 (Qld), s 35C(1)

Anti-Discrimination Act 1991 (Qld), s 25

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 142, s 147

Weapons Act 1990 (Qld), s 3, s 4(c), s 10(2), s 11(c), s 13, s 18

Weapons Categories Regulations 1997 (Qld), r 7

Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39

Chivers v State of Queensland (Queensland Health) [2014] QCA 141

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

Dearman v Dearman (1908) 7 CLR 549

Department of Child Safety, Youth and Women v PJC [2019] QCATA 109

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088

Feeney v Queensland Police Service – Weapons Licensing [2017] QCAT 203

Fox v Percy (2003) 214 CLR 118

Geary v Queensland Police Service – Weapons Licensing [2017] QCAT 6

Harm v Queensland Police Service [2010] QCAT 518

Harrison & Anor v Meehan [2016] QCATA 197

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225

Lida Build Pty Ltd v Miller & Anor [2011] QCATA 219

McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234

Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611

Qantas Airways Ltd v Christie (1998) 193 CLR 280

Salmon v Queensland Police Services (Weapons Licensing Branch) [2018] QCAT 202

Shaxson v Queensland Police Services (Weapons Licensing Branch) [2014] QCAT 309

SZSSC v Minister for Immigration and Border Protection [2014] FCA 863

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

WAEE v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 236 FCR 593

Waterford v The Commonwealth (1987) 163 CLR 54

X v The Commonwealth (1999) 200 CLR 177

APPEARANCES &

REPRESENTATION:

 

Applicant:

B McGlade, instructed by Clayton Utz Lawyers

Respondent:

S D Anderson, instructed by QPS Legal

REASONS FOR DECISION

Background

  1. [1]
    On 9 January 2019, the Tribunal confirmed the decision of the respondent to refuse the applicant’s application for a category H weapons licence.[1] The applicant has filed an application for leave to appeal or appeal the Tribunal’s decision. Category H weapons are defined in regulation 7 of the Weapons Categories Regulation 1997 (Qld). The weapons relevant to the present matter are commonly referred to as concealable firearms.
  2. [2]
    Renewal of the applicant’s concealable firearms licence (category H) was refused by the respondent on 27 September 2017. Under the original licence he was authorised to use a Crossman Arms .50 Single Shot Dart Pistol (‘tranquiliser pistol’) and a Lugar 9mm Eight Shot Auto Pistol (‘handgun’). The given reasons for the refusal were that the Authorised Officer was not satisfied that a ‘genuine need or reason’ to be issued with the licence had been shown and it was considered that the use of a Category H weapon ‘is not suitable’ and that the applicant’s requirements could be ‘adequately met in another way using a weapon of another category’.
  3. [3]
    The circumstances in which a licence may be issued and the relevant principles are set out in the Weapons Act 1990 (Qld) (‘the Act’). Section 3 provides the principles and objects of the Act:
    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

How the objects of the Act are to be achieved is set out at s 4 and includes, at s 4(c):

requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.

  1. [4]
    By s 10(2) of the Act, a licence may be issued to an individual only if the person is able to satisfy specified ‘limitations’, including at s 10(2)(f) that the person ‘has a reason mentioned in section 11 to possess the weapon or category of weapon’. By s 18(9), the limitations in s 10 apply to the renewal of a licence. The claimed ‘genuine reason’ in the present case appears at s 11(c):[2] ‘an occupational requirement, including an occupational requirement for rural purposes’. By s 18(5), in deciding the application for renewal, ‘the authorised officer may consider anything at the officer’s disposal’.
  2. [5]
    The applicant has been a grazier since 1979, living at and operating a beef grazing and cropping business and, more recently, dairy activities at Cressbrook Station near Toogoolawah. His property comprises 300 acres of cultivated pasture and cropping land, 100 acres of river and creek flats with some timber, and 600 acres of open to timber grazing country. The river and creek flats and timber grazing country include heavily grassed and thickly bushed riverine (and riparian) terrain.[3]
  3. [6]
    The applicant maintains that the tranquiliser pistol is an occupational requirement in situations requiring close range sedation of cattle,[4] while in relation to the handgun it is said that it is an occupational requirement in certain specified circumstances for cattle euthanisation and dealing with feral animals.[5] 

