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Lawler v Queensland Police Service[2022] QCAT 309

Lawler v Queensland Police Service[2022] QCAT 309

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Lawler v Queensland Police Service [2022] QCAT 309

PARTIES:

michael james lawler

(applicant)

v

queensland police service

(respondent)

APPLICATION NO/S:

GAR305-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 August 2022

HEARING DATE:

3 August 2022

HEARD AT:

Brisbane

DECISION OF:

Member Ann Fitzpatrick

ORDERS:

The decision of the Respondent is confirmed

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – PUBLIC INTEREST – lengthy criminal history when a young man – lack of sufficient evidence

Human Rights Act 2019 (Qld), s 13, s 15, s 24, s 58

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10B, s 142(2)

AJO v Director-General Department of Transport [2012] NSWADT 101

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657

Director of Public Prosecutions v Smith [1991] 1 VR 51

Hughes and Vale Pty Ltd v New South Wales (No2) (1995) 93 CLR 127

KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2016] QCAT 49

Re Costello and Secretary, Department of Transport (1979) ALD 934

Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATD 272

Shi v Migration Agents Registration Authority (2008) 235 CLR 286

Sobey v Commercial and Private Agents Board (1979) 22 SASR 70

Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156

TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505

Ward v NSW Commissioner of Police [2000] NSWADT 28

APPEARANCES &

REPRESENTATION:

Applicant:

G Kable, Solicitor, Hartmann & Associates

Respondent:

D Ayscough, Sergeant

REASONS FOR DECISION

Background

  1. [1]
    By notice dated 29 March 2021, an authorised officer under the Weapons Act refused to renew the applicant’s firearm’s licence because:
    1. (a)
      the applicant is not a fit and proper person to hold a licence; and
    2. (b)
      it is not in the public interest that the applicant hold a firearm’s licence.
  2. [2]
    The applicant seeks a firearm’s licence for the purpose of sports and target shooting.
  3. [3]
    The applicant had previously made an application for a new licence on 25 October 2018, which was rejected, but later a decision was made to issue a licence for a one year period with the applicant’s behaviour to be monitored during this period.
  4. [4]
    During the one year period the applicant was charged with Trespass – entering or remaining yard or place of business. The applicant pleaded guilty. He was fined, no conviction recorded. The trespass occurred at the Borallon training and correctional facility on 20 August 2020 when the applicant and his two companions walked into a restricted area and did not immediately follow instructions.
  5. [5]
    Apart from the trespass offence, the applicant has a criminal history set out in the respondent’s information notice to the applicant giving its reasons for the decision.
  6. [6]
    Queensland offences occurred on 15 December 2005 – PPRA Obstruct Police Officer; 15 February 2010 – Commit public nuisance; 26 June 2019 – Unauthorised dealing with shop’s goods; and on 20 August 2020 – Trespass.
  7. [7]
    No conviction was recorded in relation to each offence.
  8. [8]
    New South Wales offences include from July 2004 to April 2007 seventeen offences, principally break and enter a building to steal, but including destruction of property, receiving stolen property and larceny.
  9. [9]
    The following offences also occurred in New South Wales:
    1. (a)
      29 March 2008 common assault;
    2. (b)
      29 March 2008 contravene prohibition/restriction in apprehended violence order (AVO);
    3. (c)
      10 January 2008 common assault;
    4. (d)
      10 January 2008 contravene prohibition/restriction in order (domestic).

The applicant’s evidence

  1. [10]
    The applicant is 33 years of age. He is the owner operator of a small concrete truck business comprising five trucks and employing 7 people. The applicant has a partner and two small children.
  2. [11]
    The applicant explained the trespass offence on the basis that he and his friends were collecting another friend who was being released from prison. Whilst waiting at the correctional centre they unknowingly walked into a restricted area. The applicant says that the area was not signed as restricted.
  3. [12]
    As to the other recent offence, the applicant said he had a “brain snap” in relation to shoplifting two drill bits from Bunnings.
  4. [13]
    The applicant said that he was young and dumb when the earlier offences occurred. He and his friends were involved in stealing appliances from building sites and new home builds. His evidence is that came to an end after an intervention by local builders and parents.
  5. [14]
    In relation to the assault and breach of an apprehended violence order the applicant said that he was young, about 19 years of age and involved in a toxic relationship with his then girlfriend.
  6. [15]
    The applicant gave evidence that he has a new group of friends with whom he camps and hunts deer. Without a firearm’s licence he is invited along as a “spotter” and to help with the carcasses. He wishes to join the group more often in hunting trips.
  7. [16]
    The applicant wishes to use a 308 calibre rifle. He has a safe for storage of the firearm and can keep ammunition separately.

