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

Queensland Police Service – Weapons Licensing v Ryder

 

[2019] QCATA 159

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Police Service – Weapons Licensing v James Bruce Ryder [2019] QCATA 159

PARTIES:

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(appellant)

 

v

 

JAMES BRUCE RYDER

(respondent)

APPLICATION NO/S:

APL288-18

ORIGINATING

APPLICATION NO/S:

GAR109-18

MATTER TYPE:

Appeals

DELIVERED ON:

15 November 2019

HEARING DATE:

5 September 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Aughterson, Presiding

Member Traves

ORDERS:

  1. Leave to appeal is granted.
  2. The appeal is allowed.
  3. The decision of the Tribunal dated 4 October 2018 is set aside.
  4. The proceeding GAR109-18 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES  – where appellant refused the application for an exemption – where Tribunal at first instance set aside that decision and granted the exemption subject to ‘further directions’ – whether decision is a ‘reviewable decision’ within s 142 of the Weapons Act – where issue in identifying from which ‘specific provisions’ exemption sought -  what test or criteria apply in determining whether to grant an exemption – whether failure to have regard to relevant considerations – whether irrelevant considerations taken into account – whether error in setting aside appellant’s decision.

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION –  application for exemption – where application for exemption made under s 2(1)(m) of the Weapons Act 1990 (Qld) – where respondent wanted to possess and use a silencer – where silencer categorised as a Category ‘R’ weapon.

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 146

Weapons Act 1990 (Qld), s 2, s 142

Weapons Categories Regulation 1991 (Qld), s 8(1)(h)

Weapons Regulation 2016, s 148

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Fowkes v Queensland Police Service – Weapons Licensing [2016] QCAT 336

Ryder v Queensland Police Service Weapons Licensing [2018] QCAT 368

Stanway v Queensland Police Service – Weapons Licensing [2018] QCAT 451

White v Woolcock [2006] QCA 148

Yatras & anor v Queensland Police Service – Weapons Licensing [2019] QCAT 6

APPEARANCES:

Appellant:

Susan Anderson, instructed by Qld Police Service Legal Service Unit

Respondent:

Steven Forrest, instructed by Rostron Carlyle Rojas Lawyers

REASONS FOR DECISION

  1. [1]
    This is an application for leave to appeal a decision of the Tribunal of 4 October 2018, which set aside a decision of the Weapons Licensing Branch to refuse an exemption under s 2(1)(m) of the Weapons Act 1990 (Qld) (‘the Act’).
  2. [2]
    Mr Ryder is a farmer in the Jondaryan District who operates a 900 hectare property of dry land grain and cotton. Mr Ryder has licences for Category A, Category B and Category C weapons. He applied for an exemption to enable him to use a ‘silencer’ to reduce the sound caused by discharging his firearms.[1] More particularly, Mr Ryder applied for an exemption that would no longer preclude him from owning a category R weapon. A silencer is a category R weapon.[2] 
  3. [3]
    Category R weapons are the most serious category of weapons and include, for example, machine guns, grenade launchers, mortars and bazookas. Category R weapons may only be possessed by the holder of a collector’s licence[3] or a dealer’s licence[4] and then only on the proviso that they have been rendered inoperable. In certain circumstances, a licensed armourer may also be permitted to handle Category R weapons.[5]
  4. [4]
    On 19 February 2018 Mr Ryder’s application “for an Exemption under the Weapons Act” was refused.[6] The reason for refusal was stated to be:

The principles and objectives of the Weapons Act 1990 outweigh the need to use a Category R suppressor.

  1. [5]
    The Information Notice that accompanied the decision provided, relevantly:

Under s 2(1)(m) of the Weapons Act 1990 (Qld) I am authorised by the commissioner to grant an exemption from the application of the provisions of the Act. …

In making the decision to refuse your application for exemption from the Weapons Act provisions in relation to sound moderators I have considered the principles and objectives of the Act outweigh the need to use a sound moderator.

Legislators have specifically legislated in the Reg, particularly under Part 8 the categories of weapons that a firearms licence holder can possess. The Act and Regs specifically do not provide for a holder of a firearms licence to be licenced for a category R weapon. Section 22(1) of the Reg provides concealable firearms licence authorises the licensee to possess and use any pistol, which is not a category R weapon, for the purpose stated on the licence.

Legislation does not provide for a holder of a firearms licence to be licenced for a category R weapon. Further, legislators have considered and stipulated in s 22(1) that a concealable firearms licence authorises a licensee to possess any pistol that is not a category R weapon.

As a decision maker it would be in conflict with the law and ultra vires to issue the requested exemption.

