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Yatras & Anor v Queensland Police Service - Weapons Licensing QCAT 6
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Yatras & Anor v Queensland Police Service - Weapons Licensing  QCAT 6
KIRK JAMES YATRAS
DANIEL ROBERT TORRENS
QUEENSLAND POLICE SERVICE - WEAPONS LICENSING
General administrative review matters
17 January 2019
28 November 2018
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS –where applicants possessed concealed firearm licences – where a particular type of firearm held under the licence – where applicants advised the weapon had been changed from category H to category D weapon – where the applicants directed to hand up the weapon to police or a private firearm dealer – where applicants seek review of the decision by police to categorise the weapon from H to D – where the tribunal’s jurisdiction to hear the review determined as a preliminary issue
PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – where applicants sought a stay of the administrative decision – where applicants had reasonable prospects of success – whether a stay in the public interest – where the balance of convenience favoured a stay being granted
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17, s 20, s 22(3)
Weapons Act 1990 (Qld), s 49A, s 132, s 142(1)(e), s 142(2), s 152, s 172, Sched 1 , Sched 1 [2AA]
Weapons Categories Regulation 1997 (Qld), s 5(1)(a), s 7(3)
Weapons Legislation Amendment Regulation (No. 1) 2017 (Qld), s 5
Weapons Legislation (Lever Action Shotguns) Amendment Regulation 2017 (Qld)
Weapons Regulation 2016 (Qld), s 22
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
Deputy Commissioner Stewart v Kennedy  QCATA 254
Uysal v Queensland Building and Construction Commission  QCAT 367
APPEARANCES & REPRESENTATION:
Senior Constable Paz Landim
REASONS FOR DECISION
- Mr Yatras and Mr Torrens each have a concealable firearms licence. Under that license they are entitled to possess category H weapons. Amongst the weapons they own hitherto falling within category H as a handgun, is a weapon described as a Wedgetail WT15–01.
- By separate but identical letters both dated 21 June 2018, Queensland Police Service – Weapons Licensing informed Mr Yatras and Mr Torrens that the Wedgetail WT15–01 had been inadvertently issued under their category H licences before adequate review and research could be undertaken concerning the weapon. The letters said research involved a review of weapon calibre, parent weapon, style and appearance of weapon as well as the provisions of the Weapons Categories Regulation 1997 (Qld) (‘the Categories Regulation’) in regard to both category H and category D weapons.
- The letters went on to say that by s 7(3) of the Categories Regulation category H weapons were excluded from applying to categories C, D or R weapons. As the parent item (M-16/AR15 style) was a category D weapon and the variant Wedgetail WT15–01 closely followed the design in both appearance and calibre, it had been determined that category D was the correct category for that particular weapon.
- Accordingly the category H classification did not apply to the Wedgetail WT15–01 weapon in their possession. Given that they were not licensed to possess category D firearms they were required to dispose of the firearms concerned immediately by surrendering the item to a Queensland firearms dealer or surrendering it to a police station.
- The letters finished with the statement that once they had surrendered the firearm, if they wished to retain lawful possession of it, they would have to apply for a category D licence.
- The applicants filed the within application in the Tribunal seeking review of the decision they say was made by Weapons Licensing by the letters of 21 June 2018.
- At a directions hearing a preliminary issue was raised as to whether or not the Tribunal has jurisdiction to determine the matter. The applicants’ application for an order staying the decision by Weapons Licensing was also noted. In result, the matter was listed for a preliminary hearing to determine:
- (a)Whether the decisions made by Queensland Police Service – Weapons Licensing on 21 June 2018 are decisions that the Tribunal may review and, accordingly, whether to dismiss the application to review a decision filed by Kirk James Yatras and Daniel Robert Torrens on 16 July 2018; and
- (b)The application to stay a decision filed by Kirk James Yatras and Daniel Robert Torrens on 16 July 2018.
- The preliminary hearing took place on 28 November 2018.
The Submissions of the Applicants
- The applicants say each of them have a concealable firearms licence and they each obtained a Permit to Acquire, specifically, a Wedgetail WT15–01 (‘the Wedgetail’). The cost of the Wedgetail was substantial, approximately $6,000. They submit the letter from Weapons Licensing of 21 June 2018 amounted to a decision revoking their authority to possess the weapon granted them under the Weapons Act 1990 (Qld) (‘the Act’).
- In their initial Application they state:
1 We contend the firearm has wrongly been reclassified as category D.
2 We contend that the categorisation whether H or D is not relevant to its ability to be held under our concealable firearms licences.
- In submissions filed 14 August 2018 the applicants submit the Tribunal may review a decision that is a decision revoking or suspending a licence, permit, approval or other authority under the Act.
