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GKR v Queensland Police Service – Weapons Licensing[2023] QCAT 335

GKR v Queensland Police Service – Weapons Licensing[2023] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

GKR v Queensland Police Service – Weapons Licensing [2023] QCAT 335

PARTIES:

GKR

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO:

GAR457-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

11 August 2023

HEARING DATE:

13 February 2023

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

  1. The decision of the respondent made 23 June 2021 not to renew the applicant’s licence under the Weapons Act 1990 (Qld) is confirmed.
  2. The publication of the name of the applicant is prohibited.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – PUBLIC INTEREST – whether convictions not recorded fall for consideration – whether convictions relate to the misuse of drugs – whether the applicant is prohibited from holding a licence – whether applicant is mentally fit – extensive record of offending – failure to advise of change in mental fitness and notify of disposal of weapons – lack of evidence

Drugs Misuse Act 1986 (Qld), s 10

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

Penalties and Sentences Act 1992 (Qld), s 12(3)

Public Health Act 2005 (Qld), s 157B

Transport Operations (Road Use Management) Act 1995 (Qld), s 72

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24, s 157B, s 66

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10A, s 10B, s 11, s 24, s 36, s 50, 60

Youth Justice Act 1992 (Qld), s 184(2)

A-G v Briese [1997] QCA 10

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors (1995) 131 ALR 657

Commissioner of Police v Toleafoa [1999] NSWADTAP 9

Dawson v Tanwan [1999] QDC 289

Director of Public Prosecutions v Smith [1991] 1 VR 63

Fulton v Chief of the Defence Force [2023] FCAFC 134

Grobler v Queensland Police Service [2023] QCAT 103

Hartwig v PE Hack [2007] FCA 1039

McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17

Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184

R v Beissel [1996] QCA 488

R v Gallagher; ex parte Attorney-General [1997] QCA 467

Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Acting-Sergeant Bauer

Reasons for decision

Application

  1. [1]
    On 26 June 2021 the applicant made application to the Tribunal to review the decision of the respondent made 23 June 2021 to reject the applicant’s application to renew a licence under the Weapons Act 1990 (Qld) made 6 May 2021 (application).  The decision-maker did so on the ground the applicant is not a fit and proper person to hold a licence.
  2. [2]
    In reaching the decision, the decision-maker considered the following:

Court

Charge

Result

Gatton Magistrates Court 4 June 2019

Unlawful possession of weapons category A, B or M

Secure Storage of Weapons - Licensee

On all charges: No conviction recorded

Fined $200.00

Gatton Magistrates Court 30 November 2020

Possess utensils or pipes etc. that had been used

No conviction recorded Fined $250.00

  1. [3]
    The decision-maker then continues:

Having regard to the circumstances including your criminal history in relation to your previous offending I could not be satisfied that you are a fit and proper person to be issued with a licence.

  1. [4]
    In the application, the applicant asserts the decision is wrong or not properly made because it was made:

... on mistakes.  The mistakes were my first and only mistakes.  There was no conviction recorded.  I have not committed any violent offences to be able to stop myself holding a weapons licence.

Written statements and submissions

Applicant’s written statements and submissions

  1. [5]
    The applicant filed in the Tribunal several statements and submissions, the first on 26 October 2021.  Under the heading “MENTAL HEALTH”, he explains the background to being detained by a police officer on 18 December 2018 and conveyed to Ipswich Hospital, and a subsequent diagnosis of depression.
  2. [6]
    He then explains the background to him being charged with offences against the Weapons Act, a temporary protection order made against him on 20 December 2018, and traffic offences involving driving a motor vehicle while a relevant drug is present in his blood or saliva on 5 April 2019 and 10 October 2020, and the possession of a utensil used by him in connection with the administration, consumption or smoking of a dangerous drug on 10 November 2020.
  3. [7]
    Subsequently, on 26 October 2021, the applicant filed a letter from Dr Tel Lekatsas dated 31 January 2019 to the effect the applicant will be reviewed fortnightly for the next six weeks following which Dr Lekatsas will provide a medical report “... to help him get his weapons licence returned.”  The report, if there was one, was not filed in the Tribunal.
  4. [8]
    The applicant filed a second statement and submissions on 22 February 2022.  In it, he explains the breakdown in his relationship with his mother when he was twelve years of age, his qualification as a mechanical fitter, living in an abusive relationship, his treatment for depression, the background to weapons in his position being seized by the respondent and the making of a temporary behaviour order against him.
  5. [9]
    On 3 May 2022 the applicant filed in the Tribunal an updated version of the statement and submissions filed on 22nd February 2022.  He states he is unable to obtain the documents he was directed to file on 8 February 2022.