  1. [6]
    On review, the Tribunal set aside that decision and returned the matter to the Commissioner for Police for reconsideration subject to the following further directions:
  1. the Applicant has satisfactorily established a genuine need to have and use a suppressor, otherwise defined as a ‘silencer’ within Weapon category ‘R’;
  2. subject to the determination of appropriate conditions (if any) for purposes of s 148(2)(b) of the Weapons Regulation 2016 (Qld), grounds exist for the conferral of an exemption pursuant to s 2(1)(m) of the Weapons Act 1990 (Qld) for the Applicant to possess a category R weapon; and
  3. it is for the Commissioner of the Police Service to determine conditions (if any) for the prospective exemption.
  1. [7]
    On appeal, the matter was adjourned to permit the QPS to amend their Notice of Appeal.[7] The amendments were sought as a result of issues raised by the Tribunal concerning whether the Tribunal had jurisdiction to review the decision and the identification of specific provisions of the Weapons Act from which exemption was sought.
  2. [8]
    The amended grounds of appeal are as follows:
  1. The Tribunal misdirected itself at law in relation to the nature and scope of an exemption pursuant to s 2(1)(m) of the Weapons Act 1990;
  2. The Tribunal misdirected itself at law in determining the criteria for granting an exemption pursuant to s 2(1)(m) of the Weapons Act 1990;
  3. Pursuant to grounds 1 and 2 above, the Tribunal erred in failing to exercise its discretion to dismiss the proceedings pursuant to section 47 on the basis that the application was misconceived;
  4. The Tribunal erred at law in failing to have proper regard to relevant considerations (including the legislative intention and the practical utility of any purported exemption);
  5. The Tribunal erred at law by taking into account irrelevant considerations (including the desirability of suppressors being designated as a Category R weapon); and
  6. The Tribunal erred at law by considering that it had jurisdiction to hear Mr Ryder’s application for review because the decision sought to be reviewed does not fall within s 142 of the Weapons Act 1990.
  7. The Tribunal erred at law by failing to identify which, if any provisions of the Weapons Act 1990 ought not apply to Mr Ryder.
  1. [9]
    We will deal with the issue of jurisdiction first, namely ground 6. We will then consider the related grounds 1 and 7.

Does the Tribunal have jurisdiction to review a decision to refuse an exemption

  1. [10]
    The issue is whether the refusal to grant an exemption is a reviewable decision. Mr Ryder did not, at first instance, identify the specific basis upon which he was applying for review and there was no argument in relation to that issue.[8] In any event, the hearing at first instance proceeded as a review pursuant to s 142(1)(a) of the Act.[9] It was considered to be ‘sufficiently clear’ that a refusal to grant an exemption fell within s 142(1)(a).[10]
  2. [11]
    Section 142 sets out what are “reviewable decisions”. It provides:

142 RIGHT TO APPLY FOR REVIEW OF DECISIONS

  1. This section applies to the following decisions—
  1. a decision refusing an application for a licence, permit, approval or other authority under this Act;

(aa) a decision refusing to renew a licence under this Act;

  1. a decision refusing to accept the nomination of a person by an applicant for a shooting club permit;
  2. a decision refusing to accept a representative notice under section 92;
  3. a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act;
  4. a decision revoking or suspending a licence, permit, approval or other authority under this Act;
  5. a decision, under section 18D(2) , revoking a delegation.
  1. A person aggrieved by the decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.
  1. [12]
    The power to grant an exemption is provided for in s 2. Section 2, relevantly, provides:

2 APPLICATION OF ACT

(1) This Act does not apply to a person—

(m) to whom the commissioner of the police service in the prescribed manner has granted an exemption from the application of those provisions of this Act specified therein in respect of the application of those provisions.

  1. [13]
    The issue is whether an application for an exemption is an application for a “permit, approval or other authority” in terms of s 142(1)(a) of the Act. For the reasons which follow we have determined that it is not.
  2. [14]
    The construction of s 142(1)(a) and, in particular, whether “permit, approval or other authority” includes an exemption must be considered in light of the natural meaning of the words, surrounding provisions, the stated principles and objects of the Act and the obvious intention of the legislature that the Act should be workable and operate in a practical and sensible way.[11]
  3. [15]
    The terms “permit”, “approval”, or “exemption” are not defined in the Act.
  4. [16]
    “Authority” is defined for the purpose of s 193 as follows:

