Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QCAT
  3. 2024
  4. Gray v Queensland Police Service – Weapons Licensing - [2024] QCAT 31

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Gray v Queensland Police Service – Weapons Licensing[2024] QCAT 31

Gray v Queensland Police Service – Weapons Licensing[2024] QCAT 31

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL

CITATION:

Gray v Queensland Police Service – Weapons Licensing [2024] QCAT 31

PARTIES:

Simon Lee Gray

(applicant)

v

QUEENSLAND POLICE SERVICE—WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR522-21

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 January 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member D Brown

ORDERS:

The decision of Queensland Police Service made on 11 August 2021 not to renew the applicant’s licence under the Weapons Act 1990 (Qld) is confirmed.

CATCHWORDS:

FIREARMS AND LICENSING – refusal to renew a firearm licence – fit and proper person – misleading renewal application – contravention of licence condition – history of minor drug related offending – whether in the public interest that the applicant hold a licence

Human Rights Act 2019 (Qld), s 15, s 24, s 31

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 24

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10B, s 11, s 29, s 34, s 142

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at paragraph 36

Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58

Laidlaw v Queensland Building Services Authority [2010] QCAT 70

Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201

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

Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717, [33]

Stretton v Queensland Police Service [2018] QCATA 37

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. [1]
    Mr Gray is a 49-year-old man who has held a weapons licence for 30 years, since he was 17 years of age. On 11 August 2021, his application to renew his licence was refused (‘the decision’) on the basis that he was considered to no longer be a fit and proper person to hold the licence and it not being in the public interest for Mr Gray to have a weapons licence.
  2. [2]
    The factors which the Queensland Police Service (‘QPS’) relied upon in the decision to find that Mr Gray was no longer a fit and proper person to hold a weapons licence were: Mr Gray’s provision of false and misleading information in his application by withholding the detail of a recent conviction; Mr Gray’s history of drug use and conviction in 2018 for being in charge of a vessel while a relevant drug is present; and Mr Gray’s contravention of a condition of his weapons licence.
  3. [3]
    By review application filed 6 September 2021 in Brisbane the Applicant, Simon Lee Gray, seeks review of the QPS decision to refuse his application to renew his firearms licence and seeks reinstatement of this firearms licence.
  4. [4]
    The decision is a ‘reviewable decision’ pursuant to s 142(1)(aa) of the Weapons Act 1990 (Qld) ('Weapons Act’), being a decision to refuse to renew a licence under the Weapons Act. The Tribunal has jurisdiction to review the decision by virtue of s 142(2) of the Weapons Act and sections 9(1) and 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('QCAT Act’).
  5. [5]
    For the purposes of this application the Tribunal stands in the place of the original decision maker and must hear and decide the review by way of fresh hearing on the merits in order to produce the correct and preferable decision.[1] There is no onus of proof nor is there any presumption that the QPS decision was correct.[2] On a review, the Tribunal has power to confirm or amend the decision, set aside the decision and substitute its own, or set aside the decision and return it for reconsideration.[3]
  6. [6]
    The standard of proof to be applied is the civil standard, that is, the balance of probabilities. The Tribunal must decide the review in accordance with the QCAT Act and Weapons Act. When considering who is a fit and proper person regard must be had to the public interest.[4]
  7. [7]
    Section 3 of the Weapons Act provides:
  1. The principles underlying this Act are as follows—
  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. The object of this Act is to prevent the misuse of weapons.
  1. [8]
    Relevantly section 4 of the Weapons Act provides:

The object of this Act is to be achieved for firearms by—

…

  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. [9]
    Section 29 of the Weapons Act relevantly provides that a licensee’s licence may be revoked if the authorising officer is satisfied that the licensee is no longer a fit and proper person to hold a licence.[5]
  2. [10]
    The High Court considered the expression ’fit and proper person’ in Australian Broadcasting Tribunal v Bond:[6]

The expression “fit and proper person” 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 context, 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.

