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

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

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

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

PARTIES:

CHRISTOPHER DAVID MCCONNEL

(applicant)

 

v

 

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING BRANCH

(respondent)

APPLICATION NO/S:

GAR312-17

MATTER TYPE:

General administrative review matters

DELIVERED ON:

9 January 2019

HEARING DATE:

14 May 2018

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

The decision to refuse Christopher David McConnel’s application for a category H weapons licence is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – GENUINE REASON – where application for category H weapons licence by grazier – where licence previously held – where there must be a genuine reason for possessing the firearm – whether applicant has an occupational requirement for possessing the firearms

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20

Weapons Act 1990 (Qld), s 3, s 4, s 10

Shaxson v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 309

APPEARANCES

& REPRESENTATION:

 

Applicant:

B McGlade, instructed by Clayton Utz

Respondent:

Self-represented by Senior Constable Paz Landim


REASONS FOR DECISION

  1. [1]
    Christopher McConnel has been a grazier since 1979 living at and operating a beef grazing and cropping business from Cressbrook Station, situated 5 kilometres from Toogoolawah. Until 2006, he also conducted dairy activities.
  2. [2]
    He describes his property as follows:

My property is made up of 300 acres of cultivated pasture and cropping land, 100 acres of river and creek flats with some timber and 600 acres of open to timber grazing country. The river and creek flats and timber grazing country include heavily grassed and thickly brushed riverine (and riparian) terrain.[1]

  1. [3]
    Since 1997, Mr McConnel has held a category H – concealable weapons licence with respect to two weapons namely:
    1. (a)
      A Crossman air tranquiliser gun; and
    2. (b)
      A luger semi-automatic weapon.
  2. [4]
    He applied for and was granted a renewal of that licence on three occasions. He applied for a further renewal on 21 March 2017, but was refused. He now applies to the Tribunal for a review of that decision.
  3. [5]
    In conducting the review, the Tribunal rehears the matter standing in the shoes of the original decision maker.[2] The purpose of the review is to reach the correct and preferable decision.[3]

Weapons Act 1990 (Qld)

  1. [6]
    The principles underlining the Weapons Act 1990 (Qld) (‘The Act’) are set out in s 3(1) as follows:
  1. weapon possession and use are subordinate to the need to ensure public and individual safety;
  2. 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.[4]
  1. [7]
    The object of the Act is to prevent the misuse of weapons.[5] The object is achieved, among other things, by ‘requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.’[6]
  2. [8]
    The limitations on the issue of a licence are contained in s 10, and include that the applicant has a reason mentioned in s 11 to possess the weapon or category of weapon.[7] The genuine reason for possession of the two weapons relied on by Mr McConnel is contained at s 11(c) namely:

An occupational requirement, including an occupational requirement for rural purposes.

  1. [9]
    It is not in dispute that Mr McConnel meets all the requirements contained in s 10, save for having an occupational requirement for possession of the two weapons.

Occupational requirement

  1. [10]
    Mr McGlade of counsel appeared for Mr McConnel at the hearing. In written and oral submissions he was critical of the original decision-maker’s conclusion that the use of weapons was not ‘necessary’ or a ‘necessity’ and the application of a test of necessity, which he identified as having first arisen in the case of Shaxson v Queensland Police Service, Weapons Licencing Branch (‘Shaxson’).[8]
  2. [11]
    In Shaxson, Member Howard, as she then was, said:

‘Necessary,’ according to common usage, connotes something which is required, rather than something which is merely convenient or a matter of preference.[9]

  1. [12]
    She concluded that she was not satisfied that a category H weapon was necessary to meet the ‘occupational requirements’ of the applicant in that case.
  2. [13]
    The more appropriate approach Mr McGlade says is that of Senior Member Oliver in Harm v Queensland Police Service.[10] A handgun will be considered an occupation requirement if it has the consequence of the applicant’s occupation being carried out in a safer and more effective way.[11]
  3. [14]
    The word ‘necessary’ appears only in s 13(5) of the Act. Section 13 is a procedural section. It sets out how an application must be made, and some of the details an application must contain.
  4. [15]
    Mr McGlade correctly points out that s 13 does not apply to Mr McConnel’s application. Unlike Shaxson, his is not an application for a licence, but rather an application for a renewal of his existing licence. Section 18 of the Act is the applicable procedural section and it does not contain a subsection in terms similar to s 13(5).
  5. [16]
    That does not mean that Mr McConnel does not need to establish a genuine reason for possession of the weapons. Section 10 of the Act requires it.
  6. [17]
    The use of the word ‘necessary’ in s 13(5) (and its absence in s 18) is not, in my view, intended to define and, in fact does not, define the phrase ‘occupational requirement’. An application, whether by way of new application or a renewal application, must establish to the satisfaction of the decision maker not that a weapon is necessary, but rather that it is an occupational requirement.
  7. [18]
    That, however, does not persuade me that what Mr McGlade says is the test adopted in Harm is appropriate. In my view, and Mr McGlade noted the possibility in his submissions: ‘the above point might merely raise a distinction without a difference’.[12]
  8. [19]
    The Macquarie Dictionary relevantly defines ‘requirement’ to include:

