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Queensland Police Service (Weapons Licensing Branch) v Salmon

 

[2019] QCATA 177

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Queensland Police Service (Weapons Licensing Branch) v Salmon [2019] QCATA 177

PARTIES:

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(applicant/appellant)

 

v

 

DANIEL JOHN SALMON

(respondent)

APPLICATION NO/S:

APL182-18

ORIGINATING

APPLICATION NO/S:

GAR308-17

MATTER TYPE:

Appeals

DELIVERED ON:

12 December 2019

HEARING DATE:

30 April 2019

HEARD AT:

Brisbane

DECISION OF:

Senior Member Brown

Member Hughes

ORDERS:

  1. Leave to appeal refused.
  2. Appeal dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – APPEAL GENERAL PRINCIPLES – RIGHT OF APPEAL – WHEN APPEAL LIES – INTERFERENCE WITH DISCRETION OF COURT BELOW – IN GENERAL – GENERAL PRINCIPLES – where finding that category H licence was an occupational requirement – whether material before tribunal fell within the meaning of occupational requirement

FIRE, EXPLOSIVES AND FIREARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY – meaning of ‘occupational requirement’ – where applicant seeking review of decision to reject renewal of licence for a Category H weapon – where applicant held the licence for over 20 years – where applicant used weapon to control feral pigs and dogs on his property – whether requirements to use Category H weapon necessary – whether requirements can be met in another way using another weapon of another category

Acts Interpretations Act 1954 (Qld), s 14A(1)

Firearms Act 1973 (WA), s 11(A)(5)

Firearms Act 1996 (NSW), s 12(2), s 12(4)

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 21(2), s 142(1), s 142(3(b), s 147

Weapons Act 1990 (Qld), s 3, s 4, s 12(d), s 42(3)(a)

Weapons Regulation 1996 (Qld), s 10, s 11, s 13, s 18, s 22, s 28

Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 CLR 509

Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223

Bergmann v Commissioner of Police [2009] WASAT 233

Cachia v Grech [2009] NSWCA 232

Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389.

Ericson v Queensland Building Services Authority [2013] QCA 391.

Geary v Queensland Police Service [2017] QCAT 6

Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389

Harm v Queensland Police Service [2010] QCAT 518

Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47.

Hope v Bathurst City Council (1980) 144 CLR 1

ID v Department of Juvenile Justice (2008) 73 NSWLR 158.

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

McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577

Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24

Osborne v Commissioner of Police, New South Wales Police Service [2000] NSWADTAP.

QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

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

Shaxton v Queensland Police Service [2014] QCAT 309

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362.

Taikato v The Queen (1996) 186 CLR 454

The Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126

Vetter v Lake Macquarie City Council (2001) 202 CLR 439

APPEARANCES &

REPRESENTATION:

 

Applicant:

E F Kennedy of the Queensland Police Service Legal Unit

Respondent:

G R Rice QC, with D Caruana, instructed by Robert Bax & Associates (Solicitors)

REASONS FOR DECISION

  1. [1]
    Mr Salmon is a grazier. From 1996 until 28 September 2017, Mr Salmon was the holder of a concealable weapons licence. On 28 September 2017 the applicant (the QPS) made a decision (the reviewable decision) rejecting Mr Salmon’s application for the renewal of his Concealed Firearms Licence (the licence). Mr Salmon sought a review of the decision. Following a merits review of the reviewable decision, the Tribunal decided to approve Mr Salmon’s application to renew the licence (the decision below).[1] The QPS appeals the decision.

Appeals – the statutory framework

  1. [2]
    An appeal from a decision of the tribunal to the Appeal Tribunal on a question of law is as of right.[2] An appeal on a question of fact or mixed law and fact may only be made with the leave of the Appeal Tribunal.[3]
  2. [3]
    In an appeal against a decision on a question of fact only or a question of mixed law and fact, and if leave to appeal is granted, the appeal must be decided by way of rehearing with or without the hearing of additional evidence as decided by the Appeal Tribunal.[4] In deciding the appeal, the Appeal Tribunal may confirm or amend the decision or set aside the decision and substitute its own decision.[5]
  3. [4]
    The relevant principles to be applied in determining whether to grant leave to appeal are: is there a reasonably arguable case of error in the primary decision?;[6] is there a reasonable prospect that the applicant will obtain substantive relief?;[7] is leave necessary to correct a substantial injustice to the applicant caused by some error?;[8] 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?[9]
  4. [5]
    If an appeal involves a question of law, unless the determination of the error of law decides the matter in its entirety in the appellant’s favour, the proceeding must be returned to the tribunal for reconsideration.[10]

The Weapons Act 1990 (Qld)