  1. [11]
    Section 10B(1) of the Act provides the following mandatory considerations when deciding whether a person is no longer, a fit and proper person to hold a licence:
  1. the mental and physical fitness of the person;
  2. whether a domestic violence order (DVO) has been made, police protection notice issued, or release conditions imposed against the person;
  3. whether the person has stated anything in or in connection with an application for the renewal of a licence, the person knows is false or misleading in a material particular;
  4. whether there is any criminal intelligence or other information which indicates the person is a risk to public safety, that authorising the person to possess a weapon would be contrary to the public interest; and
  5. the public interest.
  1. [12]
    There is no evidence of concerns in relation to Mr Gray’s mental or physical fitness or a domestic violence order, nor is there any criminal intelligence information.
  2. [13]
    Sections 10(2), 10(3), and 10(4) set out circumstances where a person is not a fit and proper person for a licence, which confirms this is the case when a person is convicted of certain types of offences within the past 5 years and when prohibited by an order from holding a licence. While the offence in 2018 involved drug use, I note QPS have not relied upon s 10(2) as a reason to refuse the application for a weapon licence.
  3. [14]
    Section 11 of the Weapons Act requires genuine reasons for possession of a weapon to be demonstrated.

Failure to disclose criminal offending.

  1. [15]
    Section 10(1)(c) of the Weapons Act states that the Respondent must consider an Applicant’s false or misleading statement when renewing a licence. The misleading statement must be within the Applicant’s own knowledge to be false or misleading.
  2. [16]
    In Mr Gray’s renewal application at section 7b, when asked whether he had been charged with an offence since he was last issued a weapons licence, he answered no.  The application form notes in the explanation that an Applicant is to tick yes, even if charged with an offence but not convicted, or if a conviction was not recorded.
  3. [17]
    Mr Gray advised QPS in June 2021 that he was under the impression that no conviction was recorded and therefore he had nothing to disclose on his weapons renewal. This response raises concerns given the clear explanation in the application and the fact that Mr Gray has held weapons licences for 30 years and would have had to disclose his previous drug charge from 2002.
  4. [18]
    It is Mr Gray’s position as stated in his application that he misunderstood section 7 of the application form; that he did not knowingly submit false information; and that he had some difficulty with reading and writing which lead to this error. He stated that he did not intend to provide misleading information.
  5. [19]
    In the filed material in the proceedings Mr Gray has stated he struggled academically his whole life and he genuinely misunderstood the term conviction as meaning “serving time in a penitentiary”.[7] Even if this was correct, it does not explain why Mr Gray withheld this offending when the question does not ask if a person has been convicted, but only if they have been charged.
  6. [20]
    The renewal application is completed on the approved form. It is a relatively straightforward form requiring for the most part simple yes and no answers. The Applicant otherwise completed the application correctly, and given the period of time Mr Gray has held a weapons licence, it is likely not the first time he would have had to complete this form.
  7. [21]
    Mr Gray has stated that he has held a weapons licences since he was 17[8] which would have required renewal on a number of occasions. Mr Gray has previous drug charges in 1993 for producing dangerous drugs and possession of dangerous drugs, and in 2002 for possession of dangerous drugs, which he must have had to disclose in previous applications. This should have led to him knowing he had to disclose this recent charge.
  8. [22]
    I do not accept Mr Gray’s assertion that his limited education somehow led to a misunderstanding of that particular question in circumstances where the renewal application itself was generally true and correctly completed. There was no suggestion or assertion that he misunderstood any other question or portion of the application form.
  9. [23]
    Against that background I conclude that the Mr Gray must have known that his answer to question 7b in relation to charges was not true and correct.

