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- Glover v Queensland Police Service – Weapons Licensing[2022] QCAT 84
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Glover v Queensland Police Service – Weapons Licensing[2022] QCAT 84
Glover v Queensland Police Service – Weapons Licensing[2022] QCAT 84
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Glover v Queensland Police Service – Weapons Licensing [2022] QCAT 84 | |
PARTIES: | JAMES MICHAEL GLOVER (applicant) V QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) | |
APPLICATION NO/S: | GAR255-18 | |
MATTER TYPE: | General administrative review matters | |
DELIVERED ON: | 9 March 2022 | |
HEARING DATE: | On the papers | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Lember | |
ORDERS: | The decision of the Queensland Police Service – Weapons Licensing dated 2 July 2018 to refuse the application for a permit to acquire is affirmed. | |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where the applicant sought to review a decision to reject an application to acquire a weapon – where applicant required to establish need for weapon – where applicant sought to have Tribunal make declarations about the category of weapon and his entitlement to acquire the weapon – whether categorisation of the weapon forms part of the reviewable decision Acts Interpretation Act 1954 (Qld) s 14A Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 9(1), s 17(1), s 20, s 21, s 23(3), s 32(2), s 62(1), s 95(1) Weapons Act 1990 (Qld) s 3, s 4, s 10, s 142 Weapons Categories Regulation 1997 (Qld) reg 5, reg 7 Weapons Regulation 2016 (Qld) McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156 Mills v Meeking (1990) 169 CLR 214 PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159 The Mount Isa Irish Association Friendly Society Ltd v Mount Isa City Council [2017] QSC 316 Yatras v Queensland Police Service -Weapons Licensing [2021] QCAT 63 | |
APPEARANCES & REPRESENTATION: | 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
What is the application about?
- [1]Mr Glover holds concealable and firearms licences and sought a permit to acquire a 30-Calibre Semi-Auto Wedgetail WT15-001 Pistol Variant (“the weapon”) for the purpose of engaging in club shooting activities.
- [2]On 2 July 2018 the Queensland Police Service – Weapons Licensing Unit (“QPS”) denied Mr Glover’s application for a permit to acquire the weapon on the grounds that he had applied for a category of weapon which his licence did not allow him to possess or use (“the decision”).
- [3]On 30 July 2018 Mr Glover filed an application asking the Tribunal to review the decision. Mr Glover says[1] the decision was flawed because:
- (a)The decision reclassified or classified the weapon, which was beyond the power of the decision-maker to do;
- (b)The categorisation of the weapon in making the decision was based upon “faulty information inconsistent with applicable legislation”; and
- (c)References to “appearance”, “style” and “parent weapon” used in the decision to describe and categorise the weapon are not included in the applicable legislation and therefore, cannot be used to determine the category of the weapon.
- (a)
- [4]On 12 July 2021, the Tribunal directed[2] that the decision would proceed by way of an on-the-papers decision, upon the written evidence and submissions of the parties. That decision, and the reasons for it, follow.
- [5]The material relied upon in making this decision comprises:
- (a)Application for review filed 30 July 2018;
- (b)Submissions of Mr Glover filed 7 November 2018, 7 May 2019 and 13 August 2021;
- (c)Bundle of documents filed by the QPS on 8 October 2018 in accordance with section 21(2) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) (“the SOR”); and
- (d)Joint Experts Report dated 11 November 2019 filed in the matter of Yatras v Queensland Police Service -Weapons Licensing [2021] QCAT 63.
- (a)
What is the role of the tribunal?
- [6]The Tribunal has jurisdiction to deal with matters if empowered to do so by the QCAT Act or by an enabling Act.[3]
- [7]The Tribunal’s review jurisdiction is the jurisdiction conferred upon it by the enabling Act to “review a decision made or taken to have been made by another entity under that Act”.[4]
- [8]Section 142 of the Weapons Act 1990 (Qld) (“the Act”) permits Mr Glover to apply to the Tribunal for a review of a decision to refuse a permit.
- [9]The role of the Tribunal in such an application is to review the circumstances afresh and to produce the correct and preferable decision.[5]
- [10]The role of the QPS is to assist the Tribunal in making that decision,[6] rather than to take an adversarial role or to defend the decision under review.
