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Yatras v Queensland Police Service – Weapons Licensing[2021] QCAT 63

Yatras v Queensland Police Service – Weapons Licensing[2021] QCAT 63

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Yatras v Queensland Police Service – Weapons Licensing [2021] QCAT 63

PARTIES:

kirk james yatras

daniel robert torrens

(applicants)

v

queensland police service – weapons licensing

(respondent)

APPLICATION NO/S:

GAR234-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

16 February 2021

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Traves

ORDERS:

The application for review is dismissed on the basis there is no ‘reviewable decision’.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – where applicants held concealable firearms licence authorising them to use and possess category H weapons – where Wedgetail WT – 15 pistol variant initially a category H weapon – where category changed to category D – where experts agree weapon properly categorised as either category D or category H – where a category H excludes category D weapons – whether decision a ‘reviewable decision’ – correct and preferable decision

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – where interlocutory decision made by differently constituted Tribunal that decision was a ‘reviewable decision’ and Tribunal had jurisdiction – whether Tribunal determining review bound by earlier decision regarding jurisdiction.

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

Weapons Act 1990 (Qld), s 2, s 142

Weapons Categories Regulation 1997 (Qld), s 5, s 7

Weapons Regulation 2016 (Qld), s 148, Schedule 2

Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159

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

APPEARANCES &

REPRESENTATION:

Applicant:

SL Kissick, counsel

Respondent:

CJ Capper, QPS Legal Unit

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

  1. [1]
    The applicants in these proceedings, Mr Yatras and Mr Torrens, each hold a concealable firearms licence[1] subject to condition code PC1[2] which relevantly authorised them to “possess and use registered category H weapons at an approved shooting range.” Each of the applicants had identified sports or target shooting to be their genuine reason for possessing weapons.[3]
  2. [2]
    On 30 August 2016, Mr Yatras applied to Weapons Licensing for a Permit to Acquire in respect of a Wedgetail WT-15 Pistol Variant. The permit was issued by Weapons Licensing on 5 September 2016 and Mr Yatras purchased the weapon in December 2016.
  3. [3]
    On 18 December 2016, Mr Torrens sought a Permit to Acquire in respect of the same firearm. Mr Torrens’ permit was issued on 20 December 2016 and he purchased his weapon in May 2017.
  4. [4]
    The Permits to Acquire obtained by the applicants allowed them to acquire and register the WT15 Pistol Variants as ‘Category H’ weapons, which they duly did.
  5. [5]
    Subsequently, Weapons Licensing received information that showed the WT15-223 pistols were in fact ‘Category D’ weapons[4] which caused Weapons Licensing to conduct a review of the weapons to ensure they had been properly categorised. On 23 April 2018, following receipt of technical information provided by the manufacturer, Wedgetail Industries, the QPS Ballistics Unit considered and provided an opinion that confirmed the view that the WT15-223 pistols were most appropriately categorised as a ‘Category D’ weapon.
  6. [6]
    Weapons Licensing then wrote to affected persons who had acquired the firearms pursuant to a Permit to Acquire, including to the applicants, advising them of the administrative error in classifying the weapons as Category H and that they were not licensed to possess the weapon. From then, Weapons Licensing refused to issue Permits to Acquire the WT15-223 Pistol Variants to applicants who did not hold a Category D licence.
  7. [7]
    The applicants received their letter dated 21 June 2018 from Weapons Licensing advising them they did not hold an appropriate licence to possess the WT15-223 Pistol Variant and advising them how to dispose of it. The applicants then jointly applied for review to the Tribunal of the “decision revoking the applicants’ authority under the Weapons Act 1990 (Qld) to possess the Wedgetail Industries model WT15-01 semi -automatic pistol.”
  8. [8]
    These are the review proceedings.

