SUPREME COURT OF QUEENSLAND 

1. McPHERSON JA:  This application for leave to appeal against a decision of the District Court raises a question of interpretation of provisions of the Weapons Act 1990 in the form in which it stood before the recent amendment to it taking effect from 2 June 2003.

2. On 12 July 2001, the applicant police officer located a “Bully” brand .22 calibre rifle in a shed on the respondent’s property at St Lawrence. He later issued a complaint charging that the respondent, a licensee under the provision to the Act on that date, contravened a condition of his licence by possessing an unregistered weapon. On 24 January 2002 the complaint came before the magistrate at Mackay, who, after hearing submissions from counsel for the respondent, dismissed it. From there an appeal was taken to the District Court, where it was dismissed. It is from that decision that leave to appeal is now sought by the applicant.

3. Section 49 of the Weapons Act 1990 requires the Commissioner of Police to maintain a record or register of firearms containing certain information, including the name and address of the owner of a firearm. The Bully rifle in this case was not registered under s 49. One might perhaps have expected that the respondent would have been charged with possessing a firearm that was not registered. An offence to that effect is now incorporated in a s 49A of the Act; but it was not inserted until the Act was amended in 2003. At the time the respondent was found with the rifle in July 2001, no such offence existed. Instead, he was charged under s 34(1) with the offence formulated in the complaint, which, as has been seen, was that, being a licensee under the provisions of the Act, he contravened a condition of his licence by possessing an unregistered weapon.

4. It is necessary to refer briefly to some of the other provisions of the Act as they were at the relevant time. Some of them are still in that form; but I will refer to them all in the past tense even though they remain the same after the amendment in 2003. Section 50 of the Act provided that a person may possess a weapon (defined to mean or include a firearm) only if authorised to do so under a licence, or a permit to acquire it. By s 9, certain officers were authorised to issue weapon licences, which under s 12(2), authorised possession of a particular weapon or category of weapon. In determining an application for a licence, the authorised officer had power under s 15(4)(b) to reject it, or under s 15(4)(a) to approve it and issue it subject to conditions limiting the use or possession of the weapon. Any conditions attached under s 15(4)(a) were, by s 16(1)(b), to be indorsed on the licence. By s 34(1), it was made an offence to contravene a condition of the licence.

5. At the time the respondent was charged under s 34(1), he already had a firearms licence which had been issued and indorsed under s 16(1)(b) with conditions authorising him to possess certain categories of firearms. Those categories are designated by reference to reasons specified in s 11 and the purposes described in the Weapons Regulations 1996. As indorsed on the respondent’s licence, each of the three conditions was expressed in the form:

“this licence authorises the licensee to have possession of and use registered category A and B weapons …”

The inclusion in the condition of the reference to “registered” weapons had the effect of limiting the respondent’s authority to possess and use weapons in those categories A and B to those that were registered under s 49, but not any weapon that was not so registered.

6. The Bully rifle of which the respondent was in possession on 12 July 2001 was not registered, which is why he was charged under s 34(1) with contravening a condition of his licence by possessing it. The form of charge was evidently adopted in order to supply the deficiency in the Act, as it then stood, in omitting to create an offence of possessing an unregistered weapon. However, at the hearing of the complaint, the respondent challenged the power of the authorised officer to attach conditions in that form to the licence issued to him. The magistrate held that, in imposing those conditions, the authorised officer had exceeded his powers under the Act, and, on appeal, his decision was upheld. The question which it is sought to bring before this Court is whether that conclusion was correct.

7. In both courts, the pivotal provision of the Act was held to be s 17(1). It provides or provided:

“(1)A licence authorises a licencee to use a weapon or category of weapon possession of which is authorised under the licence for any lawful purpose.”

The decisions of both the magistrate and the District Court judge approached s 17(1) as if it were a provision that invested the holder of a licence issued under the Act with an unqualified right to use a weapon, or a category of weapon, of which possession was authorised under the licence. From this it followed, or so it was held, that it was beyond the power conferred by s 15(4)(a) for an authorised officer acting under that provision to impose a condition or conditions, like those indorsed on the respondent’s licence here, which restricted the respondent to having possession of and using only registered category A and B weapons. Section 17(1) was interpreted as being, in effect, a dominant provision of the Act that prevailed over all others, with the consequence that any condition imposed under s 15(4)(a) which was inconsistent with it was necessarily beyond power and void.