The Submissions by Weapons Licensing
- Weapons Licensing agree that prior to December 2017 the Wedgetail had been categorised as a category H weapon. That, say Weapons Licensing, had been a mistake. Weapons Licensing discovered the error. Weapons Licensing contacted the Queensland Police Forensic Services Group Scientific Section Ballistics Unit (‘Ballistics’) who agreed. They then contacted the applicants once the error had been discovered and the letters of 21 June 2018 were sent out.
- Ballistics had conducted research into the weapon and considered its calibre, its parent weapon, its style and appearance and the Categories Regulation and Ballistics determined that the correct category of the weapon was category D. Category H was not applicable because the Wedgetail was not a pistol.
- Weapons Licensing says at issue is who has authority to determine what category a weapon falls in and whether a firearm has been correctly categorised as a category D rather than H weapon.
- Weapons Licensing submits it is Ballistics who is authorised to categorise a weapon. Weapons Licensing does not categorise weapons. It was Ballistics who categorised the Wedgetail as a category D weapon, not Weapons Licensing. The letters of 21 June 2018 therefore did not constitute a decision made by Weapons Licensing but was simply an advisory notice to the applicants advising them that the categorisation of the Wedgetail as a category H weapon had been a mistake and the mistake had been corrected with the categorisation of the weapon as a category D weapon. Once that happened the applicants were not authorised to possess the weapon, and it had to be handed in.
- By s 142 of the Act:
Right to apply for review of decisions
- (1)This section applies to the following decisions –
… (e) a decision revoking or suspending a licence, permit, approval or other authority under this Act
- The Act does not define the words approval or other authority.
- The Macquarie Dictionary defines approval as including to mean ‘sanction; official permission’.
- Its definition of authority includes to mean ‘a warrant for action; justification’.
- Concerning a concealable firearms licence the Act provides:
Part 4 Possession and use of weapons
49A Authority given by licence
- A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.
- However, the authority to possess or use a weapon, or category of weapon, under a licence is subject to a regulation, condition or participation condition, whether imposed by an authorised officer or prescribed under a regulation.
132 Conditions for concealable firearms licence
- It is a condition of a concealable firearms licence that the licensee must not possess any of the following category H weapons under the authority of a concealable firearms licence—
- a weapon that has a calibre of more than .38 inch;
- a weapon that is semi-automatic and has a barrel length of less than 120mm unless it has an overall length of at least 250mm measured parallel to the barrel;
- a weapon that is not semi-automatic and has a barrel length of less than 100mm unless it has an overall length of at least 250mm measured parallel to the barrel;
- a weapon with a magazine with a maximum capacity of more than 10 rounds;
- a weapon designed to be used without a magazine that has a maximum capacity of more than 10 rounds.
- Section 49A authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.
- The applicants’ concealable firearms licence therefore authorised them to possess category H weapons (pistols) save for those excluded by s 132. There is nothing to suggest any of the disqualifying features identified in s 132 apply to the Wedgetail.
- Section 22 of the Weapons Regulation 2016 (Qld) states what weapons a concealable firearms licence authorises the licensee to possess and use:
- 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.
- The Macquarie Dictionary defines pistol as meaning ‘a short firearm intended to be held and fired with one hand’. The applicants maintain the Wedgetail is a pistol because it has no stock, which is its significant difference to a rifle.
- The applicants exhibit in their material filed 14 August 2018 a list of firearms registered to Mr Yatras, licence no. 30035315. There are 10 category H weapons identified in that document, which is signed apparently by a member of Weapons Licensing and dated 2 June 2017. The Wegetail is the 10th weapon listed. All 10 are noted as category H weapons. The description of the Wedgetail is calibre .300BLKOUT, magazine capacity 10, handgun, semi-auto.
- Whilst handgun is not defined in the Act, handgun shooting competition is and means a shooting competition that includes using a category H weapon at a place where the weapon may lawfully be used. The applicants say they use the Wedgetail in shooting competitions in their application for a stay of the decision by Weapons Licensing. They say there are potential ramifications in not being able to use the weapon for annual handgun participation requirements.
- The word decision used in s 142 is not defined in the Act but the Macquarie Dictionary says a meaning of the word is ‘the act of deciding; determination (of a question or doubt)’.
- The scope of s 142 decisions is potentially a very broad one. There is no limiting criteria save that it involve, in so far as relevant to the matter at hand, revocation or suspension of a licence, permit, approval or other authority under the Act.
- In Australian Broadcasting Tribunal v Bond, Mason CJ, in discussing limitations applying to judicial review of decisions made by the Australian Broadcasting Tribunal, said:
- … But here the relevant context is not that of a decision reached in curial or judicial proceedings, so that the meaning must be determined by reference to the text, scope and purpose of the statute itself.