The history of the proceedings in the Tribunal

  1. [9]
    The applicants applied for a stay of the decision at the time they applied for review.
  2. [10]
    At a Directions Hearing in relation to the matter, the respondent challenged the jurisdiction of the Tribunal to consider the application for review on the basis there was no ‘reviewable decision’. In effect, the respondent argued that the applicants’ purpose was to have the Tribunal declare the relevant firearm a category H weapon. The respondent maintains that it is a category D weapon. It is not, the respondent submits, the role of Weapons Licensing or the Tribunal to determine weapon categories. Accordingly, it was submitted, the Tribunal had no jurisdiction to conduct the review.
  3. [11]
    On 24 July 2018 at a Directions Hearing the Tribunal made directions requiring the applicants to file submissions “identifying the relevant sections under the Weapons Act 1990 (Qld), any regulations and/or any other enabling Act” and explaining “what power, if any, the Tribunal has to review the decision of the Queensland Police Service – Weapons Licensing dated 21 June 2018.” The respondent was to file submissions in response and the jurisdiction of the Tribunal to determine the application to review and application to stay was to be considered by the Tribunal after the written submissions were filed.
  4. [12]
    On 17 September 2018 the Tribunal made directions stating that unless an oral hearing was requested, that the following matters would be determined on the papers:
  1. a)
    Whether the decisions made by the 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
  1. b)
    The application to stay a decision filed by Kirk James Yatras and Daniel Robert Torrens on 16 July 2018.
  1. [13]
    The matter was heard by a different Member on 28 November 2018. On 17 January 2019 that Member delivered his Reasons and made the following Order:
  1. The decision by Weapons Licensing made 21 June 2018 that category H classification under s 7(1) of the Weapons Categories Regulation 1997 (Qld) does not apply to the Wedgetail WT-15 pistol variant is a reviewable decision under s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and s 142(1)(e) of the Weapons Act 1990 (Qld).
  2. The Tribunal has jurisdiction to determine the application.
  3. The application for a stay of the decision is granted.
  1. [14]
    The reasons for the decision appear at Yatras v Queensland Police Service – Weapons Licensing [2019] QCAT 6. In summary, the learned Member found that there had been an authority to possess the weapon which was removed by way of the letter of 21 June 2018 and that the decision under review was the ‘classification’ of the weapons which the Member concluded was properly before the Tribunal as a reviewable decision.
  2. [15]
    The respondent was given leave to file an Expert Report which was filed on 28 August 2019. An experts’ conclave was directed to take place between Mr Rowan Birch (the expert engaged by the applicants) and Sergeant Meara (the expert engaged by the respondent). The conclave took place on 11 November 2019 and a Joint Report was produced.
  3. [16]
    On 16 September 2019 the applicants filed an application seeking that the Tribunal make a final decision in their favour pursuant to s 48 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). That application was refused on 15 November 2019.
  4. [17]
    On 13 February 2020 the hearing of the review commenced before me. The parties were directed to file submissions addressing the following:
  1. a.
    Whether the decision by the respondent communicated by letter to the applicants dated 21 June 2018 to re-categorise the Wedgetail (WT 15-01) as a category D weapon rather than a category H weapon is a reviewable decision under s 142 of the Weapons Act 1990 (Qld);
  1. b.
    Whether the decision of Member Howe in this matter on 17 January 2018 must be followed in determining the review application; and
  1. c.
    Whether the Wedgetail (WT 15-01) is a Category H weapon or a Category D weapon.
  1. [18]
    The review was to be determined on the papers following receipt of the parties’ submissions.