  1. [6]
    The object of the Weapons Act 1990 (Qld) (the WA) is to prevent the misuse of weapons.[11] Two principles underlie the WA. The first principle is that weapon possession and use are subordinate to the need to ensure public and individual safety.[12]  The second principle is that 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.[13]
  2. [7]
    The classes of weapons licence include a concealable firearms licence.[14] 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.[15] 
  3. [8]
    A weapons licence may only be issued to an individual if the person is, among other things, a fit and proper person to hold a licence,[16] and the person has a reason to possess the weapon or category of weapon.[17] The reasons for the possession of a weapon include: an occupational requirement, including an occupational requirement for rural purposes; and another reason prescribed under a regulation.[18] If the reason for the issuing or renewal of a weapons licence is an occupational requirement, the applicant must state why the possession of a weapon is necessary in the conduct of the applicant’s business or employment.[19] The term ‘occupational requirement’ is not defined in the WA.
  4. [9]
    A licensee may apply for the renewal of the licensee’s licence.[20] For the renewal of a licence, the licensee must be, among other things, a fit and proper person and must have a reason mentioned in s 11 of the WA to possess the weapon or category of weapon.[21] 
  5. [10]
    Part 7 of the Weapons Regulation 2016 (the Regulation) is concerned with concealable firearms licences and the duties of persons wearing category H weapons. A person may wear a category H firearm only if the person has an occupational requirement to wear it.[22] How the firearm must be worn is also set out in the Regulation.[23]
  6. [11]
    For the purposes of the present appeal, it is not in dispute that Mr Salmon is a fit and proper person to hold a licence. What was in issue below, and is in issue in this appeal, is whether Mr Salmon can establish an occupational requirement to possess a category H weapon.

The grounds of appeal

  1. [12]
    The grounds of appeal relied upon by the QPS are:
    1. (a)
      The learned member failed to have regard to the purposes of the WA in determining that Mr Salmon had demonstrated a genuine reason for possessing the particular class of firearm for the purposes of rural occupation (appeal ground 1);
    2. (b)
      The learned member took into account an irrelevant consideration in finding that personal protection and/or safety was a relevant consideration in determining whether a genuine reason existed (appeal ground 2);
    3. (c)
      The learned member erred in determining that the possession of the particular category of firearm, as opposed to a firearm generally, was a requirement for rural occupation generally and or in Mr Salmon’s particular circumstances (appeal ground 3).[24]

What do the parties say?

  1. [13]
    In relation to appeal grounds 1 and 3, the QPS says that the terms ‘genuine reason’ and ‘occupational requirement’ must be read and interpreted in the context established by the objects and purposes of the WA which would lead to a ‘more restricted’ definition of those terms.
  2. [14]
    The QPS says that the additional requirements and restrictions placed on holders of category H licences indicates that the intention of the legislature was to strictly restrict and control these types of weapons. The QPS says that the term ‘necessary’ in s 13(5) of the WA should be construed in this context, which the QPS says must be to a higher standard than imposed by the learned member. The QPS relies upon the decision of the tribunal in Shaxton v Queensland Police Service.[25]
  3. [15]
    The applicant says that the learned member erroneously applied a lower standard in:
    1. (a)
      failing to give weight to the evidence of Mr Salmon that he had not attempted to utilise other alternative weapons or methods in determining whether a category H weapon was necessary;
    2. (b)
      finding that Mr Salmon needed to allow his cattle to enter the Mulga without considering other options for feed or for utilising the Mulga for feed;
    3. (c)
      finding that Mr Salmon needed to shoot pests from a moving motor cycle with one hand without considering that Mr Salmon could move himself a distance to fire a different type of weapon or could make use of other mechanisms such as traps. 
  4. [16]
    The QPS says that Mr Salmon’s choices or preferences in how he runs his business should not give rise to a necessity on their own.
  5. [17]
    The QPS says that the learned member erred in finding that the extension of the mustering process caused by Mr Salmon being required to stop the motor bike in order to fire a weapon was a genuine reason for a category H licence. This, says the applicant, is a matter of convenience rather than necessity.
  6. [18]
    The QPS says that the learned member erred in finding that Mr Salmon had established a genuine reason for possession of a category H weapon in circumstances where the learned member found that only one third of the property was rugged terrain and Mr Salmon only entered the Mulga to muster about four times a year.
  7. [19]
    In relation to appeal ground 1, Mr Salmon says that the learned member expressly identified that she was required to consider the framework and objectives of the WA. He says that the learned member proceeded to correctly identify the legal framework of the WA including its object and the underlying principles. Mr Salmon says that the learned member correctly identified the factual question to be determined as:

Is there a genuine reason for possessing the firearm, and if so, is a Category H firearm necessary for the applicant’s occupational requirement for rural purposes?