"authority" means—

  1. a licence; or
  2. a permit to acquire; or
  3. a shooting club permit; or
  4. an approval to conduct an arms fair under section 79(2); or
  5. an approval of a range under section 101(1); or
  6. an approval of a shooting gallery under section 111; or
  7. any other type of approval, licence or permit granted or renewed by an authorised officer under this Act.
  1. [17]
    “Authority” is also used in s 2 to refer specifically to an authority to be engaged in scientific or experimental work granted by the Minister and to an authority to a person engaged in warehousing or transport under consignment of merchandise for a licensed dealer, the armed forces, or “any authority” of the Commonwealth or State.
  2. [18]
    Otherwise, the phrase or “other authority” is used throughout the Act to refer to an authority under a law of another State.[12] The concept of an “authority” does not therefore, in our view, extend to an exemption.
  3. [19]
    The power to grant a ‘permit’ applies in two respects under the Act: as a “permit to acquire and possess” a weapon[13] and as a “shooting club permit”.[14] The word is not used in any other context. The term ‘approval’ is used more extensively to apply to a range of circumstances. These circumstances are, however, clearly identified and leave no scope, in our view, to argue that an “exemption” within the meaning of s 2(1)(m) can be construed as an “approval”.  Under the Act, “approvals” can be applied for in respect of: the conduct of an arms fair;[15] a range for weapons target shooting[16] and the conduct of a shooting gallery.[17]
  4. [20]
    The Weapons Regulation 2016 (‘the Regulation’) also makes a clear distinction between “permits”, “approvals” and “exemptions”. Part 23 of the Regulation is headed “Particular approvals and related matters”. This Part comprises divisions dealing with: approval to grant an arms fair;[18] approval of a body as an approved historical society;[19] approval of range for weapons target shooting;[20] approval to conduct a shooting gallery;[21] and approval of a weapons club.[22] 
  5. [21]
    Part 24 is headed “Application for shooting club permit, and additional details for range use register kept by approved shooting club”.
  6. [22]
    Part 26 is headed “Exemptions by commissioner from application of particular provisions of Act”. It comprises four divisions dealing with the different types of exemptions that can be applied for. Notably, an exemption can be applied from the provision requiring a permit to acquire but only in specific respects, being those outlined in subdivisions 1-4. None of those subdivisions would apply to the situation where an applicant is seeking an exemption from s 35 to enable the person to acquire a category R weapon.  In any event, s 39 of the Act provides that a permit to acquire a weapon may only be issued to an individual if that person is authorised to possess the weapon or category of weapon under a licence. There is no class of licence which authorises a person to possess a category R weapon, with one limited exception being the holder of a collector’s licence where the category R weapon has been rendered “permanently inoperable”.[23]
  7. [23]
    Section 163 of the Act is headed ‘Evidentiary provisions’. It deals with “exemptions” and with a “licence, permit or approval or other document”, suggesting that these are different things. In particular, s 163(1) provides, relevantly:
  1. In a proceeding for the purposes of this Act—
  1. a statement in a complaint under the Justices Act 1886 of any of the following matters is evidence of the matter—
  1. a place is or is not an approved range;
  2. a club or an organisation is or is not an approved shooting club;
  3. a person is or is not of a particular age;
  4. a person was, or was not, the holder of a specified licence, permit, approval or other authority issued or granted under this Act at or during a specified time; and

(ca) a certificate purporting to be signed by the commissioner or deputy commissioner that the commissioner or deputy commissioner, acting personally under section 15(5) or 18(7), approved the rejection of an application for a licence or the renewal of a licence because a person was not a fit and proper person is evidence of the matter; and

(cb) a certificate purporting to be signed by the commissioner or deputy commissioner that the commissioner or deputy commissioner, acting personally under section 28(4) or 29(3), approved the suspension or revocation of a licence because a person was not a fit and proper person is evidence of the matter; and

  1. a certificate purporting to be signed by an authorised officer stating any of the following matters is evidence of the matter—
  1. a specified document is a licence, permit or approval or other document issued or granted under this Act or a copy of the document;
  2. at or during a specified time, in relation to a place, person, club or organisation there was or was not a specified licence, permit, approval or other authority issued or granted under this Act;
  3. a licence, permit, approval or other authority granted or issued under this Act was subject to the terms, conditions or restrictions stated in the document; and
  1. a document purporting to contain information extracted from the firearms register and signed by an authorised officer is evidence that the information is recorded in the firearms register; and
  2. every entry in any book or register kept by or belonging to any person pursuant to this Act or found on premises of that person are to be taken, unless the contrary is shown, to have been made by or with the authority of that person; and
  3. proof of any exemption from any provision of this Act is upon the person who relies thereon; and
  4. where the age of any person is material, the court may decide, upon its own view and judgment, whether any person charged or present before it has or has not attained any prescribed age but the age of that person may be proved by other means.
  1. [24]
    Further, in Schedule 1 of the Act, headed, Subject Matter for Regulations, clause 11 provides:

11 TERMS OF APPROVALS, PERMITS AND EXEMPTIONS

Providing for the terms of approvals, shooting club permits and exemptions.