The applicants’ submissions

  1. [19]
    The applicants submit that the interlocutory decision of the Tribunal on 17 January 2018 is correct and that the decision is a reviewable decision. It is submitted that a reviewable decision includes, under s 142(1)(d) of the Weapons Act, a decision imposing or amending a condition applying to a licence, permit or approval or other authority under the Act; and, (e) a decision revoking or suspending a licence, permit, approval or other authority under [the] Act. Authority is defined for the purpose of s 193 to mean (a) a licence; or (b) a permit to acquire; and (g) any other type of approval, licence or permit granted or renewed by an authorised officer under this Act.
  2. [20]
    The applicants submit that, even reading the sections above narrowly, this was a decision that amended an existing licence; affected actions taken pursuant to a Notice to Acquire (a relevant authority) and/or a decision that revoked the relevant Permit to Acquire and the relevant licence to possess.
  3. [21]
    The applicants submit that the Joint Experts’ Report agreed the categorisation of the weapon was either H or D, which is not an acceptance (as they say the respondent submits) that it is both H and D, thereby attracting the operation of s 7(3) of the Weapons Categories Regulation 1997 (Qld). The applicants rely on the expert report of Mr Birch that the Wedgetail is not and cannot be a category D weapon, principally because it is not a rifle but also because it has not been designed or adapted for military purposes and does not substantially duplicate a weapon designed or adapted for military use.

The respondent’s submissions

  1. [22]
    The respondent submits that the Tribunal is not bound by the interlocutory decision in Yatras as it is not the purpose of interlocutory proceedings to determine the merits of the proceedings. In any event, that the Tribunal on review determines the matter afresh and must make the ‘correct and preferable’ decision based on the material before it.
  2. [23]
    The respondent submits that the Tribunal can reconsider the issue as to whether the decision was ‘reviewable’ as the decision in Yatras was not finally conclusive of any right, entitlement or cause of action of any party. Further, that if it were otherwise, the parties to proceedings before the Tribunal would be constrained to appeal every decision given in the course of the hearing on some matter which was a pre-requisite to relief in order to prevent an issue estoppel arising against them on the hearing of an appeal against the order finally disposing of the application.
  3. [24]
    In the event the Tribunal decides the decision is reviewable, the respondent submits that the Wedgetail is a category D weapon. This, it is submitted, flows from the agreed position of the Joint Experts’ Report that the firearm is capable of being a category D weapon. By virtue of s 7(3) of the Weapons Categories Regulation 1997 (Qld) the Wedgetail is therefore incapable of being classified as a category H weapon.
  4. [25]
    Accordingly, the respondent submits, that to the extent the officer purported to exercise the power to issue a permit permitting the applicants with a concealable firearms licence to acquire a Wedgetail WT-15 Pistol Variant, the decision is ultra vires and void ab initio.
  5. [26]
    Alternatively, the respondent submits that the notifications issued by it are not a decision but rather simply notification of an administrative error and notice of the legal consequences of the same.

Consideration

  1. [27]
    I will deal first with the issue as to whether I am bound by the Tribunal’s previous decision in this matter which determined that the decision of 21 June 2018 was a ‘reviewable decision’ and that the Tribunal therefore had jurisdiction.

Is the Tribunal bound by the prior decision made in these proceedings?

  1. [28]
    In my view, I am not bound by the decision of the Tribunal in these proceedings that the decision of 21 June 2018 [that category H classification under s 7(1) of the Weapons Categories Regulation 1997 (Qld) does not apply to the Wedgetail WT-15 pistol variant] is a reviewable decision under s 17 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) and s 142(1)(e) of the Weapons Act 1990 (Qld).[5]
  2. [29]
    The findings and orders made by Member Howe were made in determining an application, made before the final hearing, that there was a reviewable decision and that the Tribunal therefore had jurisdiction to determine the review. Member Howe did not, however, determine the review application which was subject to further directions and is the subject of determination now.
  3. [30]
    Understood in context, the orders were not, in my opinion, a final determination of the issues of reviewable decision or jurisdiction. The orders made were intended, and did, reject the preliminary points taken. They did not have the effect of depriving the Tribunal of the task of considering jurisdiction at the time of the substantive consideration of the application.[6]
  4. [31]
    At the time of considering the merits of the application in a final way it will be necessary to consider jurisdiction. An erroneous determination of what was an interlocutory application cannot remove from the final decision maker the obligation to act only within jurisdiction. Put another way, the earlier decision should not confer on the decision maker jurisdiction which the Tribunal does not have. This is a powerful reason for construing the earlier orders as not finally determining the issues agitated.
  5. [32]
    Further, the purpose of the review is to produce the “correct and preferable decision”.[7] In exercising its review jurisdiction the Tribunal must decide the review in accordance with the QCAT Act and the enabling Act under which the reviewable decision was made.[8] In my view, this obligation cannot be confined by decisions made at an interlocutory stage which the Tribunal determining the review considers wrong or which have since been overruled or shown to have been made in error. This has been the approach taken by the Tribunal in other contexts.
  6. [33]
    In Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission[9] the Member, in refusing to follow the findings of a different Member made in a ‘miscellaneous matters’ decision, held:

To satisfy the Tribunal’s obligation to conduct a fresh hearing on the merits and produce the correct and preferable decision in accordance with sections 18, 19, 20, and 21 of the QCAT Act, I consider that it is necessary for me to independently determine relevant issues having regard to the evidence currently presented to the Tribunal, notwithstanding that they may have been previously determined by the learned Member on the papers in the Miscellaneous Matters Decision for the purposes of a decision under section 47 of the QCAT Act.[10]

  1. [34]
    Similarly, in Queensland Building and Construction Commission v Whalley[11] the Appeal Tribunal found the Tribunal had erred by purporting to determine the review by determining a list of issues on the papers as directed by a different Member at an earlier compulsory conference rather than by conducting a fresh hearing on the merits for the purpose of producing the correct and preferable decision.
  2. [35]
    The Appeal Tribunal in Queensland Police Service – Weapons Licensing v Ryder[12] did not follow the interlocutory decision in Yatras. Although the Appeal Tribunal was concerned with the question as to whether a refusal to grant an exemption was a ‘reviewable decision’, it considered Yatras in the course of its determination:

The issue has not been comprehensively considered by the Tribunal. The decision of Yatras & Anor v Queensland Police Service – Weapons Licensing was raised in submissions. In Yatras the applicants applied for review of the decision by QPS to reclassify a weapon as belonging to category D from category H. In that case, in determining the Tribunal had jurisdiction to review the re-categorisation, it was said:

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.

The case therefore does not assist in determining whether a refusal to grant an “exemption” is a reviewable decision. We note however, that a re-classification of the category of a weapon is not, in our view, a reviewable decision. While it is true that it led to the applicant being no longer entitled to possess the weapon under his licence, a decision “refusing” an application for a licence had not been made, nor had a decision been made amending a condition that applied to the licence. That Mr Yatras was no longer entitled to possess the weapon was as a result of a change of the regulations classifying weapons, not a decision by those in weapons licensing.[13]

  1. [36]
    It is clear from the above, that the decisions are not aligned with respect to whether a decision of this nature is reviewable. On review, the Tribunal’s obligation is to arrive at the ‘correct and preferable’ decision based on the law at the time of the hearing. If the law at the time of the review hearing conflicts with a decision made earlier on an interlocutory application, then the Tribunal must, in my view, overrule that decision.
  2. [37]
    Accordingly, for the reasons above, I do not consider myself bound by the decision of 17 January 2019. I turn then to consider afresh whether the decision is reviewable.

Is the decision ‘reviewable’?

  1. [38]
    Whether the decision to re-classify a weapon in circumstances where the effect of that decision is that the licensee is no longer authorised to use and possess it, is a reviewable decision depends upon whether it is, within the meaning of s 142(1)(e):
  1. (e)
    a decision revoking or suspending a licence, permit, approval or other authority under this Act;
  1. [39]
    The Weapons Act, by s 3, makes clear that the principles and objects of the statutory scheme created by the Weapons Act, the Weapons Regulation 2016 (Qld) (‘Weapons Regulation’) and the Weapons Categories Regulation 1997 (Qld) (‘Weapons Categories Regulation’) are that weapon possession and use are subordinate to the need to ensure public and individual safety and that public safety is improved by imposing strict controls on the possession and use of weapons.
  2. [40]
    The Weapons Act prescribes the various classes of licences that may be issued, including the concealable firearms licence which was issued to each of the applicants. The authorised officer may inquire into the application for a licence and must approve or reject the application. The officer has the power to issue the licence subject to conditions relating to, for example, the use or possession of a weapon. The licence authorises the licensee to possess and use the weapons or category of weapons endorsed on the licence for any lawful purpose (subject to statutory or endorsed conditions).[14]
  3. [41]
    Section 49A provides:

49A Authority given by licence

  1. (1)
    A licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose.
  1. (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. (3)
    If a condition is prescribed under a regulation for a category of weapon—
  1. (a)
    the condition applies to all weapons of the category, whether licensed before or after the day the condition has effect; and
  1. (b)
    the licence is taken to have been amended to include the condition.
  1. (4)
    If a condition is prescribed under a regulation for a category of weapon—
  1. [42]
    Section 49A of the Weapons Act provides that a licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose. Section 14 of the Weapons Regulation relevantly provides that the conditions on a licence may be stated by codes. The codes for certain conditions are set out in schedule 2 to the Weapons Regulation. The applicants each hold a concealable firearms licence endorsed with condition code PC1[15] which relevantly authorised them to “possess and use registered category H weapons at an approved shooting range”.
  2. [43]
    Schedule 1 of the Weapons Act lists the subject matter for regulations to include:

2A Categorising weapons

Declaring weapons as category A, B, C, D, E, H, M or R weapons.

  1. [44]
    Section 172(2) of the Weapons Act provides that the Governor in Council may make regulations with respect to the matters in schedule 1.
  2. [45]
    Section 22 of the Weapons Regulation provides:

22 What concealable firearms licence authorises

  1. (1)
    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.
  1. (2)
    However, a concealable firearms licence does not authorise the possession or use of a weapon for recreational shooting.
  1. [46]
    The relevant decision was to change the classification of the relevant weapon to a category D, following further investigation by Weapons Licensing and noting that their determination to re-classify the weapon as a D was consistent with other policing jurisdictions within Australia. Schedule 2 to the Weapons Act defines category H by reference to s 7 of the Weapons Categories Regulation and category D by reference to s 5 of the Weapons Categories Regulation.
  2. [47]
    Category D weapons are defined as follows in s 5 of the Weapons Categories Regulation as follows:

5 Category D weapons

  1. (1)
    Each of the following is a category D weapon—
  1. (a)
    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;
  1. (b)
    a non-military style self-loading centre-fire rifle;
  1. (c)
    a self-loading shotgun with a magazine capacity of more than 5 rounds;
  1. (d)
    a pump action shotgun with a magazine capacity of more than 5 rounds;
  1. (e)
    a self-loading rim-fire rifle with a magazine capacity of more than 10 rounds;
  1. (f)
    a lever action shotgun with a magazine capacity of more than 5 rounds;
  1. (g)
    a weapon mentioned in any of paragraphs (a) to (f) that is a blank-fire firearm.
  1. (2)
    Subsection (1) applies to a weapon mentioned in the subsection even if the weapon is permanently inoperable.
  1. [48]
    Category H weapons are defined in s 7 of the Weapons Categories Regulation as follows:

7 Category H weapons

  1. (1)
    A firearm, including an air pistol and a blank-fire firearm, under 75cm in length, other than a powerhead, is a category H weapon, regardless of whether it has been rendered permanently inoperable.
  1. (2)
    A conversion unit is also a category H weapon.
  1. (3)
    This section does not apply to a powerhead or category C, D or R weapon.
  1. (4)
    In this section—

"conversion unit" means a unit or device or barrel that is capable of being used for converting a category H weapon that is a firearm from one calibre to another calibre.

