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Queensland Judgments
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  • Unreported Judgment

Hammer v Queensland Police Service – Weapons Licensing

 

[2020] QCAT 333

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Hammer v Queensland Police Service – Weapons Licensing [2020] QCAT 333

PARTIES:

DOUGLAS ANDREW HAMMER

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO:

GAR149-19

MATTER TYPE:

General administrative review matters

DELIVERED ON:

7 August 2020

HEARING DATE:

24 February 2020

HEARD AT:

Townsville

DECISION OF:

Member Pennell

ORDER:

The decision of the Queensland Police Service - Weapons Licensing dated 28 March 2019 to refuse to issue a permit to acquire to the applicant pursuant to the Weapons Act 1990 (Qld) is set aside and substituted with the tribunal’s decision that there is a necessary and genuine occupational requirement for a permit to be issued to the applicant for him to acquire a second category H firearm.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES AND REGISTRATION – LICENCE AND PERMIT – REVOCATION – ADMINISTRATIVE LAW – where the applicant is a fit and proper person –  the applicant is the holder of a Category H firearms licence – the applicant seeks a permit to acquire a second category H firearm – where the applicant has held a category H firearms license for 20 years – whether the applicant’s requirements to operate his business or employment can be effectively carried out with a firearm other than a concealable firearm – where there is a necessary and genuine occupational requirement for the applicant to possess a second Category H firearm

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1), s 20(2), s 24(1)

Weapons Act 1990 (Qld), s 3(1), s 3(2), s 10(2)(e), s 13(5), s 39(2)(c), s 40(2), s 42(3)(a), s 142(2)

Bushell v Repatriation Commission (1992) 175 CLR 408

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

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

APPEARANCES &

REPRESENTATION:

Applicant:

Self-Represented

Respondent:

D Ayscough, Sergeant of Police

REASONS FOR DECISION

Introduction

  1. [1]
    The applicant is a grazier and owner of ‘Glendillon Station’, a cattle property situated approximately 50 kilometres west of Charters Towers.  He is seeking a review of the respondent’s decision to reject his application for a permit to acquire a category H firearm pursuant to the Weapons Act 1990 (Qld) (‘the Weapons Act’).  The sole purpose for the applicant acquiring that particular firearm is for use during the usual course of his duties associated with the running of Glendillon Station.   
  2. [2]
    Glendillon Station is approximately 15,378 hectares in size, or about 40,000 acres in the old scale.  The primary use of the property is grazing cattle, with a holding capacity of 3,000 head of cattle.  At present, there are 2,500 head of cattle on the property.  The property is fully fenced and has three dams or watering points scattered throughout the property.  Access to those watering points is by way of a track, usually only traversable by a four wheel drive, or on a motorcycle or horse.
  3. [3]
    The terrain of Glendillon Station is reasonably flat, although in places it is slightly undulating.  There are creeks which flow through the property with a major creek on the western side of the property. The vegetation on a majority of the property consists of dense scrub, thick undergrowth and trees.  The property has just come out of a particularly harsh seven year drought and in the few weeks leading up to the hearing, it received some rain fall which has provided relief from the drought conditions.  Mustering of the stock on the property is undertaken on horseback as the use of a motorcycle is considered unsafe because of the dense undergrowth and fallen trees or logs.
  4. [4]
    The applicant already holds a concealable firearm licence and owns a Walter 9mm calibre concealable firearm.  He seeks to acquire a second concealable firearm, being a .357 calibre revolver for use during the performance of his employment.  He also holds a Category A, B and C licence with eleven firearms registered to him, including a wide range of rifles and shotguns.  The fact that he holds those licence categories suggests the issue of ‘suitable person’ is not a consideration in this matter. 