Respondent’s written documents and submissions

  1. [10]
    The respondent, on 28 September 2021, filed several documents and submissions.  The documents include:
  1.  Queensland Person History dated 28 September 2021.  The document records the applicant being convicted of an offence against the Police Powers and Responsibilities Act 2000 (Qld) and the fine imposed.  No conviction was recorded on charges the applicant contravened the Drugs Misuse Act 1986 (Qld) and the Weapons Act;
  1.  court briefs:
  1.  for charges laid against the applicant alleging offences against section 50(1) of the Weapons Act (unlawful possession of category A, B and M weapons) and section 60(1) of the Weapons Act (secure storage of weapons);
  1.  for a charge laid against the applicant alleging an offence against section 79(2AA) of the Transport Operations (Road Use Management) Act 1995 (Qld) (driving etc. while relevant drug is present in blood or saliva);
  1.  for a charger laid against the applicant alleging an offence against section 10(2)(b) of the Drugs Misuse Act (possession of utensils or pipes etc. used in connection with the administration, consumption or smoking of a dangerous drug);
  1.  for a charge laid against the applicant alleging an offence against section 79(2AA) of the Transport Operations (Road Use Management) Act (driving etc. while relevant drug is present in blood doors or saliva);
  1.  the applicant’s verdict and judgment record.  The record records pleas of guilty by the applicant to offences against sections 50(1)(c)(iii) (possession of weapons) and 60(1) (secure storage of weapons) of the Weapons Act.  He was fined $300.00.  Convictions were not recorded;
  1.  summary of the domestic violence orders and conditions, temporary protection order made 20 December 2018 and the application to withdraw the application for the domestic violence order;
  1.  the applicant’s traffic record.  The record records twenty-five traffic offences between 25 August 2000 and 15 January 2021, including two convictions for driving a motor vehicle whilst a relevant drug was present in his blood or saliva, two convictions for unlicensed driving and fifteen convictions for exceeding the speed limit; and
  1.  emergency examination authority dated 19 December 2018.  The document records the applicant being detained and conveyed to Ipswich Hospital on 19 December 2018 after communicating in a way that indicates the applicant was at immediate risk of serious harm.

Legislation

  1. [11]
    The principles and object of the Weapons Act and how the object is to be achieved for firearms are found in sections 3 and 4 respectively of the Act.  The principles are:
  1.  weapon possession and use are subordinate to the need to ensure public and individual safety;
  1.  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. [12]
    The object of the Act is to prevent the misuse of weapons.  It is to be achieved for firearms 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