(emphasis added)

  1. [49]
    I accept, and both parties agree, that the proper construction of s 7 is that if a weapon can be categorised as both a category H and D weapon then, by virtue of s 7, the firearm may not be classified as a category H weapon and is not authorised for use under a concealable firearms licence.
  2. [50]
    While it is true that the applicants used to be able to lawfully use and possess a Wedgetail and now they cannot, that is because their type of licence applied to category H weapons and the Wedgetail was, at that time, a category H weapon. It is now a category D weapon. The terms of the licence have not changed. It is the underlying classification of weapons that has changed. While it is true that the effect of this is that the applicants can no longer lawfully use and possess the Wedgetail, that is not because their Concealable Firearms Licence has been revoked.
  3. [51]
    Further, I do not accept that there has been the revocation of an “authority”, in the sense in which “authority” is used in the Act. In my view, authority is not used in the sense of describing what a person is authorised to do under a licence. In my view, ‘authority’ in s 142 is used as a noun, to refer to the actual, discrete authority granted under the Act. This is reflected in s 193 which provides as follows:

193 Applications not finally decided

  1. (1)
    This section applies if, immediately before the commencement, an authorised officer had not finally decided an application for the grant or renewal of an authority.
  1. (2)
    This section does not apply to a powerhead or category C, D or R weapon.
  1. (3)
    In this section—

" authority " means—

  1. (a)
    a licence; or
  1. (b)
    a permit to acquire; or
  1. (c)
    a shooting club permit; or
  1. (d)
    an approval to conduct an arms fair under section 79(2); or
  1. (e)
    an approval of a range under section 101(1); or
  1. (f)
    an approval of a shooting gallery under section 111; or
  1. (g)
    any other type of approval, licence or permit granted or renewed by an authorised officer under this Act.
  1. [52]
    I refer also to the decision of the Appeal Tribunal in Queensland Police Service – Weapons Licensing v Ryder,[16] which concerned whether a decision to refuse to permit a person to hold a silencer (category R weapon) could be regarded as a decision to refuse an ‘exemption’ and, therefore, a ‘reviewable decision’.
  2. [53]
    In Ryder the Appeal Tribunal held:

We note however, that a re-classification of the category of a weapon is not, in our view, a reviewable decision. While it is true that it led to the applicant being no longer entitled to possess the weapon under his licence, a decision “refusing” an application for a licence had not been made, nor had a decision been made amending a condition that applied to the licence. That Mr Yatras was no longer entitled to possess the weapon was as a result of a change of the regulations classifying weapons, not a decision by those in weapons licensing.[17]

  1. [54]
    Alternatively, it may be argued that the applicants had their licence to possess a Wedgetail revoked. That also is not accurate. The licence was always to possess category H weapons. The applicants still hold that licence in those terms.
  2. [55]
    In conclusion, although I do not consider the decision to re-classify the weapon was a ‘reviewable decision’, I accept that the practical effect of the re-classification was that the applicants were no longer authorised by their licence to use or possess such a weapon. This, however, does not mean that the re-classification decision becomes reviewable.
  3. [56]
    However, if I am wrong about that, I will now determine, assuming the decision is reviewable, what the categorisation of the weapon should be.

What category is the weapon?

  1. [57]
    The evidence in the review consists of expert reports written by Mr Rowan Birch (25 March 2019) and Mr Brett Meara (7 July 2019). There is also a Joint Experts’ Report dated 11 November 2019.
  2. [58]
    It is not in dispute that if the weapon can be categorised as both H and D then it would be excluded from the definition of a category H weapon and would have to be classified as a category D weapon.
  3. [59]
    The issue, therefore, is whether this weapon could be a category D weapon.
  4. [60]
    The decision to classify the Wedgetail was made because it was considered by the Ballistics Unit that it fell within the definition of a category D weapon being, within the meaning of s 5(1)(a):
  1. (a)
    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;
  1. [61]
    The issue, therefore, is whether the Wedgetail is either:

A:

  1. (i)
    A self-loading;
  1. (ii)
    Centre-fire rifle;
  2. (iii)
    Designed or adapted for military purposes.

