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- Unreported Judgment
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
West v Queensland Police Service – Weapons Licensing  QCAT 246
LAWRENCE JOHN WEST
QUEENSLAND POLICE SERVICE – WEAPONS LICENSING
General administrative review matters
6 January 2020
29 November 2018
Member McLean Williams
The Application for Review is dismissed.
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where the applicant is a self-employed gold and gemstone buyer – where the applicant is a longstanding holder of a concealable firearms licence in the category ‘security licence (guard)’ – where applicant is not the holder of a licence under the Security Providers Act – questions arising as to applicability of Security Providers Act to the business circumstances of the applicant
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24
Weapons Act 1990 (Qld), s 3, s 4, s 10, s 11, s 6B, s 123,
Weapons Regulation 2016 (Qld), s 61, s 63
Sobey v Commercial and Private Agents Board (1979) 22 SASR 70
Senior Constable R Paz Landim
REASONS FOR DECISION
- On 21 May 2018 Mr Lawrence John West (‘the applicant’), filed an Application to Review a Decision before QCAT seeking to review a decision of the Queensland Police Service Weapons Licensing Branch made on 16 August 2018, refusing to renew his licence to carry a category ‘H’ weapon (concealable firearm).
- Pursuant to s 142(1)(aa) of the Weapons Act 1990 (Qld), a person who is aggrieved by a decision to refuse to renew a licence under the Weapons Act may apply to QCAT under the Queensland Civil and Administrative Tribunal Act 2009 (Qld), for a review of the decision.
- On hearing the review, the Tribunal must make the ‘correct and preferable’ decision, by way of a rehearing on the merits. The Tribunal may variously confirm or amend the decision; or the Tribunal may set aside the decision, and substitute its own decision. The Tribunal may also set aside the decision and remit the matter for reconsideration by the Weapons Licensing Branch, with such direction as the Tribunal deems appropriate.
- The applicant is 72 years of age and is self-employed, conducting business under the name ‘Logan Distributors’ based out of Cooktown, in Far North Queensland.
- Since about 1972 the applicant has worked as a gemstone and gold buyer, travelling throughout remote parts of Queensland purchasing these precious items from prospectors. The applicant is required to carry substantial sums of cash, and has thus maintained a longstanding habit of keeping a revolver - concealed under the tray of his locked cashbox - in the event that he is ever threatened with robbery.
- Since at least 1966 the applicant has been the holder of a Queensland concealable firearms licence. In 1966 – 1967, the applicant worked for the Commonwealth Bank as a security officer, before leaving the bank and starting Logan Distributors. The applicant has no criminal convictions, an unremarkable traffic history and is, in all respects, an upstanding member of the community. Over the years the applicant has obtained successive annual renewals for his concealable firearm licence, always without question.
- Despite being constantly armed, the applicant says that he has not so much as once been required to use his weapon, and has never revealed to anybody the fact that he travels whilst armed. The applicant told the Tribunal that the only time he has ever used his revolver has been during annual re-certification training. That is undertaken on an approved pistol range under the supervision of a licensed weapons instructor.
- On 29 March 2017, the applicant had been re-issued with license number 65000118 under the Weapons Act 1990 (Qld) described as a ‘Security Licence (Guard)’, authorising him to have possession of one (1) ‘category H’ weapon. That licence expired on 29 March 2018.
- Licence 65000118 was endorsed with the following conditions:
BS3 Business security, authorising the holder to have possession of one (1) category H weapon of between .22 calibre and .40 calibre registered to this licence for the specified purpose nominated by this licence, to be in secure storage except when physical possession of the weapon by the licence holder is reasonably necessitated by the duties being performed by the licence holder.
PSA Security guard, semi-automatic pistol
REV Security guard, revolver
999 The specified purpose is the protection whilst transporting of cash and other valuables in connection with the licensee’s occupation as the principal or employee of Logan Distributors and for no other reason.
- On 22 March 2018 (being 7 days prior to the expiration of licence 65000118), the applicant applied to renew the licence, over the counter of the Stanthorpe police station.
- Item 3 on the renewal application specifies:
3. GENUINE REASON
You are required to review the information package specific to your licence type which is available from the Weapons Licensing internet site or your local Queensland Police Station and lodge the requested genuine reason information together with this application.
- On 28 March 2018 the applicant contacted Weapons Licensing by telephone seeking further clarification about the information that he was required to submit in support of his application to renew his Security Licence (Guard).
- That same day, a letter was sent by Weapons Licensing to the applicant. Relevantly, the letter provided:
Dear Mr West,
Re: Renewal of Weapons Act Licence
Reference is made to your phone conversation on 28 March 2018 with this office, regarding your renewal application for Security Guard – Business 65000118 containing insufficient information for assessment.
