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Applicant RO v Queensland Police Service – Weapons Licensing QCAT 295
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
Applicant RO v Queensland Police Service – Weapons Licensing  QCAT 295
queensland police service – weapons licensing
General administrative review matters
17 August 2021
14 July 2021
FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where applicant subject of conduct agreement order in Western Australia – whether applicant fit and proper person
Domestic and Family Violence Protection Act 2012 (Qld), Part 6, Schedule
Domestic and Family Violence Protection Regulation 2012 (Qld), s 4
Restraining Orders Act 1997 (WA), s 3, s 10B, s 10H
Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA), s 14
Weapons Act 1990 (Qld), s 10B, Schedule 2
J Ivanisevic, solicitor, HopgoodGanim Lawyers
Sergeant D M Ayscough
REASONS FOR DECISION
- On 2 June 2020, the applicant applied for an eligibility statement to join an approved pistol club.
- On 11 July 2020, the Queensland Police Service (‘QPS’) refused the applicant’s application.
- On 7 August 2020, the applicant lodged an application to review the QPS decision with the Tribunal.
- On 8 October 2018, the Magistrates Court, Armadale in Western Australia issued a conduct agreement order in respect of the applicant.
- The conduct agreement order was expressed to be for a duration of two years from 8 October 2018.
- The conduct agreement order, amongst other things, required that the applicant not:
Be in possession of a fire arm, a firearms licence or obtain a firearms licence, whilst in the State of Western Australia.
- The conduct agreement order stated:
THIS IS A NATIONALLY RECOGNISED ORDER
- Information contained in the attachment to the conduct agreement order stated:
Outside Western Australia
This order is immediately recognised and enforceable in all Australian States and Territories as provided by the Domestic Violence Orders (National Recognition) Act 2017. If you breach this order outside of Western Australia you will be subject to the penalties applicable in the jurisdiction in which the breach occurred.
- On 23 April 2020, the Magistrates Court, Armadale cancelled the conduct agreement order.
Western Australian domestic violence legislation
- Section 3(2) of the Restraining Orders Act 1997 (WA) defines a ‘FVRO’ to be a family violence restraining order.
- Section 10D sets out the circumstances in which an FVRO can be made:
- A court may make an FVRO if it is satisfied that —
- the respondent has committed family violence against a person seeking to be protected and the respondent is likely again to commit family violence against that person in the future; or
- a person seeking to be protected, or a person who has applied for the order on behalf of that person, has reasonable grounds to apprehend that the respondent will commit family violence against the person seeking to be protected.
- Section 10H provides that a court can make a conduct agreement order in certain circumstances. That section provides:
- If, at any stage of proceedings under this Act relating to an FVRO, the respondent agrees (a conduct agreement) to the making of a final order imposing restraints of the kind referred to in section 10G (a conduct agreement order), the court may make the order without being satisfied there are grounds for making an FVRO in the same terms.
- A conduct agreement does not constitute an admission by the respondent of all or any of the matters alleged in the application for the relevant FVRO.
- A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
- The registrar must cause a conduct agreement order to be prepared and served on the respondent.
- Pursuant to s 3(1), final order has the following meaning:
final order means any of the following —
- in relation to an FVRO, a conduct agreement order;
- Section 49 sets out the effect of the cancellation of an order, including an FVRO:
- The cancellation of an order under subsection (1) has effect —
- if another order is made when the original order is cancelled, at the time the new order comes into force; or
- otherwise, at the conclusion of the hearing at which the order was cancelled.
- The cancellation of an order under subsection (1a) has effect at the conclusion of the hearing at which the order is cancelled.
Queensland domestic violence legislation
- The schedule to the Domestic Violence and Family Protection Act 2012 (Qld) defines interstate order as follows:
An interstate order is an order made by a court or a police officer of another State that is declared by regulation to be an interstate order.
- Section 4 of the Domestic and Family Violence Protection Regulation 2012 (Qld) states:
For section 173 of the Act, each of the following is declared to be an interstate order—
- a family violence restraining order or police order under the Restraining Orders Act 1997 (WA);
- Part 6 of the Act contains a procedure for registering interstate orders in Queensland, which relevantly requires an application to a clerk of a Magistrates Court.