  1.  establishing an integrated licensing and registration scheme for all firearms; and
  1.  requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
  1.  providing strict requirements that must be satisfied for:
  1.  licences authorising possession of firearms; and
  1.  the acquisition and sale of firearms; and
  1.  ensuring that firearms are stored and carried in a safe and secure way.
  1. [13]
    Limitations on the issue of a licence under the Act are found in section 10.  A licence may be issued to an individual only if the person:
  1.  is:
  1.  for a licence other than a minor’s licence - an adult; or
  1.  for a minor’s licence - at least 11 years and otherwise within the age group prescribed under a regulation for the licence; and
  1.  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.  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.  is not prevented under the Weapons Act or another Act or by an order of a Magistrates Court or another court from holding the licence; and
  1.  is a fit and proper person to hold a licence; and
  1.  has a reason mentioned in section 11 to possess the weapon or category of weapon; and
  1.  resides only in Queensland.[1]
  1. [14]
    The issue to be decided by the Tribunal is whether the applicant to is a fit and proper person to hold a licence.
  2. [15]
    The matters an authorised officer must consider 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, are found in section 10B of the Act.  Relevantly, amongst other things, the authorised officer must consider:
  1.  the mental and physical fitness of the person; and
  1.  whether a domestic violence order has been made, a police protection notice issued, or release conditions imposed against the person; and
  1.  the public interest.
  1. [16]
    A person is not a fit and proper person to hold a licence if, in Queensland or elsewhere, within the relevant period:
  1.  the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences:
  1.  an offence relating to the misuse of drugs;
  1.  an offence involving the use or threatened use of violence;
  1.  an offence involving the use, carriage, discharge, or possession of a weapon; or
  1.  a domestic violence order, other than a temporary protection order, has been made against the person.[2]
  1. [17]
    Relevant period is defined.  For the issue or renewal of a licence, the term means the five years immediately before the day the person applied for the issue or renewal of the licence.  Here, the applicant applied for the renew of his licence under the Act on 6 May 2021.
  2. [18]
    A person aggrieved by a decision refusing to renew a licence under the Act may apply, as provided under the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), to the Tribunal for a review of the decision.  In exercising its review jurisdiction, the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[3]  The Tribunal must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[4]  The Tribunal may:
  1.  confirm or amend the decision; or
  1.  set aside the decision and substitute its own decision; or
  1.  set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the tribunal considers appropriate.[5]

Oral evidence and submissions

  1. [19]
    The applicant, in evidence, conceded he had made mistakes.  His life, in 2018, was “turned upside down”.  He used alcohol and drugs to reduce the anxiety.
  2. [20]
    He has a nine-year-old son.  He wants a licence under the Weapons Act to enable him to retain his father’s rifle, one of the few items in his possession belonging to his father.
  3. [21]
    The applicant touched on the events surrounding him being detained and conveyed to Ipswich Hospital.  His wife, he stated, assumed he was going to harm himself.
  4. [22]
    The respondent submitted the applicant may retain his father’s rifle if he were to apply for, and be granted, the appropriate collector’s licence under the Weapons Act.
  5. [23]
    The applicant, it was submitted, failed to advise the respondent of a change in his mental fitness as required by section 24(1) of the Weapons Act.  Further, it was submitted, the respondent does not know the whereabouts of two weapons that were in the possession of the applicant.
  6. [24]
    In response, the applicant stated the two weapons are in the possession of Mr Tony Lehmann.  He tendered a certificate to that effect.[6]  He conceded he did not notify the respondent he had disposed of the weapons as required by the Act.

Discussion

  1. [25]
    It is convenient to first consider whether the applicant is not a fit and proper person to hold a licence under the Weapons Act by virtue of section 10A(2).  A person is not a fit and proper person if within the five-year period before the day the person applies for the issue or renewal of the licence:
  1.  the person has been convicted of an offence relating to the misuse of drugs or an offence involving the possession of a weapon; or
  1.  a domestic violence order, other than a temporary protection order, has been made against the person.
  1. [26]
    The applicant, within the five-year period before the day he applied for the renewal of his licence, was charged with offences against the Drugs Misuse Act and involving the possession of a weapon.  However, he was not convicted of the offences charged.
  2. [27]
    Also, he has been charged with, and convicted of, driving a motor vehicle whilst a relevant drug is present in his blood or saliva.  However, in Williams v Queensland Police Service, Weapons Licensing Branch[7] it was held that an offence relating to the misuse of drugs in section 10B(2)(a)(i) of the Weapons Act can only mean an offence against the Drugs Misuse Act.  I agree.
  3. [28]
    On 28 December 2019, within the relevant period, application was made for a protection order against the applicant.  A temporary protection order was made against him on 20 December 2018.  On 15 January 2019 the application was withdrawn.
  4. [29]
    It follows that the applicant is not prohibited from holding a licence under the Weapons Act by virtue of section 10B(2).
  5. [30]
    I turn now to consider whether the applicant is a fit and proper person to hold a licence under the Act taking into consideration the matters, amongst other things, specified in section 10B(1).

