MBM v Queensland Police Service – Weapons Licensing
[2023] QCAT 369
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- Unreported Judgment
- MBM v Queensland Police Service – Weapons Licensing[2023] QCAT 369
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MBM v Queensland Police Service – Weapons Licensing[2023] QCAT 369
MBM v Queensland Police Service – Weapons Licensing[2023] QCAT 369
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | MBM v Queensland Police Service – Weapons Licensing [2023] QCAT 369 |
PARTIES: | mbm (applicant) v queensland Police service weapons licensing (respondent) |
APPLICATION NO/S: | GAR417-22 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 11 September 2023 |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS LICENCES AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION SUSPENSION OR SURRENDER – ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – WEAPONS – CRIMINAL INTELLIGENCE – where applicant’s firearms licences revoked and rejected – where applicant filed an application to review – where decision-maker filed material in the review proceeding – where decision-maker identified information filed in the review proceeding as ‘criminal intelligence’ – whether information has been correctly categorised as ‘criminal intelligence’ for the purposes of s 142A of the Weapons Act 1990 (Qld) Queensland Civil and Administrative Tribunal Act 2009 s 20 Weapons Act 1990 ss 3, 10B, 142A and 163 Australian Broadcasting Commission v Bond 94 ALR 56 IWM v Weapons Licensing [2022] QCAT 224 Moye v Queensland Police Service [2017] QCAT 97 |
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
- [1]The applicant is 52 years of age. For many years, off and on, he has been the holder of a weapons licence issued by the respondent. The licences have been for various categories of weapons including category H (concealable firearm).
- [2]After applying to renew his weapons licence in August 2022, the applicant received notification from the respondent on 4 October 2022 that his application to renew had been rejected. The reason for rejecting the application was because in the opinion of the authorised officer, it was not in the public interest for the applicant to hold a licence as he was not a fit and proper person to do so as required by s 10B of the Weapons Act 1990 (“the Act”). The basis for this conclusion was by reference to “criminal intelligence” in the possession of the respondent as to certain activities engaged in by the applicant.
- [3]Subsequent to receiving the Information Notice accompanying the rejection he filed an application to review the decision in the Tribunal on 12 October 2022. As this is a review of an administrative decision, 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.[1] That is to have regard to the evidence filed by both parties. 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”.
- [4]The issuing of a weapons licence to an individual is governed by the Weapons Act 1990 (Qld). 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.[2] As mentioned s. 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,
(ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates –
The person is a risk to public safety; or
That authorising the person to possess a weapon would be contrary to the public interest; and
- the public interest
- [5]
- [6]Therefore, the question for determination in this review application is whether, in all the circumstances, the applicant is a fit and proper person to be issued with a weapons licence. The specific matters to be considered are, the circumstances, any relevant criminal and traffic history as well as documents comprising “criminal intelligence” filed by the respondent.
- [7]The applicant has filed a comprehensive affidavit[5] as to his need for a weapons licence and addressing what he perceives to be the reasons for the rejection. Importantly, the respondent has until mid-2022, obviously, considered the applicant was a fit and proper person to issue him with a licence by virtue of the fact that his licence had been previously renewed. The reasons put forward in support of the issuing of the licence are for sport/target shooting and recreational shooting on rural lands.[6] He also needs the licence for his employment:
For the last five (5) years I have been employed in various roles at the Indoor Pistol club Ltd (Indoor Pistol Club) and the XXX Pty Ltd (Shooting Centre). Both of these entities operate out of the same address, however they are completely different entities. My weapons licence is required for both roles.
- [8]The applicant was also previously involved in other roles at the Shooting Centre requiring him to be licenced as a gallery operator. As his role changed, to that of President of the Club, he had to notify the respondent of this change in status.
- [9]His affidavit then goes on to discuss the reasons why he perceives the renewal application was rejected including some criminal history and traffic history. He was charged with the offence of grievous bodily harm and attempt to destroy property in 2006. Details of the charge are set out in the “Court Brief” which is included in the respondent's statement of reasons. Although the particulars as provided demonstrate the seriousness of the charges, they were discontinued by the Director of Public Prosecutions.
- [10]The applicant was also charged with two weapons offences, the first in 1991 of being in possession of a concealable firearm whilst not the holder of a licence, and the second in 2007 of failing to have secure storage for explosives. For the latter offence he was fined $1,500 with no conviction recorded.
- [11]There is also a comprehensive traffic history included in the statement of reasons. It covers a period from 1991 to 2020. The most serious offences are failing to stop at a red light in 2007, exceeding the speed limit by more than 30 Km/h on two occasions and disobeying a traffic sign. The traffic history of itself does not render him not a fit and proper person to hold a licence.
- [12]Given the historical nature of the weapons offences, the discontinuance of the grievous bodily harm charge and when these events occurred, similarly they would not, even in combination with the traffic history, render The applicant not to be a fit and proper person.
- [13]It is also of note that the respondent does not rely on the criminal or traffic history in the statement of reasons for rejecting the renewal.
- [14]The substantive issue in this review is the criminal intelligence that has been produced by the respondent and filed in the Tribunal in a sealed envelope.