Grounds of Appeal

  1. [7]
    Amended grounds of appeal were filed on 22 May 2019.[6] In summary, those grounds are as follows:
    1. (1)
      The Tribunal erred in law in construing the term ‘occupational requirement’ in s 11 of the Weapons Act 1990 (Qld) and, in so doing, applied the wrong test in determining whether the applicant qualified for the relevant licence: Grounds 1 and 2.
    2. (2)
      The Tribunal erred in law in failing to afford the applicant natural justice,[7] in so far as the Tribunal failed to engage with submissions as to why the weapons were occupational requirements and, in that regard, gave inadequate reasons for its decision: Grounds 3 and 4.
    3. (3)
      The Tribunal erred in its finding as to the suitability of mechanisms for the safe carriage of long arm weapons on motorbikes, in that:
      1. the finding was against the weight of the evidence or failed to consider certain evidence: Grounds 5(a) and 6.
      2. there was no evidence to enable the finding, or there was a failure to provide adequate reasons for the finding, or the finding was ‘affected by unreasonableness, irrationality or illogicality’: Grounds 5(b) and 7.
    4. (4)
      The Tribunal erred in its finding that there was not sufficient evidence that the tranquiliser pistol and handgun were occupational requirements, in that:
      1. the finding was against the weight of the evidence or failed to consider certain evidence: Ground 8(a).
      2. there were inadequate reasons for the decision: Ground 8(b).
      3. the finding was ‘unreasonable, illogical or irrational’: Ground 8(c).
  2. [8]
    Grounds 5(a), 6 and 8(a) involve questions of fact or mixed law and fact.[8] Leave to appeal is required on a question of fact or a question of mixed law and fact.[9] Where leave is given, the appeal is decided by way of rehearing.[10] The question of whether leave should be given in relation to those grounds of appeal is addressed below.
  3. [9]
    However, a question central to or underlying all of the grounds of appeal is what is meant by the term ‘occupational requirement’ under s 11(c) of the Act.

‘Occupational requirement’