…; a thing demanded or obligatory; … a need…

  1. [20]
    ‘Require’ means:

… to have a need of; need; … make necessary or indispensable … to call for or act as obligatory… to place under an obligation or necessity…

  1. [21]
    The word ‘requirement’, in the context of the Act, contemplates something which is mandatory, not optional, or as Member Howard said in Shaxson ‘something which is required, rather than something which is merely convenient or a matter of preference. In the context, it reasonable connotes that the requirement cannot be met in some other way’.[13]
  2. [22]
    While the issues of safety and effectiveness are obviously relevant to the issue, they are not determinative. It is not sufficient to conclude that there is an occupational requirement for a handgun simply because in certain circumstances it is safe, more effective, or preferable to the applicant than a long arm weapon, if the long arm weapon is adequate for that purpose.
  3. [23]
    Mr McConnel filed two witness statements in the Tribunal. The first on 18 January 2018, and the second on 8 March 2018. He also filed a statement of Dr William Roughan in relation to the use of the tranquiliser gun on 8 March 2018.
  4. [24]
    Both Mr McConnel and Dr Roughan were cross-examined, the latter by telephone.

Tranquiliser gun

  1. [25]
    In his further statement, Mr McConnel listed circumstances in which he considered it necessary to use the tranquiliser gun, namely for the close range sedation of cattle experiencing difficulties calving in the paddock, requiring immediate veterinary attention where transportation to yards was impractical or cattle jammed in cattle yards.[14]
  2. [26]
    During cross-examination, he raised the use of the tranquiliser gun to administer drugs in the paddock to cattle effected by the three day flu. His evidence was that the drugs to treat three day flu were only recently available. He had not actually used the tranquiliser gun to treat his cattle for this purpose.
  3. [27]
    Mr McConnel said in oral evidence that he had a tranquiliser rifle, which he had not used during his time at Cressbrook Station, as well as the tranquiliser gun, the subject of this application, which he rarely used.
  4. [28]
    His oral evidence is that he last used the tranquiliser pistol in 2005 to sedate an animal caught in a forked tree. He said that since his licence had not been renewed he has had one occasion to use the tranquiliser gun on a cow experiencing birthing difficulties. In circumstances where he could not administer a needle to sedate it, the cow was euthanised presumably using a long arm weapon. Why the cow could not be tranquilised using the long arm tranquiliser was not explained.
  5. [29]
    Accepting, for the moment, that the ability to tranquilise animals by use of the weapon is an occupational requirement for McConnel, the question for the Tribunal is whether the ability to tranquilise animals using a tranquiliser hand gun or short arm weapon is an occupational requirement.
  6. [30]
    It is submitted on Mr McConnel’s behalf, that there is clear evidence that ‘sedation at close range by tranquiliser pistol is the most appropriate method for the sedation of livestock’,[15] and it follows that there is an occupational requirement for the use of the tranquiliser gun by a grazier.[16]
  7. [31]
    Doctor William Roughan, a veterinarian of 18 years’ experience, specialising in cattle, gave evidence that in his experience tranquiliser pistols:
    1. (a)
      Were ‘necessary tools’ for the sedation of cattle in certain situations;[17] and
    2. (b)
      Were ‘necessary tools’ to ‘accurately and safely tranquilise animals at close range.’[18]
  8. [32]
    In oral evidence, in response to a question by the Tribunal, Dr Rowan said that tranquiliser pistols were not commonly used largely because they were manufactured overseas.
  9. [33]
    Further he said, that he used a tranquiliser rifle to sedate cattle in all circumstances where a weapon was required and had not applied for a licence to use a tranquiliser pistol. He uses a weapon to tranquilise cattle about once every three months.