- [15]It is submitted by the respondent that when having regard to the criminal intelligence the authorised officer had access to, and provided to the Tribunal, s 10B of the Act is not satisfied. Like the authorised officer I must consider that material as part of the review process.
- [16]Section 142A of the Act refers to the ‘confidentiality of criminal intelligence’ and how the Tribunal must deal with criminal intelligence in the reasons for decision. Under 142A(2)(a) the Tribunal must ensure that it does not, in the reasons for its decision or otherwise, disclose the content of any criminal intelligence on which the decision is based.
- [17]Also, Section 142A(3) sets out what criminal intelligence means:
criminal intelligence means criminal intelligence or other information of the kind mentioned in section 10B(1)(ca) or 10C(1) that could, if disclosed, reasonably be expected-
to prejudice the investigation of a contravention or possible contravention of this Act; or
to enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of this Act, to be ascertained; or
to endanger a person’s life or physical safety; or
to prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of this Act; or
to prejudice the maintenance or enforcement of a lawful method or procedure for protecting public safety
- [18]The criminal intelligence relied upon is attached to an affidavit sworn to by an Acting Inspector, of Weapons Licensing, Operations Support Command on 14 November 2022. Although s 142A(2)(c) provides that the Tribunal:
may, as it considers appropriate to protect the confidentiality of criminal intelligence, take evidence consisting of criminal intelligence by way of affidavit of a police officer of at least the rank of superintendent.
- [19]The rank of inspector is below the rank of superintendent. As it is not mandatory for the Tribunal to take evidence by way of affidavit because of the discretion conferred in the subsection, I propose to consider the evidence in any event because it is relevant and probative as to the nature of the criminal intelligence and to assist in producing the correct and preferable decision. I note that in IWM v Weapons Licensing,[7] the Tribunal considered the “raw” evidence not produced by way of affidavit in determining whether the intelligence was confidential.
- [20]In reliance on that material, and a briefing note by an Acting Senior Sergeant from Weapons Licencing who reviewed the material, an Acting Deputy Commissioner of the Queensland Police Service signed a Certificate of Approval for Rejection of an application for a weapons licence in accordance with s 163 of the Act.
- [21]Having read all of the material annexed to the affidavit of the Acting Inspector, as a whole, I have come to the view that there is sufficient information contained within the documents to satisfy s 142A(3), in particular subsections (b) and (d). Therefore, the material is correctly categorised as criminal intelligence as defined in schedule 2 of the Act as it is:
in relation to a person, means any information about the person’s connection with or involvement in criminal activity
- [22]The applicant has sought to address the criminal intelligence by second-guessing what that intelligence might be. Insofar as it might relate to his association with an outlaw motorcycle gang club member, he acknowledges that prior to 2010 he was associated with such individuals but was never a “patched member”. Further to erase any doubt about this, and probably to ensure he would be able to continue to have a weapons licence, he lodged a “disassociation form” with police. He also surmised it might have something to do with his relationship with individuals at the shooting club who may have been involved in ordering weapons parts to make illegal weapons.
- [23]The applicant also made reference to activities at the Pistol Club[8] where groups of patrons, some with ankle monitors and club tattoos, would spend large amounts of cash, thinking this might be a reason. He said that he reported this activity to police.
- [24]Having regard to the applicant’s need for a licence to maintain his employment at the Pistol Club, and his otherwise disclosed history, these matters would not, in my view, necessarily disqualify him from obtaining a licence. Furthermore, his character is supported by a number of references from individuals with whom he works. This is reinforced by the fact that that during this period he held a licence.
- [25]Turning then to the criminal intelligence, one has to be cautious about what weight is given to the information bearing in mind it is not tested nor is it able to be responded to by the applicant.[9] That puts him at a disadvantage, but the statute provides for that situation. Despite that, the material gathered has been sworn to and signed off by a senior police officer, unfortunately not by a superintendent.
- [26]I am constrained in what can be said about the information that is attached to the A/Inspector’s affidavit, but there is sufficient evidence from multiple sources to conclude that, on balance, the applicant is not a fit and proper person to hold a weapons licence.
- [27]Therefore, the correct and preferable decisions is that the decision of the respondent is confirmed.
- [28]There is one final issue. Pursuant to s. 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) the Tribunal has a discretion to de-identity a party, along with the contents of a document used in the proceeding. In this case there has been reference to criminal intelligence which was decisive in coming to the correct and preferable decision. Because of the criminal intelligence referred to the restrictions of s. 142A of the Act I direct that the publication of any document filed or produced to the Tribunal and any evidence given to the Tribunal that could lead to the identity of the applicant or any other person involved in this review application, is prohibited.
Footnotes
[1] Queensland Civil Administrative Tribunal Act 2009 (Qld), s 20.
[2] Weapons Act 1990 (Qld), s 3.
[3] Australian Broadcasting Tribunal v Bond (1990) 94 ALR 56.
[4] Moye v Queensland Police Service – Weapons Licensing [2017] QCAT 79 at [36].
[5] Affidavit of Applicant filed 12 June 2023
[6] Ibid paragraph 6
[7] [2022] QCAT 224
[8] Ibid paragraph 43
[9] IWM v Weapons Licensing [2022] QCAT 224