  1. [25]
    This also indicates that, as a matter of statutory construction, “exemptions” are something other than an approval or permit.
  2. [26]
    The issue has not been comprehensively considered by the Tribunal. The decision of Yatras & Anor v Queensland Police Service – Weapons Licensing[24] was raised in submissions. In Yatras the applicants applied for review of the decision by QPS to reclassify a weapon as belonging to category D from category H. In that case, in determining the Tribunal had jurisdiction to review the re-categorisation, it was said:[25]

I conclude the letter from Weapons Licensing dated 21 June 2018 informing the applicants they were no longer entitled to possess the Wedgetail amounted to a decision revoking their authority to possess something they had hitherto been entitled to possess under their concealable firearms licence, that that was a decision which aggrieved the applicants and by s 142 of the Act they were entitled to apply to the Tribunal for a review of that decision.

  1. [27]
    The case therefore does not assist in determining whether a refusal to grant an “exemption” is a reviewable decision. We note however, that a re-classification of the category of a weapon is not, in our view, a reviewable decision. While it is true that it led to the applicant being no longer entitled to possess the weapon under his licence, a decision “refusing” an application for a licence had not been made, nor had a decision been made amending a condition that applied to the licence. That Mr Yatras was no longer entitled to possess the weapon was as a result of a change of the regulations classifying weapons, not a decision by those in weapons licensing.
  2. [28]
    Having said that, in Yatras some general comments were made about the scope of the review encompassed by s 142:

[28] The scope of s 142 decisions is potentially a very broad one. There is no limiting criteria save that it involve, in so far as relevant to the matter at hand, revocation or suspension of a licence, permit, approval or other authority under the Act.

[29] In Australian Broadcasting Tribunal v Bond,[26] Mason CJ, in discussing limitations applying to judicial review of decisions made by the Australian Broadcasting Tribunal, said:

28…. But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself.

29. The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision".

[30] That statement has equal force with respect to the matter at hand. I see no justification for any narrow view to be taken of decisions made under the Act that the legislation intends to be subject to administrative review in the Tribunal.

[31] Section 142 is in the broadest of terms. Similarly broad, apparently, are the range of people given the right of review – any person ‘aggrieved by the decision’. That is to be contrasted with review provisions which allow review of decisions that affects a person, such as to be found in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), and then proceeds to narrow the scope of reviewable decisions affecting someone able to be reviewed. That is not the case here with s 142 which is very much open ended and casting in result a wide net.

  1. [29]
    However, in our view, the scope of the review should be determined by reference to the objects and terms of the Act, rather than by reference to the approach taken in relation to unrelated legislation. When one considers the principles and objects of the Act, namely public and individual safety through the imposition of strict controls on the possession of weapons and the safe storage and carriage of weapons, in our view “reviewable decisions” in s 142 should be interpreted as confined to the specific types of decisions outlined in the section rather than a provision which is “very much open-ended and casting in result a wide net” as held in Yatras.
  2. [30]
    The decision of Fowkes v Queensland Police Service – Weapons Licensing[27] was also referred to. In Fowkes, it was held that:

the exemption decision states its purpose is ‘to permit’ the exempted person to possess and only display collectable weapons as an exhibitor for ANZAC Day 2016 celebrations. By allowing Mr Fowkes to display weapons without the need to comply with the Act, the exemption operates as a ‘permit’, ‘approval’ or ‘other authority’ under the Act.[28]

  1. [31]
    Mr Fowkes was exempted from specific provisions of the Act, namely s 60, which provides that a licensee must keep the weapon in secure storage facilities when a person is not in physical possession of the weapon, and s 82 which provides that a licensed collector must not, without a reasonable excuse, remove any weapon or the collection register from the premises specified in the licence. Mr Fowkes was also exempted from the application of equivalent regulations 39 and 44 of the Regulations. A number of conditions were also imposed relating to the number of weapons able to be removed from the safe storage facility and other security measures. It was the conditions that Mr Fowkes took exception to.
  2. [32]
    In Fowkes it was held that the decision to impose conditions on the permit to display and possess collectable weapons on ANZAC day was a “reviewable decision” under s 142(1)(d) of the Act. In that case the QPS granted a permit with exemptions from specific provisions of the Act and Regulations. The permit was subject to conditions (not the exemptions). In Fowkes it was stated:[29]

I am satisfied that the decision to impose conditions on the exemption falls within category (d) and is therefore a ‘reviewable decision’ under the Act. The Act does not define permit, approval, or other authority as used in category (d), but their ordinary meaning include ‘a legal document giving formal permission to do something’, ‘sanction’, and ‘official permission’. 

Consistent with these meanings, the exemption decision states its purpose is ‘to permit’ the exempted person to possess and only display collectable weapons as an exhibitor for ANZAC Day 2016 celebrations, subject to specified conditions. By allowing Mr Fowkes to display weapons without the need to comply with the Act, the exemption operates as a ‘permit’, ‘approval’ or ‘other authority’ under the Act. Imposing conditions on that permit, approval or other authority therefore falls within the ambit of category (d).

The decision to impose conditions to the exemption is therefore a decision reviewable by the Tribunal under the Weapons Act 1990 (Qld).