  1. [20]
    In relation to appeal ground 2, the QPS says that the learned member erred in ‘substantially’ basing the finding that Mr Salmon had demonstrated a necessity for a category H weapon on the need for Mr Salmon to protect himself from feral pigs and wild dogs.
  2. [21]
    The QPS says that the learned member, in finding that personal protection from pests which may charge formed the basis for a genuine reason and occupational requirement, conflated the threat of pests charging and thereby developed a principle extending the category of occupational requirement beyond what was intended by the legislature. The applicant says that Mr Salmon’s choices in how he conducts his business have the potential to mitigate or increase the risk of attack and the requirement to defend himself which should not be used to justify the necessity for a category H weapon.
  3. [22]
    Mr Salmon says in relation to appeal ground 2 that the learned member did not find that Mr Salmon’s reason for possessing the weapon was to protect himself. Mr Salmon says that the decision below was based substantially on the acceptance of his evidence concerning the circumstances he was confronted with in carrying out his business. Mr Salmon says that his safety was only one ingredient of the set of circumstances justifying the finding that a category H weapon was ‘necessary’ for the conduct of his business. In any event, says Mr Salmon, the WA does not prohibit regard being had to personal safety.
  4. [23]
    Mr Salmon says that there is nothing in the authorities relied upon by the applicant to indicate that an element of safety, whilst conducting a rural business in a necessary way, cannot be one of the factors considered in determining whether a particular weapon is necessary in the course of operating that business.
  5. [24]
    Mr Salmon says that it is apparent from the reasons that the learned member did not allow the licence renewal application on the basis of self-protection alone.
  6. [25]
    Appeal ground 3, says Mr Salmon, expressly challenges the tribunal’s finding of fact on the factual question posed. He says that the question the learned member was required to decide involved a question of fact, namely whether a test of ‘necessity’ was satisfied. Mr Salmon says that the evidence before the learned member was that the use of the Mulga as a source of fodder for livestock was not a matter of choice or preference for Mr Salmon as to how he conducted his business but, rather, a situation he was confronted with and was required to manage. Mr Salmon says that his evidence that Mulga was very important to his livelihood was not challenged nor did the applicant present any material that other methods of feeding livestock were practical in dry conditions.
  7. [26]
    Mr Salmon says that the evidence established that an attack by a wild pig can occur suddenly and that it is unrealistic to think that Mr Salmon had the option to retreat to a safer distance to use another firearm.
  8. [27]
    In relation to the submission by the applicant that the evidence before the learned member was that the Mulga covered only one third of the property and mustering was only required to be carried out four times annually, Mr Salmon says that the tribunal did not err in finding that the area covered by Mulga was a large parcel of land in its own right.
  9. [28]
    Mr Salmon says that the learned member did not fail to give weight to the evidence of Mr Salmon regarding the use of alternative weapons or methods. He says that there is nothing in the WA nor any principle of law or logic to the effect that the ‘necessity’ test requires an applicant to have personally tried alternatives suggested by the decision maker. Mr Salmon says that ‘necessity’ connotes that the requirements cannot be met in some other way which requires an assessment of the practicalities of prevailing circumstances weighed against the functionality of a weapon. Mr Salmon says that it is not to the point that he had not tried an alternative, if considered assessment of the alternative revealed its impracticality. The tribunal, says Mr Salmon, expressly considered the appropriateness of the alternative weapons and found them to be unsuitable. 
  10. [29]
    During the course of the appeal hearing, the QPS sought leave to amend its grounds of appeal to include a further ground, the failure by the learned member to give adequate reasons. The application, opposed by Mr Salmon, was refused.

 Consideration

  1. [30]
    In its written submissions and in the appeal hearing, the QPS says that all three grounds of appeal raise questions of law. Mr Salmon says that ground 1 raises a question of law while appeal grounds 2 and 3 raise questions of fact for which leave to appeal is required.
  2. [31]
    We proceed on the basis that ground of appeal 1 raises a question of law. Grounds of appeal 2 and 3 raise questions of mixed law and fact.

Appeal ground 1

  1. [32]
    We accept that a failure by the learned member to take into account a relevant consideration would be an error of law. However, the ground of failure to take into account a relevant consideration can only be made out if a decision maker fails to take into account a consideration which he or she is bound to take into account in making that decision.[26] What factor a decision maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.[27] A failure by a decision maker to take into consideration the objects sections of relevant legislation may constitute a failure to take into account a relevant consideration.[28]
  2. [33]
    The learned member observed that she was required to consider the framework and objectives of the WA.[29] The learned member proceeded to refer to the object of the Act and the principles underlying the Act.[30] 
  3. [34]
    The learned member formulated the question she was required to determine in the following terms: ‘Is there a genuine reason for possessing the firearm, and if so, is a Category H firearm necessary for the applicant’s occupational requirement for rural purposes?’
  4. [35]
    The learned member referred to the decisions in Harm v Queensland Police Service (‘Harm’),[31] Shaxson v Queensland Police Service (‘Shaxson’)[32] and Geary v Queensland Police Service,[33] all of which were relied upon by the parties in the proceedings below, albeit for different reasons. In Harm and Shaxson the tribunal considered the object and principles of the WA.
  5. [36]
    We are satisfied that the learned member had regard to the object and principles of the WA in reaching her decision. This ground of appeal is not made out. 

Appeal ground 2

  1. [37]
    The QPS says that the tribunal’s decision that Mr Salmon had established a necessity for a category H weapon was ‘substantially based’ on the finding that Mr Salmon needed to protect himself from feral pigs and wild dogs. The QPS says that personal protection or safety is not a genuine reason to possess a category H weapon.
  2. [38]
    The evidence before the learned member was that pigs kill sheep and were a danger to livestock and to Mr Salmon.[34]
  3. [39]
    The learned member found that wild pigs may charge during the mustering period and found that Mr Salmon’s safety may be jeopardised by a charging pig.[35] It is unclear why the QPS says that the learned member’s decision was substantially based upon this particular finding. We do not accept the submission. In any event, for the reasons that follow, there was no error by the learned member. 
  4. [40]
    The QPS relies upon Bergmann v Commissioner of Police (‘Bergman’),[36] a decision of the State Administrative Tribunal of Western Australia (the SAT). Mr Bergmann, a commercial fisherman, held a licence to possess a handgun. The Commissioner of Police made a decision revoking the licence. Mr Bergmann sought a review of the decision claiming that he required a handgun to protect himself against attacks by crocodiles and to kill sharks entangled in his fishing nets. The SAT dismissed Mr Bergmann’s review application.
  5. [41]
    The decision in Bergmann can be distinguished. The SAT found that being issued with a revolver was not standard equipment for Mr Bergmann’s occupation. The SAT made no finding that personal protection was not, and could not be, a genuine reason for acquiring or possessing a firearm. In any event, the applicable legislation in Bergmann is cast in different terms from the WA. Specifically, the Firearms Act 1973 (WA) contains a provision that approval for acquiring or possessing a firearm cannot be given for the purpose of personal protection.[37]
  6. [42]
    The QPS also relies upon the decision of the High Court in Taikato v The Queen.[38] Ms Taikato was convicted of possessing a can of formaldehyde. Ms Taikato said it was for the purposes of self-protection and claimed that she had a lawful purpose for possessing the can. Taikato involved criminal offending and the availability of defences in respect of what would otherwise be criminal acts. There was no suggestion that Ms Taikato possessed the can as an occupational requirement. In our view Taikato does not have application in the present case.
  7. [43]
    Unlike, for example, the Firearms Act 1996 (NSW)[39] and the Firearms Act 1973 (WA),[40] the WA does not expressly state that personal protection is not a genuine reason for possessing a weapon. It was open to the legislature to insert such a provision. It did not do so.
  8. [44]
    In circumstances where the WA does not expressly provide to the contrary, whether one of the reasons that the possession of a weapon is necessary is for self-protection may be a relevant consideration of the overall factual matrix in determining whether possessing a weapon is an occupational requirement. The tribunal held in Lever v Queensland Police Service (Weapons Licensing Branch) (‘Lever’):[41]

