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  4. Robinson v Queensland Police Service – Weapons Licensing - [2022] QCAT 19

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Robinson v Queensland Police Service – Weapons Licensing[2022] QCAT 19

Robinson v Queensland Police Service – Weapons Licensing[2022] QCAT 19

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Robinson v Queensland Police Service – Weapons Licensing [2022] QCAT 19

PARTIES:

Robert John robinson

(applicant)

v

queensland police service – weapons licensing

(respondent)

APPLICATION NO/S:

GAR312-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 January 2022

HEARING DATE:

24 June 2021

HEARD AT:

Mackay

DECISION OF:

Member William Cooper

ORDERS:

The decision of 3 August 2020 of the Queensland Police Service-Weapons Licensing to revoke Firearms Licence Number 10015119 is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – GENUINE REASON – whether correct and preferable decision – whether 'genuine reason' for weapons – whether 'occupational requirement' – whether applicant engaged in primary production as business activity – where evidential onus to provide supporting material – where evidence did not support finding that applicant engaged in business as primary producer – where no supporting evidence of how guns were occupational requirement – whether applicant is a fit and proper person to hold a licence – whether the offences under the Weapons Act are serious offences – where applicant was the holder of a firearms licence – where the applicant pleaded guilty to not providing secure storage of weapons – where applicant was charged with unlawful possession of weapons Category D/N/R and unregistered firearms and where no evidence was offered to such charges by the police prosecution.

Acts Interpretation Act  1954 (Qld), s 35C(1)

Queensland Civil and Administrative Tribunal Act  2009 (Qld), s 20, s 24

Weapons Act  1990 (Qld), s 3, s 4, s 9, s 10, s 10A, s 10B, s 18 (9), s 11, s 29, s 142.

Weapons Categories Regulation 1997 (Qld).

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Harley v Department of Justice and Attorney-General [2012] QCAT 620

Kehl v Board of Professional Engineers of Qld [2010] QCATA 58

Madsen v Qld Police Services – Weapons Licensing [2021] QCAT 108

McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156

APPEARANCES &

REPRESENTATION:

Applicant:

S McLennan – Counsel instructed by KJ Seaniger & Associates Solicitors

Respondent:

D.M. Ayscough – Sergeant of Police.

REASONS FOR DECISION

Background

  1. [1]
    The applicant prior to 17 December 2015 held a Weapons Licence number 10015119 for Category A & B Weapons.
  2. [2]
    The applicant's licence contained the following conditions:

This licence remains valid whilst the licensee is the owner, is employed on or manages the property situated [south of Sarina]..

OCCUPATION:  CAT A & B.  This licence authorises the licensee to have possession of and use registered CAT A & B weapons in the conduct of business or employment on rural lands.  The rural lands must be owned, managed or used by the licensee or the licensee's employer.  All weapons are to remain in secure storage unless authorised, justified or excused by law.

RECREATIONAL SHOOTING A & B:  This licence authorised the licensee to have possession of and use registered Category A & B weapons for the purpose of recreational shooting on rural land only with the express consent of the owner. All weapons are to remain in secure storage unless authorised, justified or excused by law.

SHOOTING CLUB:  CAT A & B.  This licence authorised the licensee to have possession of and use registered CAT A & B.  This licence authorises the licensee to have possession of and use registered CAT A & B weapons for the purpose of sports or target shooting at an approved range.  All weapons are to remain in secure storage unless otherwise authorised, justified or excused by law.

  1. [3]
    The firearms licence No. 10015119 was suspended in December 2018 as the applicant did not have a genuine reason for the issue of the licence.  Documents were not served until August 2019 following an inspection in May 2018.  The licence was revoked by the Respondent by notices on 3 August 2020 on the grounds that he was no longer "a fit and proper person".[1]
  2. [4]
    Mr Robinson made an application to review the decision on 27 August 2020. 

What is the purpose of this review?

  1. [5]
    The purpose of the Tribunal undertaking this review is to produce the "correct and preferable decision".[2] The Tribunal undertakes this by conducting a fresh hearing on the merits of the application.[3] When undertaking this review the Tribunal effectively stands in the shoes of the Respondent.
  2. [6]
    This means for the Applicant that the original decision is not presumed to be correct[4]  and that the applicant has to convince the Tribunal on the material before the Tribunal at the time of the hearing that the correct and preferable decision[5] is to either confirm or amend the Respondent’s original decision, or set aside the Respondent’s decision and return the matter for consideration to the original decision maker with directions the Tribunal considers appropriate. [6]

What is the Legislation to be followed?