Administrative review – legislative pathway

  1. [5]
    The Weapons Act provides for an integrated licensing regulation scheme that is strictly implemented to ensure the object and principles of the legislation are met.  The object[1] of the Weapons Act is to prevent the misuse of weapons[2] through the regulation of the entitlement for people the use and own firearms[3] in Queensland.  The imposition of strict controls on the possession of weapons and requiring their safe and secure storage and carriage enhances the safety of individuals and the general public.[4]  The underlying principles are that a persons’ right to possession of a firearm or weapon and their use is subordinate to the necessity to ensure the safety of individuals and the general public. 
  2. [6]
    The respondent accepts that because the applicant is already the holder of a category H firearms licence, he is a fit and proper person to be issued with the authority to possess a firearm.[5]  However, the respondent suggests there is no justification for him possessing a second category H weapon.
  3. [7]
    Because the applicant seeks to acquire another firearm, the issuing of a permit to acquire is at the discretion of the respondent.  There is an obligation placed upon the applicant to advise the respondent why he needed that weapon and why that need cannot be satisfied in another way.[6]  In considering the applicant’s application, the respondent is required to consider a number of issues, including whether the applicant had a need to possess the firearm;[7] and whether the applicant possesses other firearms, in particular other firearms of the same category or type the applicant is seeking to acquire.[8]    
  4. [8]
    Because the respondent exercised the discretion to refuse to issue the applicant with a permit to acquire, the Weapons Act allows for the applicant to make an application to the tribunal for a review of that decision.[9]  The Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘the QCAT Act’) provides that when undertaking the review of the respondent’s decision, the tribunal effectively ‘stands in the shoes’ of the original decision maker.[10]
  5. [9]
    The review of the respondent’s decision must be a fresh hearing on the merits of the application[11] and the purpose in undertaking the review is to produce the correct and preferable decision.[12]  Any decision reached by the tribunal must be based on the material before the tribunal at the time of the review hearing.[13] 
  6. [10]
    When arriving at the correct and preferable decision, the tribunal has the discretion to either confirm or amend the respondent’s original decision; or set aside the respondent’s original decision and substitute that decision with its own decision; or set aside the respondent’s decision and return the matter for consideration to the original decision maker with directions the tribunal considers appropriate.[14]
  7. [11]
    It is an established principle that the threshold to be met in any application for a permit to acquire goes beyond the applicant desiring to possess the firearm.  There must be a genuine requirement or need for the acquisition of that firearm.[15]  