8. Section 17(1) is, however, simply a provision that states the general effect of a licence issued under the Act. It is not to be read as conferring on a licencee something akin to a fundamental or absolute right of use or possession not capable of being qualified by conditions annexed to the licence under s 15(4)(a). Section 16(1)(b)(ii) expressly contemplates that a licencee will be indorsed with any conditions decided under that provision. Section 17(1) is not given primacy over other provisions of the Act including s 15(4). They are provisions of equivalent status which are, like other sections of the Act, to be read, if possible, in harmony as parts of a single statutory enactment. The point would perhaps have been self-evident if s 17(1) had been introduced by the words “Subject to this Act …” or some such formula; but it was not necessary so to express it in order to achieve the same result by an ordinary reading of the various provisions in the Act including ss 15 and 17.

9. No doubt there are limits on the range of conditions that may, in approving an application and issuing a licence, be annexed or “decided” under s 15(4)(a). They are not to be discovered simply by a mechanical or literal interpretation of s 17(1), but by reading the Act as a whole. There is no reason to suppose that annexing to the respondent’s licence a condition that he have possession and use only of registered category A and B weapons was foreign to the purposes or objects of the Act including s 11; nor, except as being contrary to s 17(1), was it argued that it was beyond the power of the authorised officer acting under s 15(4)(a) to impose or “decide” such a condition. Finally, even if the condition had been void, it by no means necessarily follows that the licence would have remained valid as a licence bereft of that condition, as distinct from becoming one that may have been void altogether. The question was not adverted to in the submissions before this Court.

10. Reliance was also placed in both of the decisions below on the provisions of s 18 of the Weapons Regulations 1996. It declares that “other than as provided in sections 19 to 21, a firearms licence –

(a)      may only be given for a category A or B weapon; and

2. authorises the licencee to possess and use any weapon in the category  

indorsed on the licence.

Again it was submitted that the provisions conferred on the respondent as licencee what might be described as a “free-standing” right to possess and use any weapon covered by the respondent’s licence. Once again, however, the provisions of s 18  of the Regulations are, like those of s 17(1) of the Act, not to be read independently of the power conferred in s 15(4)(a) of the Act of imposing conditions in the licence at the time of its approval and issue, or as prevailing over that power. Section 18(a) of the Regulations has a limiting not an enlarging effect. Section 18(b) authorises possession and use of any weapon in a category indorsed on the licence. But it is not to be read as meaning that other conditions may not be imposed under s 15(4)(a), such as the condition decided and indorsed on the respondent’s licence in the present case restricting the authority conferred by the licence to possession and use of registered category A and B weapons. Such a condition was, for reasons already given, validly imposed under the power conferred by s 15(4)(a) of the Act and s 18 of the Regulations must, in the case of any apparent inconsistency with it, be read as being subject to that power.

11. For these reasons, the interpretation placed upon the relevant provisions of the Act and Regulations proceeded on an incorrect premise and was wrong. The application for leave to appeal and the appeal against the District Court decision must be allowed. The decision of the District Court on 14 May 2003 dismissing with costs the appeal from the decision of the magistrates court at Mackay on 24 January 2002 must be set aside; and the decision of that court dismissing the complaint with costs (if any order as to costs was made) must also be set aside. The magistrate must proceed to hear and determine the complaint according to law.

12. Mr Fryberg of counsel for the respondent in this Court urged that, even if we concluded that the decision was wrong, we should refrain from granting leave to appeal. He submitted that the amendments effected in 2003 to the Weapons Act 1990 have now rendered the point at issue “moot” for future cases. But we are not persuaded that this is necessarily so, or that the decisions below, if left to stand, may not, despite those amendments, continue to influence interpretations of the Act and the Regulations in future. Under s 118(3) of the District Court Act 1967 we now have a complete discretion in the matter of granting leave to appeal to this Court, and the present case is one in which it is beneficial to exercise it.

13. Mr Fryberg also submitted that, if we adopted that view, the Court should grant an indemnity certificate to the respondent under the Appeal Costs Fund Act 1973. However, having regard to all the circumstances, including responsibility for the argument that succeeded below, I would adopt the suggestion made by Mackenzie J in the course of submissions in this Court of leaving the costs in all three courts to be borne by the party who incurred them. There will accordingly be no order as to costs of the proceedings in this Court or the District Court or the Magistrates Court.

14. MACKENZIE J: I agree with the reasons of McPherson JA and with the orders he proposes.

15. WILSON J: I have read the reasons of McPherson JA and agree with them.