Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2021
  4. Applicant RO v Queensland Police Service – Weapons Licensing - [2021] QCAT 295

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Applicant RO v Queensland Police Service – Weapons Licensing[2021] QCAT 295

Applicant RO v Queensland Police Service – Weapons Licensing[2021] QCAT 295

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Applicant RO v Queensland Police Service – Weapons Licensing [2021] QCAT 295

PARTIES:

Applicant RO

(applicant)

V

queensland police service – weapons licensing

(respondent)

APPLICATION NO/S:

GAR287-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 August 2021

HEARING DATE:

14 July 2021

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

  1. The application to review a decision filed on 7 August 2020 is dismissed.
  2. Publication, other than to the parties of this proceeding, of the names of the applicant and the other party to the conduct agreement order is prohibited under s 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).

CATCHWORDS:

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

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 17

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, s 49A, s 98B, s 193, Schedule 2

Weapons Regulation 2016 (Qld), Part 26

Queensland Police Services -Weapons Licensing v Ryder [2019] QCATA 159

Yatras v Queensland Police Service – Weapons Licensing [2019] QCAT 6

APPEARANCES &

REPRESENTATION:

 

Applicant:

J Ivanisevic, solicitor, HopgoodGanim Lawyers

Respondent:

Sergeant D M Ayscough

REASONS FOR DECISION

  1. [1]
    On 2 June 2020, the applicant applied for an eligibility statement to join an approved pistol club.
  2. [2]
    On 11 July 2020, the Queensland Police Service (‘QPS’) refused the applicant’s application.
  3. [3]
    On 7 August 2020, the applicant lodged an application to review the QPS decision with the Tribunal.
  1. [4]
    On 14 July 2021, I conducted a hearing in this matter. At the outset of the hearing, I raised the issue of whether the Tribunal had jurisdiction to review the QPS decision. Upon being informed by the applicant and the QPS that they were of the view that the Tribunal did have jurisdiction, I proceeded to hear the matter.
  2. [5]
    On 21 July 2021, the QPS filed submissions contending that the Tribunal did not have jurisdiction to review the decision.
  3. [6]
    On 28 July 2021, I issued directions inviting the applicant to file submissions in response on the issue of jurisdiction.
  1. [7]
    On 9 August 2021, the applicant filed submissions in response in relation to jurisdiction.
  1. [8]
    Irrespective of whether the QPS made a concession during the hearing that the Tribunal had jurisdiction to review the decision, a concession by a party to the proceedings is not sufficient to confer jurisdiction on the Tribunal where jurisdiction has not been conferred under s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
  1. [9]
    In these reasons, I will firstly (and necessarily) address the issue of jurisdiction. Given that I have heard the substantive matter, I will then proceed address the merits of the review in the event that my view on jurisdiction is incorrect.

Jurisdiction

  1. [10]
    The decision under review was made under s 98B(1)(a) of the Weapons Act 1990 (Qld). That section relevantly provides:
  1. It is a condition of an approved pistol club’s shooting club permit that the club must not accept a person for membership of the club unless the person submits with the person’s application for membership—
  1. if the person is not a licensee, a current statement in the approved form signed by an authorised officer that the person is a fit and proper person to hold a licence;
  2. 2 character references from persons the person has known for at least 2 years; and
  3. a declaration that the person is a current member of other named approved shooting clubs or that the person is not a current member of any other approved shooting club.
  1. [11]
    Section 142 confers jurisdiction on the Tribunal to review decisions in the following terms:
  1. This section applies to the following decisions—
  1. a decision refusing an application for a licence, permit, approval or other authority under this Act;
  1. (aa)
    a decision refusing to renew a licence under this Act;
  1. a decision refusing to accept the nomination of a person by an applicant for a shooting club permit;
  2. a decision refusing to accept a representative notice under section 92;
  3. a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act;
  4. a decision revoking or suspending a licence, permit, approval or other authority under this Act;
  5. a decision, under section 18D(2), revoking a delegation
  1. A person aggrieved by the decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.
  1. [12]
    It is not in dispute that the potentially applicable paragraph is s 142(1)(a).
  1. [13]
    On its face, a statement pursuant to s 98B(1)(a) is not a licence, permit or approval. The issue that falls to be determined is whether such a statement is an ‘other authority’.
  1. [14]
    The term ‘authority’ is not defined in the Weapons Act, except in s 193(3), which is a transitional provision. That definition states:

In this section—

authority means—

  1. a licence; or
  2. a permit to acquire; or
  3. a shooting club permit; or
  4. an approval to conduct an arms fair under section 79(2); or
  5. an approval of a range under section 101(1); or
  6. an approval of a shooting gallery under section 111; or
  7. any other type of approval, licence or permit granted or renewed by an authorised officer under this Act.
  1. [15]
    Not only does this definition have no application beyond s 193, I do not find it useful in any event. The definition refers only to various types of licences, permits and approvals – the very terms preceding the words ‘other authority’ in s 142(1)(a). In other words, the definition does not give any content to the term authority beyond a licence, permit or approval.
  1. [16]
    I consider that s 49A of the Weapons Act provides a more useful insight into the manner in which the term authority is used in the Act. That section relevantly provides:

Authority given by licence

  1. A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.
  2. However, the authority to possess or use a weapon, or a 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.

…

  1. [17]
    The use of the term ‘authority’ in s 49A is consistent with the ordinary meaning of the word. The Macquarie Dictionary contains the following definition of ‘authorise’:

to give authority or legal power to; empower (to do something)

  1. [18]
    Accordingly, it is intrinsic to the term authority that it must authorise (or give power to) a person to do something.
  1. [19]
    An example of an authority contained in the Weapons Act which is not a licence, permit or approval may be found in s 2(1)(m), which provides that the Act does not apply to a person:

to whom the commissioner of the police service in the prescribed manner has granted an exemption from the application of those provisions of this Act specified therein in respect of the application of those provisions.