  1. [10]
    In terms of s 10(2)(f) of the Act, an ‘occupational requirement’ is the reason relied upon by the applicant to warrant the possession of a category H weapon. The term is not defined in the Act.
  2. [11]
    By s 13(5) of the Act, if the reason for seeking the licence is an occupational requirement, the applicant must state why possession of the weapon is ‘necessary’ in the conduct of the applicant’s business or employment. While s 13(5) is a procedural requirement, given the nexus between s 11 and s 13 of the Act it can assist in discerning the intended meaning of the term occupational ‘requirement’.[11]
  3. [12]
    The term ‘occupational requirement’ has been considered in a number of cases. In Lever v Queensland Police Service (Weapons Licensing Branch), a distinction was drawn between use that ‘is not merely a matter of convenience or preference but is a matter of necessity’.[12]  In that case it was held that an occupational requirement for a concealable firearm existed in order to protect persons, including tourists and researchers, in close proximity to saltwater crocodiles at a crocodile farm. Activities were sometimes carried out in a confined space and in circumstances where there was need to keep hands free to use other apparatus. In Salmon v Queensland Police Service (Weapons Licensing Branch), reference was also made to the distinction between necessity and convenience.[13] In finding an ‘occupational requirement’ for a concealable firearm, it was considered that the use of an alternate weapon would be ‘impractical’ in circumstances where the applicant, a sheep and cattle farmer, was operating in a ‘large and inaccessible area against a background of an intense mustering process and the high possibility of the presence of charging feral pigs’.[14] In the earlier decision in Harm v Queensland Police Service,[15] in allowing a licence for a concealable firearm, it was found that the applicant could carry out his occupational requirements ‘safer and more effectively’ with a handgun ‘having regard to the terrain and heavy vegetation’ of the property in question.[16]
  4. [13]
    On the other hand, an occupational requirement for a concealable weapon was not found in Shaxson v Queensland Police Service (Weapons Licensing Branch),[17]and Geary v Queensland Police Service (Weapons Licensing Branch).[18] In Shaxson, reference is made to the term ‘necessary’ in s 13(5) of the Act and it is stated that this ‘connotes something which is required, rather than something that is merely convenient or a matter of preference’.[19] In circumstances where it was evident that there were few occasions in which a gun was required and where safer alternative ways of carrying a rifle were available, it was held that a category H weapon was not ‘necessary’ to meet the applicant’s occupational requirements. In Geary, after considering the earlier decisions in Harm and Shaxson, it was concluded that the use of a concealable weapon will be necessary only ‘where the terrain or special circumstances make the use of a rifle or long-arm weapon impractical or impossible’.[20] In an application for an extension of a time limit to review a decision, in circumstances where there was evidence of only isolated incidents where a concealable weapon was required,[21] it was held that the prospects of success for the application to review were ‘slim’.[22]
  5. [14]
    In Chivers v State of Queensland (Queensland Health),[23] the Queensland Court of Appeal considered the meaning of the term ‘genuine occupational requirement’, which, where it can be shown to exist, gives rise to an exemption under s 25 of the Anti-Discrimination Act 1991 (Qld). In issue was whether it was a genuine occupational requirement that a registered nurse working in 24/7 wards be able to work all shifts. The appellant was unable to work night shifts because of a medical condition. As with the present Act, the term ‘occupational requirement’ is not defined in the Anti-Discrimination Act. In upholding a decision that working night shifts was a ‘genuine occupational requirement’, the Court of Appeal drew an analogy with the term ‘inherent requirements’ of employment, which term has been considered by the High Court in the context of Commonwealth legislation allowing exceptions in relation to disability discrimination and age discrimination.[24] With reference to the High Court decisions, several observations were made. First, in determining the inherent requirements of an employee’s positon, reference is made not only to the terms of the employment contract but also to the functions performed.[25] Second, a practical question is ‘to ask whether the position would be essentially the same if that requirement were dispensed with’.[26] Third, whether something is an ‘inherent requirement’ of a particular employment depends on whether it is an ‘essential element’ of that employment, rather than a mere incident of the employment.[27] Fourth, employment takes place in a social, legal and economic context and ‘unstated but legitimate employment requirements may stem from this context’.[28]
  6. [15]
    While Chivers involved different legislation, there is similarity to the extent that it also involved an exemption to a public policy standard and the wording giving rise to the exemption, ‘occupational requirement’, is the same as in the present legislation. Similarities in legislative objectives no doubt led the Court of Appeal to draw analogies with the different wording, ‘inherent requirements’, considered in the two High Court decisions.
  7. [16]
    Though the present case does not involve a contract of employment, where the essential terms might appear in the employment contract, the four observations made in Chivers remain relevant, in particular the need to demonstrate the central or essential nature of the particular requirement in the wider context of the role undertaken.
  8. [17]
    Further in relation to an ‘occupational requirement’, it is for the applicant for the licence to establish a genuine requirement and there must be an actual rather than potential requirement.[29]

Discussion

  1. [18]
    In relation to the first and second grounds of appeal, which go to the proper construction of the term ‘occupational requirement’, in the decision at first instance it is stated:[30]

The word ‘requirement’, in the context of the Act, contemplates something which is mandatory, not optional, or as Member Howard said in Shaxson ‘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 cannot be met in some other way’.

While the issues of safety and effectiveness are obviously relevant to the issue, they are not determinative. It is not sufficient to conclude that there is an occupational requirement for a handgun simply because in certain circumstances it is safe, more effective, or preferable to the applicant than a long arm weapon, if the long arm weapon is adequate for that purpose.