… it is at least arguable that personal protection as part of occupational health and safety is not mutually exclusive with possession of a weapon being an occupational requirement (including an occupational requirement for rural purposes).[42]

  1. [45]
    We respectfully concur with the comments in Lever. We would add that adopting the construction of the WA pressed by the QPS would not, in our view, further the principles of the WA which include ensuring public and individual safety.
  2. [46]
    Appeal ground 2 is not made out.

Appeal ground 3

  1. [47]
    The WA requires that a person has a reason for possessing a weapon. A reason for possessing a weapon includes an occupational requirement. If the reason for possessing a weapon is an occupational requirement an applicant must, in applying for a licence or the renewal of a licence, state why possession of the weapon is necessary in the conduct of their business or employment.
  2. [48]
    An applicant must state in the application why the applicant needs the weapon and why the need cannot be satisfied in another way. When deciding an application, the authorised officer must consider whether the applicant’s requirements can be adequately met in a way not involving the use of a weapon or by using a weapon of another category or type.
  3. [49]
    The QPS concedes that Mr Salmon has demonstrated a reason for possessing a firearm on the basis of his occupation in a rural setting. What the QPS says however is that the learned member erred in finding that Mr Salmon required a category H firearm.
  4. [50]
    It is necessary to first consider the meaning of ‘occupational requirement’.
  5. [51]
    The High Court held in SZTAL:

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[43]

  1. [52]
    In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[44]
  2. [53]
    The ordinary meaning of ‘requirement’ is: something that is compulsory or which is a necessary condition.[45] In applying for a weapons licence or the renewal of a licence an applicant must state why possession of the weapon is necessary. The ordinary meaning of ‘necessary’, as an adjective, is something: that cannot be dispensed with or done without; requisite, essential, needful ... of an action: requiring to be done; that must be done.[46] Given the inter relationship between s 11 and s 13 we consider that s 13 can be used to assist in arriving at a proper construction of the meaning of ‘occupational requirement’. 
  3. [54]
    The principles underlying the WA are directed at ensuring public and individual safety. The object of the Act is to prevent the misuse of weapons.  This is achieved through, inter alia, prohibiting the possession and use of particular weapons except in special circumstances, establishing an integrated licensing and registration scheme for all firearms, requiring a person to demonstrate a genuine reason for possessing a firearm, providing strict requirements that must be satisfied for licences authorising the possession of firearms and the acquisition and sale of firearms.[47] 
  4. [55]
    The legislature intended that the possession, use and sale of firearms be strictly controlled and restricted to clearly identified persons and circumstances.
  5. [56]
    The QPS says that, on their own, Mr Salmon’s choices or preferences in how he runs his business should not give rise to a necessity to possess a category H weapon. The QPS relies upon the decision of the New South Wales Administrative Decisions Tribunal Appeal Panel in Osborne v Commissioner of Police, New South Wales Police Service (‘Osborne’).[48] In Osborne it was held:

45 The narrower view should, we consider, be preferred. The purpose of the legislation is to reduce the use and possession of firearms in the community. If a broader view were to be taken not only would that lead to a greater number of firearms circulating in the community, but it would tend to mean that types of businesses where a real choice existed as to how they were conducted would be more able to make a claim for the possession of a hand pistol the less safely it was conducted. Such an interpretation would defeat the objects of the legislation.

46 Adopting that approach, our conclusion is that the question of what is `necessary' for the `conduct' of a `business' should be interpreted objectively by having regard to the core features of businesses of the type that are the subject of the application. The business under examination is that of dealing in firearms. The trade involves regulated goods which can be lethal to innocent people if they fall into the wrong hands. The trade often involves the possession of great quantities of these goods, with commensurate value. None of these features in themselves suggest that it is necessary for the conduct of the trade that dealers carry live pistols. The possession of a pistol is not directly required of the business or employment. The position might be different if the business was one of, say, training in the use of pistols or provision of bodyguard services to heads of state.