  1. [7]
    The Weapons Act[7] (the Act) regulates the rights of individuals, as in the case of the applicant to own and use firearms.[8] The object of the Act is contained in Section 3:
  1. (1)
    The principles underlying the Act are as follows:
  1. (a)
    Weapon possession and use are subordinate to the need to ensure public and individual safety;
  1. (b)
    Public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.
  1. (2)
    The object of this Act is to prevent the misuse of weapons.
  1. [8]
    How these objects are achieved is set out in Section 4 of the Act and in particular:
  1. (a)
    Prohibiting the possession and use of all automatic and self loading rifles and automatic and self loading shotguns except in special circumstances;

…

  1. (c)
    Requiring each person who wishes to possess a firearm under a licence to   demonstrate a general reason for possessing the firearm;

…

  1. (e)
    Ensuring that firearms are stored and carried in a safe and secure way. 
  1. [9]
    A licence may be issued, renewed, endorsed or altered only by an authorised officer.[9]
  2. [10]
    The limitations on the issue of a licence are:
  1. (1)
    A licence may be issued only to:
  1. (a)
    an individual under subsection (2);

…

  1. (2)
    A licence may be issued to an individual only if the person;
  1. (a)
    is -
  1. (i)
    for a licence other than a minor’s licence – an adult;

…

  1. (b)
    has under section 10A, an adequate knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon, the possession of which is to be authorised by the licence; and
  1. (c)
    has access to secure storage facilities for the weapon or category of weapon possession of which is to be authorised by the licence; and
  1. (d)
    is not prevented under this or another Act, or by an order of a Magistrates Court or another Court from holding the licence; and
  1. (e)
    is a fit and proper person to hold the licence; and
  1. (f)
    has a reason mentioned in section 11 to possess the weapon or category of weapon; and
  1. (g)
    resides only in Queensland[10].
  1. [11]
    Section 18 (9)[11] states that the reasons specified in subsection 10 apply to the renewal of a licence.

Genuine Reason

  1. [12]
    Section 4 (c) of the Act requires each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm.
  2. [13]
    Section 10 (2) (f) says that such a person who wants to possess a weapon or category of weapon, must have a reason mentioned in Section 11 of the Act.
  3. [14]
    Section 11 says that the reasons for possession of a weapon are:
  1. (a)
    sports or target shooting;
  1. (b)
    recreational shooting;
  1. (c)
    an occupational requirement, including an occupational requirement for rural purposes;

...

Fit and Proper Person

  1. [15]
    This expression referred to in the Act[12], has been the subject of the decision of the High Court in the “Bond Media Case.”[13] There the High Court in that decision made the following observations:

The question whether a person is fit and proper is one of value judgement. In that process the seriousness or otherwise of particular conduct is a matter of evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration[14].

  1. [16]
    It went on to further state that:

The expression ‘fit and proper person,’ standing alone, carries no precise meaning. It takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of ‘fit and proper,’ cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, or whether the general community will have confidence that it will not occur.[15]

Evidence Considered

  1. [17]
    The applicant was issued with a suspension notice in December 2018. This followed a random storage inspection audit selection in May 2018 and contact with the Applicant in October 2018. That suspension notice was in respect of the applicant not having a genuine reason for the issue of a licence[16]. That notice was not served on the applicant until August 2019 following a police inspection of the applicant’s property on 27 July 2019.
  2. [18]
    The applicant was charged on 27 July 2019 with three offences following police attending the applicant's 262 acre property south of Sarina. That property being the storage address nominated in the Application to Review Weapons Act Licence No. 100156119.
  3. [19]
    The charges were:

CHARGE 1. Possession of unregistered firearms. Six (6) of the eight (8) firearms located at the address were unregistered. These were a Boito shotgun, a Winchester centre fire rifle, a Ruger Mini 14 self loading centre fire rifle, an SKS self loading centre fire rifle, a Sportco 90 rim fire rifle and an Enfield centre fire rifle.

CHARGE 2. Secure storage of weapons.  All eight weapons located were stored in  unlocked and unsecured wooden wardrobes that did not meet Queensland Weapons licensing standards.

CHARGE 3. Unlawful possession of weapons category D/H/R[17].  Two of the unregistered firearms located were Category D weapons.  These were the Ruger Mini 14 self loading centre fire rifle and the SKS self loading centre fire rifle.

