Preston v Queensland Police Service - Weapons Licensing
[2025] QCAT 129
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- Unreported Judgment
- Preston v Queensland Police Service - Weapons Licensing[2025] QCAT 129
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Preston v Queensland Police Service - Weapons Licensing[2025] QCAT 129
Preston v Queensland Police Service - Weapons Licensing[2025] QCAT 129
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Preston v Queensland Police Service - Weapons Licensing [2025] QCAT 129 |
PARTIES: | JAMIE PRESTON (Applicant) v QUEENSLAND POLICE SERVICE - WEAPONS LICENCING (Respondent) |
APPLICATION NO: | GAR441-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 4 April 2025 |
HEARING DATES: | 11 March 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Roney KC |
ORDERS: | The decision of the Respondent made on 10 June 2023 to revoke firearms licence number 10903141 held by the Applicant is set aside and the application for review is upheld. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – FIT AND PROPER PERSON – GENERAL ADMINISTRATIVE REVIEW – where police identified the applicant as not a fit and proper person to hold an occupational gun licence – use by weapons to reduce feral animals on rural land and prevention of cruelty to farm animals HUMAN RIGHTS – HUMAN RIGHTS LEGISLATION – the right to own property and not be arbitrarily deprived of the person’s property Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 24, s 31, s 48, s 58 Weapons Act 1990 (Qld), s 3(1)(a), s 3(1)(b), s 3(2), s 10(2)(c), s 11 s 28A Australian Broadcasting Commission v Bond [1990] HCA 33 BIL v Queensland Police Service - Weapons Licensing [2022] QCAT 150 CAT v Queensland Police Service [2017] QCATA 43 Magarry v Queensland Police Service, Weapons Licensing Branch [2012] QCAT 378 Humphreys v Queensland Police Service – Weapons Licensing [2024] QCAT 294 Queensland Police Service v Magarry [2013] QCATA 147 Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330 |
APPEARANCES & REPRESENTATION: | |
Applicant: | S Campbell, Skuse Graham Criminal Lawyers |
Respondent: | T Fergusson, QPS |
REASONS FOR DECISION
- [1]The Applicant has for many years been and currently still is employed by Mr Lindsay Grundy in managing a rural property near Jandowae on the Darling Downs. He earns a living inter alia from working on that property. He does not have higher education and his entire life has been dedicated to farming and wildlife management. He says there are not a lot of other employment opportunities available in the area.
- [2]On 10 June 2023, an officer within Queensland Police Service (‘QPS’) revoked a firearms licence number 10903141 then held by the Applicant for the specific reason that the authorised officer was satisfied that he was no longer a fit and proper person to hold the licence, and due to it not being in the public interest that he hold that licence. He was directed to surrender the licence and any relevant permit/s to acquire to the police officer serving this notice on him immediately and surrender every weapon he held by authority of the licence, by delivering the weapons to the police officer serving this notice on him immediately. He complied with that direction.
- [3]At the time of the revocation of his weapons licence, he had held a licence for some time. The revoked licence would expire in June 2025 and will do so if this application is upheld. He says he has a genuine reason for needing a licence, which is to allow him to carry a weapon to euthanise livestock, if necessary, when sick or injured so that he can prevent cruelty and unnecessary and unreasonable pain to the animals on the rural property where he works for Mr Grundy. He also contends that it is needed to kill feral animals, he says mainly dogs and pigs which he says are in large numbers in that area and which attack the livestock on the property.
- [4]He says, although I consider the evidence unpersuasive, that he would not be able to manage livestock or maintain his current employment in the long term without a weapons licence and he is at risk of losing his means of income without it. At present he still has that job.
The relevant law and whether the Applicant are a fit and proper person to hold a weapons licence
- [5]By s 3(2) of the Weapons Act 1990 (Qld) (‘the Act’), the object of the Act is to prevent the misuse of weapons. By s 3(1) of the Act, the principles underlying the Act are that weapon possession and use are subordinate to the need to ensure public and individual safety, and 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.