- [11]A preliminary issue is whether the categorisation of the weapon forms part of the reviewable decision, and if it does not, whether the decision is in fact a reviewable decision over which the Tribunal has jurisdiction.
The legislative framework for decisions about weapons
- [12]The Act is read with the Weapons Categories Regulation 1997 (Qld) (“the 1997 Regulation”) and the Weapons Regulation 2016 (Qld) (“the 2016 Regulation”) although any statutory provision within the Act will override the provisions of a regulation, as subordinate legislation.
- [13]All specific provisions within the Act and both regulations must be read in the context of the objects and purposes of the Act, namely:
3 (1) The principles underlying the Act are as follows –
(a) weapon possession and use are subordinate to the need to ensure public and individual safety;
(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) The object of this Act is to prevent the misuse of weapons.
- [14]By section 4 of the Act, its objects are achieved, relevantly, by—
(a) prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and
…
(c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
(d) providing strict requirements that must be satisfied for—
(i) licences authorising possession of firearms; and
(ii) the acquisition and sale of firearms; and
(e) ensuring that firearms are stored and carried in a safe and secure way.
- [15]Regulation 14 of the 2016 Regulation states that a condition may be stated on a licence by a code, which is, in turn, defined in Schedule 2.
- [16]The 1997 Regulation sets out the requirements of the various weapons categories, relevantly, as follows (my emphasis added):
5 Category D weapons
(1) Each of the following is a category D weapon—
(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;
(b) a non-military style self-loading centre fire rifle with either an integral or detachable magazine;
(c) a self-loading shotgun with either an integral or detachable magazine with a capacity of more than 5 rounds and a pump action shotgun with a capacity of more than 5 rounds;
…
(e) a self-loading rimfire rifle with a magazine capacity of more than 10 rounds.
7 Category H weapons
(1) A firearm, including an air pistol and a blank-fire firearm, under 75 cm in length, other than a powerhead, is a category H weapon, regardless of whether it has been rendered permanently inoperable.
(2) A conversion unit is also a category H weapon.
(3) This section does not apply to a powerhead or category C, D or R weapon.
(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.
- [17]Some pistols comprise Category H weapons:
7AA Category H weapon classes
For schedule 2 of the Act, each of the following comprises a class of category H weapon—
Editor’s note— Schedule 2 (Dictionary) of the Act
(a) an air pistol;
(b) a centre-fire pistol with a calibre of not more than .38 inch or a black-powder pistol;
(c) a centre-fire pistol with a calibre of more than .38 inch but not more than .45 inch;
(d) a rim-fire pistol.
- [18]However, if a weapon falls within both D and H categories, it cannot, by the express words of regulation 7(3) be a “Category H weapon”[7].
- [19]Section 49A of the Act provides that the authority given by a licence is particular to the category of weapon the licence permits, as follows (my emphasis added):
- (a)a licence authorises a licensee to possess and use a weapon or category of weapon endorsed on the licence for any lawful purpose, subject to a regulation, condition or participation condition, whether imposed by an authorised officer or prescribed under a regulation; and
- (b)a condition prescribed under a regulation for a category of weapon applies to all weapons of the category.
- (a)
- [20]Accordingly, Mr Glover’s concealable firearms licence and the authority it gives him is subject to the terms and conditions of code “PC1 – Shooting Club : Cat H”, which, according to Schedule 2 of the 2016 Regulation, permits him to possess and use Category H weapons at an approved shooting range that are of a type that are approved for use at an approved shooting range provided that he is a financial member of an approved shooting club and regularly participates in the sport of target shooting as a member of the club.
- [21]Regulation 22 of the 2016 Regulation states that a concealable firearms licence authorises the licensee to possess or use “any pistol not in Category R for the purpose stated on the licence”.
Discussion
- [22]The grounds of Mr Glover’s submissions regarding the decision are two-fold:
- (a)that the weapon has been incorrectly classified as a Category D rather than a Category H weapon, and, in that case, his permit has been refused in error because, with limitations, his licence permits him to acquire a Category H weapon; and, in any event,
- (b)however categorised, and even if Category D, the weapon is a pistol, and, as long as it is not a Category R weapon (which it is not), then Regulation 22(1) entitles him to acquire it pursuant to the terms of his concealable firearms licence.