Fit and proper person

  1. [31]
    The term “fit and proper person” is not defined in the Weapons Act.  However, it has been considered by the courts and tribunals on many occasions.  The assessment of whether a person is a fit and proper person to hold a licence is different from, but related to, an assessment of whether a person is of good character.[8]  In Australian Broadcasting Tribunal v Bond[9], Mason CJ, at [63], explained the question whether a person is a fit and proper person is one of value judgement.  He continued:

In that process the seriousness or otherwise of particular conduct is a matter for 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.

  1. [32]
    The expression, Toohey and Gaudron JJ held, at [36], 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, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur.  The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.”

Mental and physical fitness (section 10B(1)(a) of the Weapons Act)

  1. [33]
    On 19 December 2018 the applicant was detained by a police officer and conveyed to Ipswich Hospital for treatment or care under section 157B(3) of the Public Health Act 2005 (Qld).  The applicant’s behaviour is described in the emergency examination authority in the following terms:

[The applicant] crying when speaking with police wrapping arms around himself for comfort Goodbye message sent to partner and child Goodbye post on facebook.

  1. [34]
    The reasons for the belief the applicant’s behaviour indicates he is at immediate risk of serious harm are said to be as follows:

[The applicant] stated to police recently diagnosed with depression.  Message sent to partner “Want to say goodbye, bit broken, something I should have done a long time ago, I don’t see any point fighting, please tell my son I’m sorry, sorry to do this but it’s the only way I can see to end this for good.

Crying when speaking with police.  Stated was going to shoot himself earlier in the year.

  1. [35]
    The reasons for the belief that the risk appears to be the result of a major disturbance in the applicant’s mental capacity are said to be as follows:

[The applicant] stated to police recently diagnosed with depression and is taking medication to treat illness.  Stated to police was going to commit suicide earlier in the year and had a gun in his mouth ready to shoot himself.

  1. [36]
    The reasons for the belief the applicant appears to require urgent examination, or treatment of care, for the disturbance are in the following terms:

Visibly upset when speaking with police.  Goodbye message sent to partner and goodbye post on facebook.

Recent thoughts of suicide and access to firearms.

  1. [37]
    The applicant touched on his mental health in his submissions filed 26 October 2021.  He filed a report by Dr Lekatsas dated 31 January 2019.  The report, omitting formal parts, reads as follows:

[The applicant] is under my care.  He has been my patient for the past two years.  I am aware that [the applicant] had an acute mental health issue in December 2018 and that he had his firearms licence suspended in January 2019.

I have seen [the applicant] today and he will be reviewed fortnightly for the next six weeks.  I have advised him that at that time I will write a medical report for him to help him get his weapons licence returned.

  1. [38]
    In his submissions filed 22 February 2022 the applicant explains the background to being detained by a police officer and conveyed to Ipswich Hospital.  Later, in his submissions filed 3 May 2022, the applicant states he cannot provide a medical report on his mental condition, that foreshadowed by Dr Lekatsas or any other medical report.
  2. [39]
    The circumstances surrounding the applicant being detained by a police officer and conveyed to Ipswich Hospital, in particular his statement to police he was going to use a weapon in his possession to commit suicide, and the absence of the follow-up medical report on the applicant’s current mental fitness are matters of concern.  I have considered those matters in deciding whether the applicant is a fit and proper person to hold a licence under the Weapons Act.
  3. [40]
    The applicant’s physical fitness is not in issue.

Domestic violence order etc. (section 10B(1)(b) of the Weapons Act)

  1. [41]
    A domestic violence order has not been made against the applicant.  A police protection notice has not been issued against him and release conditions have not been imposed against him.