Criminal Offending

  1. [24]
    Previous breaches of the law, and any proclivity for offending, have been considered important in determining whether a person is a fit and proper person to hold a licence. As the Tribunal has observed, irresponsible, uncontrolled or antisocial behaviour constituting a risk to public safety is relevant, and criminal or traffic offences may of themselves indicate a contempt or flagrant disregard for the law.[9] Criminal history are indicative of a continuity of irresponsible and antisocial conduct, and it is fair to imply that such conduct could extend to the conduct as a holder of a firearms licence.
  2. [25]
    Mr Gray’s criminal and traffic history, while not extensive, and while individually the offences are relatively minor and there is some considerable time between each period of offending, when read together in the circumstances of this matter, raise concerns:
    1. that he has disregard for the law; given his ongoing use of illicit drugs over many years;
    2. that Mr Gray’s use of illicit drugs has spanned a considerable period of time;
    3. that he exercises poor judgement; and
    4. as to whether there is a real prospect of him misusing weapons and/or using a weapon under the influence of illicit drugs, if the refusal to renew the weapons licence is set aside.
  3. [26]
    In his statement dated 22 July 2023 in support of his application Mr Gray stated that he has used marijuana recreationally from a young age, up until approximately October 2022[10] to help combat the stress of his job and severe bouts of insomnia. Mr Gray confirms that he has been offered other legal pharmaceutical relief for these issues but declined it and chose to self-medicate with cannabis due to concerns about other family members having opioid addictions. 
  4. [27]
    In terms of the specific offence in 2018, it is concerning that Mr Gray was charged with being in charge of a fishing boat while a relevant drug, namely Delta-9-tetrahydricabbabinol (also known as cannabis or marijuana) was in his system. At the time he was the master of a fishing boat.[11] Therefore, this offending occurred in the context of his employment and when he may have been responsible for other people on the boat, demonstrating poor decision making and posing a potential risk to public safety.
  5. [28]
    It is also of concerning that Mr Gray stated in his statement provided in July 2022 that he has taken weapons to sea with him since he was 17 years old and that he uses the weapons to shoot sharks in the water at least once a week,[12]  meaning that it is highly likely his weapon was in his possession on the boat at the time he had a relevant drug in his system.
  6. [29]
    While it is a positive step that Mr Gray has demonstrated recent abstinence from drug use and has provided one drug test from 4 May 2023 to demonstrate that at that time there were no illicit drugs in his system,[13] given the length of Mr Gray’s addiction (which spanned over 20 years of drug use by his own admission and his criminal history), it is concerning that there is no evidence from any professionals that Mr Gray  has engaged in any counselling or education in terms of his drug use to address the issues which led to the drug offending, to develop more appropriate coping methods to deal with the stress from his employment, or to develop a relapse prevention plan.
  7. [30]
    While Mr Gray referenced rural living and lack of services as an impediment and explanation as to why he could not obtain a psychological assessment, with the advancement of telehealth appointments and phone and video conferencing counselling sessions it is difficult for the Tribunal to understand why Mr Gray could not have engaged in counselling if he wished to.
  8. [31]
    Given Mr Gray has provided no evidence as to how he plans to combat the issues of stress of from his job or insomnia, which lead to him using illicit drugs in the first place, there remain concerns that Mr Gray may continue to resort to inappropriate coping methods and continue to use illicit drugs and therefore may not be a fit and proper person to hold a weapons licence.

Breach of conditions

  1. [32]
    Mr Gray’s application made on 16 February 2021 was to renew his weapons licence which was due to expire on 2 March 2021. In his application he stated it was undertaken for rural purposes and requested a recreational and occupational licence. In additional information provided on 20 April 2021 Mr Gray stated that he is a dual primary producer under the commercial fishing and agricultural sectors and requires the Cat C licence for pest management which includes wild dogs, pigs, hares, wallabies, kangaroos, ducks, and sharks. He stated he uses shooting as a pest management strategy at least once a month for agricultural purposes and at least once a week in commercial fishing.
  2. [33]
    The additional information also provided evidence of a commercial fisher licence in Mr Gray’s name from July 2020.
  3. [34]
    Mr Gray’s weapons licence issued in May 2011 which expired in March 2021 has conditions that it was for use on rural land only and granted as a primary producer only on his rural property at Booyal.
  4. [35]
    Mr Gray’s statement that he had been using, and needed to continue to use, his licence on his boat as a commercial fisherman for dealing with sharks in confined spaces, and that he had been using shooting as a form of pest eradication when engaged in commercial fishing at last once a week, indicated a contravention of his weapons licence.
  5. [36]
    This contravention was not a one-off incident but an ongoing pattern of behaviours of non-compliance with the conditions of his licence.
  6. [37]
    Section 34 of the Weapons Act prescribes that a person must not contravene a condition of the licence and has a maximum penalty of 60 penalty units and/or 1 year imprisonment. Section 29 of the Weapons Act prescribes that a weapons licence can be revoked if the licensee contravenes a condition of the licence.
  7. [38]
    While is it is a positive that Mr Gray completed a firearm safety training course in July 2023, which included demonstrating knowledge of weapons legislation and weapon and community safety, Mr Gray’s application does not demonstrate insight or remorse for contravening a condition of his license.
  8. [39]
    In the application filed 6 September 2021 Mr Gray states that “weapon use at sea is justified and within the law”. In his statement from 22 July 2022 Mr Gray states that to his knowledge he was not acting illegally when he used his gun to terminate sharks while still in the water while attached to his line and hook.
  9. [40]
    There is evidence of conduct over a significant period of time in direct contradiction of the conditions on Mr Gray’s licence, suggesting disregard for his licence condition and a lack of understanding or remorse about the significance of his ongoing breach of the conditions on his weapons licence.