- (a)
Can the Tribunal review the decision to classify the weapon as a “Category D” weapon?
- [23]As to the first issue – the categorisation of the weapon - this very issue was the subject of the Tribunal’s decision in Yatras v Queensland Police Service – Weapons Licensing[8] which helpfully details the decision-making history of the QPS with respect to the Semi-Auto Wedgetail WT15-001 Pistol Variant[9], summarised as follows:
- (a)In 2016, Mr Yatras and Mr Torrens – who each held concealable firearms licences - each separately applied for and were granted, a Permit to Acquire in respect of a Wedgetail WT-15 Pistol Variant;
- (b)Both men then acquired and registered WT15 Pistol Variants as ‘Category H’ weapons;
- (c)Subsequently, QPS received information that showed the WT15 pistols were in fact ‘Category D’ weapons, following which they undertook a thorough review including sourcing information from the manufacturer, Wedgetail, and from other policing jurisdictions;
- (d)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 pistols were most appropriately categorised as a ‘Category D’ weapon;
- (e)QPS then notified affected persons who had acquired the firearms pursuant to a Permit to Acquire, including 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; and
- (f)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.
- (a)
- [24]A Joint Experts Report was prepared in Yatras in which the experts’ agreed position was that the firearm is capable of being a Category D weapon. By virtue of regulation 7(3) of the 1997 Regulation, therefore, the weapon is incapable of being classified as a Category H weapon.
- [25]In Yatras, Member Traves found that the decision to reclassify the WT15 Pistol Variants, was not a reviewable decision in the proceedings before it; the applicants still held the licences on terms that had not changed in that they could still use Category H weapons.
- [26]This differs to the current application, in which the refusal of Mr Glover’s application for a permit to acquire is, specifically, a reviewable decision pursuant to section 142 of the Act.
- [27]In Yatras, despite finding that the decision in that case was not reviewable, Member Traves nonetheless went on to examine and categorise the weapon as a Category D weapon[10], noting in doing so that:
- (a)the joint experts agreed that the Wedgetail was most similar to the AR15 and M16 military weapons;
- (b)the joint experts agreed that the design and function of the Wedgetail, AR15 and M16 is “essentially the same” (referring in particular to the substantially similar semi-automatic manner of operation for all rifles); and
- (c)although there were both similarities and differences in appearance, the Wedgetail is, on balance, similar in appearance to the AR15 and M16.
- (a)
- [28]It is apparent from the filed evidence and submissions, including the decision in Yatras, that the decision to classify WT15 Pistol Variants as Category D weapons was a decision made by the QPS on or by 23 April 2018, which is prior to Mr Glover applying for a permit to acquire such a weapon.
- [29]The expressed grounds of Mr Glover’s application for review challenge this “categorisation decision” as being incorrect and his submissions and evidence focus on what he says are the errors made by the QPS in making its categorisation decision.
- [30]Because of the categorisation decision, Mr Glover was denied a permit to acquire, because the terms of his licence do not permit him to acquire a Category D weapon.
- [31]
- [32]An internal decision of the QPS to categorise a weapon (in this case by the Ballistics Unit) is not reviewable by the Tribunal in these proceedings because Weapons Licensing – the decision-maker in this instance – did not make it.
Is the weapon a Category D weapon?
- [33]If I am wrong about that, there is a flaw in Mr Glover’s argument that the weapon can only fall within Category H, rather than D. It is clear, as considered by the experts in Yatras, but also more generally, that a particular weapon may meet the definition of more than one category under the 1997 Regulation.
- [34]The 1997 Regulation contemplates this by expressly excluding powerheads and Category C, D and R weapons from the Category H classification. In other words, it was contemplated that a weapon might fall within the descriptors for both a Category D and H, or R and H, or C and H and, if that happened, the weapon was excluded from Category H.
- [35]Relevantly, Regulation 5 of the 1997 Regulation provides that a Category D includes a firearm that substantially duplicates a self-loading centre fire rifle (designed or adapted for military purposes) in design, function or appearance.