- [6]Relevantly, section 4 of the Act provides:
The object of this Act is to be achieved for firearms by—
- prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and
- establishing an integrated licensing and registration scheme for all firearms; and
- requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
- providing strict requirements that must be satisfied for—
- licences authorising possession of firearms; and
- the acquisition and sale of firearms; and
- ensuring that firearms are stored and carried in a safe and secure way.
- [7]By s 10(2)(c) a licence may only be issued to and held by an individual if the person is a fit and proper person to hold a licence and by s 10(f) of the Act has a reason mentioned in section 11 to possess the weapon or category of weapon.
- [8]Section 11 of the Act provides for what are reasons for possession of a weapon and they include an occupational requirement, including an occupational requirement for rural purposes.
- [9]The Act does not define ‘occupational requirement’. In Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330, Member Deane said;
[15] In considering the term ‘occupational requirement’ the Tribunal has previously had regard to definitions in the Macquarie Dictionary. The definition of ‘occupation’ considered was: One’s habitual employment; business, trade or calling; that in which one is engaged.
[16] The definition of ‘occupational’ considered was: of or relating to occupation; of, relating to, arising from, or connected with an occupation trade or calling.
[17] The Tribunal in Feeney v Queensland Police Service (Weapons Licensing Branch) stated, correctly in my view:
In my view the words occupational requirement used in section 11(c) also envisage and require an element of commerciality and profit making to the activities proposed as founding a reason for possession of a weapon.
….
I find commercial activity with a view to financial profit is required by applicants relying on occupational requirements as a reason for a weapon. (references omitted).
- [10]The term ‘fit and proper’ is not defined but the Act does require that certain things be considered, and amongst them is the public interest. The phrase ‘fit and proper person’ in the context of the weapons legislation has been considered by the Tribunal in light of the discussion as to the meaning of that expression by the High Court in Australian Broadcasting Commission v Bond [1990] HCA 33 (‘Bond’) where it was said at [36]:
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.
- [11]In Magarry v QPS Weapons Licensing Branch [2012] QCAT 378 (‘Magarry’) the Tribunal considered the description of the meaning of fit and proper person set out in Bond. The learned Senior Member observed that the Act does not list the factors to be taken into account when deciding whether it is in the public interest to revoke a licence, but the discretion should be exercised in a way which promotes the principles and objects of the Act.
- [12]In Magarry, the Tribunal set aside a decision to reject Mr Magarry’s renewal of his firearms licence and revoke his collector’s licence in far more serious circumstances than arise in the matter before me.
- [13]The Senior Member’s decision was confirmed on appeal in QPS v Magarry [2013] QCATA 147 (‘Magarry’). In the reasons on appeal Cullinane AM QC Judicial Member said as follows:
[26] The Act provides for a licensing regime. Section 10B provided for the considerations on any application for the grant renewal etc of a licence. In deciding whether a person is or is any longer fit to hold a licence consideration must be given to the mental and physical fitness of the person, whether there is a risk to public safety and the public interest. Consideration of the concept of “fit and proper person” is found in cases such as Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321.
[27] The Tribunal approached the matter on the basis of the principles set out in Stower v Smart (2007) QDC 4.
[28] I, with respect agree that these principles represent the approach which gives proper expression to the principles of the Weapon Act 1990.
[29] These are as follows:
- It is of extreme importance to bear in mind the object of the Act which is stated in s 3(2) to be “to prevent the misuse of weapons”.
- The proper exercise of discretion would require the Magistrate to evaluate the evidence of the character of Stower.
- The proper exercise of discretion would then lead to the questions “in these circumstances is there any real prospect of Stower misusing his weapons so that his licence should be suspended? Is his right to possess firearms a real risk to public and individual safety?”
[30] Here the Tribunal has carried out an exercise which involves weighing the considerations militating in favour of and against the Respondent but bearing in mind that all other considerations are subordinate to the need to ensure public and individual safety.