  1. [20]
    An exemption under s 2(1)(m) has the effect of authorising a person to possess and use a weapon other than in accordance with the specified provisions of the Weapons Act. I note that Part 26 of the Weapons Regulation 2016 (Qld) prescribes the way in which the Commissioner may grant an exemption.
  2. [21]
    In my opinion, a statement under s 98B(1)(a) cannot be viewed any differently to a character reference under s 98B(1)(b) or a declaration under s 98B(1)(c). Neither a statement, a character reference or a declaration authorises a person to do anything. Rather, they are expressed to be conditions imposed on an approved pistol club’s shooting club permit. That is, they are limitations imposed by Parliament on who the club can accept as members. A statement by an authorised officer is no more an authority than is a character reference or a declaration by the person.
  1. [22]
    The applicant has referred me to Yatras v Queensland Police Service – Weapons Licensing [2019] QCAT 6, cited in Queensland Police Services -Weapons Licensing v Ryder [2019] QCATA 159. I note that neither of those decisions considered a statement under s 98B(1)(a). In the former case, Member Howe stated (at [30]-[31]):

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.

  1. [23]
    While s 142 is expressed broadly, it nevertheless remains limited by the language used by Parliament.
  2. [24]
    For the reasons set out above, I find that a statement under s 98B(1)(a) is not a licence, permit, approval or other authority. Accordingly, the Tribunal does not have jurisdiction to review the QPS decision made on 11 July 2020.
  3. [25]
    As noted above, in the event that my view on jurisdiction is incorrect, I will proceed to address the merits of the review.

Factual background

  1. [26]
    On 8 October 2018, the Magistrates Court, Armadale in Western Australia issued a conduct agreement order in respect of the applicant.
  2. [27]
    The conduct agreement order was expressed to be for a duration of two years from 8 October 2018.
  3. [28]
    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.

  1. [29]
    The conduct agreement order stated:

THIS IS A NATIONALLY RECOGNISED ORDER

  1. [30]
    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.

  1. [31]
    On 23 April 2020, the Magistrates Court, Armadale cancelled the conduct agreement order.

Relevant legislation

Western Australian domestic violence legislation

  1. [32]
    Section 3(2) of the Restraining Orders Act 1997 (WA) defines a ‘FVRO’ to be a family violence restraining order.
  1. [33]
    Section 10D sets out the circumstances in which an FVRO can be made:
  1. A court may make an FVRO if it is satisfied that —
  1. 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
  2. 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.
  1. [34]
    Section 10H provides that a court can make a conduct agreement order in certain circumstances. That section provides:
  1. 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.
  1. 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.
  1. A conduct agreement order is not an FVRO but is taken to be an FVRO for the purposes of this Act.
  1. The registrar must cause a conduct agreement order to be prepared and served on the respondent.
  1. [35]
    Pursuant to s 3(1), final order has the following meaning:

final order means any of the following —

  1. in relation to an FVRO, a conduct agreement order;
  1. [36]
    Section 49 sets out the effect of the cancellation of an order, including an FVRO:
  1. The cancellation of an order under subsection (1) has effect —
  1. if another order is made when the original order is cancelled, at the time the new order comes into force; or
  2. otherwise, at the conclusion of the hearing at which the order was cancelled.
  1. 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

  1. [37]
    The schedule to the Domestic and Family Violence 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.

  1. [38]
    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—

…

  1. a family violence restraining order or police order under the Restraining Orders Act 1997 (WA);
  1. [39]
    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.

Weapons Act

  1. [40]
    Section 10B of the Weapons Act relevantly provides:
  1. 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—
  1. the mental and physical fitness of the person; and
  2. whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
  3. 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
  1. (ca)
    whether there is any criminal intelligence or other information to which the authorised officer has access that indicates—
  1. the person is a risk to public safety; or
  2. that authorising the person to possess a weapon would be contrary to the public interest; and
  1. the public interest.
  1. 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—
  1. the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
  1. an offence relating to the misuse of drugs;
  2. an offence involving the use or threatened use of violence;
  3. an offence involving the use, carriage, discharge or possession of a weapon; or
  1. a domestic violence order, other than a temporary protection order, has been made against the person.

…

  1. 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.
  2. In this section— relevant period means—
  1. 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

…

  1. [41]
    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.

Consideration of merits

  1. [42]
    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’.
  1. [43]
    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.

  1. [44]
    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.
  1. [45]
    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.
  1. [46]
    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.
  1. [47]
    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.
  1. [48]
    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.
  1. [49]
    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 was ‘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.
  1. [50]
    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.

Disposition

  1. [51]
    The application to review a decision filed on 7 August 2020 is dismissed.
  1. [52]
    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).
Close

Editorial Notes

  • Published Case Name:

    Applicant RO v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Applicant RO v Queensland Police Service – Weapons Licensing

  • MNC:

    [2021] QCAT 295

  • Court:

    QCAT

  • Judge(s):

    Member Cranwell

  • Date:

    17 Aug 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159
2 citations
Jump To
Cite 1 - [2019] QCATA 159
Cite 2 - [2019] QCATA 159
Yatras & Anor v Queensland Police Service - Weapons Licensing [2019] QCAT 6
2 citations
Jump To
Cite 1 - [2019] QCAT 6
Cite 2 - [2019] QCAT 6

Cases Citing

Case NameFull CitationFrequency
Powell v Queensland Police Service – Weapons Licensing [2023] QCAT 5042 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.