- [36]Among other things, the joint experts in Yatras agreed:
- (a)
- (b)AR10, AR15 and M16 weapons were designed with the intent of being military weapons;
- (c)in terms of design and function:
- The semi-automatic function of the Wedgetail and AR15 and M16 variant is “essentially the same”, namely:
- All are loaded with ammunition through a detachable box magazine;
- When a loaded magazine is placed in the magazine well of these firearms when the action is closed, the operator must pull rearwards on the charging handle so that the bolt carrier group can be drawn rearwards past the magazines. When the charging handle is released the head of the bolt strips a round from the magazine and pushes it forward to feed the round into the chamber of the firearm’s barrel;
- The cocking of all three firearms occurs when the bolt carrier moves rearward;
- The action of all three firearms is locked in the same way;
- The Wedgetail, the AR15 and the M16 are all capable of semi-automatic fire;
- Unlocking of all three firearms is the same and is caused by the rearward motion of the bolt carrier group;
- The position and design of the extractor (for cartridge cases) is the same on all three firearms and they all operate in the same manner;
- The ejection process is the same for all three firearms;
- The semi-automatic function of the Wedgetail and AR15 and M16 variant is “essentially the same”, namely:
- (d)The method of operation between the weapon and the AR10, AR15 and M16 is “basically the same in semi-automatic mode”.
- [37]Mr Glover says that it was an error to compare the weapon with AR15 or M16 weapons because it cannot be sustained that there is military use of the AR15 or M16 as a category D weapon, as military use of these firearms revolves around the use of the select fire fully automatic machine gun versions, and as such, are captured under category R and not category D thus rendering the comparison moot and irrelevant to whether the firearms relate to category D.
- [38]
The Wedgetail Industries WT 15 series rifles are an Australian made version of the popular AR15 type rifle.
- [39]Mr Glover submitted his own expert report from Mr Rowan Birch, dated 6 November 2018. Mr Birch has Australian Defence Force qualifications for small arms, support weapons, artillery, tanks and chain guns. He has been an armourer as a defence contractor since 2018, having been an enlisted armourer from 2010 to 2018. I accept the qualifications of Mr Birch to give an opinion on the weapon for the purpose of these proceedings.
- [40]Mr Birch says, among other things:
- (a)The weapon is not a rifle and was not designed or adapted for military purposes – this is not disputed; and
- (b)The weapon (being a pistol) is similar in design to the Wedgetail WT15 semi- automatic rifle variants.
- (a)
- [41]Mr Birch however goes on to express the view that:
- (a)It is “not relevant” that the pistol variant is similar to its rifle counterpart because the Wedgetail semi-automatic rifle is not a firearm that had been designed or adapted for military purposes – this is correct; and
- (b)Given the M16 is not a self-loading centre rifle the WT-15’s resemblance to it “is utterly irrelevant” – this is also correct.
- (a)
- [42]What is not disputed on the evidence is that:
- (a)AR15s are semi-automatic centre-fire rifles;
- (b)AR15s are designed or adapted for military purposes;
- (c)The WT-15 pistol variant is a “version of the AR-15 rifle” – according to the manufacturer’s own flyer; and
- (d)The WT-15 pistol variant, in function is “essentially the same” as that of an AR-15 – according to the applicant’s expert.
- (a)
- [43]Regulation 5 says that Category D includes:
- (a)a self-loading centre fire rifle designed or adapted for military purposes – which the weapon is not; or
- (b)a firearm that substantially duplicates a self-loading centre fire rifle (designed or adapted for military purposes) in design or function or appearance.
- (a)
- [44]Therefore, the weapon need not be a rifle, but simply a firearm, and need not itself be designed or adapted for military purposes, but simply substantially duplicate in design or in function or in appearance a self-loading centre fire rifle that is.
- [45]As the weapon is a firearm that substantially duplicates the AR15 in design and function and the AR15 is a self-loading centre fire rifle designed or adapted for military purposes, the weapon is a Category D weapon and, therefore, it cannot be a Category H weapon.
- [46]I have not made a finding about appearance because it was not necessary to, but I note the Tribunal’s earlier findings in Yatras that the weapon is also similar in appearance to the AR15.
Does Regulation 22 permit the weapon, even if the weapon is classified “Category D”?
- [47]Where regulation 22(1) of the 2016 Regulation appears to conflict with regulation 14 and with section 49A of the Act, a process of statutory interpretation is necessary.