False or misleading statement (section 10B(1)(c) of the Weapons Act)

  1. [42]
    It is not suggested the applicant has stated anything in or in connection with an application for a license, or an application for the renewal of a licensor, he knows is false in a material particular.

Criminal intelligence (section 10B(1)(ca) of the Weapons Act)

  1. [43]
    Nothing in the form of the criminal intelligence or other information indicating the applicant is a risk to public safety or authorising the applicant to possess a weapon would be contrary to the public interest was tendered in evidence to the Tribunal.

Public interest (section 10B(1)(d) of the Weapons Act)

  1. [44]
    The term “public interest” is not defined in the Weapons Act.  In Comalco Aluminium (Bell Bay) Ltd v O'Connor & Ors[10], Wilcox CJ and Keeley J, explained:

The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission’s consideration.  The effect of the reference is to amplify the ‘scope and purpose’ of the legislation.[11]

  1. [45]
    The Supreme Court of Victoria (Kaye, Fullagar and Ormiston JJ) in Director of Public Prosecutions v Smith[12] earlier held:

... The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members.  The interest is therefore the interest of the public as distinct from the interest of an individual or individuals. ...

  1. [46]
    It is an inherently broad concept giving a decision-maker the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.[13]  It allows for issues going beyond the character of a person to be taken into account, including concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system.[14]
  2. [47]
    A threshold question is whether the circumstances of offending in respect of which a conviction was not recorded fall for consideration in determining whether a person is a fit and proper person to hold a licence under the Weapons Act.  In Grobler v Queensland Police Service[15], the Tribunal, after reviewing the relevant provisions of section 12 of the Penalties and Sentences Act 1992 (Qld), and referring to the decisions of the Court of Appeal in R v Beissel[16], the District Court of Queensland in Dawson v Tanwan[17], the Court of Appeal in A-G v Briese[18] and the Court of Appeal in R v Gallagher; ex parte Attorney-General,[19] held the circumstances of offending are excluded from consideration by section 12.  With respect, I disagree.
  3. [48]
    Section 12(3) of the Penalties and Sentences Act provides:

Except as otherwise expressly provided by this or another Act:

  1.  a conviction without recording the conviction is taken not to be a conviction for any purpose; and
  1.  the conviction must not be entered in any records except:
  1.  in the records of the court before which the offender was convicted; and
  1.  in the offender’s criminal history but only for the purposes of subsection (4)(b).
  1. [49]
    In Hartwig v PE Hack[20] the Federal Court of Australia considered whether the Administrative Appeals Tribunal, despite section 12(3) of the Penalties and Sentences Act, is entitled to take account of the fact of conviction, which is to say the acceptance of the record and plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question before the Tribunal, which involves the purpose for which a person is said to be fit and proper.[21]
  2. [50]
    Kiefel J held:
  1.  The nature of the State legislation, to which s 85ZR(2) of the Crimes Act (Cth) refers, is one which deems a person never to have been convicted of an offence.  The effect of the provision must be such as to take away the fact of the conviction, as a pardon might do.  It is not without significance that the section is headed ‘Pardons for Persons Wrongly Convicted’. Other legislation of the type to which s 85ZR(2) refers maybe that which deems a person not to have been convicted after the lapse of a number of years.