- [14]I adopt and apply those principles to the facts here.
- [15]Neither party referred me to any authority which dealt with the sort of features to be found in this case concerning the use of weapons to protect livestock, however, there are such decisions, including Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330 and BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150. In those cases, there was an application for a licence for occupational purposes which was refused. Different considerations do apply there, since in the present case the Applicant already held a licence for an ‘occupational requirement’ which was revoked. He therefore need not establish that he had or has an ‘occupational requirement’.
- [16]The principal basis for the revocation concerned his having been dealt with, possibly without a conviction being recorded because that was his understanding, but the Transport Department records, which is a secondary record suggest otherwise, for a relatively minor traffic offence.
- [17]He was charged that on 15 July 2022 at Jandowae he did drive a motor vehicle namely a car on a road namely Dalby Street Jandowae without reasonable consideration for other persons using that road and that the said car is a motor vehicle as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 (Qld) and that the said Dalby Street Jandowae is a road as defined in schedule 4 of the Transport Operations (Road Use Management) Act 1995 (Qld).
- [18]He pleaded guilty to that offence on the basis of agreed facts which on the day of his hearing on 20 September 2022 were recited by the prosecutor as being as follows;
At about 7.30 pm on the 15th of July, the defendant has driven to 5 Dalby Street, Jandowae, entered the driveway. He's pulling into the victim's driveway. He's commenced flashing his high beams so as to draw attention. The victim has exited his residence, approached towards the defendant who remained in his vehicle. Upon approaching the defendant's vehicle, the defendant has suddenly driven forward in his vehicle, then braked directly in the path of the victim. The defendant's vehicle has bumped the victim in the chest area, causing him to be pushed back, did not knock him over. The victim has then approached the driver- side door and struck the defendant's car. The defendant has then reversed his vehicle under acceleration to avoid further conflict, driven away from the victim. That appears to be the facts. So, he's just gone there for, it appears, some confrontation, bumped him mildly with his car, and then when it's backfired on him, he's hastily driven away.
- [19]His legal representative said;
My client did attend the home of the victim with the goal of contacting the victim in respect of an ongoing property dispute. My client acknowledges that he did act imprudently in doing so in both failing to go - in going to the victim's property at that time of night in the way that he did and in failing to control his vehicle with due care, but essentially bunny hopping into the victim not parking properly at the driveway. So, the elements of the offence in section 83 of the Transport and Operations Road Use Regulations, they're satisfied by the bump.
- [20]Submissions were made on behalf of the Respondent at the hearing of this application that seek to criticize his conduct as confrontational that night, as well as suggesting he was in altercations and arguments on three or four other occasions to which I shall make reference shortly. It was submitted that he was lucky not to have been injured that night by the person to who’s house he had gone.
- [21]I propose to proceed on the basis that the recognised circumstances of the offence are those which were recited by the prosecutor and in explanation in mitigation by his lawyer. He was cross-examined in this Tribunal about the circumstances of the incident but he maintained that the vehicle in effect accidentally bunny-hopped into the other person during the confrontation when he tried to put it into park gear. He accepted that it was not a good decision to go there, but he disagreed that the only likely outcome was a violent confrontation The confrontation arose out of a longer dispute with the other person about his allegedly trespassing on other’s properties including one where the Applicant worked.
- [22]In the reasons later given for the revocation it was said that the decision-maker;
…considered when determining if a person is a fit and proper person to retain a licence, in the public interest, an Authorised Officer has to have regard to all information available and based on that, I am of the opinion you are not a fit and proper person to retain a firearms licence.
- [23]The decision-maker then noted the details of the traffic offence incident, but did so in a way that was inconsistent with, substantially different from and more serious than was agreed on his plea and sentencing as I have set them out above. The Respondent did not seek to advance that version of the incident here and limited itself to a few only of the many points made in the decision maker’s reasons, which therefore were substantially abandoned. It also asserted that he had received a penalty of a conviction recorded, however that is not obviously so and the Magistrate did not use those words.