OR

B:

  1. (iv)
    A firearm;
  2. (v)
    That substantially duplicates a rifle of that type [ie type A] in:
    1. a.
      design;
    1. b.
      function; or
    1. c.
      appearance.
  1. [62]
    The experts agree that the Wedgetail is (a) self-loading; and (b) a centre-fire weapon.[18] It is semiautomatic in operation and, as explained by Sergeant Meara, Scientific Section, Ballistics Unit this means it is a self-loading firearm as it can use energy developed from discharge to load the next round of ammunition.[19] The Wedgetail is chambered for .300 AAC Blackout calibre rounds of ammunition which is centre-fire ammunition and, therefore, is a centre-fire firearm.[20]
  2. [63]
    However, the experts also agree that the Wedgetail is not a “rifle” within the meaning of category D. The Joint Experts’ Report states:

The experts agree that the Wedgetail as manufactured (without a stock) would not be categorised as a ‘rifle’ under category ‘D’ because it is not practical to fire the Wedgetail from the shoulder, noting that:

  1. a)
    The firer cannot get their eye behind the sight;
  1. b)
    There is no stock to disperse the force of the recoil of the Wedgetail;
  1. c)
    It is not practical to be able to brace the Wedgetail for accurate shooting.

The experts agree that a rifle is accepted by the Industry as being only a weapon that is fired from the shoulder.

  1. [64]
    I note that the Wedgetail Product Guide for the WT 15-01 is headed “WT 15 Pistol” as opposed to the WT 15-01 Carbine which the Guide describes as a ‘rifle’. Under a photograph of the WT 15 Carbine, the Guide states:

The Wedgetail Industries WT 15 series rifles are an Australian made version of the popular AR 15 type rifle.

  1. [65]
    I accept that the ordinary meaning of a ‘rifle’ is a firearm with a rifled barrel which is designed to be fired from the shoulder.[21]
  2. [66]
    Although the Wedgetail has a rifled barrel, it is not clear whether it can be fired from the shoulder, due to the absence of a buttstock. The buttstock is the end part of the stock that rests against the shoulder which is generally shaped to allow the firearm to be held comfortably and securely at the shoulder. The Wedgetail has a buffer tube which, in AR15 and M16 rifles allows a stock to be affixed and secured. It does not appear that a stock can be affixed to the Wedgetail buffer tube. Without a stock, although the buffer tube can be rested against the shoulder when firing, the level of support when compared to a buttstock has been described as “very poor”.
  3. [67]
    I will assume for the purposes of the review, that the Wedgetail is not a rifle. Further, there was no evidence before me that the Wedgetail has been designed or adapted for military purposes.
  4. [68]
    The issue then arises as to whether the Wedgetail is a firearm that “substantially duplicates” a rifle designed or adapted for military purposes in “design, function or appearance”.
  5. [69]
    The experts appear to agree that the Wedgetail is most similar to the AR15 and M16 military weapons. Indeed, the Product Guide for the WT 15 Carbine, one of the Wedgetail series firearms, states it is an Australian made version of the AR15 type rifle. The AR 15 family is considered to be the commercial equivalent of an M16 rifle.[22]
  6. [70]
    The experts agree that the design or function of the Wedgetail, AR15 and M16 is “essentially the same”. Detailed reasons are provided in the Report which identifies each step in the cycle of operation[23] of a firearm and concludes that “the semi-automatic manner of operation for all rifles is essentially the same”.[24]
  7. [71]
    In terms of appearance, there are similarities and differences. These are detailed in the Joint Experts’ Report. On the whole, however, it appears that the main differences between the Wedgetail and the AR 15 are a shortened barrel and lack of a stock.
  8. [72]
    In my view, the comparison with respect to “appearance” is not meant to be an overly technical one. I refer to Sergeant Meara’s Report which states:

I cannot provide a conclusive opinion on whether the Wedgetail firearm from item 1 substantially duplicates the appearance of the AR15 or M16 variants, as this is a subjective determination. The term “substantially duplicates” indicates that it does not need to be an exact copy, but there is no clear guide as to what degree it must resemble the firearm in question. However, when I first viewed the Wedgetail firearm, it was immediately apparent to me that the firearm was based off an AR15/M16 type firearm on appearance alone.[25]