  1. [57]
    It should be noted that the relevant NSW legislation, the Firearms Act 1996 (NSW) is cast in different terms to the WA. By s 12(4) of the Firearms Act, an applicant for a licence has a genuine reason for possessing or using a firearm if the applicant:
  1. states that he or she intends to possess or use the firearm for any one or more of the reasons set out in the Table to this section, and
  2. is able to produce evidence to the Commissioner that he or she satisfies the requirements specified in respect of any such reason.
  1. [58]
    One of the reasons is ‘business or employment’. The Table relevantly provides:

The applicant must demonstrate that it is necessary in the conduct of the applicant’s business or employment to possess or use the firearm for which the licence is sought. (emphasis added)

  1. [59]
    In our view, Osborne can be distinguished on its facts and on the basis that the Tribunal Appeal Panel was dealing with a quite different provision than that under consideration in this case. The WA requires an applicant to have a genuine reason for possession of a weapon. An ‘occupational requirement, including an occupational requirement for rural purposes’, is a reason for possessing a weapon. The Firearms Act sets out in comprehensive terms what a genuine reason for possessing or using a firearm is. The WA requires only that an applicant have a genuine reason for possession of a weapon and, in applying for a licence, an applicant must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment. We do not consider Osborne is relevant for present purposes.
  2. [60]
    In our view, ‘occupational requirement’ for the purposes of s 11 of the WA means the possession of a particular type or category of weapon is necessary to enable the conduct of an applicant’s business or employment to be undertaken.
  3. [61]
    The construction at which we have arrived is, in our view, harmonious with the principles and object of the WA and how the object is to be achieved, including requiring a person who wishes to possess a firearm to demonstrate a genuine reason for possessing the firearm. 
  4. [62]
    We turn now to a consideration of appeal ground 3.
  5. [63]
    Whether facts fully found fall within the provision of a statutory enactment properly construed is generally a question of law.[49] Where a statute uses words according to their ordinary meaning and the question is whether the facts as found fall within those words, where it is reasonably open to hold that they do, then the question whether they do or not is one of fact.[50] If facts fully found are within the spectrum of reasonableness, the question is a mixed question of fact and law.[51]
  6. [64]
    The High Court held in Vetter v Lake Macquarie City Council:[52]

Whether facts as found answer a statutory description or satisfy statutory criteria will very frequently be exclusively a question of law. To put the matter another way, indeed, as it was put by Priestley JA in his judgment, whether the facts found by the trial court can support the legal description given to them by the trial court is a question of law. However, not all questions involving mixed questions of law and fact are, or need to be susceptible of one correct answer only. Not infrequently, informed and experienced lawyers will apply different descriptions to a factual situation. That is why the test whether legal criteria have been met has been expressed in language of the kind used by Jordan CJ in The Australian Gas Light Co v Valuer-General:

"[I]f the facts inferred ... from the evidence ... are necessarily within the description of a word or phrase in a statute or necessarily outside that description, a contrary decision is wrong in law".

  1. [65]
    The distinction between factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact) was considered in Hope v Bathurst City Council where Mason J held:[53]

Many authorities can be found to sustain the proposition that the question whether facts fully found fall within the provisions of a statutory enactment properly construed is a question of law. One example is the judgment of Fullagar J in Hayes v Federal Commissioner of Taxation, where his Honour quoted the comment of Lord Parker of Waddington in Farmer v Cotton's Trustees, which was adopted by Latham CJ in Commissioner of Taxation v Miller, that where all the material facts are fully found, and the only question is whether the facts are such as to bring the case within the provisions properly construed of some statutory enactment, the question is one of law only. Fullagar J then said:

'... this seems to me to be the only reasonable view. The distinction between the two classes of question is, I think, greatly simplified, if we bear in mind the distinction, so clearly drawn by Wigmore, between the factum probandum (the ultimate fact in issue) and facta probantia (the facts adduced to prove or disprove that ultimate fact). The "facts" referred to by Lord Parker ... are the facta probantia. Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law.'

However, special considerations apply when we are confronted with a statute which on examination is found to use words according to their common understanding and the question is whether the facts as found fall within these words. Brutus v. Cozens (1973) AC 854 was just such a case. The only question raised was whether the appellant's behaviour was "insulting". As it was not unreasonable to hold that his behaviour was insulting, the question was one of fact.

The judgment of Kitto J. in N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation (1956) 94 CLR 309 is illuminating. Kitto J. observed that the question whether certain operations answered the description "mining operations upon a mining property" within the meaning of s. 122 of the Income Tax Assessment Act 1936, as amended, was a mixed question of law and fact (1956) 94 CLR, at pp 511-512 . He went on to explain why this was so: "First it is necessary to decide as a matter of law whether the Act uses the expressions 'mining operations' and 'mining property' in any other sense than that which they have in ordinary speech." Having answered this question in the negative, he noted that the "common understanding of the words has . . . to be determined" as "a question of fact". He continued (1956) 94 CLR, at p 512 :

"The next question must be whether the material before the Court reasonably admits of different conclusions as to whether the appellant's operations fall within the ordinary meaning of the words as so determined; and that is a question of law (1941) 65 CLR, at p 155 : see also per Isaacs and Rich JJ. in Australian Slate Quarries Ltd. v. Federal Commissioner of Taxation (1923) 33 CLR 416, at p 419. If different conclusions are reasonably possible, it is necessary to decide which is the correct conclusion; and that is a question of fact: see per Williams J. in the Broken Hill South Case (1941) 65 CLR 150, at p 160 ."