  1. [33]
    In our view, Fowkes is not determinative of the issue as to whether a decision imposing conditions on an exemption is a reviewable decision. The QPS had approached the review at first instance on the basis that there was no utility in determining it as the relevant date for the exemption, namely ANZAC day, had passed and that accordingly, the matter should be struck out under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’). The issue as to whether the decision was a “reviewable decision” was not raised or argued by either party.[30]  Nor was the issue considered on appeal. On appeal, the proceeding was dismissed on the basis that it lacked utility. In our view, a decision imposing or amending conditions applying to an exemption, is not a reviewable decision on the basis that an exemption is not a “licence, permit, approval or other authority under the Act”.
  2. [34]
    The appellant also referred to Stanway v Queensland Police Service – Weapons Licensing.[31] That case involved an application for an exemption to enable the applicant to use a silencer. However, neither the Tribunal nor the Appeal Tribunal considered the issue of whether the refusal to grant the exemption was a “reviewable decision” within the meaning of s 142 of the Act. Nor was there identification of any specific provisions from which exemption could be sought which would result in the applicant being lawfully in possession of a silencer. We note that, at least at first instance, the Tribunal considered that there could be an exemption from the Act as opposed to specific provisions of the Act.[32]
  3. [35]
    The appellant submits that the refusal to grant an exemption is not reviewable because the decisions that are reviewable under s 142 of the Act all involve decisions that affect something to which the applicant was already entitled or in respect of which they had a right under the Act to apply. The case of an exemption is different because there is no provision which gives a person the right to apply for an exemption. Section 2(1)(m) of the Act simply refers to the commissioner’s power to grant one. Further, if an exemption is refused, there is no “right affected” by the decision, in the sense that the Act simply continues to apply. This argument has some appeal as a matter of statutory construction. However, the appellant also submits that if an exemption is granted, the terms or conditions upon which it is granted, are reviewable. This is inconsistent. Either an exemption is an “approval” or “other authority” or it is not.
  4. [36]
    If the Act is considered as a whole, it becomes clear that an “exemption” from specific provisions of the Act is something different from a “permit”, “approval” or “other authority”. It follows that a decision to refuse an application for an exemption from specific provisions of the Act is not a “reviewable decision” within the meaning of s 142(1)(a) of the Act. 

Is there power to grant an exemption in these circumstances

  1. [37]
    The aim of Mr Ryder’s application was to be able to use a category R weapon while holding a concealable firearms licence. Mr Ryder formulated that as an application for an exemption from the Act and that is the way it had been approached by the original decision-maker and on review. We note that there is no explicit process by which particular weapons can be brought within the authority of a particular licence. In White v Woolcock[33] the Queensland Court of Appeal considered that it was necessary to examine the scheme of the Act to establish what means were open, in that case to transfer weapons authorised under one class of licence to another class of licence. One way was the removal of an existing licence endorsement in respect of a particular weapon and endorsement of that weapon instead on a different licence, one appropriate for their retention. In this case, there was no process under the Act which would have permitted the applicant to have his licence endorsed with a category R weapon. This perhaps explains why the applicant then sought an exemption.
  2. [38]
    Section 2(1)(m) is the source of the power to grant an exemption. It makes clear that the commissioner of the police service has the power to grant an exemption in the prescribed manner from the application of specified provisions of the Act in respect of the application of those provisions (emphasis added). It is therefore not possible under s 2(1)(m) to grant an exemption from the entire Act.
  3. [39]
    Mr Ryder therefore, needs to be able to specify from which provisions of the Act he wishes to be exempt.
  4. [40]
    The respondent submits that given the matter was returned to the Commissioner of Police for reconsideration, it was not necessary for the Tribunal to identify the provision of the Weapons Act from which an exemption was to be granted. Further that identification of the particular provision was not an issue raised or agitated by either party. Therefore, it was submitted, there was no error of law in omitting to identify in the order or reasons for decision the specific provision/s from which exemption was sought.
  5. [41]
    We do not agree with the submission that in the decision at first instance a specific provision was not identified. In setting aside the decision and returning the matter to the commissioner, a direction was made that:[34]

Subject to the determination of appropriate conditions (if any) for purposes of s 148(2)(b) of the Weapons Regulation 2016 (Qld), grounds exist for the conferral of an exemption pursuant to s 2(1)(m) of the Weapons Act for the Applicant to possess a category R weapon.

  1. [42]
    From the reasons for the decision at first instance, it appears that, at different times, the application was approached as either an application for exemption from the “scheme of the Act” or from regulation 8(1)(h) of the Weapons Categories Regulation 1997 (Qld). That is clear from the following passages:

[24] It is the Tribunal now standing in the shoes of the commissioner of police for purposes of section 2(1)(m) of the Act, and for the making of a determination whether an exemption from s 8(1)(h) should now be granted to the Applicant.

