ZLG v Queensland Police Service – Weapons Licencing
[2023] QCAT 363
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- ZLG v Queensland Police Service – Weapons Licencing[2023] QCAT 363
- Add to List
ZLG v Queensland Police Service – Weapons Licencing[2023] QCAT 363
ZLG v Queensland Police Service – Weapons Licencing[2023] QCAT 363
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | ZLG v Queensland Police Service – Weapons Licencing [2023] QCAT 363 |
PARTIES: | ZLG (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENCING (respondent) |
APPLICATION NO/S: | GR235-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 1 August 2023 |
HEARING DATE: | 20 July 2023 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND REGISTRATION – REVOCATION OF LICNCE – where applicant was the holder of a weapons licence – where applicant suffered serious mental health incidents – where respondent notified of the incidents – where applicant’s weapons licence suspended – where respondent sought medical clearance – where applicant failed to respond and weapons licence revoked – whether mental health conditions render the applicant a fit and proper person to hold a licence – whether in public interest for applicant to hold a weapons licence. Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 66 Weapons Act 1990 (Qld), s 3, s 10B Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56 Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Mr Mckernan for the applicant. |
Respondent: | Ms Goddard instructed by the Queensland Police Service – Weapons Licencing. |
REASONS FOR DECISION
- [1]The applicant was the holder of a weapons licence issued by the respondent in February 2017 for the purposes of target shooting. Between January 2020 and November 2021 the applicant was admitted to hospital with serious mental health issues. In November 2021 a clinical nurse consultant sent a Notification to Weapons Licencing form to the Queensland Police Service advising that the applicant is unsuitable to possess a firearm stating:
Jan 2020 erratic behaviour presentation required use of MHA (Mental Health Act) 2016
EEA (Emergency Examination Authority) for suicidal ideation 2021.[1]
- [2]As a result of receiving that information the respondent sent an Information Notice to the applicant suspending her weapons licence on 3 December 2021. The Notice provided particulars of the matters referred to in the Notification from the hospital and went onto say:
I considered that it is in the public interest for your licence to be suspended until a medical clearance is received from your treating Doctor. On receipt of this advice, I will the make a determination whether or not to revoke or reinstate your licence.
- [3]The applicant did not respond to the request for a medical clearance.
- [4]As the suspension can only last for 90 days under s 28(2)(c)(ii) of the Weapons Act 1990 (“the Act”), the authorised officer revoked the applicant’s weapons licence under s 29 of the Act because the officer could not be satisfied that the applicant was a fit or proper person to hold a licence. Under s 10B(1)(a) a consideration in deciding whether a person if fit and proper to hold a licence is ‘the mental and physical fitness of the person’.
- [5]Given the information that was provided to the QPS and the applicant’s failure to provide a clearance report as requested in the suspension information notice, it would seem the only option open to the authorised officer was to revoke the licence on 28 April 2022.
- [6]The applicant, on receiving the Revocation Notice filed an application to review the decision of the authorised officer. As this is a review of the respondent’s decision to revoke the applicant’s weapons licence, Section 20 of the Queensland Civil and Administrative Tribunal Act requires me to make the correct and preferable decision by way of a rehearing on the merits.[2] That is to have regard to the evidence filed by both parties and also the further evidence given at the hearing. It is not the function of the Tribunal to identify error or mistake in the original decision but to look at all of the surrounding circumstances, as has often been said “stand in the shoes of the decision maker, and make another decision afresh”.
- [7]The issuing of a weapons licence to an individual is governed by the Act. The granting of a licence is not as of right and is subordinate to the need to ensure public safety. This is achieved by the imposition of strict conditions on the possession of weapons, their storage and carriage.[3] Section 10B of the Act provides that an individual must be a fit and proper person to hold a licence. It sets out those matters that can be taken into account, but it is not exhaustive. Relevantly here, it is the mental fitness of the applicant to hold a licence.
- [8]
- [9]Although the decision of the authorised officer to revoke the licence was the correct decision at the time, in the review application all of the evidence submitted to the tribunal must be considered because it is a fresh hearing on the merits. Unlike some reviews of administrative decisions, the evidence is not confined to that which was before the original decision maker.[6]
- [10]Since the filing of the application the applicant has filed a statement of evidence explaining the background to the incident in January 2020 when admitted to the Princess Alexandra Hospital. She describes the incident as follows:
In January 2020 I was having panic attacks and was taken to the PA hospital by ambulance. While I was at the PA Hospital they tried to give me medication without explaining what it was and what the potential side effects were. Due to this I reacted badly and pushed the medication away and threw a water bottle across the room.
As a result of my reaction and the doctors attempt to medicate me I was involuntarily admitted to hospital and then later transferred to Belmont Private Hospital. It was while admitted to Belmont Private Hospital that I was first prescribed lithium, a mood stabiliser, which I am no longer prescribed……
In January 2020 I was diagnosed with bipolar disorder, which was the first time that I had ever been told that I had a clinical diagnosis of a mental health condition.
- [11]Between January 2020 and November 2021 she had difficulties in separating from a person she had been romantically involved with for a number of years. In November 2020 she met her current husband. However, there were still issues and animosity arising out of the previous relationship. This resulted in each party applying for domestic violence orders but not proceeding with them at that time. As the disputation continued the applicant took out a temporary protection order in against the other party in November 2021.