  1. [66]
    The decisions in Hope v Bathurst City Council and N.S.W. Associated Blue-Metal Quarries Ltd. v. Federal Commissioner of Taxation[54] are apposite.
  2. [67]
    It is necessary to determine whether the term ‘occupational requirement’ is used in any sense other than that which it has in ordinary speech. This is a question of law. It is then necessary to consider the meaning of the term. This is a question of fact. Whether the evidence supported the findings in relation to the facta probantia was a question of fact.[55] If ‘occupational requirement’ has its ordinary meaning and it is reasonably open to hold that the facts of the case fall within those words, the question as to whether they do nor not is a question of fact.
  3. [68]
    Whether a finding that the facts fall within the words of a statute is reasonably open requires a consideration of Wednesbury principles.[56]
  4. [69]
    In our view, the expression ‘occupational requirement’ is not used in the WA in any sense other than that which it has in ordinary speech. We have, earlier in these reasons, set out the meaning of ‘occupational requirement’.
  5. [70]
    Whether the facts before the learned member fell within the ordinary meaning of ‘occupational requirement’ was a question of law. If different conclusions on the facts were reasonably possible, the determination of the correct conclusion was a question of fact. Whether the learned member erred in making factual findings upon which she concluded that the possession of a category H licence by Mr Salmon was an occupational requirement raises a question of fact.
  6. [71]
    The submissions by the QPS do not address ground 3 within the framework we have set out. The QPS says that the learned member applied a ‘lower standard’ in applying the relevant provisions of the WA in:
    1. (a)
      failing to give weight to Mr Salmon’s evidence that he had not attempted to utilise other alternative weapons or methods in determining whether a Category H weapon was necessary;
    2. (b)
      failing to give weight to Mr Salmon’s evidence that he had not considered other options for feed or for utilising the mulga for feed;
    3. (c)
      finding that Mr Salmon needed to shoot pests from a moving motor cycle with one hand without considering that Mr Salmon could move away to give himself distance to fire a different type of weapon or could make use of other mechanisms such as traps;
    4. (d)
      finding that the extension of the mustering process caused by the delay in stopping the motorbike in order to fire a weapon is a genuine reason for a category H licence;
    5. (e)
      failing to take into consideration that only 1/3 of Mr Salmon’s property was ‘rugged’.
  7. [72]
    The QPS does not assert an error in the learned member’s findings of fact. It is not, for example, asserted that particular findings of fact were not open on the evidence or that any particular finding made was sufficiently against the weight of the evidence such as to constitute error. No error is asserted in respect of the findings regarding the facta probantia.
  8. [73]
    Accordingly, the determination of appeal ground 3 turns on whether it was reasonably open to hold that the facts of the case fell within the ordinary meaning of ‘occupational requirement’.
  9. [74]
    It is appropriate at this juncture to consider those aspects of the decision and the evidence to which the QPS specifically refers in its submissions.
  10. [75]
    The QPS says that the learned member failed to give weight to Mr Salmon’s evidence that he had not attempted to utilise other alternative weapons or methods in determining whether a Category H weapon was necessary.
  11. [76]
    Mr Salmon was cross-examined about the use of alternative firearms, including fold down rifles.[57] He gave evidence that he had tried using rifles carried on the handlebars of the motorbike but that the weapon became tangled in the mulga.[58]
  12. [77]
    Before the tribunal were a number of photographs of motor cycles and horse saddles fitted with various fixtures for carrying weapons. Mr Salmon’s evidence was that these suggested alternative methods of carrying a weapon were not practical.[59]
  13. [78]
    Mr Salmon gave detailed evidence about the interaction of the operation of a motor cycle and the use of firearms. His evidence was that he could not operate a weapon requiring two arms, while on a motor cycle in the mulga.[60] Mr Salmon’s evidence was that this was not a matter of convenience.[61] Mr Salmon considered the use of a long armed firearm holster fitted to a motor cycle as ‘impractical’.[62] Mr Salmon’s evidence was that he was required to use a concealable weapon when entering flood waters to inspect and repair flood gates.[63]
  14. [79]
    Mr Salmon’s evidence was that traps were not useful in dealing with pests and that the eradication of pests could not be appropriately met in any way other than the use of a firearm.[64]
  15. [80]
    Mr Salmon’s evidence was that his livelihood and the vitality of his livestock would be at severe risk if his application for a category H weapon licence was unsuccessful.
  16. [81]
    Whether Mr Salmon had in fact attempted to utilise alternative weapons and methods for transporting such weapons does not vitiate the learned member’s findings. The QPS cites no authority for the proposition that an applicant for a weapons licence must attempt to implement various options as suggested by the decision maker, nor is there any requirement in the WA to do so. It was open to the learned member to accept the evidence of Mr Salmon in relation to these matters.
  17. [82]
    The QPS says that the learned member erred in finding that Mr Salmon needed to allow his cattle to enter the Mulga without considering other options for feeding livestock not involving the use of the mulga. Although somewhat opaque, we understand this submission to mean that Mr Salmon failed to consider other feeding options.
  18. [83]
    Mr Salmon gave evidence that the mulga country comprised approximately one third of his property. Mr Salmon’s uncontested evidence was that the mulga was used as fodder for livestock[65] and that during periods of drought, and other than hand feeding, the mulga was the only source of fodder.[66] Mr Salmon gave evidence that the mulga as a source of fodder for livestock was essential for his business.[67] Mr Salmon also referred to his livestock relying solely upon the mulga and supplements for feed.[68]
  19. [84]
    Mr Salmon was not cross-examined at the hearing about alternatives to the mulga as a source of fodder for the livestock, nor was there any evidence about these matters before the tribunal below.
  20. [85]
    The QPS says that the learned member failed to consider that Mr Salmon could move away to give himself distance to fire a different type of weapon or could make use of other mechanisms such as traps. The submissions do not address the evidence below upon which the QPS relies.
  21. [86]
    Before the tribunal below was a document ‘Feral Livestock Animals – Destruction or Capture, Handling and Marketing’ (the code). The document formed of the material filed by the QPS pursuant to s 21(2) of the QCAT Act. Appendix 3 of the code sets out the specific requirements for capture and handling of livestock feral animals. Feral pigs are referred to. There was also before the tribunal below a document ‘Standard Operating Procedure PIG001: Trapping of feral pigs’.[69] The document notes that it is only suitable to use traps in situations where the operator has time to check them on a regular basis.
  22. [87]
    The s 21(2) material included a document titled ‘Feral pig’.[70] The document refers to trapping as being an important technique in managing feral pigs, most useful in populated areas, on smaller properties of less than 5,000 hectares and where there are low pig numbers. There was no evidence before the learned member that these circumstances pertained. The s 21(2) material also included a document titled ‘Standard Operating Procedure: DOG001: Trapping of wild dogs using padded-jaw traps’.[71] The document notes that trapping is regarded as an inefficient method of general population control, that trapping is time consuming and labour intensive and best suited for control of small populations or problem individuals, and that traps should only be used where there is no suitable alternative.
  23. [88]
    These documents contain general information and were not specific to Mr Salmon’s particular circumstances. The QPS did not produce the authors of the documents for cross-examination.
  24. [89]
    Mr Salmon gave evidence about attacks by wild pigs including whether the use of a long arm firearm was possible in the circumstances.[72] Mr Salmon was not cross examined at the hearing about these documents, the use of trap, or the possibility of his conducting his occupational tasks such as to enable him to use a weapon other than a category H weapon. 
  25. [90]
    It was for the learned member to determine the weight to be given to the evidence to which we have referred.
  26. [91]
    The QPS says that the learned member ‘inappropriately’ found that the extension of the mustering process caused by the delay in stopping the motorbike to fire a weapon was a genuine reason or necessity for a category H weapons licence.
  27. [92]
    Mr Salmon gave extensive evidence about the mustering process.[73]
  28. [93]
    The learned member found that the need for Mr Salmon to stop and start his motor bike could unduly interfere with and extend an already intense mustering process. It was open on the evidence for the learned member to make this factual finding.
  29. [94]
    The QPS says that in finding that 1/3 of Mr Salmon’s property was ‘rugged’ and that mustering took place only four times per year, the tribunal applied a lower standard of satisfaction in finding that Mr Salmon had satisfied the ‘genuine reason, occupational requirement and necessary tests’.
  30. [95]
    The meaning of this submission is difficult to apprehend. The learned member found:

Whilst only 1/3rd of the property is Mulga this part of the property constitutes around 20,000 acres, a large parcel of land in its own right. The livestock are attracted to the Mulga for fodder particularly in the current drought conditions, and hide there when mustering is in commenced.[74]

  1. [96]
    The learned member found that Mr Salmon was required to muster livestock four times each year.[75]
  2. [97]
    It was open on the evidence for the learned member to make the findings in relation to the area of the mulga by reference to the total size of the property and the findings in relation to the frequency of mustering the livestock.

Conclusion on appeal ground 3

  1. [98]
    The learned member found that one third of Mr Salmon’s property was Mulga, constituting an area of around 20,000 acres;[76] that livestock were attracted to the Mulga for fodder and hide there when mustering is in commenced;[77] that charging feral pigs and wild dogs, both a threat to the livestock, also hid in the Mulga;[78] there was a high possibility that feral pigs might charge during the mustering period;[79] that it would be impractical for Mr Salmon to manage the feral pigs while trying to muster the livestock (whilst on a motor bike) in an efficient and practical manner;[80] that long-arm firearms, whether mounted, carried in a shoulder/cross body holster or of a fold-down type, would necessitate bringing the motorbike to a stop so that the weapon could be accessed, or assembled, and then operated/discharged with both hands on the weapon;[81] that seconds of time delay in a charging feral pig circumstance could be detrimental to Mr Salmon’s safety in carrying on his business;[82] that stopping and starting the motorbike could unduly interfere with and extend an already intense mustering process;[83] that whilst it may not be impossible to utilise another weapon other than a concealed one, Mr Salmon’s circumstances as a sole weapon holder, 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, rendered the use of alternate weapons as described and or suggested by the QPS impractical.[84]
  2. [99]
    It was reasonably open to the learned member, having made these findings of fact, to find that the possession by Mr Salmon of a category H weapon was necessary to enable the conduct of his business to be undertaken.
  3. [100]
    There was no error by the learned member in respect of ground of appeal 3.

Conclusion

  1. [101]
    We have found no error by the learned member in respect of grounds of appeal 2 and 3 nor are we are satisfied that leave to appeal is necessary to correct a substantial injustice or that there is a question of general importance upon which further argument and a decision of the appellate court or Tribunal would be to the public advantage. Accordingly, insofar as leave to appeal is required, leave is refused. The appeal is otherwise dismissed.