….

[29] Although I am amply satisfied that the Applicant shows a genuine reason – one based on concerns for health and safety – as to why he should be conferred with an exemption from section 8(1)(h) of the Weapons Categories Regulation 1997 (Qld) (emphasis added).

  1. [43]
    However, it is also stated:[35]

It bears keeping in mind that Mr Ryder is not seeking to be licensed to hold a weapon from Category R. Indeed, for all the reasons already articulated, that would not be possible. Rather, Mr Ryder seeks to be exempted from the statutory regime. The legislature has seen fit to provide, by means of s 2(1)(m) of the Weapons Act a power to exempt a person from the usual regime applicable to weapons. This must been taken [sic] to include Category R weapons, as the Act contains no express words to the contrary. The decision now under review amounts to a failure to exercise the discretion in s 2(1)(m), similar to that recognised as having arisen in Stower v Smart. (emphasis added).

  1. [44]
    For the reasons outlined above, in our view, s 21(1)(m) does not allow an exemption from the scheme of the Act or from regulation 8(1)(h). Section 2(1)(m) expressly provides that an exemption may be granted from the application of “those provisions of this Act specified therein in respect of the application of those provisions”. It is not consistent with the express wording of s 2(1)(m) or with the purpose and objects of the Act, to apply for an exemption from the Act altogether. There is no power to grant such an exemption.
  2. [45]
    Further, it is not possible to identify a provision or set of provisions which, if they did not apply, would mean Mr Ryder was entitled to possess a category R weapon.
  3. [46]
    The respondent argued, at the resumed hearing of the appeal, that the specific provision from which exemption was sought was s 50, or in the alternative, s 29.
  4. [47]
    Section 50 provides:
    1. (1)
      A person must not unlawfully possess a weapon.
  5. [48]
    The maximum penalty for unlawful possession of category R weapons ranges from 300 penalty units or 7 years imprisonment to 13 years imprisonment (where a person possesses 10 or more weapons at least 5 of which are category D, E, H or R weapons).
  6. [49]
    Section 29 of the Act sets out the circumstances when an authorised officer may revoke a licence. The respondent submits that this provision ‘effectively precludes a licence from being granted in respect of a category R weapon’.
  7. [50]
    The appellant submits it is not possible or at least contrary to the scheme of the Act, to construct an exemption which would result in Mr Ryder being able to possess and use a category R weapon. The appellant submits that the scheme of the Act provides for the categorisation of weapons. These are defined in the Weapons Categories Regulation into categories A, B, C, D, E, H, M and R. A silencer is included in category R.
  8. [51]
    The appellant submits that there is no provision in the Act or Regulations which would enable a person with the category of licence that Mr Ryder has, namely a concealable firearms licence, to possess a category R weapon. The appellant points to regulation 22(1) of the Regulations, which provides:
    1. (1)
      A concealable firearms licence authorises the licensee to possess and use any pistol, that is not a category R weapon, for the purpose stated on the licence.
  9. [52]
    And to s 77 of the Act, which provides:

77 COLLECTOR’S LICENCE (WEAPONS)

  1. It is a condition of a collector’s licence (weapons) that the licensee may possess—
  1. category D, M or R weapons only if—
  1. for weapons that are firearms—he weapons are made permanently inoperable; or
  2. or other weapons—he weapons are inert;

  1. [53]
    The appellant submits that s 77 does not apply to Mr Ryder who does not have a collector’s licence, and that no “exemption” could make it apply to him. Regulation 22 which does apply to Mr Ryder, makes it clear that his type of licence specifically excludes category R weapons. The appellant argues that it is not the intention in providing for a power to exempt to apply it to a provision that defines the categories of weapons or the parameters of a particular licence.
  2. [54]
    “Exemption” is defined to mean “the action of taking out or away” and as:

The action of exempting, or the state of being exempted from a liability, obligation, penalty, law, or authority; freeing, freedom; and instance of the same, an immunity.[36]