- [24]In the reasons later given for the revocation it was said by the decision maker;
Your conduct is contrary to the expectation rightfully held by the public that firearms licence holders will conduct themselves appropriately and in compliance with the law. Section 108(1).
I hold reasonable concern for the public interest, should you continue to hold a licence. It is apparent, that you, remaining the holder of a firearms licence would represent an unacceptable risk to individual and public safety.
Taking into consideration the seriousness of the incident and your aggressive and violent actions that, resulted in an injury to a member of the public; I consider from all information available that it is not in the public interest for you to hold a firearms licence. Accordingly, your firearms licence is revoked.
- [25]In this Tribunal, the Respondent did not seek to contend that the driveway incident involved “serious, aggressive and violent actions that, resulted in an injury to a member of the public.”
- [26]The few points from those reasons which are still relied upon were as follows;
1. On 25 July 2022 Police also attended his address to see if he wanted to be interviewed. He appeared very upset with Police and stated that he was not sure who to trust as local Police are "sucking ass" to the victim and would give a statement to other Police.
2. After Jandowae Police left the address, it was noted that on the Police system, he had contacted the Redbank Police beat shopfront where he stated that local Police were "trying to stitch him up" for a crash.
3. After this time Jandowae Police attended his home address several times, sent an email and called several times with no answer from him.
4. At approximately 4:20pm on the 6th of August 2022 Police again attended his home address where this time he came out to police. He again was very upset with Police and stated to Police that they were causing "all the bullshit" as police were not welcome there. He was swearing at police and even told police to go and "blow" the victim.
- [27]As for the first of those, and saying he did not trust police, as the Applicant explained, and I accept his evidence, he has had a long history of conduct actually engaged in by another person, his cousin, being treated by QPS staff as his conduct and history. Even the material put forward by the QPS to resist this application included a traffic or criminal history which was not his, and the material relied on included other reports of things he had allegedly done or were attributed to him, when they were the actions of his similarly named cousin. Little wonder that he had a distrust for police, because even during the hearing before me the Respondent was realising that matters regarded as relevant to the decision were not in fact properly attributed to him, including his criminal history. As he explained in his evidence, he did not think the police investigating the driveway incident were being fair to him, but he accepted that he should never have spoken to the police as he did, should not have otherwise been aggressive toward police. It was not disputed that he had long ago apologised to those police to whom he had behaved badly. I accept that unchallenged evidence.
- [28]As for the second incident listed above, the issue concerning the Redbank Police beat shopfront, the police record of this was not initially relied upon by the Respondent, but then the Applicant conceded when cross-examined about it that it was he that was involved. The police record recorded;
Subject has contacted the Redbank Plaza Pollice Beat regarding a silver Ford Focus which police advertised on social media regarding stealing offences. Subject advised to contact Crime Stoppers as Ipswich police aren't available to attend address. Subject stated he does not trust local police as he believes they are trying to stitch him up regarding hit and run traffic crash. Police beat officer reiterated admin officers advise to contact Crime Stoppers. Subject refused. Subject became frustrated that Ipswich police were not willing to do anything.
- [29]In his evidence, the Applicant explained that this was borne of his frustration with a particular officer whom he believed was putting things to him that weren’t correct based perhaps on a misunderstanding as to whether he had a particular criminal or police history or whether it was the history of what his cousin had done.
- [30]As for the fourth incident on 6 August 2022 involving swearing at police, he accepted that he should not have spoken to police that day in the way he did and that this also had to do with him being attributed with his cousin’s conduct in the past. He swore, and I accept, that he was frustrated at how police handled the matter and in fact received an apology of sorts from the investigating officer. He also apologised in kind. He accepts that the language he used was inappropriate and expresses his sincere apologies for lashing out like that. He says that such behaviour is very out of character for him and was driven by the dispute he was having with the other party. I do not condone that type of behaviour towards police and is sincerely remorseful for his conduct on that occasion.