This is your FIRST AND FINAL NOTICE to provide the following information by 9 May 2018:
- Security Provider Licence = A copy of the front and back of your current Security Provider (SP) Licence issued by the Office of Fair Trading under the Security Providers Act 1993.
- Security Business Information = A written submission describing the business activities where the weapon is required.
This should include the following details:
- (a)When, where and how often you are in possession of the weapon;
- (b)Advice as to any incidents you have been involved with whether directly or indirectly to warrant the need for the weapon;
- (c)Details addressing why your continued need to possess a weapon is greater than the need to ensure public safety;
- (d)Provide verification of the property/valuables being protected;
- (e)Confirmation of if there are any other licenses of this type held for the business.
If any of the information in this letter is not received by the due date your application will be considered by the Authorised Officer with the information available.
- Also on 28 March 2018 the applicant emailed the Weapons Licensing Branch enclosing a copy of a ‘Certificate of Attainment’, indicating that, on 8 March 2018, he had completed a training course - CPPSEC3008A Control security risk situations using firearms. This training course was conducted by Regal Security (a Registered Training Organisation), as part of a Certificate III in ‘Security Operations’. The Certificate of Attainment indicated that:
these competencies meet the competency requirements (a training course approved by the commissioner) for the issue of a security licence (guard) under section 10A and 124 of the Weapons Act 1990 in Queensland.
- By reply email on 29 March 2018, an administrative officer at the Weapons Licensing Branch informed the applicant that the training attainment certificate that he had provided did not meet the requirements of the information request that had been sent to him. What was required was proof from the applicant of his being the holder of a licence under the Security Providers Act 2003 (Qld), with an endorsement ‘cash in transit’.
- On 2 May 2018, the applicant wrote to the Weapons Licensing Branch indicating that he had now received the ‘First and Final Notice’. The applicant indicated that this was the very first time that he had been made aware of the requirement that he now obtain a licence under the Security Providers Act 1993 (Qld); and that it would now be an effective impossibility for him to obtain such a licence by the date that had been specified, being 9 May 2018. The applicant also expressed that he felt it unreasonable to have induced him to go through the process of having incurred a $450 fee and having undertaken hours of training with Regal Security doing ‘Control security risk situations using firearms’, only to now be told that a wholly different category of training and licencing was (also) required. Moreover, the Applicant submitted that the licensing regime under the Security Providers Act 1993 (Qld) was not applicable in his circumstances, given he was only ever guarding his own property, and not that of others.
- On 10 May 2018, the applicant says that he was advised by ‘Debbie’ (an administrative officer at Weapons Licensing) that Senior Sergeant A.T Cavanagh (an authorised officer for purposes of the Weapons Act 1990 (Qld)) had determined to cancel licence 65000118. In consequence, the applicant commenced this Application for Review of a Decision before QCAT, on 21 May 2018.
- On 16 August 2018, Sergeant Ayscough - another authorised officer for purposes of the Weapons Act 1990 (Qld) - wrote to the applicant refusing to renew his Security Licence (Guard), on grounds the applicant had failed to supply required information (‘the written refusal decision’).
- For purposes of these QCAT proceedings the written refusal decision may be taken as the reasons for the decision verbally communicated to the applicant on 10 May 2018.
- Section 123 of the Weapons Act 1990 (Qld) provides:
123 Armed security guard must be licensed
A person must not, in performing duties as a security guard, physically possess a weapon unless the person holds a security licence (guard).
Maximum penalty—20 penalty units.
- Section 124 of the Weapons Act 1990 (Qld) provides:
124 Training courses for security guards
- (1)A person who holds a security licence (guard) must complete an approved safety training course (security guard) as often as required by regulation.
- (2)If a person who holds a security licence (guard) does not comply with subsection (2), an authorised officer, by written notice given to the person—
- (a)may cancel the licence; or
- (b)may suspend the licence until the person completes the course.
- Section 63 of the Weapons Regulation 2016 (Qld) (‘the Regulations’) provides:
63 Applicant for renewal of security licence (guard) to complete approved safety training course (security guard) annually
For section 124(2) of the Act, an applicant for renewal of a security licence (guard) must complete an approved safety training course (security guard) within the 60 day period immediately before the day of the application.
- As is traversed in paragraph  of these reasons, the applicant completed the ‘approved safety training course’ in conformity with s 124, on 8 March 2018. This was within 60 days of his making application for renewal of his security licence (guard), which occurred at the counter of the Stanthorpe Police Station on 22 March 2018. The applicant has therefore also complied with s 63 of the Regulations.