  1. [55]
    An exemption would therefore, in our view, be confined to a decision that a specific provision which imposed an obligation or liability on Mr Ryder, did not apply.
  2. [56]
    Purporting to “exempt” Mr Ryder from reg. 8(1)(h) of the Regulations is misconceived. Regulation 8(1)(h) categorises a silencer as a category R weapon. It does not impose any obligation on Mr Ryder or impose any liability upon him. It is, accordingly, not something from which he can be exempt. In any event, it is not clear how exempting Mr Ryder from reg. 8, results in him being authorised to acquire and possess a silencer.
  3. [57]
    Further, it is clear that in certain circumstances an authorised officer may authorise a licensee, by condition endorsed on the licence, to possess a category H weapon that the licensee is not authorised to possess if the authorised officer is satisfied that the licensee is to possess the weapon for use in an accredited event.[37] In other words, the statutory scheme is such that, in certain specified circumstances, the appropriate course, should a person wish to possess a weapon to which their licence does not extend, is to apply for an authority by condition endorsed on the licence, not to apply for an “exemption”.
  4. [58]
    There is no provision in the Act or Regulations which would enable a person holding a licence of the classes held by Mr Ryder, to possess a category R weapon. Moreover, there is no scope for a person to apply to extend their licence to include a category R weapon. Indeed, regulation 22 specifically provides that a concealable firearms licence authorises the licensee to possess and use any pistol that is not a category R weapon, for the purpose stated on the licence. Part 8 of the Regulations limits the types of weapons which may be lawfully held to weapons in categories A and B, and in certain circumstances, categories C and D.  The Act only provides for one instance in which a person might possess a category R weapon and that is where a person has a collector’s licence (weapons) and where the category R weapon is made “permanently inoperable”.[38] This is a statutory condition of a collector’s licence. Unlike other conditions for different types of licences or approvals, there is no provision which allows for the conditions applying to a collector’s licence to be amended. We note that the imposition of this condition, that a category R weapon must be rendered permanently inoperable, is also not a reviewable decision. This is because the condition is imposed by statute, not by virtue of a decision made under the Act.[39]
  5. [59]
    The only decision to have considered the nature and scope of an exemption (but not whether the decision was reviewable) is Stanway v Queensland Police Service – Weapons Licensing.[40] In Stanway it was held that, in confirming a decision to refuse an exemption:

I am not satisfied that the objects of the Act would be furthered by increasing the availability of category R weapons. While I understand concerns relating to noise exposure, the difficulty with Mr Stanway’s arguments regarding noise is that they are applicable to all firearms and concealable firearms licence holders, in that all unsuppressed firearms emit a loud noise when they are discharged. As set out above, the Weapons Act and Regulation have not authorised category R weapons to be possessed by those licence holders. It would plainly not further the objects of the Weapons Act to recognise a broad basis for granting exemption to firearms and concealable firearms licence holders to enable them to acquire suppressors.

  1. [60]
    In our view, there was no power to “exempt” Mr Ryder from the entire Act and no power to “exempt” him from s 50. Further, to exempt Mr Ryder from s 50, s 29 or reg 8 does not result in the outcome he is seeking.
  2. [61]
    An exemption from something which does not exist does not create a new right.
  3. [62]
    Although our conclusions regarding the jurisdiction of the Tribunal in s 142 and the scope of an exemption have effectively disposed of the appeal, for completeness we turn to consider the other grounds of appeal.

The Tribunal misdirected itself at law in determining the criteria for granting an exemption pursuant to s 2(1)(m) of the Weapons Act

  1. [63]
    This ground was approached on the basis that the exemption that was applied for and granted, was from the entire Act. The test that was applied in the decision at first instance was said to be whether the applicant had shown a “genuine reason” for the exemption.[41] That this could be the test for an exemption from the entire Act was, the appellant submitted, absurd given the test for obtaining a licence on the basis of an occupational requirement requires not only a “genuine reason” but also that the weapon was “necessary”, in that no other options consistent with the principles and intention of the Act were available.
  2. [64]
    The appellant argued that the Tribunal at first instance misapprehended the criteria for the grant of an exemption in light of the clear intentions of the Act as a whole, being to restrict weapon ownership and prevent ownership of category R weapons.
  3. [65]
    If there is an ability to exempt a person from the entire Act, which we have found not to be the case, we would agree with the submissions of the appellant. The application of a test in these circumstances which required the applicant to “demonstrate some genuine reason why they need a suppressor, plus satisfaction on the part of the decision-maker regarding the suitability of any conditions that I apply to an exemption, so as to meet the statutory requirement to ensure public and individual safety”[42] was, in our view, misconceived. The Act requires an applicant for a licence to state the reason for possessing a weapon[43] and, if that is due to occupational requirements, to state why the weapon is necessary[44] in the conduct of the applicant’s business or employment.[45] As the appellant submits, this indicates that more is required than merely a “genuine reason”. It is inconsistent with the scheme of the Act to apply a lesser test for an exemption that would, if the respondent’s view is accepted, have the effect of permitting a person to possess the most serious category of weapon, namely a category R weapon.
  4. [66]
    We agree that this gives rise to an error of law.

The Tribunal failed to exercise its discretion to dismiss the proceedings under s 47 of the QCAT Act

  1. [67]
    The appellant submits that if the Tribunal had applied the appropriate criteria in considering whether to grant the exemption and the objects of the Weapons Act, the application would have been dismissed under s 47 of the QCAT Act.
  2. [68]
    The exercise of the power to dismiss a proceeding under s 47 is discretionary and no error or law is indicated.