Footnotes

[1]Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202.

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”), s 142(1).

[3]Ibid, s 142(3)(b).

[4]Ibid, s 147(1)-(2).

[5]Ibid, s 147(3).

[6]QUYD Pty Ltd v Marvass Pty Ltd [2009] 1 Qd R 41.

[7]Cachia v Grech [2009] NSWCA 232, [13].

[8]Ibid.

[9]Glenwood Properties Pty Ltd v Delmoss Pty Ltd [1986] 2 Qd R 388, 389; McIver Bulk Liquid Haulage Pty Ltd v Fruehauf Australia Pty Ltd [1989] 2 Qd R 577, 578- 580.

[10]  Ericson v Queensland Building Services Authority [2013] QCA 391.

[11]  WA, s 3(2).

[12]  Ibid, s 3(1)(a).

[13]  Ibid, s 3(1)(b).

[14]  Ibid, s 12(d).

[15]Weapons Regulation 1996 (Qld), s 22(1).

[16]  WA, s 10(2)(e).

[17]  Ibid, s 10(2)(f).

[18]  Ibid, s 11(c), s 11(e).

[19]  Ibid, s 13(5).

[20]  Ibid, s 18(1).

[21]  Ibid, s 18(9).

[22]  Ibid, s 28(1).

[23]  Ibid, s 28(3) - 28(9).

[24]  At the hearing, the applicant was given leave to amend appeal ground 3.

[25]  [2014] QCAT 309.

[26]Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, 39 per Mason J.

[27]  Ibid.

[28]ID v Department of Juvenile Justice (2008) 73 NSWLR 158.

[29]Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202, [3].

[30]  Ibid, [5].

[31]  [2010] QCAT 518.

[32]  [2014] QCAT 309.

[33]  [2017] QCAT 6.

[34]  Transcript of Proceedings, Queensland Police Service – Weapons Licensing v Salmon (QCAT, GAR308-17, Member Clifford, 7 June 2018), 1-17, line 27 and following.

[35]Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202, [14].

[36]  [2009] WASAT 233.

[37]Firearms Act 1973 (WA), s 11 A(5) – although it should be noted the SAT did not determine the matter on this basis.

[38](1996) 186 CLR 454.

[39]Firearms Act 1996 (NSW), s 12(2).

[40]Firearms Act 1973 (WA), s 11 A(5).

[41]  [2018] QCAT 225.

[42]  Ibid, 11.

[43]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14].

[44]Acts Interpretation Act 1954 (Qld), s 14A(1).

[45]Shorter Oxford English Dictionary (5th ed, 2002) (definition of ‘requirement’).

[46]  Ibid (definition of 'necessary').

[47]  WA, s 4.

[48]  [2000] NSWADTAP 10.

[49]Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47,51; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389,  394 – 395.

[50]Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322.

[51]  Ibid.

[52]  (2001) 202 CLR 439, 450 [24] (citations omitted).

[53]  (1980) 144 CLR 1, 7 – 8.

[54]  (1956) 94 CLR 509.

[55]Vetter v Lake Macquarie City Council (2001) 202 CLR 439; Hayes v Federal Commissioner of Taxation (1956) 96 CLR 47,  51; Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389,  394 – 395;

[56]Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.

[57]  Transcript of Proceedings, Queensland Police Service – Weapons Licensing v Salmon (QCAT, GAR308-17, Member Clifford, 7 June 2018), 1-10, lines 45-46, 1-11, lines 1-45.

[58]  Ibid, 1-10, line 4.

[59]  Ibid, 1-12, line 33 to 1-13, line 5.

[60]  Ibid, 1-18, line 18.

[61]  Ibid, 1-18, line 22.

[62]  Statement of Daniel John Salmon, 1 February 2018; statement of Daniel John Salmon dated 15 March 2018.

[63]  Ibid.

[64]  Statement of Daniel John Salmon dated 15 March 2018.

[65]  Transcript of Proceedings, Queensland Police Service – Weapons Licensing v Salmon (QCAT, GAR308-17, Member Clifford, 7 June 2018), 1-6, lines 7 - 8.

[66]  Ibid, 1-14, lines 46-47.

[67]  Ibid, 1-15, lines 13-18.

[68]  Ibid, 1-15, line 18.

[69]  Applicant’s Appeal Book, filed 12 November 2018, 89.

[70]  Ibid, 54.

[71]  Ibid, 79.

[72]  Transcript of Proceedings, Queensland Police Service – Weapons Licensing v Salmon (QCAT, GAR308-17, Member Clifford, 7 June 2018), 1-17, lines 11-22; 1-25, lines 30-47; 1-26, lines 1-10

[73]  Ibid, 1-14 and following.

[74]Salmon v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 202, [11].

[75]  Ibid.

[76]  Ibid.

[77]  Ibid.

[78]  Ibid,

[79]  Ibid, [14].

[80]  Ibid.

[81]  Ibid.

[82]  Ibid.

[83]  Ibid.

[84]  Ibid, [15].

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service (Weapons Licensing Branch) v Salmon

  • Shortened Case Name:

    Queensland Police Service (Weapons Licensing Branch) v Salmon

  • MNC:

    [2019] QCATA 177

  • Court:

    QCATA

  • Judge(s):

    Senior Member Brown, Member Hughes

  • Date:

    12 Dec 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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