- The fact that the ADJR Act is a remedial statute providing for a review of administrative action rather than some form of appeal from final decisions disposing of issues between parties indicates that no narrow view should be taken of the word "decision".
- That statement has equal force with respect to the matter at hand. I see no justification for any narrow view to be taken of decisions made under the Act that the legislation intends to be subject to administrative review in the Tribunal.
- Section 142 is in the broadest of terms. Similarly broad, apparently, are the range of people given the right of review – any person ‘aggrieved by the decision’. That is to be contrasted with review provisions which allow review of decisions that affects a person, such as to be found in the Queensland Building and Construction Commission Act 1991 (Qld) (‘QBCC Act’), and then proceeds to narrow the scope of reviewable decisions affecting someone able to be reviewed. That is not the case here with s 142 which is very much open ended and casting in result a wide net.
- I conclude the letter from Weapons Licensing dated 21 June 2018 informing the applicants they were no longer entitled to possess the Wedgetail amounted to a decision revoking their authority to possess something they had hitherto been entitled to possess under their concealable firearms licence, that that was a decision which aggrieved the applicants and by s 142 of the Act they were entitled to apply to the Tribunal for a review of that decision.
- I note Weapons Licensing claim that they were not the decision makers in this matter. At hearing the Weapons Licensing representative stated it was Weapons Licensing who initiated the re-examination of the status of the Wedgetail as a category H weapon. It was Weapons Licensing who considered the category H designation wrong. It was Weapons Licensing who then referred the matter to Ballistics. After Ballistics considered the matter, and presumably agreed with Weapons Licensing that the Wedgetail should not be considered a category H weapon, it was Weapons Licensing who informed the applicants about that and told them to hand their weapons in.
- In such circumstances I find it was clearly Weapons Licensing who was the decision maker in this matter.
- That Weapons licensing failed to give a QCAT information notice with the written notice of the decision, that is, with the letters of 21 June 2018, as required by s 142AA of the Act, does not affect the applicants’ right of review.
- The applicants seek a stay of the original decision by Weapons Licensing revoking their authority to possess the Wedgetail under their concealed firearms licence. By s 22 of the QCAT Act the Tribunal may make an order staying the operation of a reviewable decision only if the tribunal considers the order is desirable after having regard to the following:
- the interests of any person whose interests may be affected by the making of the order or the order not being made;
- any submission made to the tribunal by the decision-maker for the reviewable decision;
- the public interest.
- Both parties have made submissions and the matter of public interest is dealt with below.
- Section 22 does not exclude from consideration of the appropriateness of ordering a stay of the reviewable decision the application of standard curial principles and procedures. Those standard principles include the prospects of success in the review proceedings, whether the applicants will suffer a disadvantage if the stay is refused and whether the balance of advantage or disadvantage favours a stay.
- Dealing first with prospects of success, Weapons Licensing submit it is inappropriate for the Tribunal to be called on to ‘categorise’ whether a weapon falls within a particular category. They say the appropriate body to categorise a weapon is Ballistics.
- The applicants however generally challenge the authority of the police to be able to ‘categorise’ any weapon.
- Weapons Licensing points to s 152 of the Act as providing the necessary authority:
- The commissioner may appoint a police officer or officer of the public service as an approved officer for this Act.
- However, a police officer or officer of the public service may be appointed as an approved officer only if, in the commissioner’s opinion, the person has the necessary expertise or experience to be an approved officer.
- There is nothing to suggest however that the Commissioner is able to categorise weapons and therefore he cannot approve officers to do what he cannot do by delegation.
- What the Act does provide for in s 172 is for the Governor in Council to make regulations with respect to the matters mentioned in Schedule 1 to the Act. Schedule 1 provides amongst other things for:
2 Authorising things under a licence
Providing for things a licensee may or may not do under the authority of a licence.
2A Categorising weapons
Declaring weapons as category A, B, C, D, E, H, M or R weapons.
- The provision seems very clear. What also seems clear is that the provision makes no mention of permissible sub-delegation of that power which suggests any purported sub-delegation of the power (for example to a police officer) would be unauthorised.
- The power to make regulations concerning weapons categories has been exercised by the Governor in Council in the past.
- On 30 June 2017 (effective from that date) category D was amended by the Weapons Legislation Amendment Regulation (No. 1) 2017 (Qld), Section 5 (Category D weapons) and extended to capture:
(e) a weapon mentioned in any of paragraphs (a) to (d) that is a blank-fire firearm.