- [31]The other matters that the Respondent pointed to, as demonstrating that he had a confrontational manner or personality which made him not a fit and proper person were that on 4 July 2022, some three years ago he had a dispute with one of his tenants of a food shop. He swore that the tenant had abandoned the shop, left it in a mess, left rent owing and had traded with requisite licences. He put a sign in the window saying some of these things. Police told him to take it down and he did. This was somewhat aggressive conduct, but arose in the context of a civil dispute with a tenant. No threat or violence was involved.
- [32]The next incident was on 29 May 2017, almost 8 years ago when police were called, by him as it turns out, involving the eviction of another tenant he said was undesirable for various reasons and what police called a “civil agreement over outstanding lease payment”.
- [33]The next incident was in the same year in March 2017 when police were called after an argument in a newsagency. The Applicant did not clearly recall it but said he took umbrage at the shop owner criticizing the town they lived in and told him he could go back to the town he had come from.
- [34]The next was an incident over 12 years ago where he and his brother had an argument in the street. The Applicant did not clearly recall this incident either.
- [35]No guns or physical threats were made during any of these incidents. There have been no such incidents of any kind since he was dealt with for the 2022 driveway incident.
- [36]He has no criminal or traffic history apart from the traffic offence in the 2022 driveway incident which I have described earlier in detail.
- [37]The arguments put forward as suggesting that he is not a fit and proper person resemble some of those put in the decision in Humphreys v Queensland Police Service – Weapons Licensing [2024] QCAT 294 where in response to similar propositions it was said;
[92] As far as the complaint that he was ‘cranky’ and agitated when speaking to the client services officer and that that shows his generally argumentive behaviour when dealing with police, that offers small assistance and little bearing in determining his fitness to hold a weapons licence. A person may be rude and speak abruptly but still be fit to hold a weapons licence.
[93] Generally I do not find Mr Humphreys was obstructive, meaning to cause deliberate difficulty and delay, in his dealings with police.
[94] I do not consider he holds the State or the laws of the State in low regard.
- [38]I would apply the same reasoning here. Adopting what was said in Magarry. I am cognisant of the importance of the object of the Act which is as stated in s 3(2) to be to prevent the misuse of weapons. As to whether in these circumstances there is any real prospect of him misusing his weapons so that his licence should be revoked, I do not consider that there is. As to whether his right to possess firearms is a real risk to public and individual safety, I do not consider that there is.
- [39]As to his character generally, he has clearly had some frustration in dealing with police, however, he regrets that conduct. I have had the benefit of hearing him give his evidence and be cross-examined. Some of his evidence was unpersuasive, like the suggestion that he necessarily needed the licence to keep his job. He has kept it for nearly two years without it. But generally, I consider him to be truthful and credible.
- [40]His employer, Mr. Grandy has known the Applicant’s family for 50 years and knows him to come from a good family. He says that he has employed him for some 3 years and knows him to be honest, reliable and level-headed. He confirms that he has worked keeping down feral animals on his property.
Disposition
- [41]Neither party referenced the significance of the Human Rights Act 2019 (Qld) which commenced on 1 January 2020. In deciding this Application, and like applications, I am acting as a public entity in an administrative capacity.[1] I accept that a decision under the Act impacts Mr Preston’s rights. I do not consider that a decision to revoke his licence is compatible with human rights as the limitations on those rights are reasonable and justifiable.
- [42]Taking all these factors into account, I determine that Mr Preston is a fit and proper person to hold a weapons licence for occupational purposes. I determine that it is not against the public interest for him to hold such a weapons licence or have access to weapons. I do not consider he constitutes a risk to the public going forward.
- [43]The decision to revoke his weapons licence should be set aside. It is appropriate that his weapons should be returned to him, although I make no order in that regard.
Footnotes
[1] Scott v Queensland Police Service – Weapons Licensing [2021] QCAT 330; BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150.