  1. [19]
    Reference is also made by the learned Member to dictionary definitions of the words ‘requirement’ and ‘require’. It is stated that the Macquarie Dictionary relevantly defines ‘requirement’ to include ‘… a thing demanded or obligatory; …a need …’, while the word ‘require’ is defined to mean ‘… to have a need of; need; …make necessary or indispensable … to call for or act as obligatory … to place under an obligation or necessity …’.[31]
  2. [20]
    On the other hand, the applicant submitted that the approach adopted by the learned Member was ‘at odds’ with the decision in Harm,[32] where it was held that the applicant could carry out his occupational requirements ‘safer and more effectively’ with a handgun ‘having regard to the terrain and heavy vegetation’. However, it is not clear that the learned Member in Harm was saying that an occupational requirement arises simply by demonstrating that use of the weapon would make the occupation safer and more effective. Reference was made in Harm to the strict controls on the possession of weapons,[33] to the fact that the property in question was very heavily timbered, making it difficult to use a rifle on horseback,[34] and to the need to deal with ‘pigs, wild horses and the occasional feral bull’.[35] It was added that the decision was ‘finely balanced’ and that if there were ‘better vehicle access to a greater proportion of the property, and not necessarily all, the application would be dismissed’.[36]
  3. [21]
    Issue is also taken with use of the term ‘adequate’ used in the first instance decision in the present matter; the learned Member stating that an ‘occupational requirement’ does not arise ‘simply because’ a handgun in certain circumstances is safe, more effective or preferable to the applicant, if the long arm weapon is ‘adequate’ for the purpose.[37] It was submitted that this would invoke a difficult test to meet, in that there would not be an occupational requirement even where a concealed weapon could materially increase the safety, effectiveness or efficiency of the operation of a business.[38] The short answer is that it would be a question of degree. As stated in Chivers, employment (and the same might be said for a business) takes place in a social, legal and economic context and ‘unstated but legitimate employment requirements may stem from this context’.[39] 
  4. [22]
    It was accepted in the applicant’s submissions that the Tribunal at first instance acknowledged that issues of safety and efficiency were relevant.[40] The learned Member prefaced his observation with the words ‘simply because’; that is, an occupational requirement does not arise ‘simply because’ in certain circumstances it is ‘safe, more effective, or preferable’.[41] In that context, it is noted that the legislative stipulation is occupational ‘requirement’, not occupational ‘benefit’. In our view, the learned Member applied the correct test and, in consequence, the first and second grounds of appeal are rejected.
  5. [23]
    In relation to the third and fourth grounds of appeal it is submitted that the tribunal failed to ‘engage with, or deal with, particular reasons’ advanced by the applicant as to why the tranquiliser pistol and handgun were occupational requirements, including a failure to give adequate reasons for the decision. Reference is made to evidence going to the need to euthanise cattle in confined places and when the property was flooded and where it was ‘dangerous and impractical’ to use a long-arm weapon; in particular, that it was not safe to carry a long-arm weapon when moving around the property on foot or by canoe. While in the decision at first instance reference is made to this evidence,[42] the applicant complains that though there is reference in the decision to alternatives for the carriage of long-arm weapons on motorbikes, there is no reference to alternatives for close range euthanisation or for when moving around the property by canoe or foot. However, this ignores related findings in the decision at first instance. 
  6. [24]
    In particular, in the reasons for the decision reference is made to the evidence that the applicant ‘rarely shot or shot at feral animals’, that during his time at the property he had shot one dingo and one feral pig using the handgun, while the ‘frequency of euthanizing livestock was something less than one per year’.[43] It was added that the time it would take to return to his house to retrieve a long arm weapon would be up to 45 minutes and, given the infrequency of such events, ‘I do not consider that to be an unreasonable time’.[44] In addition, it was found that the applicant had not considered other options. It was added: ‘He had not looked at break down weapons and the like. It was, he said, largely an economic decision’.[45]  It was concluded that while there may be an occupational requirement regardless of the frequency of use, in the present case an occupational requirement had not been established.[46] In our view, in the context of the conclusions drawn as to the proper meaning of the term ‘occupational requirement’, the Tribunal at first instance did engage with relevant submissions.
  7. [25]
    In relation to the adequacy of reasons for the decision, as noted in Applicant WAEE v Minister for Immigration and Multicultural and Indigenous Affairs,[47] a Tribunal is not a Court and its reasons are not to be scrutinised ‘with an eye keenly attuned to error’. It is ‘not necessary for the Tribunal to refer to every piece of evidence and every contention made by an applicant in its written reasons’.[48] The relevant evidence was referred to, even if at times briefly, and this is not a case where there was a failure ‘to advert to evidence which, if accepted, might have led to a different finding of fact’.[49] These grounds of appeal also are rejected.
  8. [26]
    The fifth, sixth and seventh grounds of appeal go to the finding of the Tribunal that it was not satisfied that alternative mechanisms for the carriage of a long arm weapon on a motorbike were unsuitable.[50] Reference is made to paragraph 39 of the reasons in the decision at first instance, which includes the following passage:

While I accept Mr McGlade’s submissions that there is insufficient evidence that there are products available for the safe carriage of long arm weapons on motorbikes or compact long arms suitable for carriage on motorbikes, I do not accept that his evidence establishes that such mechanisms are unsuitable for his specific business purposes. (Footnotes omitted)

Also, at paragraph 40 of the reasons it is stated:

In cross-examination, Mr McConnel said he had not considered other options because the two tools he uses, that is, the tranquiliser gun and the luger, have served him adequately. He had not looked at break down weapons and the like. It was, he said, largely an economic decision.

  1. [27]
    The applicant raises a number of issues in relation to these passages. As noted at paragraph 8, above, they include questions of fact, or mixed questions of law and fact (grounds 5(a) and 6). In those circumstances leave to appeal is required. The Appeal Tribunal in Harrison and Anor v Meehan set out the criteria for determining whether leave should be granted (citations omitted):[51]

The relevant principles to be applied in determining whether to grant leave to appeal are well established: is there a reasonably arguable case of error in the primary decision; is there a reasonable prospect that the applicant will obtain substantive relief; is leave necessary to correct a substantial injustice to the applicant caused by some error; is there a question of general importance upon which further argument, and a decision of the appellate court or tribunal, would be to the public advantage.

  1. [28]
    Grounds 5(a) and 6 maintain that the applicant gave evidence as to why a number of products available on the market were unsuitable and that the finding of the learned Member was based on the speculative possibility that suitable alternatives existed merely because the applicant had ‘not considered other options’.[52] In relation to the latter, it was submitted that the effect of the evidence before the Tribunal was not that he had not ‘considered’ alternatives, but that he had not taken active steps to ‘look’ for or ‘trial’ alternatives.[53] That appears to be a distinction without a relevant difference, when looked at in the context of the further observations made by the learned Member; that is, that the applicant had not considered other options because the tranquiliser pistol and the handgun ‘have served him adequately’ and that it was ‘largely an economic decision’. In that context it might well be concluded that it had not been established that other alternatives were unsuitable. Also, this issue needs to be placed in the broader context of the reasons given by the learned Member; in particular, as noted in relation to grounds 3 and 4, use of the tranquiliser pistol and the handgun was infrequent and, when needed, there was reasonable time for the applicant to return home to retrieve a long arm weapon.[54] Again, this should be viewed in the context of conclusions drawn as to the proper meaning of the term ‘occupational requirement’, rather than in the context of the interpretation advocated by the applicant, which simply focused on the question of whether, from an occupational view point, it would be safer and more effective to have the weapons in question. 
  2. [29]
    The Appeals Tribunal will not usually disturb findings of fact on appeal if the evidence is capable of supporting the conclusions.[55] The appeal process is not an opportunity for a party to again present their case.[56] It is the means to correct error by the Tribunal that decided the proceeding.[57]
  3. [30]
    In terms of the criteria set out in Harrison and Anor for granting leave to appeal, in our view the applicant does not have a reasonably arguable case of error and does not have a reasonable prospect of substantive relief on those grounds. There is no issue of substantial injustice to the applicant and those grounds do not import a question of general importance. Accordingly, leave to appeal on those grounds is refused.
  4. [31]
    In relation to grounds 5(b) and 7, it is submitted that there was no evidence to enable the finding or there was a failure to provide adequate reasons for the finding, or the finding was ‘affected by unreasonableness, irrationality or illogicality’. In Minister for Immigration and Citizenship v SZMDS Gummow ACJ and Kiefel J stated:[58]

it is necessary to identify the point in the decision-making process at which the alleged unreasonableness occurred and to distinguish between alleged unreasonableness in the exercise of discretion and illogical or irrational reasoning in the course of reaching a state of satisfaction which is a jurisdictional fact.