  1. [20]
    On 7 July 2020 the applicant pleaded guilty, at the Mackay Magistrates Court, to Charges 2 and 3 and was fined the sum of $3,000.00 with no conviction recorded.
  2. [21]
    Charge number 1, the possession of unregistered firearms was finalised with no evidence offered by the Prosecution.
  3. [22]
    The applicant provided two affidavits dated 4 March 2021 and 8 April 2021, and gave oral evidence on 24 June 2021. In the affidavit on 4 March 2021, the applicant indicated that he considers himself a fit and proper person to hold a weapons licence.
  4. [23]
    The affidavit of 4 March 2021 and 8 April 2021 further indicated that the applicant owned two properties and ran some 200 head of cattle. The applicant further states that he has worked in the mining industry for some 20 years working a roster seven days on and seven days off, and owns a general store and petrol station at Calen with his wife, and helps out there when he returns on his days off.
  5. [24]
    In evidence the applicant stated that one of the properties was 900 acres, and the other was 262 acres.  Both properties back onto the Connors Range. He states that the back boundaries of both properties are unfenced due to their inaccessibility. The adjoining property of the Connors Range comprises some hundreds of thousands of acres. He further stated that he resides at his residential property, south of Sarina, some 18 kilometres from the first farm.
  6. [25]
    The applicant also states in evidence that he currently has 120 head of cattle but that he will sell some more off to reduce the number to 80.
  7. [26]
    By affidavit the applicant says that he requires a weapon to destroy cattle when necessary and keep a check on vermin and pests. The applicant says, " that he needs to destroy any stock if injured that need to be put down, and that he has come across wild pigs on a number of occasions and although, he has never been under attack by one of them personally, there is a possibility they could be a danger, and, "there is a problem with wild cattle. Wild cattle, if provoked or startled, charge people", and "there is a problem with dingoes."
  8. [27]
    The applicant in evidence said that he works on the rural properties when he comes home from the mines and that on some days he will stay at the servo and catch up on paperwork, as he does all the paperwork for the servo.
  9. [28]
    The applicant also said that he does not have any person manage the properties when he is working away, He further stated that he had lost one horse to starvation and there was another horse with a foal which will possibly have to be put down also.
  10. [29]
    The applicant stated that he was not making a fortune every year from primary production, and further stated that he made no money last year.
  11. [30]
    The applicant said that he accepts that he had done the wrong thing in relation to the two offences against the Weapons Act, that he pleaded guilty to.  However, it wasn't intentional and that he did not hide the weapons because he had some ulterior motive. He stated that some of the weapons came into his possession after the gun laws came in. He also provided evidence of statement of attainment of a weapons course he had attended since pleading guilty to the possession of category D/H/R weapons and improper storage of weapons.
  12. [31]
    The applicant states that he had two lots of weapons stored. The registered firearms were stored in the gun safe at his residence south of Sarina, and the unregistered firearms were in the wardrobe on the 262 acre property and that they had been there for some 20 years.  That property was the original storage address but he changed the address to to his residential address by going online, at a date he was not able to identify.
  13. [32]
    The applicant would like the tribunal to accept that the weapons comprising unregistered category A & B weapons and Category D weapons were just where they were and basically nearly forgotten about, that they were secure in a place that he considered secure and had been so for 20 years. The applicant stated that "the weapons were stored in a wardrobe and another two wardrobes stacked in front of it.  That no way in the world the wardrobes were open. No one could see anything and that the police knew they were there".
  14. [33]
    The police evidence for the hearing of charges of the weapons licensing breach was that they went to the dwelling on the 262 acre property regarding a weapons licence suspension.  That address being the storage address on the licence. They observed two vehicles at the dwelling which were registered to the applicant and his partner. The police suspected the applicant was at the dwelling and entered through the front door and observed a rifle inside an open closet and located some eight firearms and some 2,000 rounds of ammunition.
  15. [34]
    The applicant would like the tribunal to further believe that he was not aware that he could have handed the unregistered weapons in within the period of three amnesties that have been held or that he could have applied to have the weapons registered.
  16. [35]
    The applicant could give no explanation as to why he did not hand the weapons in or have them registered, other than it was not an immediate priority and that priorities keep overriding other priorities.
  17. [36]
    The applicant states that the original storage facility was at the farm at the 262 acre property and that he changed the address to his residential address. He further stated that he could not take the unregistered weapons to the residential address as they were unregistered.
  18. [37]
    The applicant’s evidence further states that he had changed the address of the storage facility by going online, but could not recall when.  He produced two emails dated 10 June 2019 and 6 September 2019, which were after the date of the original inspection, as evidence of the change of address.
  19. [38]
    The applicant’s counsel has submitted that the applicant has a genuine reason under s 11 (c), [18] including an occupational requirement for rural purposes. These being that the applicant has rural properties with 200 head of cattle.
  20. [39]
    That the applicant needs the weapon to euthanise cattle and to control vermin and pests, including pigs, wild cattle and dingoes.
  21. [40]
    No submissions were made regarding the other purposes contained in the original licence of recreational shooting or shooting club. The applicant in his evidence states that he was not affiliated with any shooting clubs, or rifle clubs.
  22. [41]
    Counsel also submitted that applicant’s criminal history is minor, dated and irrelevant and that the same could be said of his traffic history. That the applicant has indicated his remorse, entered pleas of guilty to the offence, and has accepted sole responsibility for the offences and a renewed commitment to safety.