Aaron Cox

  1. [17]
    Aaron Cox was one of the applicant’s companions on 20 August 2020. He provided a short statement consistent with the evidence of the applicant. In particular that they did not realise they were trespassing. He was not required for cross-examination.

Garrath Baihn

  1. [18]
    Garrath Baihn was also in the group on 20 August 2020. He provided a statement setting out the events relating to the trespass. He said that “we probably should of (sic) known better to go walking around the prison…” Mr Baihn was not required for cross-examination.

Anthony Spittle

  1. [19]
    Anthony Spittle, Area Manager, Holcim Australia, provided a written reference for the applicant. Mr Spittle says that he met the applicant in 2009 through work and has seen him progress to become one of Holcim’s most respected and professional multi fleet concrete truck owners. Mr Spittle says that the applicant is open and honest, has displayed integrity and has a history of making good, sound decisions. He was not required for cross-examination.

Bojan Novkovic

  1. [20]
    Mr Novkovic provided a written reference for the applicant and appeared at the hearing to be cross-examined.
  2. [21]
    Mr Novkovic says that he has known the applicant for eight years as a friend and work colleague. He describes the applicant as dependable, responsible, honest and someone that takes care of his family.
  3. [22]
    The applicant and Mr Novkovic hunt together, go on trips to a property in northern New South Wales shooting and camping with family and other friends. They also visit the local shooting range for practice in the sport.
  4. [23]
    Importantly Mr Novkovic says that the applicant has never been anything other than sensible during their time in the sport. Mr Novkovic said that he was aware of the reason for the reference and given his in depth knowledge of the applicant as a person, colleague and friend said that he has never been anything other than sensible when it comes to shooting as a sport.
  5. [24]
    In cross-examination Mr Novkovic said that the applicant always follows the safety rules in relation to handling firearms whilst on camping trips. Once the applicant’s licence was revoked, he handed over his gun to Mr Novkovic who now owns the gun.

Respondent’s submissions

  1. [25]
    The respondent submits that the applicant has a lengthy criminal history, including a recent offence. The criminal history demonstrates a blatant disregard for the law and in relation to the domestic violence matters, a lack of impulse control and failure to control his emotions.
  2. [26]
    The respondent says that there is no evidence the applicant has changed, or steps taken to change, except for his age. It is pointed out that the applicant has continued to offend even when he was of an age when he should have known better.
  3. [27]
    In all, it is said that the applicant has not established that violent incidents won’t happen again, such that there are protective factors, or the applicant has insight into his urge to act inappropriately. Because the evidence falls short it cannot be found that the applicant is a fit and proper person to hold a firearm’s licence. Further, it is not in the public interest for the applicant to hold a firearm’s licence, because it cannot be said that there is little or no risk to the public.
  4. [28]
    The applicant can re-apply for a firearm’s licence in March 2024. It is noted that the applicant does not need the firearm’s licence for, for example, his livelihood this is an application related to a recreational pursuit.