  1. [32]
    The term ‘jurisdiction’ is ‘used in a variety of senses’ and there is no precision in use of the term ‘jurisdictional fact’ or the related concept of ‘jurisdictional error’: ‘the principles are used in connection with the control of tribunals of limited jurisdiction’ and to avoid the adoption of ‘distorted positions’.[59] In Kirk v Industrial Court (NSW), reference is made to the writings of Jaffe, where the opinion is expressed that denominating some questions as ‘jurisdictional’:[60]

is almost entirely functional: it is used to validate review when review is felt to be necessary … If it is understood that the word ‘jurisdiction’ is not a metaphysical absolute but simply expresses the gravity of the error, it would seem that this is a concept for which we must have a word and for which the hallowed word is justified.

  1. [33]
    As outlined above, evidence was available to enable the finding of the learned Member and the finding was not unreasonable in the relevant sense. Further, in the context of the observations made in Applicant WAEE, noted above, in our view adequate reasons were given for the decision. No error of law has been demonstrated and these grounds of appeal are rejected.
  2. [34]
    Ground 8 of the appeal relates to the finding that the weapons were not an ‘occupational requirement’ and is in three parts: that the finding was against the weight of or failed to consider certain evidence, there was a failure to provide adequate reasons, and the finding was ‘unreasonable, illogical or irrational’. The first of these matters, ground 8(a) raises a question of fact. In our view it has no merit. In the main, it relies on grounds one and two of the appeal; that is, what the applicant claims to be the proper interpretation of the term ‘occupational requirement’. As is noted above, the interpretation advanced by the applicant is rejected. More generally, there was more than ample evidence for the Tribunal to draw the conclusions that it did. In his submissions, other than a reference to the issue at grounds five, six and seven of the appeal, no particular evidence to which particular weight should have been given or should have been considered is pointed to by the applicant. Leave to appeal on this ground is refused.
  3. [35]
    Ground 8(b), failure to provide adequate reasons, also rests to a large extent on the meaning of the term ‘occupational requirement’. If it only needed to be shown that it would be safer and more effective to have a hand gun, as advocated by the applicant, then arguably it would have been appropriate to more fully discuss and consider the applicant’s evidence in that regard. However, in our view, the learned Member applied the correct test as outlined above and, in that context, considered the relevant evidence and provided adequate reasons for his conclusions. This ground of appeal is rejected.
  4. [36]
    Ground 8(c), that the finding was ‘unreasonable, illogical or irrational’, is again based on what the applicant submits to be the proper interpretation of the term ‘occupational requirement’. As noted at [22] above, that interpretation is rejected, as is ground 8(c) of the appeal.
  5. [37]
    The appeal should be dismissed.

Footnotes

[1]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234.

[2]The word ‘genuine’ appears in the heading to the section, as to which see Acts Interpretation Act 1954 (Qld) s 35C(1). In relation to the term ‘genuine reason’, see also s 4(c) of the Weapons Act 1990 (Qld).

[3]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234, [1]-[2].

[4]   Ibid [25], [28]. Applicant’s Revised Outline, [5], [8]-[14], [17]-[18]; Applicant’s Revised Reply Submissions, [1]-[6].

[5]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234, [34]-[38]; Applicant’s Revised Outline, [5], [12], [15]-[18]; Applicant’s Revised Reply Submissions, [1]-[6].

[6]   A ninth ground, ground 2A, was subsequently abandoned: see Applicant’s Revised Reply Submissions, [17].

[7]   Reliance was placed on the decisions in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088, [24]; Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [25], [77]; SZSSC v Minister for Immigration and Border Protection [2014] FCA 863, [75]-[79].

[8]   See, for example, Bell v Federal Commissioner of Taxation [2012] FCA 1042, [90]; Zizza v Federal Commissioner of Taxation [1999] 41 ATR 96, [51], [90]; Telstra Corporation Ltd v Razmovski (1994) 36 ALD 22, 26-28.