Conclusion

  1. [42]
    This is an application to review the decision of the Queensland Police Service – Weapons Licensing dated 3 August 2020.
  2. [43]
    The applicant has to provide sufficient information to the tribunal to allow it to make the "correct and preferable decision."[19]
  3. [44]
    The applicant has in the main endeavoured to convince the tribunal that the guns are necessary to enable him to conduct the business of primary production as a primary producer.
  4. [45]
    The Tribunal is not convinced on the evidence provided, that the applicant is conducting a business of primary production and notes:
    1. (a)
      The small scale of production being 200 cattle or less.
    2. (b)
      The lack of management of the business when the applicant spends a lot of his time earning an income in the mining industry, and managing a shop and petrol station, some considerable distance from the property.
    3. (c)
      The loss of stock from starvation, through poor management, thus demonstrating a lack of understanding of primary production and caring for stock and is further evidence of lack of time spent at the property.
    4. (d)
      The fact that the applicant has not made a profit from primary production.
    5. (e)
      No tax returns were provided to evidence income and expenses incurred from primary production.
    6. (f)
      No evidence of being a primary producer other than a cursory statement by the applicant of sale of stock and natural increases,  and the ownership of               some 1,162 acres of land.
    7. (g)
      No evidence of stock increases through breeding or purchase for fattening or sales was provided.
    8. (h)
      No evidence of a plan was provided for the eradication of pests. The evidence appeared to be that if he was going around the property and saw something then he would endeavour to shoot it.
    9. (i)
      No evidence was provided of how dingoes had caused harm to livestock e.g. calves or damage caused to pasture by wild pigs.
    10. (j)
      No evidence or plan to trap wild cattle coming onto his property or what other alternatives were tried to keep wild cattle out if the back boundary was not able to be fenced.
    11. (k)
      No evidence was provided of contact with the adjoining land holder to resolve the issue of wild cattle or fencing.
    12. (l)
      The applicant has not provided any evidence other than his own statements that a weapons licence is required to ensure that pests are contained.
    13. (m)
      And no evidence was provided that alternative matters, other than shooting, are not satisfactory.
  5. [46]
    The applicant has then not established that he has an occupational requirement for a weapons licence.
  6. [47]
    The applicant has also expressed the view that he is a 'fit and proper' person to hold a weapons licence.
  7. [48]
    The actions of the applicant express a different view. Counsel for the applicant would like to have the Tribunal expunge the guilty plea to:
    1. (a)
      the insecure storage of eight weapons;
    2. (b)
      the unlawful possession of firearms, two of which were category D weapons,

and to have the applicant’s criminal history and traffic history categorised as "minor, dated and irrelevant."