Luger

  1. [34]
    Mr McConnel says the luger is an occupational requirement ‘first to deal with feral animals by euthanasia or preventative presences; and second for the euthanasia of livestock.’[19]
  2. [35]
    In submissions, Mr McGlade added particular circumstances, particularly regular flooding which made use of a pistol for the above purposes more appropriate.[20]
  3. [36]
    Mr McConnel’s evidence is that he encounters feral animals every day,[21] and that such animals pose a threat to his livestock, in fact, killing 2% of his livestock each year.[22]
  4. [37]
    His evidence that baiting of feral animals is unacceptable due to the presence of domestic animals nearby is uncontested.
  5. [38]
    The luger he says is essential for killing animals in the river terrain which is approximately 100 acres of his land, because:
    1. (a)
      Feral animals are flight animals and he can draw and fire the luger quicker than a long arm;[23]
    2. (b)
      The nature of the terrain makes it accessible only by motorbike and there is a significant risk of a long arm weapon carried in a sling becoming snagged and potentially causing him to fall.[24]
  6. [39]
    I accept it has not been established by Queensland Police Service that using the luger to euthanise cattle is inhumane.[25] While I accept Mr McGlade’s submission that there is insufficient evidence that there are products available for the safe carriage of long arm weapons on motorbikes or compact long arms suitable for carriage on motorbikes,[26] I do not accept that his evidence establishes that ‘such mechanisms are unsuitable for his specific business purposes’.[27]
  7. [40]
    In cross-examination, Mr McConnel said he had not considered other options because the two tools he uses, that is, the tranquiliser gun and the luger, have served him adequately. He had not looked at break down weapons and the like. It was, he said, largely an economic decision.
  8. [41]
    In oral evidence, Mr McConnel said he rarely shot or shot at feral animals or livestock. He had during his time at Cressbrook Station shot one dingo and one feral pig using the luger. While firing the luger had a strong deterrent effect on feral animals, he only discharged the luger two to three times per carving season for that purpose. The frequency of euthanising livestock was something less than one per year. The time it would take him to return to his house to retrieve a long arm weapon for the purpose was up to 45 minutes. Given the infrequency of such events, I do not consider that to be an unreasonable time.
  9. [42]
    Mr McConnel said in his oral evidence, notwithstanding the infrequent use of firearms, it was still a ‘necessary tool of the trade’. Mr McGlade in his oral submissions reinforced that point.
  10. [43]
    I accept that a weapon is an occupational requirement however infrequent its use, however I do not accept that either hand gun is. They are Mr McConnel’s preferred method but there is not sufficient evidence to establish an occupational requirement.

Footnotes

[1]  Further statement of C McConnel, filed 8 March 2018, para 11.

[2]  QCAT Act, s 19.

[3]  QCAT Act, s 20.

[4]  Weapons Act, s 3(1).

[5]  Weapons Act, s 3(2).

[6]  Weapons Act, s 4(c).

[7]  Weapons Act, s 10(2)(f).

[8]  [2014] QCAT 309.

[9]  Ibid [21].

[10]  [2010] QCAT 518.

[11]  Applicant’s submissions, para 33.

[12]  Ibid 36.

[13]  Ibid [21]

[14]  Further statement, para 37.

[15]  Further statement, para 93 (emphasis added).

[16]  Further statement, para 94.

[17]  Statement of Dr W Rowan, filed 8 March 2018, para 18.

[18]  Statement of Dr W Rowan, filed 8 March 2018, para 19.

[19]  Further statement, para 22.

[20]  Applicant’s outline of submissions, para 44.

[21]  Further statement, para 19.

[22]  Further statement, para 24.

[23]  Further statement, para 24.

[24]  Further statement, para 27-29.

[25]  Further statement, para 80-84.

[26]  Further statement, para 72-79.

[27]  Outline of submissions, para 75.

Close

Editorial Notes

  • Published Case Name:

    McConnel v Queensland Police Service – Weapons Licensing Branch

  • Shortened Case Name:

    McConnel v Queensland Police Service – Weapons Licensing Branch

  • MNC:

    [2019] QCAT 234

  • Court:

    QCAT

  • Judge(s):

    Member Holzberger

  • Date:

    09 Jan 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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