[9]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 142(3)(b).

[10]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 147(2).

[11]   See Feeney v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 203, [25], [31]-[34]. In the decision at first instance in the present matter, the learned Member accepted the submission of the applicant that s 13 does not apply to a renewal of a licence, stating that s 18 of the Act is the governing section and it does not contain a subsection in terms similar to s 13(5). This submission was abandoned at the hearing of the appeal. It is evident that s 13(5) also applies to the renewal of a licence. By s 18(9), s 10(2)(f) applies to a renewal; that is, that there must be a s 11 reason for possession of the weapon, which reasons include an ‘occupational requirement’. There being no separate provision for applications for renewal of a licence, it is evident that s 13 applies to all applications for licences.

[12]   [2018] QCAT 225, [28].

[13]  [2018] QCAT 202, [10].

[14]   Ibid, [15].

[15]   [2010] QCAT 518.

[16]   Ibid, [26].

[17]   [2014] QCAT 309.

[18]   [2017] QCAT 6. Geary dealt with the merits of the case in the context of an application to extend time for the filing of the application to review.

[19]   [2014] QCAT 309, [21].

[20]   [2017] QCAT 6, [40].

[21]   Ibid, [44]-[45].

[22]   Ibid, [51].

[23]   [2014] QCA 141.

[24]   Ibid, [39]-[40], See also [41]-[50], [58]. See Qantas Airways Ltd v Christie (1998) 193 CLR 280; X v The Commonwealth (1999) 200 CLR 177.

[25]   [2014] QCA 141, [41].

[26]   Ibid.

[27]   Ibid, [42], [50].

[28]   Ibid, [42].

[29]Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466, [25]; Lever v Queensland Police Service (Weapons Licensing Branchy) [2018] QCAT 225, [12].

[30]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234, [21]-[22].

[31]   Ibid, [19]-[20].

[32]   Applicant’s Revised Outline, [41].

[33]Harm v Queensland Police Service [2010] QCAT 518, [25].

[34]   Ibid, [18].

[35]   Ibid, [19].

[36]   Ibid, [25]-[26].

[37]   See [17] above.

[38]   Applicant’s Revised Outline, [38]-[39].

[39]   [2014] QCA 141, [42].

[40]   Applicant’s Revised Outline, [40].

[41]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCAT 234, [22]. See [16], above.

[42]   Ibid, [34]-[40].

[43]   Ibid, [41].

[44]   Ibid.

[45]   Ibid, [40].

[46]   Ibid, [43].

[47]   (2003) 236 FCR 593, [46].

[48]   Ibid.

[49]   Ibid.

[50]   Ibid, [39].

[51]   [2016] QCATA 197, [8]; Department of Child Safety, Youth and Women v PJC [2019] QCATA 109 [14].

[52]   Ibid, [40].

[53]   Applicant’s Revised Outline, [96]; Transcript, 1-38, 1-42, 1-43.

[54]   [2019] QCAT 234, [41].

[55]Dearman v Dearman (1908) 7 CLR 549, 561; Fox v Percy (2003) 214 CLR 118, 125-126.

[56]Lida Build Pty Ltd v Miller & Anor [2011] QCATA 219, [12]; Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9]

[57]Lida Build Pty Ltd v Miller & Anor [2011] QCATA 219, [12]; Bradlyn Nominees Pty Ltd v Saikovski [2012] QCATA 39, [9].

[58]   (2010) 240 CLR 611, [39].

[59]   See, Kirk v Industrial Court (NSW) (2010) 239 CLR 531, [63]-[65] per French CJ, Gummow, Hayne, Crennan, Kiefal and Bell JJ.

[60]   Ibid, [64].

Close

Editorial Notes

  • Published Case Name:

    Christopher David McConnel v Queensland Police Service (Weapons Licensing Branch)

  • Shortened Case Name:

    McConnel v Queensland Police Service (Weapons Licensing Branch)

  • MNC:

    [2019] QCATA 156

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Hughes

  • Date:

    15 Nov 2019

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.