The application

  1. [12]
    The applicant applied for a permit to acquire a second category H firearm.  In answer to the respondent’s query as to why the concealable firearm was required, and why his need for that firearm could not be satisfied in another way, the applicant explained his current category H firearm, the Walther 9mm semi-automatic pistol, is unsuitable for use when riding a horse.  He required the second concealable firearm for the humane eradication of feral pests and animals and the humane eradication of maimed and dying livestock.  He went on to say that he required the firearm for his own personal protection against wild cattle, wild dogs and wild pigs.[16]
  2. [13]
    Regarding the applicant’s reference to ‘personal protection’, the respondent correctly pointed out that the issuing of any authority to possess a firearm for self-protection is contrary to the legislation.  However, my understanding of the applicant’s use of that phrase was it specifically related to the protection of himself from wild animals in the course of exercising his duties as a primary producer.  This was confirmed by the applicant when he told the tribunal of his past experiences when he had to use his Walther 9mm calibre pistol whilst riding his horse.  The horse was quite young, and when he fired the weapon, the horse became extremely uncooperative.  He found it somewhat difficult to remain astride the animal and, in his efforts to remain in the saddle, he accidentally depressed the trigger of the firearm.  The firearm, being a semiautomatic, fired unintentionally.  It is the applicant’s position that his Walther semi-automatic firearm is unsuitable for horseback use.   
  3. [14]
    In refusing to issue a permit to the applicant for him to acquire a second category H firearm, the respondent reached a conclusion that the applicant’s circumstances did not meet the threshold for his use of that firearm.  The respondent considered the requirement for the firearm could adequately be met through the use of another firearm of a similar category or type[17] and reference was made to the applicant owning a six shot .357 calibre carbine rifle,[18] which is of short length and is light in weight.  That firearm was originally designed for mounted troops.  The applicant told the tribunal that he has relinquished that firearm and he no longer has it in his possession.
  4. [15]
    The respondent also suggested that given the similarities of the applicant’s Walther 9mm calibre pistol and the .357 calibre revolver the applicant sought to acquire, the relevant difference between the magazine capacity of the two firearms was insufficient to establish a need for the revolver.  For those reasons, the respondent said the applicant fell short of satisfying the requisite principle provided within the legislation.[19]
  5. [16]
    In addition, the respondent noted that only a few years earlier, the applicant owned two concealable firearms.  They were the Walther 9mm calibre pistol and a Ruger .22 calibre revolver.  The applicant disposed of the Ruger .22 calibre revolver about two years before he made an application to acquire the .357 calibre concealable firearm.[20] 
  6. [17]
    The applicant said the respondent, in rejecting his application for a second concealable firearm, had failed to give any real consideration to him previously possessing the Ruger .22 calibre revolver at the same time he had the Walter 9mm pistol.  He went on to say the circumstances for his acquisition of the Ruger .22 calibre revolver was more relevant today than it was back then.[21]  Presently there is a greater obligation upon the applicant in the running of cattle property considering the provisions of the Work Health and Safety Act 2011 (Qld) and the Biosecurity Act 2014 (Qld).  
  7. [18]
    Since 1997, he has held a firearm licence and has possessed a Walther P38 9mm calibre pistol since 2000.  That firearm is still in his possession.  In the interim period, he acquired a second category H concealable firearm, being the Ruger .22 calibre revolver.  He relinquished that firearm because it did not carry enough muzzle velocity to meet the requirements of his cattle property.  In more recent times, the applicant’s son, who is an employee of Glendillon Station, has been issued with a category H firearms licence. 
  8. [19]
    The applicant said the acquiring of another category H firearm is a workplace health and safety issue.  The nature of the terrain and the accompanying dense scrub make it impossible to have access to a majority of the property unless a person was on foot, or on a horse.  Carrying a rifle by slinging it over the user’s shoulder is inherently cumbersome and dangerous, particularly when riding a horse through the dense scrub.  The use of a category H firearm is far more secure, efficient and safer.    
  9. [20]
    The very nature of living and working on the rural cattle property provides very little scope for predicting a situation when or where there would be a need to use a firearm.  The property is the habitat of wild dogs, feral pigs and rogue cattle.  The applicant gave specific examples of concerning events that endangered himself and his employees during their normal day to day activities.  Examples provided were –  
  1. (a)
    a ‘feral cow’ tried to integrate into the mob of cattle being mustered.  The animal charged his horse and the cow’s horn tore the flap of his saddle. 
  2. (b)
    An employee on horseback was mustering cattle and feral cow came into the mustered mob.  When chased by the employee, it eventually ran out of breath, then bailed up and charged at the worker and his horse.  The horse reared up and fortunately neither rider nor horse were injured. 
  3. (c)
    A brown snake struck out at the horse ridden by the applicant.[22]
  4. (d)
    A rogue bull was bailed up, which then turned on and charged the applicant and his horse.  Upon hitting the horse, the rogue bull lifted the horse and knocked it to the ground.