Applicant’s submissions

  1. [29]
    The applicant submits in relation to his history of offending that:
    1. (a)
      it was an unusual circumstance which led to the trespass offence, however the applicant had no intention to commit an offence.
    2. (b)
      It is not necessary for a licence holder to have led an exemplary life, relying on Romanos v Commissioner of Police, New South Wales Police Force.[1]
    3. (c)
      Much of the criminal history is old and although relevant to this review, most convictions are spent convictions for other matters. The applicant admits his youth and stupidity when he was young.
    4. (d)
      No offences relate to firearms; and
    5. (e)
      The applicant was incident free for a period of years.
  2. [30]
    It is submitted that the applicant should not be tainted by association with others (noting the flags in the respondent’s material with respect to the applicant’s associates) and relying on Stamatelatos v Commissioner of Police, NSW Police Force.[2]
  3. [31]
    As to changes made by the applicant, the Tribunal can assess the evidence as to his ownership of a business, and a stable relationship and family. Also, there is no question over the applicant’s mental health.
  4. [32]
    The applicant also submitted that it is difficult for a party to prove a negative, that is, that there is virtually no risk to public safety. The chance of re-offending is low.

Jurisdiction

  1. [33]
    By s 142(2) of the Weapons Act 1990 (Qld) (the Act), a person aggrieved by a decision of an authorised officer may seek to have this Tribunal review a decision.
  2. [34]
    The Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed. The hearing is a fresh hearing on the merits in order to produce the correct and preferable decision. The Tribunal may confirm or amend the decision, set aside the decision and substitute its own decision or set aside the decision and return the matter for reconsideration to the decision-maker.[3]
  3. [35]
    The decision made by the Tribunal is on the basis of the facts before it at the review hearing and on the basis of the law applicable at the date of the hearing.[4]

Is the applicant a fit and proper person to hold a firearm’s licence?

  1. [36]
    Section 3 of the Act provides that the principles underlying the Act are:
    1. (a)
      Weapon possession and use are subordinate to the need to ensure public and individual safety;
    2. (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.
  2. [37]
    By s 3 of the Act, the object is said to prevent the misuse of weapons.
  3. [38]
    By s 4 of the Act the object of the Act is to be achieved for firearms by, relevantly, requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm. In this case the reason is for recreational hunting. On the basis of the applicant’s and Mr Novkovic’s evidence, I accept that is the case.
  4. [39]
    Section 4 also provides that strict requirements must be satisfied for licences authorising possession of firearms.
  5. [40]
    The effect of sections 3 and 4 of the Act is that it is a high bar to be entitled to a licence to own and use a weapon capable of causing death or injury.
  6. [41]
    By s 10 of the Act it is an express limitation on the issue of a licence that a person is a fit and proper person to hold a licence.
  7. [42]
    By s 10B of the Act, 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, and at this point, the Tribunal, must consider among other things:
    1. (a)
      The mental and physical fitness of the person. There is no evidence that the applicant is mentally unfit or physically unfit.
    2. (b)
      Whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person. In December 2007 a full apprehended violence order was made against the applicant, followed by twelve interim orders and a final full order on 5 August 2008. In January and March 2008 the orders were contravened.
    3. (c)
      Whether any false or misleading statement has been made in connection with an application. There is no evidence this is the case.
    4. (d)
      Whether there is any criminal intelligence or other information that indicates the person is a risk to public safety or that possession of a weapon would be contrary to the public interest. In this regard the applicant’s lengthy criminal history is relevant and his contact with associates with a criminal history.
    5. (e)
      The public interest.
  8. [43]
    I note that there is no offence occurring within the last 5 years which expressly prevents the applicant from holding a firearm’s licence.[5]
  9. [44]
    In deciding whether a person is a fit and proper person to hold a licence within the terms of the Act, case law[6] casts light on the relevant concepts, including:
    1. (a)
      the context of the phrase, the activities in which the person is or will be engaged and the ends to be served by those activities. Has improper conduct occurred, is it likely to occur, can it be assumed that it will not occur or whether the general community will have confidence that it will not occur.[7]
    2. (b)
      Whether a person is fit and proper is a value judgment. The seriousness of conduct and the weight to be given to matters favouring the person are matters for evaluation.[8]
    3. (c)
      The expression is to be given its widest scope and determined on its own circumstances.[9]
    4. (d)
      The applicant must show not only that he is “possessed of a requisite knowledge of the duties and responsibilities evolving upon him’ as the holder of a particular licence but must also show he has ‘sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…’[10]
    5. (e)
      Fitness and propriety are flexible concepts. It involves an assessment of the person’s knowledge, honesty and ability in the context of the role they are seeking to undertake.[11]
  10. [45]
    The applicant has a criminal history which demonstrates that as a young man he was utterly contemptuous of the law, dishonest, prepared to steal from innocent people and was violent and threatening to a young woman.
  11. [46]
    That young man could certainly not be trusted with a licence for a firearm. The question is whether, as the applicant put it in evidence, will his past come back to bite him?
  12. [47]
    There are positive factors in the applicant’s favour. He has a business, a family and is well regarded by the business associates and friends who gave statements in the matter. No offences involved firearms. I particularly note that Mr Novkovic considered the applicant to make sensible decisions around firearms. There has also been a long period of time when no offences were committed.
  13. [48]
    Against that the applicant has recent offences. In 2019 the applicant thought it was acceptable to steal from Bunnings. The stolen drill bits may have had little value and the offence was minor, but it does demonstrate that even as a 30 year old the applicant’s instinct for dishonesty was not replaced by moral integrity and rectitude. I do not think the applicant’s proffered excuse of a “brain snap” mitigates the issue at hand.
  14. [49]
    As to the trespass offence, very little common sense was displayed. As Mr Baihn said, they should have known better than to walk around the perimeter of a prison. That is right. The evidence of the Court Brief also records that the applicant and his companions failed to immediately follow the directions of the QCS Dog Squad.
  15. [50]
    Although these recent matters appear to be minor, even a minor lapse with a firearm could be lethal.
  16. [51]
    I do not find that the applicant has been tainted by his association with persons with a criminal history.
  17. [52]
    In the end, once the applicant has been challenged as to his fitness and propriety to hold a licence it is up to him to show that he is a fit and proper person. That could be achieved by evidence which squarely addresses the violence and dishonesty of his past, showing insight into his conduct (not merely saying that he was young and stupid). Sometimes the evidence of a psychologist is helpful to the Tribunal in that regard.
  18. [53]
    Immediate family as well as business associates and friends might give evidence.
  19. [54]
    A more fulsome statement from the applicant would also be useful as to the strategies he has adopted to improve his conduct. Evidence as to the way in which the applicant has managed himself to achieve stability and to make honest decisions is relevant. A statement as to the applicant’s knowledge of the duties and responsibilities of a gun owner would assist the Tribunal.
  20. [55]
    The evidence from Mr Spittle and Mr Novkovic has been helpful but not sufficient.
  21. [56]
    I conclude that there is insufficient evidence to meet the very high bar that the applicant must be a fit and proper person to hold a firearm’s licence.