The Tribunal failed to have proper regard to relevant considerations and had regard to irrelevant considerations

  1. [69]
    We have combined grounds 4 and 5.
  2. [70]
    The appellant submitted that there was a failure to take into account the structure of the Act and that it was necessary for an exemption to be granted that there be exceptional circumstances. Further, that there was a failure to consider that the appellant would be forced to establish a regime for conditions on the ownership of silencers in Queensland which, the Tribunal had been informed, did not then exist.
  3. [71]
    In terms of irrelevant considerations, the appellant submitted that there was error in taking into account “the desirability of continuing to include suppressors within category R”.[46]
  4. [72]
    While the Tribunal at first instance did express the view that including a silencer in category R may be ‘questionable’, in circumstances where all other items in that category are military grade weapons, that observation was prefaced with the words ‘although ultimately a matter for the Legislature’.[47] The appellant argues that ‘while it is possible that the Member’s view offered on the matter of weapons categorisation did not influence his decision, it is unlikely’.[48]
  5. [73]
    In our view, the passage at paragraph [42] of the decision at first instance is no more than a passing observation in the context of findings as to the interpretation of the relevant provisions of the Act. There is nothing to suggest that it was a consideration underlying the decision.

Conclusion 

  1. [74]
    In our view, a decision to refuse an exemption is not a reviewable decision under s 142 of the Act. Even if it were a reviewable decision, there was no scope to apply an exemption of specific provisions which would result in the applicant being lawfully authorised to possess a silencer, being a category R weapon.
  2. [75]
    The appeal is allowed.

Footnotes

[1]Letter from Mr Ryder in support of his application for exemption dated 23 January 2018.

[2]Weapons Categories Regulation 1991 (Qld), s 8(1)(h).

[3]The Act, s 77.

[4]The Act, s 68.

[5]The Act, s 69.

[6]Letter from QPS to Mr Ryder dated 19 February 2019.

[7]Amended Notice of Appeal filed on 9 July 2019.

[8]Ryder v Queensland Police Service Weapons Licensing [2018] QCAT 368.

[9]Ibid, [13].

[10]Ibid.

[11]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, [28].

[12]  The Act, s 49A(4), s 131, s 18B, s 93, s 32.

[13]  The Act, s 35 provides that a person who wishes to acquire a weapon for which they are not authorised by the terms of their licence, must apply for a permit to acquire that weapon.

[14]  The Act, ss 86 - 88.

[15]  The Act, ss 79 - 80.

[16]  The Act, ss 99 - 103.

[17]  The Act, ss 111 – 113.

[18]  The Regulation, Division 1, reg. 106-107.

[19]  The Regulation, Division 2, reg. 81-88.

[20]  The Regulation, Division 3, s 121.

[21]  The Regulation, Division 4, s 122.

[22]  The Regulation, Division 5, ss123-138.

[23]  The Act, s 77(1)(a)(i).

[24]  [2019] QCAT 6.

[25]   Ibid, [32].

[26]  (1990) 170 CLR 321.

[27]  [2016] QCAT 336.

[28]  Ibid, [9].

[29]   Ibid, [8].

[30]Queensland Police Service – Weapons Licensing v Fowkes [2017] QCATA 37, [20].

[31]  [2018] QCAT 451; [2019] QCATA 108.

[32]  [2018] QCAT 451, [5]: Under s 2(1)(m) of the Act, the Act does not apply to a person to whom the Commissioner of the Police Service has granted an exemption.

[33]  [2006] QCA 148.

[34]   [2018] QCAT 368, [31].

[35]   Ibid, [27].

[36]  Oxford English Dictionary, 2nd edition, Clarendon Press, 1989.

[37]  The Act, s 132(2).

[38]  The Act, s 77(1)(a)(i).

[39]  The Act, s 142(1)(d) refers to a “decision imposing or amending a condition applying to a licence”.

[40]  [2018] QCAT 451.

[41]  [2018] QCAT 368, [29].

[42]  [2018] QCAT 368, [28].

[43]  Weapons Act, s 13(1).

[44]  This has been held by the Tribunal to require the applicant to demonstrate that there are no other options available which are consistent with the principles and intentions of the Act: Geary v Queensland Police Service Weapons Licensing [2017] QCAT 6; Harm v Queensland Police Service [2010] QCAT 518; Shaxson v Queensland Police Service Weapons Licensing Branch [2014] QCAT 309.

[45]  The Act, s 13(5).

[46]Ryder v Queensland Police Service Weapons Licensing [2018] QCAT 368, [32].

[47]   Ibid.

[48]   Submissions of the Appellant, [23].

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service – Weapons Licensing v James Bruce Ryder

  • Shortened Case Name:

    Queensland Police Service – Weapons Licensing v Ryder

  • MNC:

    [2019] QCATA 159

  • Court:

    QCATA

  • Judge(s):

    Senior Member Aughterson, Member Traves

  • 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.