- [12]It was around this time, 19 November 2021, that the applicant suffered panic attacks and called the Queensland Ambulance Service. QAS officers attended her house and she was asked whether she had suicidal ideations or considered self-harm.[7] She responded by saying that she had ‘considered driving my car into a tree or a wall’. She was then taken to the Royal Brisbane and Women’s Hospital where she remained for about 9 hours and was assessed. After this she was allowed to go home but had two follow up assessments with the psychiatric department.
- [13]She attributes this incident to the constant stalking and harassment by the person in the former relationship.
- [14]At the hearing the respondent submitted a report from the QAS which articulates what it is alleged the applicant told them when they attended upon her on 19 November 2021. It is summarised as follows:
Significant emotional and personal stressors states multiple panic attacks yesterday and this am patient states she feels like she is at risk from both herself and her ex-partner
states she has been speaking with QPS regularly regarding stalking and DV concerns states that she feels she could drive her car into a wall;
according to current partner patient regularly has thoughts of self-harm/ suicide significant emotional distress regarding potential admission to hospital
patient requesting transfer to Belmont private hospital – QAS advised must go tot public hospital & discussion can be had with patient and her normal psychiatrist to arrange potential admission to private facility.
- [15]Her husband has provided a statutory declaration dated 6 December 2021. He says he was present when the QAS officers questioned the applicant when they attended her house on 19 November. Strangely, he categorically denies that the applicant said, in the presence of the QAS officers, that she may drive her car into a wall when she confirms this in her signed statement. He also challenges the statements that she had suicidal ideation and that he confirmed that to be the case.
- [16]As I said at the hearing these contested facts could not be resolved with certainty because the QAS officers were not available to give evidence or for cross-examination and were not required. However, I would make this observation about their record of the conversations. Firstly, they would probably not have any independent recollection of the event having been required to attend many emergencies in the interim. Secondly, it is generally accepted they would only record what they were told or heard. There is no reason for them to do otherwise. Thirdly, as I have said, there is at least some consistency with what they have recorded and what the applicant has said about driving into the wall. There really is no reason not to accept the record at its face value.
- [17]As for the bi-polar diagnosis, whether it was a manifestation of that condition which caused the onset of panic symptoms has not been clarified and remains to be seen. A report from her treating psychiatrist Dr Lee has been provided[8] which confirms, it seems, that her first attendance at the Princess Alexandra Hospital was for a bi-polar episode. She does not relate the 2021 incident specifically to the bi-polar condition.
- [18]Dr Lee confirms that the applicant’s ability to identify early warning signs of her illness has improved. She is more aware when to seek psychiatric intervention. She has no recorded history of suicide attempts or ideation. She is compliant with medication. The report does nothing more than record the diagnosis, treatment undertaken and the applicant’s self-report about her awareness of the condition. It does not go into what might trigger the onset of symptoms or the likelihood of her having mental health episodes into the future and if so, their frequency. The report does not discuss the consequences these episodes, should they occur, and how the applicant might react. The report is helpful but more is needed.
- [19]There is no doubt that the evidence demonstrates that the applicant has been through a stressful period culminating with the admission in November 2021. There have been no similar events since that time.
- [20]Despite all of that I have reservations. Firstly the report from her treating clinician, although of assistance, is not an independent assessment of the applicant’s mental state. She has had two serious mental health issues and I accept that she has considered suicide, on her own admission, by driving into a tree or wall. Although other parts of what she told the QAS officers may be contested, that part is not.
- [21]Secondly, she had the opportunity to respond to the QPS when asked for a clearance from her doctor but she failed to do so. I would stress this is not fatal to the application but she had a responsibility to comply with the request if she wanted to maintain her licence. One reason why she didn’t was perhaps because she knew she could not get a clearance at that time.
- [22]Thirdly, the applicant has an ongoing mental health condition which may manifest itself at any time. She is on medication to assist and it seems to be working. But in my view caution needs to be exercised to ensure she is not only not a risk to herself, but also to the public as is required by s 10B of the Act.
- [23]Her licence was revoked in April 2022. She can reapply in April 2027 and in my view should there be no relapse or other mental health episodes, this would assist the QPS in making a positive decision as to whether she should have the privilege of holding a weapons licence.
- [24]I therefore propose to confirm the respondent’s decision.
- [25]Because these reasons refer to domestic violence orders,[9] even though temporary, and the applicant’s mental health condition, I propose to make a non-publication order under s 166 of the QCAT Act.
Footnotes
[1] Respondent’s Statement of Reasons page 24 and my emphasis by italics.
[2] Queensland Civil Administrative Tribunal Act 2009 (Qld), s 20.
[3] Weapons Act 1990 (Qld), s 3.
[4] Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56.
[5] Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 at [36].
[6] An example is s 219H of the Crime and Corruption Act 2001 which limits the evidence before the original decision maker in police disciplinary review proceeding.
[7] Applicant’s statement paragraphs 46 – 48.
[8] Attachment 4 to the applicant’s statement.
[9] s 159 of the Domestic and Family Violence Protection Act 2012 (Qld)