…

  1.  Section 12(3) of the Penalties and Sentences Act (Qld) and s 85ZR(2) of the Crimes Act (Cth) are however dissimilar.  The former is concerned that there be no record of a conviction.  The Commonwealth provision envisages a state legislation provision, which removes or disregards the conviction altogether.  Their common purpose might be said to be rehabilitation, but they arise in different ways, and from a different circumstance.  In my view, the Commonwealth provision is not referring to a provision such as the non-recording provision in s 12(3) of the Penalties and Sentences Act (Qld).  The Commonwealth provision does not operate on that provision in the way contended for.
  1. [51]
    Section 12(3) of the Penalties and Sentences Act is concerned with there being no record of a conviction.  It does not prevent the taking into account “... of the fact of conviction, which is to say the acceptance of the record and the plea upon which it was based, together with such facts and circumstances as are necessary to provide an understanding of the offence, so far as they are relevant to the question ...” to be answered in an administrative decision.[22]
  2. [52]
    The applicant has an extensive record of offending, including offences against the Weapons Act, drug related traffic offences and other traffic offences.  The charges resulting in both convictions and non-convictions are set out in the schedule to these reasons for decision.  The background to the charges highlighted are explained in the court briefs filed by the respondent.
  3. [53]
    The Tribunal, in McVie v Queensland Police Service Weapons Licensing Branch[23], in relation to the applicant’s traffic record and drug offences, said:
  1.  When considering this application afresh that is, standing in the shoes of the decision maker, one cannot ignore Mr McVie’s disregard of his obligations under the traffic regulations. He is now 38 years of age and these breaches have continued over a period of some 15 years at a time when, as an adult, Mr McVie should have shown more responsibility in his attitude both to the system of law and order in the community and other road uses.
  1.  This conduct, coupled with recent drug offences, but to lesser extent, can only lead, in my view, to a conclusion that he is not a fit and proper person having regard to the objects of the Weapons Act. The drug offences, nor the failure to pay child support, of themselves would be sufficient to support this conclusion.
  1. [54]
    In Kirton v Queensland Police Service Weapons Licensing Branch[24] the Tribunal, after referring to the decision in McVie v Queensland Police Service Weapons Licensing Branch, continued:

The relevant and continued traffic offences committed by the applicant subsequent to the suspension of his firearms licence shows a degree of irresponsibility and antisocial conduct sufficient to imply that such conduct could extend to his conduct as the holder of a firearms licence.[25]

  1. [55]
    I have taken into consideration the applicant’s disregard for road rules over an extended time in deciding whether he is a fit and proper person to hold a licence under the Weapons Act.

Other matters

  1. [56]
    I have also taken into consideration two additional matters in deciding whether the applicant is a fit and proper person to hold a licence under the Act.  First, the applicant failed to advise the respondent of a change in his mental fitness as required by section 24(1) of the Act.  Having said that, another branch of the respondent was aware of the change.
  2. [57]
    Secondly, he failed to notify the respondent he had disposed of two weapons as required by section 36(2).  The failure is of particular concern in the context of the application before the Tribunal.

Conclusion

  1. [58]
    In my opinion, the applicant is not a fit and proper person to hold a licence under the Weapons Act, and I so find.  In doing so, I have taken into consideration his repeated disregard of the road rules, in particular the circumstances surrounding him being charged with driving a motor vehicle whilst a relevant drug is present in his blood or saliva and with offences against the Weapons Act, his disregard of the provisions of the Act requiring him to advise the respondent of a change in his mental fitness and requiring him to notify the respondent he had disposed of weapons, the absence of any satisfactory evidence about the applicant’s present mental fitness and the absence of any character evidence.

Human Rights

  1. [59]
    I have considered the applicant’s human rights under the Human Rights Act 2019 (Qld), in particular his right to recognition and equality before the law[26] and property rights[27].  In my opinion, any limitation on the applicant’s human rights is reasonable and justified in terms of the Act and is consistent with a free and democratic society based on human dignity, equality, and freedom.

Non-publication order

  1. [60]
    The Tribunal, under section 66(1) of the QCAT Act, may make a non-publication order.  It may do so on the application of a party to the proceeding or on its own initiative.[28]
  2. [61]
    I am satisfied a non-publication order is appropriate and necessary given the nature of the written and oral evidence filed and given the possibility naming the applicant may result in identification of his family.  Also, the evidence shows the applicant has suffered from depression in the past and may still do so.  Publication of his name may aggravate his medical condition.
  3. [62]
    It would not be in the public interest to identify the applicant by name.  I order that the publication of the name of the applicant is prohibited.

Decision

  1. [63]
    The decision of the Tribunal is as follows:
  1.  the decision of the respondent made 23 June 2021 not to renew the applicant’s licence under the Weapons Act 1990 (Qld) is confirmed; and
  1.  the publication of the name of the applicant is prohibited.