Public interest

  1. [41]
    The matters which must be taken into account in considering whether a person is no longer fit and proper to hold a licence include the public interest. Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201 sets out the proper approach to this issue and states:

[16] The public interest is a broad concept in which the interests of the community are considered having regard to the scope and purpose of the relevant legislation.

[17] It is a term of wide import which has been said to embrace matters, among others: …of standards of human conduct… tacitly accepted and acknowledged to be for the good order of society and for the wellbeing of its members.

[18] The term ‘public interest’ in the context of weapons licensing should therefore be applied in the context of the object of the Weapons Act which is to prevent the misuse of weapons. In furtherance of this object, public and individual safety are to take precedence over weapon possession and use. These purposes are achieved, in part, by strict requirements for licensing. Accordingly, when considering the public interest in the context of weapons licensing, individual and public safety are important factors to be taken into account.

  1. [42]
    As to whether a person is ‘fit and proper’, the test is not concerned with whether that person is ‘fit and proper’ in a general sense, but specifically with the person’s suitability to hold a weapons licence.[14]
  2. [43]
    A licensee who is a fit and proper person in the context of the Weapons Act must have an appreciation of the person’s responsibilities and must discharge them; a licensee who lacks a proper appreciation of those responsibilities or does not discharge them is not, or may be judged not to be, a fit and proper person.[15]

Conclusion

  1. [44]
    Mr Gray filed little documentary evidence in support of his contention that he is a fit and proper person to hold a licence. He filed references from people who have known him for a number of years and some letters/statements directed to the Tribunal, but no other statements, affidavit material, or professional reports. While the references he has provided have known him for a significant period of time and do state they believe he is a fit and proper person generally, they do not speak of any knowledge of his ongoing drug use over 20+ years or his conviction for being in control of a vessel with a relevant drug in his system.
  2. [45]
    The Tribunal has recognised that an applicant in review proceedings has no formal onus of proof but has an evidential or practical onus to adduce evidence which supports its case, as the Tribunal must make its decision on the material before it. As stated in Laidlaw v Queensland Building Services Authority:[16]

In the absence of appropriate evidence the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.

  1. [46]
    No medical or psychological report has been filed. Such evidence, when provided, assists the Tribunal to evaluate the level of risk the Applicant poses, and assists the evaluation of the Applicant's insights or strategies to avoid further incidents of inappropriate behaviour/drug use or offending.
  2. [47]
    Mr Gray had limited insight into the inappropriateness of his conduct in relation to his criminal offending and history of drug use, his failure to disclose that offending, and his contravention of his licence conditions, which is of concern. He attempts to minimise the behaviour and he has not given any evidence of any strategies that he is employing to prevent any re-offending or recommencing drug use.
  3. [48]
    Given the multiple concerns in terms of the drug use, failure to disclose criminal offending and the breach of the weapons licence conditions, and the limited evidence before me to demonstrate that Mr Gray is a fit and proper person in light of these concerns, I am not satisfied that if Mr Gray’s licence is reinstated, his right to possess firearms will not present a real risk to public and individual safety, because I am not satisfied that he will comply with his obligations, given his ongoing disregard of the conditions on his previous licence, or that he would not recommence using illicit drugs.
  4. [49]
    The Applicant has provided misleading information in his application for renewal, and demonstrated an ongoing disregard for his licence conditions and responsibilities as a law-abiding citizen, such as to exclude him from the category of a fit and proper person to hold a firearms licence. It would therefore not be in the public interest for the Applicant to be issued with a firearms licence.