The public interest

  1. [57]
    In determining the public interest, it is necessary to consider the interests of the community as a whole. Those interests are met by ensuring on the basis of the facts before the Tribunal that the object of the Act is met.[12]
  2. [58]
    The applicant’s desire for a licence for recreational purposes must be subordinate to the need to ensure public safety.
  3. [59]
    I am not satisfied that there is virtually no risk to public safety if the applicant were given access to a firearm.[13]On the evidence it is not in the public interest that the applicant be given access to a firearm.

Human Rights

  1. [60]
    The Tribunal is bound to apply the Human Rights Act 2019 (Qld) in the conduct of this review. I received no submissions from the parties in relation to the issue.
  2. [61]
    I have considered the applicant’s human rights, including recognition and equality before the law and property rights. However, given the principles and object of the Act are to ensure public and individual safety and to prevent the misuse of weapons, I consider that any limitation on the applicant’s human rights is reasonable and justified in terms of the Human Rights Act 2019 (Qld). The limitation is itself consistent with a free and democratic society based on human dignity by reference to public and individual safety. In balancing the public and private interests at play in this matter, I consider that the public interest in safety outweighs the private interest of the applicant in having access to a firearm for recreational purposes. I also conclude that given the statutory regime in the Act which subordinates the possession of weapons to the need to ensure public safety that it is not possible to make a different decision.[14]

Conclusion

  1. [62]
    The decision of the respondent made 29 March 2021 is confirmed.

Footnotes

[1] [2019] NSWCATAD 272, [47].

[2] [2018] NSWCATAD 156, [97] and [98].