Schedule

Offence/action date

Description/court

Result date

Result

11/10/2020

Drive while relevant drug is present

(Ipswich Magistrates Court)

15/01/2021

$500.00 disqualified 3 months

Convicted and disqualified

11/10/2020

Exceed speed limit in speed zone by less than 13kph

08/12/2020

$177.00

Enforcement order (SPER)

27/12/2019

Exceed speed limit in speed zone by more than 20kph not more 30kph

25/01/2020

$444.00

17/04/2019

Exceed speed limit in speed zone by at least 13kph not more 20kph

08/06/2019

$261.00

10/04/2019

Exceed speed limit in speed zone by at least 13kph not more 20kph

16/05/2019

$261.00

27/02/2019

Drive while relevant drug is present (Ipswich Magistrates Court)

31/05/2019

$300.00 disqualified 1 month

No conviction recorded

27/02/2019

Drive/park/or permit person to drive/park a defective light vehicle

07/03/2019

$130.00

19/12/2018

Unlawful possession of weapons category A, B or M

Secure storage of weapons - licensee

04/06/2019

$300.00. No conviction recorded

06/07/2017

Exceed speed limit in speed zone by at least 13kph not more 20kph

08/08/2017

$252.00

08/03/2016

Exceed speed limit in speed zone by less than 13kph

15/04/2016

$157.00

28/05/2015

Exceed speed limit in speed zone by at least 13kph not more 20kph

18/06/2015

$227.00

20/03/2014

Exceed speed limit in school zone by less than 13kph

13/04/2014

$146.00

04/10/2009

Exceed speed limit in speed zone by more than 20kph not more 30kph

01/12/2009

$333.00

Enforcement order (SPER)

04/09/2009

Exceed speed limit in speed zone by more than 20kph not more 30kph (Ipswich Magistrates Court)

02/02/2010

$333.00 in default 3 days imprisonment

Convicted and fined

03/09/2008

Exceed speed limit in speed zone by more than 20kph not more 30kph

12/09/2008

$250.00

28/02/2008

Exceed speed limit in speed zone by less than 13kph

24/04/2008

$100.00

18/04/2007

Cross continuous white edge line

15/06/2007

$60.00

Enforcement order (SPER)

12/10/2006

Exceed speed limit in speed zone by more than 30kph not more 40 kph

09/12/2006

$350.00

Enforcement order (SPER)

02/10/2005

Driver with provisional driver licence recently expired no more than 1year

29/11/2005

$115.00

Enforcement order (SPER)

02/10/2005

Exceed speed limit in speed zone by at least 13kph not more 20kph

29/11/2005

$150.00

Enforcement order (SPER)

25/03/2004

Unlicensed driving (Ipswich Magistrates Court)

24/01/2005

$200.00 in default 4 days imprisonment

Convicted and fined

19/03/2004

Exceed speed limit in speed zone by more than 20kph not more 30kph

17/05/2004

$250.00

Enforcement order (SPER)

31/05/2003

Drive/park a defective vehicle

28/07/2003

$75.00

Enforcement order (SPER)

04/01/2002

Bicycle rider fail to wear helmet

04/03/2002

$30.00

Enforcement order (SPER)

11/03/2001

Bicycle rider fail to wear helmet

03/04/2001

$30.00

25/08/2000

Unlicensed driving (Ipswich Magistrates Court)

04/09/2000

$400.00 in default 8 days imprisonment

Convicted and fined

Footnotes

[1] Section 10(2) of the Weapons Act.

[2] Section 10B(2) of the Weapons Act.

[3] Section 19 of the QCAT Act.

[4] Section 20(2) of the QCAT Act.

[5] Section 24(1) of the QCAT Act.

[6] Exhibit A3.

[7] [2014] QCAT 363

[8] See Smith v Commissioner of Police, New South Wales Police Force and New South Wales Fair Trading [2014] NSWCATAD 184, at [24].

[9] (1990) 170 CLR 321.

[10] (1995) 131 ALR 657

[11] (supra), at 681.