The Human Rights Act 2019 (Qld) (‘Human Rights Act’)

  1. [50]
    I have considered the Applicant’s human rights under the Human Rights Act, in particular his right to recognition and equality before the law;[17] property rights[18] and right to a fair hearing.[19] I accept that these proceedings and a decision under the Act potentially impact Mr Gray’s rights.
  2. [51]
    In my opinion, any limitation on the Applicant’s human rights is reasonable and justified in terms of the Human Rights Act and is consistent with a free and democratic society based on human dignity, equality, and freedom.
  3. [52]
    In so finding, I have had regard to the matters addressed above, including:
  1. the nature and importance of the purpose of the limitations imposed by the Weapons Act, including:
  1. (i)
    the principle under the Weapons Act that weapon possession and use are subordinate to the need to ensure public and individual safety;[20]
  1. (ii)
    the principle under the Weapons Act that public and individual safety is improved by, relevantly, imposing strict controls on the possession of weapons;[21]
  1. (iii)
    the object of the Weapons Act to prevent the misuse of weapons;[22]
  1. the matters addressed above, including the circumstances of the criminal charges, Mr Gray’s contravention of his licence and his failure to disclose his criminal charges, and his evidence in relation to the same.

Orders

  1. [53]
    The decision of the Queensland Police Service of 11 August 2021 to refuse to renew Mr Gray’s weapons licence is confirmed. I make orders accordingly.

Footnotes

[1]QCAT Act, s 20.

[2]Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

[3]QCAT Act, s 24.

[4]Weapons Act, s 10B(1)(d).

[5]QCAT Act, s 29(1)(d).

[6][1990] HCA 33.

[7]Statement of Simon Gray dated 22 July 2022.

[8]Statement of Simon Gray dated 22 July 2022.

[9]Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717, [33]; in McVie v Queensland Police Service Weapons Licensing Branch [2010] QCAT 491.

[10]Applicant’s statement dated 23 July 2023 which stated he had been clean of drugs for 9 months.

[11]QP9 material in Respondent’s material dated 5 September 2022.

[12]Applicant’s statement dated 22 July 2022.

[13]Applicant’s material dated 18 August 2023.

[14]Stretton v Queensland Police Service [2018] QCATA 37, [40].

[15]Ibid, [37].

[16][2010] QCAT 70, [23].

[17]Human Rights Act, s 15.

[18]Ibid, s 24.

[19]Ibid, s 31.

[20]Weapons Act, s 3(1)(a).

[21]Ibid, s 3(1)(b).

[22]Ibid, s 3(2); see also s 4.

Close

Editorial Notes

  • Published Case Name:

    Gray v Queensland Police Service – Weapons Licensing

  • Shortened Case Name:

    Gray v Queensland Police Service – Weapons Licensing

  • MNC:

    [2024] QCAT 31

  • Court:

    QCAT

  • Judge(s):

    Member D Brown

  • Date:

    17 Jan 2024

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
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
1 citation
Jump To
Cite 1 - (1990) 170 CLR 321
Australian Broadcasting Tribunal v Bond (1990) HCA 33
1 citation
Jump To
Cite 1 - (1990) HCA 33
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
2 citations
Jump To
Cite 1 - [2010] QCATA 58
Cite 2 - [2010] QCATA 58
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
2 citations
Jump To
Cite 1 - [2010] QCAT 70
Cite 2 - [2010] QCAT 70
Lamble v Queensland Police Service – Weapons Licensing [2018] QCAT 201
2 citations
Jump To
Cite 1 - [2018] QCAT 201
Cite 2 - [2018] QCAT 201
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
Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717
2 citations
Jump To
Cite 1 - [2013] QCAT 717
Cite 2 - [2013] QCAT 717
Stretton v Queensland Police Service [2018] QCATA 37
2 citations
Jump To
Cite 1 - [2018] QCATA 37
Cite 2 - [2018] QCATA 37

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.