[3] Queensland Civil and Administrative Tribunal Act (2009) Qld, s 19, s 20, s 24.

[4] Re Costello and Secretary, Department of Transport (1979) ALD 934; Shi v Migration Agents Registration Authority (2008) 235 CLR 286.

[5] Weapons Act 1990 (Qld), s 10B(2) and (4).

[6] KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police [2016] QCAT 49; TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505, [12].

[7] Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 380.

[8] Ibid.

[9] Hughes and Vale Pty Ltd v New South Wales (No2) (1995) 93 CLR 127, 156-7.

[10] Sobey v Commercial and Private Agents Board (1979) 22 SASR 70.

[11] AJO v Director-General Department of Transport [2012] NSWADT 101.

[12] Comalco Aluminium (Bell Bay) Ltd v O'Connor and Others (1995) 131 ALR 657; Director of Public Prosecutions v Smith [1991] 1 VR 51.

[13] Ward v NSW Commissioner of Police [2000] NSWADT 28, [28].

[14] Human Rights Act 2019, s 13, s 15, s 24, s 58 (1) and (2).

Close

Editorial Notes

  • Published Case Name:

    Lawler v Queensland Police Service

  • Shortened Case Name:

    Lawler v Queensland Police Service

  • MNC:

    [2022] QCAT 309

  • Court:

    QCAT

  • Judge(s):

    Member Ann Fitzpatrick

  • Date:

    11 Aug 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
AJO v Director-General Department of Transport [2012] NSWADT 101
2 citations
Jump To
Cite 1 - [2012] NSWADT 101
Cite 2 - [2012] NSWADT 101
Animal Liberation v Gasser (1991) 1 VR 51
2 citations
Jump To
Cite 1 - (1991) 1 VR 51
Cite 2 - (1991) 1 VR 51
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Comalco Aluminium (Bell Bay) Ltd v OConnor (1995) 131 ALR 657
2 citations
Jump To
Cite 1 - (1995) 131 ALR 657
Cite 2 - (1995) 131 ALR 657
Hughes and Vale Pty Ltd and another v The State of New South Wales and others (1995) 93 CLR 127
2 citations
Jump To
Cite 1 - (1995) 93 CLR 127
Cite 2 - (1995) 93 CLR 127
KZT v Weapons Licensing Unit - Queensland Police Service [2016] QCAT 49
2 citations
Jump To
Cite 1 - [2016] QCAT 49
Cite 2 - [2016] QCAT 49
Re Costello and Secretary, Department of Transport (1979) ALD 934
2 citations
Jump To
Cite 1 - (1979) ALD 934
Cite 2 - (1979) ALD 934
Romanos v Commissioner of Police [2019] NSWCATAD 272
1 citation
Jump To
Cite 1 - [2019] NSWCATAD 272
Romanos v Commissioner of Police, New South Wales Police Force [2019] NSWCATD 272
1 citation
Jump To
Cite 1 - [2019] NSWCATD 272
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
2 citations
Jump To
Cite 1 - (2008) 235 CLR 286
Cite 2 - (2008) 235 CLR 286
Sobey v Commercial Agents Board (1979) 22 SASR 70
2 citations
Jump To
Cite 1 - (1979) 22 SASR 70
Cite 2 - (1979) 22 SASR 70
Stamatelatos v Commissioner of Police, NSW Police Force [2018] NSWCATAD 156
2 citations
Jump To
Cite 1 - [2018] NSWCATAD 156
Cite 2 - [2018] NSWCATAD 156
TS v Department of Justice and Attorney General - Industry Licensing Unit (No 2) [2015] QCAT 505
2 citations
Jump To
Cite 1 - [2015] QCAT 505
Cite 2 - [2015] QCAT 505
Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28
2 citations
Jump To
Cite 1 - [2000] NSWADT 28
Cite 2 - [2000] NSWADT 28

Cases Citing

Case NameFull CitationFrequency
Aitchison v Queensland Police Service – Weapons Licensing [2024] QCAT 92 citations
Messina v Queensland Police Service – Weapons Licensing [2024] QCAT 1112 citations
1

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