- Section 10B of the Weapons Act 1990 (Qld) relevantly provides:
- In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things—
- the mental and physical fitness of the person; and
- whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
- whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and
- (ca)whether there is any criminal intelligence or other information to which the authorised officer has access that indicates—
- the person is a risk to public safety; or
- that authorising the person to possess a weapon would be contrary to the public interest; and
- the public interest.
- However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
- the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
- an offence relating to the misuse of drugs;
- an offence involving the use or threatened use of violence;
- an offence involving the use, carriage, discharge or possession of a weapon; or
- a domestic violence order, other than a temporary protection order, has been made against the person.
- A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.
- In this section— relevant period means—
- for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or
- Schedule 2 contains the following relevant definitions:
domestic violence order means a domestic violence order under the Domestic and Family Violence Protection Act 2012, and includes an interstate domestic violence order
interstate domestic violence order means an interstate order or registered foreign order under the Domestic and Family Violence Protection Act 2012, part 6, whether or not the order is a recognised interstate order under that Act.
- In my view, the plain meaning of s 10H(3) of the Restraining Orders Act is that a conduct agreement order ‘is taken to be an FVRO’.
- Section 10H was inserted into the Restraining Orders Act by s 14 of the Restraining Orders and Related Legislation Amendment (Family Violence) Act 2016 (WA). The Explanatory Memorandum offers the following comments in relation to s 10H(3):
Subsection (3) ensures that while a conduct agreement order is not an FVRO in name, it is for all other purposes under the Act an FVRO, for example, a breach of which is an offence under the Act.
- Much was made by the applicant of the opening words to s 10H(3), namely that ‘[a] conduct agreement order is not an FVRO’. In my view, having regard to the Explanatory Memorandum, these words serve only to recognise a difference in name reflecting the circumstances in which the orders were made. Namely, a conduct agreement order made pursuant to s 10H can be made by agreement without the court being satisfied that there are grounds for making an FVRO, whereas an FVRO made pursuant to s 10D requires the court to be satisfied that such grounds exist. In other words, apart from this difference in name, a conduct agreement order otherwise has effect as if it were an FVRO.
- Section 3(1) of the Restraining Orders Act also makes it clear that in relation to an FVRO, a conduct agreement order is a final order.
- Section 4(g) of the Domestic and Family Violence Protection Regulation recognises an FVRO as an interstate order. As set out above, a conduct agreement order is taken to be an FVRO. Accordingly, the conduct agreement order is an interstate order for the purposes of the Domestic and Family Violence Protection Act.
- I note that there is no evidence before me that the conduct agreement order was registered in Queensland under Part 6 of the Domestic and Family Violence Protection Act. However, the definition of interstate domestic violence order in schedule 2 to the Weapons Act only requires registration of a foreign order. It does not require registration of an interstate order.
- Accordingly, I am satisfied that the conduct agreement order is an interstate domestic violence order for the purposes of the Weapons Act, and is therefore also a domestic violence order for the purposes of that Act.
- The conduct agreement order was made on 8 October 2018. Pursuant to s 49 of the Restraining Orders Act, it ceased operation at the conclusion of the hearing on 23 April 2020 at which the order was cancelled. I note that the applicant has submitted that the conduct agreement order ‘premised upon a mistake’. Even if this is correct, it does not alter the fact that the order was made and continued in operation until it was cancelled.
- The applicant’s application for an eligibility statement was made on 2 June 2020. As the conduct agreement order was made within the relevant period of five years immediately prior to the application, the applicant is not a fit and proper person to hold a licence pursuant to s 10B(2)(b) of the Weapons Act.
- The decision under review must be affirmed.
- I order that the publication of the names of the applicant and the other party to the conduct agreement order is prohibited other than to the parties to the proceeding pursuant to s 66(1)(c) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
- Published Case Name:
Applicant RO v Queensland Police Service – Weapons Licensing
- Shortened Case Name:
Applicant RO v Queensland Police Service – Weapons Licensing
 QCAT 295
17 Aug 2021