  1. [49]
    The term, 'fit and proper,' is not defined in the Weapons Act 1990 (Qld).  However s 10B does prescribe matters that should be considered:
    1. (a)
      the object of the Act is to prevent the misuse of weapons.
    2. (b)
      the applicant’s character. 
    3. (c)
      whether the applicant has a real prospect of misusing weapons.
    4. (d)
      whether the applicant’s right to possess a firearm is a real risk to public and individual safety.
  2. [50]
    The question of whether a person is a fit and proper person was also considered in the matter of the "Bond Media Case,"[20] which I have referred to earlier, and which I take into consideration when determining whether the applicant is a 'fit and proper person.'
  3. [51]
    The applicant’s character is questioned by his past actions:
    1. (a)
      failure to appear in accordance with a Court direction.
    2. (b)
      use of a vehicle with a label/plate/permit issued for another vehicle.
    3. (c)
      use of an unregistered motor vehicle.
    4. (d)
      failure to properly secure storage of firearms.
    5. (e)
      possession of unregistered firearms, including two category D weapons.
  4. [52]
    Each of these actions demonstrate the applicant’s lack of regard for the laws:
    1. (a)
      by failure to appear in Court as agreed.
    2. (b)
      by knowingly driving an unregistered vehicle.
    3. (c)
      by knowingly driving a vehicle with incorrect registration plates.
    4. (d)
      by knowingly storing unregistered weapons at a place other than where the secure storage was located.
    5. (e)
      by knowingly storing unregistered weapons in an unsafe manner, namely in a wooden wardrobe.
    6. (f)
      by knowingly having in his possession, unregistered firearms, including category D weapons.
  5. [53]
    Having observed the applicant give evidence, I find it hard to believe that the applicant did not know why he had kept the unregistered firearms and why he had done nothing about turning them in under amnesty or registering them or storing them properly. 
  6. [54]
    The Applicant in evidence, knew that he had unlicensed weapons, and would have me believe that he had changed the address for storage prior to the inspection to his residential address.  He stated he could not take the unlicensed weapons to that address where he had changed the storage to.  I am therefore left to conclude that the keeping of the unlicensed weapons at the old storage address was done for the purpose of deceiving Weapons Licensing.
  7. [55]
    When questioned by the Respondent on the firearm matters, namely the reasons for having the unregistered firearms and the need for firearms, the applicant’s credit as a witness was lacking.
  8. [56]
    I am not convinced that the applicant’s deliberate lack of regard for the law, on past occasions, will not occur again and that there will not be further breaches of weapons licensing despite the applicant having recently completed a weapons course and obtained a statement of attainment.
  9. [57]
    I am mindful of the objects of the Weapon Act [21] as contained in Section 3 and consider that the applicant's past actions are contrary to those objects.
  10. [58]
    I am not convinced that the applicant’s past actions, as put by his counsel, are "minor, dated and irrelevant," and entitle him to state that he is a 'fit and proper person' to hold a weapons licence.
  11. [59]
    I have determined that the applicant has not established that he has an occupational requirement for a weapons licence.
  12. [60]
    I confirm the decision of 3 August 2020 of the Queensland Police Service – Weapons Licensing, to revoke firearm licence number 10015119.

Footnotes

[1]Weapons Act 1990 (Qld) s 29(1)(d).

[2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

[3]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(2).

[4]Madsen-v-Qld Police Services – Weapons Licensing [2021] QCAT 108 (at paragraph 3) citing with approval Harley-v-Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl-v-Board of Professional Engineers of Qld [2010] QCATA 58, [9].

[5]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20(1).

[6]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 24(1).

[7]Weapons Act 1990 (Qld).

[8]Weapons Act 1990 (Qld) Schedule 2.

[9]Weapons Act 1990 (Qld) s 9.

[10]Weapons Act 1990 (Qld) s 10.

[11]Weapons Act 1990 (Qld).

[12]Weapons Act 1990 (Qld) s 10(2) (e), s 10B.

[13]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

[14]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380 per Toohey and Gaudron JJ.

[15]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 388 per Toohey and Gaudron JJ.

[16]Weapons Act 1990 (Qld) s 10(2) and s 11.

[17]Weapons Categories Regulation 1997 (Qld) s 5, s 7, s 8.

[18]Weapons Act 1990 (Qld).

[19]Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 20 (1).

[20]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.

[21]Weapons Act 1990 (Qld) Section 3.

Close

Editorial Notes

  • Published Case Name:

    Robinson v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Robinson v Queensland Police Service – Weapons Licensing

  • MNC:

    [2022] QCAT 19

  • Court:

    QCAT

  • Judge(s):

    Member William Cooper

  • Date:

    17 Jan 2022

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
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
5 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Cite 3 - (1990) 170 CLR 321
Cite 4 - (1990) 170 CLR 321
Cite 5 - (1990) 170 CLR 321
Harley v Department of Justice and Attorney-General [2012] QCAT 620
2 citations
Jump To
Cite 1 - [2012] QCAT 620
Cite 2 - [2012] QCAT 620
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Madsen v Queensland Police Service – Weapons Licensing [2021] QCAT 108
2 citations
Jump To
Cite 1 - [2021] QCAT 108
Cite 2 - [2021] QCAT 108
McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156
2 citations
Jump To
Cite 1 - [2019] QCATA 156
Cite 2 - [2019] QCATA 156

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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