Conclusion

  1. [21]
    Both parties relied upon a number of previous decisions reached by the tribunal and the court, which provided some useful assistance in the determination of this matter.[23]  The common theme in those cases is the suggestion there must be a special need for the use of a concealable forearm in the undertaking of the applicant’s business or employment.  Justification for the possession of a concealable firearm goes beyond it being a mere convenience. 
  2. [22]
    Notwithstanding the assistance of those cases, the issue in this matter is reasonably narrow.  The contentious point is whether the applicant has a genuine occupational need or requirement to acquire a second Category H firearm.  The crux of any justification in favour of the applicant is whether, having particular regard to the topography, environment and terrain along with any associated special circumstances, the use of a firearm such as a rifle or other category A, B or C firearm was unreasonable or unfeasible.     
  3. [23]
    The respondent rejected any proposition that applicant’s requirement for a second concealable firearm was warranted, and considered that because the applicant already had a concealable Walther 9mm calibre pistol and a number of other firearms, his occupational needs could be met through the use of those firearms.  This is somewhat puzzling considering that only a few years ago the respondent allowed the applicant to possess two concealable firearms which the applicant used in the performance of his employment and management of the cattle property. 
  4. [24]
    The applicant’s evidence, which I accept, is that notwithstanding the dense vegetation and terrain of his property, he could carry out the requirements of his business as a grazier and primary producer more effectively and safer with a concealable firearm as opposed to a rifle or similar category A, B or C firearm.
  5. [25]
    Having regard to the applicant’s circumstances, I accept there is a genuine occupational requirement for the applicant to possess the concealable firearm he seeks to acquire.  I am also satisfied the applicant’s acquisition of a second concealable firearm will not offend the principles as outlined within the legislation.

Order

  1. [26]
    Having regard to the merits of this application, I am satisfied the correct and preferable decision is to set aside the respondent’s decision dated 28 March 2019 to refuse to issue a permit to acquire to the applicant.  That original decision is substituted with the tribunal’s decision that there is a necessary and genuine occupational requirement for a permit to be issued to the applicant pursuant to the Weapons Act for him to acquire a second category H firearm.

Footnotes

[1] Weapons Act 1990 (Qld), s 3(2).

[2] Weapons Act 1990 (Qld), Schedule 2 – Dictionary provides that a weapon includes a firearm.

[3] Weapons Act 1990 (Qld), Schedule 2 – Dictionary provides that a firearm includes a gun or other thing ordinarily described as a firearm.

[4] Weapons Act 1990 (Qld), s 3(1).

[5] Weapons Act 1990 (Qld), s 10(2)(e).

[6] Weapons Act 1990 (Qld), s 40(2).

[7] Weapons Act 1990 (Qld), s 39(2)(c).

[8] Weapons Act 1990 (Qld), s 42(3).

[9] Weapons Act 1990 (Qld), s 142(2).

[10]  The respondent.

[11] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

[12] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[13] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, 589.

[14] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 24(1).

[15] Cseke v Queensland Police Service (Weapons Licensing Branch) & Anor [2005] QCA 466, [12].

[16]  Respondent’s material at page 4.

[17]  Respondent’s Information Notice dated 28/03/2019 containing the decision and reasons for the decision to refuse the applicant’s permit to acquire.

[18]  This firearm is classed as a Category B firearm.

[19] Weapons Act 1990 (Qld), ss 40(2) and 42(3)(a).

[20]  The applicant relinquished the Ruger .22 calibre revolver on 3 November 2015.  

[21]  Applicant’s statement filed 21/07/2019 at page 2, paragraph 15. 

[22]  The Eastern brown snake is considered the world's second-most venomous land snake. 

[23] Geary v Queensland Police Service Weapons Licensing [2017] QCAT 6, Salmon v Queensland Police Service Weapons Licensing [2018] QCAT 202, Shaxson v Queensland Police Service Weapons Licensing [2014] QCAT 309, Harm v Queensland Police Service Weapons Licensing [2010] QCAT 518, Cseke v Queensland Police Service Weapons Licensing [2005] QCA 466, Baker v Queensland Police Service Weapons Licensing [2018] QCAT (Unreported – Member Oliver, 26 April 2019), Saiko v Commissioner of Police, NSW Police [2004] NSWADT 99. 

Close

Editorial Notes

  • Published Case Name:

    Hammer v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Hammer v Queensland Police Service – Weapons Licensing

  • MNC:

    [2020] QCAT 333

  • Court:

    QCAT

  • Judge(s):

    Member Pennell

  • Date:

    07 Aug 2020

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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