[12] [1991] 1 VR 63.

[13] See Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25].

[14] See Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16, at [33].

[15] [2023] QCAT 103.

[16] [1996] QCA 488.

[17] [1999] QDC 289.

[18] [1997] QCA 10.

[19] [1997] QCA 467.

[20] [2007] FCA 1039.

[21] (supra), at [12].

[22]Hartwig v PE Hack (supra), at [12].  See also Fulton v Chief of the Defence Force [2023] FCAFC 134, per Logan J at [58][ and Sarah C Derrington and Stewart JJ, at [234].  By contrast, see Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17 where the High Court of Australia held the effect of section 184(2) of Youth Justice Act 1992 (Qld) is to render impermissible the use of a finding of guilt without the recording of a conviction as a conviction for any purpose.

[23] [2010] QCAT 491.

[24] [2012] QCAT 70.

[25] (supra), at [22]

[26] Section 15 of the Human Rights Act.

[27] Section 24 of the Human Rights Act.

[28] Section 66(3) of the QCAT Act.

Close

Editorial Notes

  • Published Case Name:

    GKR v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    GKR v Queensland Police Service – Weapons Licensing

  • MNC:

    [2023] QCAT 335

  • Court:

    QCAT

  • Judge(s):

    Member Scott-Mackenzie

  • Date:

    11 Aug 2023

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
Attorney-General v Gallagher [1997] QCA 467
2 citations
Jump To
Cite 1 - [1997] QCA 467
Cite 2 - [1997] QCA 467
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
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
2 citations
Jump To
Cite 1 - [1999] NSWADTAP 9
Cite 2 - [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16
1 citation
Jump To
Cite 1 - [2013] NSWADTAP 16
Dawson v Tanwan [1999] QDC 289
2 citations
Jump To
Cite 1 - [1999] QDC 289
Cite 2 - [1999] QDC 289
Director of Public Prosecutions v Smith (1991) 1 VR 63
2 citations
Jump To
Cite 1 - (1991) 1 VR 63
Cite 2 - (1991) 1 VR 63
Fulton v Chief of the Defence Force [2023] FCAFC 134
2 citations
Jump To
Cite 1 - [2023] FCAFC 134
Cite 2 - [2023] FCAFC 134
Grobler v Queensland Police Service [2023] QCAT 103
2 citations
Jump To
Cite 1 - [2023] QCAT 103
Cite 2 - [2023] QCAT 103
Hartwig v P.E. Heck [2007] FCA 1039
2 citations
Jump To
Cite 1 - [2007] FCA 1039
Cite 2 - [2007] FCA 1039
Kirton v Queensland Police Service Weapons Licencing Branch [2012] QCAT 70
1 citation
Jump To
Cite 1 - [2012] QCAT 70
McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491
2 citations
Jump To
Cite 1 - [2010] QCAT 491
Cite 2 - [2010] QCAT 491
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
2 citations
Jump To
Cite 1 - [2023] HCA 17
Cite 2 - [2023] HCA 17
R v Beissel [1996] QCA 488
2 citations
Jump To
Cite 1 - [1996] QCA 488
Cite 2 - [1996] QCA 488
R v Briese; Ex parte Attorney-General[1998] 1 Qd R 487; [1997] QCA 10
2 citations
Jump To
Cite 1 - [1997] QCA 10
Cite 2 - [1997] QCA 10
Smith v Commissioner of Police NSW and Ors [2014] NSWCATAD 184
2 citations
Jump To
Cite 1 - [2014] NSWCATAD 184
Cite 2 - [2014] NSWCATAD 184
Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363
2 citations
Jump To
Cite 1 - [2014] QCAT 363
Cite 2 - [2014] QCAT 363

Cases Citing

Case NameFull CitationFrequency
Lane v Queensland Police Service Weapons Licensing [2024] QCAT 1452 citations
MDW v Queensland Police Service – Weapons Licensing [2024] QCAT 2752 citations
XPR v Queensland Police Service [2025] QCAT 13 citations
1

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