- Yet, the difficulty arises because of s 61 of the Regulations, which additionally provides:
61 Who may be issued security licence (guard), and weapons for licence
- (1)A security licence (guard) may be issued to either of the following persons only if the person holds the appropriate licence under the Security Providers Act 1993 for carrying out the functions of a security officer –
- (a)an employed security guard;
- (b)a security guard who is applying for the licence to guard his or her own property or another person’s property.
- The words emphasised from s 61 of the Regulations in the immediately preceding paragraph warrant further examination. Use of the word ‘may’ in the context of ‘a security licence may be issued’ underscores that the power to issue a licence is discretionary, yet the discretion is then circumscribed by the later qualifying words ‘only if’ - in the sense that the power to grant such a licence may only be exercised in favour of applicants who firstly hold the appropriate licence under the Security Providers Act 1993 (Qld).
- Licences are issued annually. The effect is that the eligibility criteria raised by s 61 need to be considered each time an applicant seeks to annually renew their security licence (guard) for a further twelve month period. In the result, a person who otherwise qualifies under either s 61(1)(a) or s 61(1)(b) must also be the holder of the appropriate licence under the Security Providers Act 1993 (Qld) if they are to be approved for reissue of a security licence (guard).
- The Applicant contends that the Security Providers Act 1993 (Qld) does not apply to his circumstances, by reason that he only guards his own property. This argument cannot be accepted, as the plain words in s 61(1)(b) of the Regulation clearly contemplate that circumstance. That the applicant qualifies as a security guard for the purposes of weapons licensing is also a matter confirmed by s 6B of the Weapons Act 1990 (Qld), which provides:
6B Meaning of security guard
- (2)A security guard is a person who patrols, protects, watches over or guards (protects) the person’s property or other persons or other person’s property –
- in the course of carrying on a business; or
- in the course of employment.
A jeweller transporting jewellery in the course of carrying on a business who does not engage someone else to guard the jewellery while it is being transported is a ‘security guard’.
- Although the applicant has been the holder of a security licence (guard) for a considerable period, it now appears that licence 65000118, as was issued to him on 29 March 2017 may have been re-issued in error; given that s 61 has been part of the Regulations since at least 1 September 2016. The applicant was not the holder of the required licence under the Security Providers Act 1993 (Qld) at that time, and hence was not legally entitled to the licence when it was re-issued at that time. That, of course, is not the fault of the applicant.
- That the applicant has been routinely licensed in the past does not give rise to any claim of right obviating the need to comply with all of the annual licensing requirements that may be specified by the Parliament from time to time. As was observed by Walters J in Sobey v Commercial and Private Agents Board, the fact that an applicant for a licence under an Act has been previously granted a licence does not give rise to any legitimate expectation that the licence will thereafter always be renewed.
A Genuine Need?
- There is a further basis why the ‘correct and preferable’ decision requires that the decision here under review be affirmed by the Tribunal. Section 10(2)(f) of the Weapons Act provides that a licence under the Act may only be issued to an individual if that person has a reason mentioned in section 11 to possess the weapon, or category of weapon. Section 11 provides:
11 Genuine reasons for possession of a weapon
The following are reasons for possession of a weapon—
- (a)sports or target shooting;
- (b)recreational shooting;
- (c)an occupational requirement, including an occupational requirement for rural purposes;
- (d)the collection, preservation or study of weapons;
- (e)another reason prescribed under a regulation.
- Of those matters identified by s 11, the applicant contends he has an ‘occupational requirement’, as a sole trader in gold and gemstones in remote locations. Yet on the de novo hearing of this application for review the applicant informed the Tribunal that in the preceding 46-year period he has never had the need to use (or even display) his weapon, and he has concealed the fact of his having a revolver from all persons with whom he has come into contact. The Applicant’s circumstances are thus in striking contrast to those of other licensed armed guards in public, who obtain the deterrent effect that gives rise to their having a ‘genuine reason’ by carrying their weapons openly and prominently.
- On the basis of the applicant’s own evidence it cannot be contended that the fact of the applicant being armed has had any deterrent effect that has contributed to his occupational safety, and it is as if he has transacted his business since 1972 as if never armed. The applicant is thus unable on the facts to discharge the onus imposed by s 4(c) of the Act to show a ‘genuine reason’ for possessing a concealable firearm. Any need for a weapon as now either expressed or presumed by the applicant is simply insufficient to displace the higher public interest expressed in s 3(1)(a) of the Act.
- The Application for Review is dismissed.
- Published Case Name:
West v Queensland Police Service – Weapons Licensing
- Shortened Case Name:
West v Queensland Police Service – Weapons Licensing
 QCAT 246
Member McLean Williams
06 Jan 2020