- By the Weapons Legislation (Lever Action Shotguns) Amendment Regulation 2017 (Qld) (which commenced 1 March 2018) Category D weapons were further expanded to include:
a non-military style self-loading centre-fire rifle; and
a lever action shotgun with a magazine capacity of greater than 5 rounds;
- The Explanatory Notes to the Weapons and Other Legislation Amendment Act 1997 (Qld) which amended Schedule 1 to include paragraph 2AA set out above stated:
The schedule is also amended by inserting a further matter for regulation. This is the declaration of weapons into a particular category for the purposes of the Act.
- It seems fairly clear that the appropriate party, and the only appropriate party, to categorise a particular weapon into a particular category is the Governor in Council and only the Governor in Council. Further, the Governor in Council has not by regulation categorised the Wedgetail as a category D weapon.
- In the matter at hand the issue will not be about Ballistics categorising the Wedgetail as a category D weapon. Ballistics has no power to do that it would appear. What the issue will be about will be whether the Wedgetail falls within category H or D in accordance with the Categories Regulation provisions. It is about statutory construction.
- In weighing the applicants’ prospects of success I note that, in the material filed by Weapons Licensing on 29 August 2018, they provided both an image of a Remington AR 15 semiautomatic assault rifle and what was purported to be an image of the Wedgetail. In that they were wrong. They admitted it was wrong and tendered a different image in lieu.
- Weapons Licensing conceded that the first image was in fact a rifle variant of the Wedgetail, not the ‘pistol’ type owned by the applicants. Weapons Licensing said Ballistics examined an image of the weapon. Ballistics does not appear to have actually examined the real item. What was not made clear at hearing was whether Ballistics were also given the wrong image and based their decision on the wrong image. If provided with the new image, Ballistics may change their conclusion.
- The principal (and it seems only) argument raised by Weapons Licensing against the Wedgetail being a category H weapon as opposed to a category D is that by s 5(1)(a) of the Categories Regulation it is:
a self-loading centre-fire rifle designed or adapted for military purposes or a firearm that substantially duplicates a rifle of that type in design, function or appearance;
- That is why there was reference to parent weapon, calibre, style and appearance in the letters of 21 June 2018. On this point one assumes there will be evidence led by both parties, presumably by Ballistics for Weapons Licensing, and by a private armoury expert for the applicants.
- Taking the above matters into account as best able at this stage I conclude the applicants do have reasonable prospects of success in their application for review.
Will the applicants suffer a disadvantage if the stay is refused?
- There are significant criminal penalties for possession of a firearm for which the holder does not have the appropriate licence. They will be obliged to hand over the weapons to Queensland Police or to a firearms dealer.
- The applicants say they will not be able to use the Wedgetails to participate in competition shoots despite having paid a lot of money for them. They say there will be ramifications for them in not being able to use them for compulsory annual participation shoots. Whether that is for a special class of weapon or generally is not made clear.
- The applicants point to storage costs being charged if they hand them over to a firearms dealer pending determination of the matter in the Tribunal.
- If they sell the weapon now as potentially a category D weapon they will incur a significant loss, estimated at $5,000 each.
- Against this, Weapons Licensing suggests the applicants have between them eleven other concealable firearms available for use in competition shooting. There is no submission made concerning annual shoot participation requirements.
- Weapons Licensing also point out there are no storage charges levied if the weapons are handed in to police rather than a private firearms dealer.
- The only other basis raised by Weapons Licensing opposing the application for a stay is public interest, however, other than making a general assertion about that, no details about what that means are given.
- Indeed the applicants say there is no aspect of public safety raised in the matter at hand. They point out that together they hold a considerable number of other weapons covering categories A, B, H, D and R. They have responsibly used and stored their weapons, and specifically with respect to the Wedgetails, used them under their concealed weapons licences since December 2016 for Mr Yatras and May 2017 for Mr Torrens.
- In light of the above, I conclude the balance of convenience favours the grant of the stay sought. A stay maintains the status quo. I see no reason why the applicants should not be able to use their Wedgetail weapons until the matter is determined by final hearing. I do not accept there is any matter of concern about public safety or public interest put at risk by reason of a stay being granted.
  HCA 33; (1990) 170 CLR 321.
 Weapons Act 1990 (Qld), s 142(2).
Queensland Building and Construction Commission Act 1991 (Qld), s 87.
 Deputy Commissioner Stewart v Kennedy  QCATA 254, [14[; Uysal v Queensland Building and Construction Commission  QCAT 367, .
 Weapons and Other Legislation Amendment Act 1997 (Qld), s 23.
- Published Case Name:
Yatras & Anor v Queensland Police Service - Weapons Licensing
- Shortened Case Name:
Yatras & Anor v Queensland Police Service - Weapons Licensing
 QCAT 6
17 Jan 2019