  1. [73]
    I find that the Wedgetail is similar in appearance to the AR15 and M16 and that the Wedgetail “substantially duplicates” the AR15 and M16 in design and function.
  2. [74]
    As the second limb of the definition in s 5(1)(a) of the Weapons Categories Regulation only requires that the firearm “substantially duplicate” a rifle of “that type” in one of the identified respects, namely, design, function or appearance, I find the definition to be satisfied and, accordingly, that the Wedgetail is a category D weapon. It follows, based on the accepted interpretation of s 7(3) of the Weapons Categories Regulation that the Wedgetail cannot be classified as a category H weapon.
  3. [75]
    Although I would not categorise the Wedgetail as a category H for the reasons above, in my view, the re-classification of the Wedgetail as a category D from a category H, is not a ‘reviewable decision’. Accordingly, the application for review is dismissed on the basis there is no ‘reviewable decision’.

Footnotes

[1] Weapons Act 1990 (Qld), s 12 (‘Weapons Act’).

[2] Weapons Regulation 2016 (Qld), Schedule 2.

[3] Weapons Act, s 11.

[4] Weapons Categories Regulation 1997 (Qld), s 5.

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

[6]  See Hayward v Fletcher [2018] QCATA 187.

[7]  QCAT Act, s 20(1).

[8]  Ibid, s 19(a).

[9]  [2020] QCAT 69.

[10]  Ibid, [77].

[11]  [2018] QCATA 38, [30]-[31].

[12]  [2019] QCATA 159.

[13]  Ibid, [26]-[27].

[14] Weapons Act, s 49A.

[15] Weapons Regulation, Schedule 2.

[16]  [2019] QCATA 159.

[17]  Ibid, [27].

[18]  Joint Experts’ Report of 11 November 2019, [5].

[19]  Statement by Sergeant Meara filed 28 August 2019, [17].

[20]  Ibid, [18].

[21]  Statement of Sergeant Meara filed 28 August 2019, [19] –[20] citing Association of Firearm and Toolmark Examiners, Glossary of Terminology, definition of “rifle” and the common dictionary definition of “rifle”.

[22]  Memo from Senior Sergeant, Ballistics Unit to Inspector, Weapons Licensing Branch of 23 April 2018.

[23]  Those steps are: loading; feeding; chambering; cocking; locking; firing; unlocking; firing; unlocking; extraction; ejections.

[24]  Joint Experts’ Report, [9].

[25]  Statement of Sergeant Meara filed 28 August 2019, [45].

Close

Editorial Notes

  • Published Case Name:

    Yatras v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Yatras v Queensland Police Service – Weapons Licensing

  • MNC:

    [2021] QCAT 63

  • Court:

    QCAT

  • Judge(s):

    Member Traves

  • Date:

    16 Feb 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
Hayward v Fletcher [2018] QCATA 187
1 citation
Jump To
Cite 1 - [2018] QCATA 187
Oracle Building Corporation Pty Ltd v Queensland Building and Construction Commission [2020] QCAT 69
2 citations
Jump To
Cite 1 - [2020] QCAT 69
Cite 2 - [2020] QCAT 69
Queensland Building & Construction Commission v Whalley [2018] QCATA 38
1 citation
Jump To
Cite 1 - [2018] QCATA 38
Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159
5 citations
Jump To
Cite 1 - [2019] QCATA 159
Cite 2 - [2019] QCATA 159
Cite 3 - [2019] QCATA 159
Cite 4 - [2019] QCATA 159
Cite 5 - [2019] QCATA 159
Yatras & Anor v Queensland Police Service - Weapons Licensing [2019] QCAT 6
3 citations
Jump To
Cite 1 - [2019] QCAT 6
Cite 2 - [2019] QCAT 6
Cite 3 - [2019] QCAT 6

Cases Citing

Case NameFull CitationFrequency
Glover v Queensland Police Service – Weapons Licensing [2022] QCAT 846 citations
1

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