- [48]The function of the Tribunal in that event is to construe, by the application of accepted canons of construction, the intention of the legislature through the words used in the Act[16]. If the Act has a stated purpose, this will always be the starting point. If more than one provision is in conflict, it is necessary to determine which is the leading provision and which is subordinate[17].
- [49]In Project Blue Sky Inc v Australian Broadcasting Authority[18], a majority of the High Court said that:
[w]here conflict appears to arise from the language of provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court “to determine which is the leading provision and which the subordinate provision, and which must give way to the other”. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
- [50]Section 14A(1) of the Acts Interpretation Act 1954 (Qld) provides, “in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation”.
- [51]As mentioned above, the principles underlying the Act, by express words:
- (a)subordinate weapon possession and use to the need to ensure public and individual safety;
- (b)seek to improve public and individual safety by imposing strict controls on the possession of weapons; and
- (c)provide strict requirements that must be satisfied for licences authorising possession of firearms and the acquisition and sale of firearms.
- (a)
- [52]The only hierarchy that gives effect to these objects is, in my view:
- (a)As the leading provision, section 49A of the Act permits the authority given by a licence to possess a weapon to be restricted to:
- a particular category of weapon; and
- subject to any additional regulations or conditions attaching to their licence;
- (b)Regulation 14 of the 2016 Regulation which operates to restrict the authority given by the licence to possession of a weapon according to the codes set out in Schedule 2;
- (c)Schedule 2 which, for Mr Glover’s licence, “PC1 – Shooting Club : Cat H”, permits him to possess and use Category H weapons as a member of a shooting club;
- (d)Regulation 7 of the 1997 Regulation which provides that a Category H weapon does not include Category D weapons; then
- (e)Regulation 22 of the 2016 Regulation states that a concealable firearms licence authorises the licensee to possess or use “any pistol not in Category R for the purpose stated on the licence”.
- (a)
- [53]Any decision that has the effect of permitting Mr Glover to acquire any pistol that is not a Category R weapon would be a decision that effectively subordinates all other restrictive provisions of a regulation, condition or the Act, extending the permissions contained within Mr Glover’s licence quite broadly and considerably, in circumstances where the stated objects of the Act are instead to be protective and restrictive in nature.
- [54]Such an outcome - an interpretation of Regulation 22 that extends the permissions contained within Mr Glover’s licence to “any pistol not in Category R” - would not best achieve the purpose of the Act because it is wildly inconsistent with subordinating weapon possession and use to safety, lessens rather than strictly controls the possession of weapons by licence holders and ignores other regulations and section 49A of the Act itself that do aim to achieve these things.
- [55]I therefore find that Regulation 22 does not have the effect of permitting Mr Glover to acquire a Category D pistol under the terms of his licence and its applicable code, because the conditions of his licence only permit him to acquire Category H weapons.
What is the “correct and preferable” decision?
- [56]The correct and preferable decision is to affirm the decision of the Queensland Police Service – Weapons Licensing dated 2 July 2018 and to refuse the application for a permit to acquire accordingly.
Footnotes
[1] Set out in Part C of the application for review filed 30 July 2018.
[2] Directions of Member Kanowski made 12 July 2021.
[3] Section 9(1) of the QCAT Act.
[4] Ibid, s 17(1).
[5] Ibid, s 20.
[6] Ibid, s 21.
[7] See also Yatras v Queensland Police Service -Weapons Licensing [2021] QCAT 63, [49] and [58].
[8] [2021] QCAT 63.
[9] Ibid, [2] to [8].
[10] Ibid, [57] to [74].
[11] [2019] QCATA 159.
[12] Ibid, [27].
[13] Joint Experts Report dated 11 November 2019, [6].
[14] Ibid, [3] and [4].
[15] Submissions filed 7 May 2019, attachment 4.
[16] Mills v Meeking (1990) 169 CLR 214, 233-4, considered in PJD Group Pty Ltd t/as Esk Caravan Park v Both & Ors [2017] QCATA 94, [41].
[17] The Mount Isa Irish Association Friendly Society Ltd v Mount Isa City Council [2017] QSC 316, [30] (Daubney J).
[18] (1998) 194 CLR 355, 381-2 (McHugh, Gummow, Kirby and Hayne JJ).