Busch v Queensland Police Service – Weapons Licensing
[2025] QCAT 220
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- Unreported Judgment
- Busch v Queensland Police Service – Weapons Licensing[2025] QCAT 220
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Busch v Queensland Police Service – Weapons Licensing[2025] QCAT 220
Busch v Queensland Police Service – Weapons Licensing[2025] QCAT 220
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Busch v Queensland Police Service – Weapons Licensing [2025] QCAT 220 | |
PARTIES: | Nathan Robert Busch (applicant) v Queensland Police Service – Weapons Licensing (respondent) | |
APPLICATION NO/S: | GAR247-23 | |
MATTER TYPE: | General administrative review matters | |
DELIVERED ON: | 14 May 2025 | |
HEARING DATE: | 28 May 2024 | |
HEARD AT: | Brisbane | |
DECISION OF: | Member Poteri | |
ORDERS: | The decision of the Commissioner of Police made on 15 February 2023 is confirmed. | |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE – FIT AND PROPER PERSON – Where an applicant has sought a review of a decision to refuse an application for a firearms licence on the basis that the applicant is not a fit and proper person to hold such a licence – where the applicant has provided medical evidence and other evidence – where the respondent has provided further evidence of the applicant’s interaction with police during a traffic stop Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20 Weapons Act 1990 (Qld), s 3, s 4, s 10B, s 142 Australian Broadcasting Tribunal v Bond [1990] HCA 33 XPR v Queensland Police Service – Weapons Licensing [2025] QCAT 1 Pivotto v Queensland Police Service – Weapons Licencing [2025] QCAT 130 | |
APPEARANCES & REPRESENTATION: | ||
Applicant: | Mr P Quinn of Gilshenan and Luton, Lawyers | |
Respondent: | M Carey of Queensland Police Service | |
REASONS FOR DECISION
- [1]This matter was heard before me in person on 28 May 2024. The Applicant, Nathan Robert Busch (‘Busch’), was represented by Mr P Quinn of Gilshenan and Luton, Lawyers and Ms Carey appeared for the Queensland Police Service (‘QPS’).
- [2]On 21 July 2022 Busch applied to the Commissioner of Police for a firearms licence for recreational and target shooting. Busch was informed by a letter dated 15 February 2023 from the Commissioner of Police Young’s Firearms Licence was rejected pursuant to s 29 of the Weapons Act 1990 (Qld) (‘WA’) (‘Decision’). Pursuant to s 142 of the WA Busch has applied for an external review of the Decision.
- [3]I am reviewing the Decision pursuant to ss 19 and 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’). That is, I am hearing the matter by way of a fresh hearing on the merits, and I have all the functions and powers of the original decision-maker in undertaking this review. The object of the review is to produce the correct and preferrable decision. As there were no jurisdiction issues raised by the parties, I proceeded to hear the review.
- [4]The relevant provisions of the WA are outlined:
3 Principles and object of Act
- The principles underlying this Act are as follows—
- weapon possession and use are subordinate to the need to ensure public and individual safety;
- 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.
- The object of this Act is to prevent the misuse of weapons.
4 How object is to be achieved for firearms
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.
10B Fit and proper person—licensees
- 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, an authorised officer must consider, among other things—
- the mental and physical fitness of the person; and
- whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and
- whether the person has stated anything in or in connection with an application for a licence, or an application for the renewal of a licence, the person knows is false or misleading in a material particular; and
- (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.
- However, for the issue, renewal or revocation of a licence, a person is not a fit and proper person to hold a licence if, in Queensland or elsewhere within the relevant period—
- the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences—
- an offence relating to the misuse of drugs;
- an offence involving the use or threatened use of violence;
- an offence involving the use, carriage, discharge or possession of a weapon; or
- a domestic violence order, other than a temporary protection order, has been made against the person.
- Also, for the issue, renewal, suspension or revocation of a licence, a licensed dealer is not a fit and proper person to hold a licence unless each associate of the person is a fit and proper person to be an associate of a licensed dealer.
- A person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland from holding a licence or possessing a weapon.
- In this section—
relevant period means—
- for the issue or renewal of a licence—the 5 year period immediately before the day the person applies for the issue or renewal of the licence; or
- for the suspension or revocation of a licence—the 5 year period immediately before the date of the suspension notice under section 28, or a revocation notice under section 29, is given for that suspension or revocation.
- [5]QPS have outlined the background to the rejection of Busch’s application for a firearms licence submissions filed in the Tribunal on 18 May 2023 and in the letter to Busch dated 15 February 2023. The QPS allege that Busch is not a fit and proper person to hold a firearms licence pursuant to s 10B of the WA.
- [6]The QPS have raised the following issues:
- When Busch applied for the firearms licence the application form contained a question “(a) have you in Queensland or elsewhere ever been charged with an offence, this includes any traffic and/or criminal offence(s) that resulted in a court attendance? (Please tick yes even if you were charged but not convicted or a conviction was not recorded)”. Busch answered “no” to this question.
- In fact, Busch had been charged with “drug driving” in Northern New South Wales on 8 May 2017 and he pleaded guilty on 24 August 2017 and no conviction was recorded by the court; and
- QPS also allege that Busch was issued with an infringement notice for being a public nuisance on 7 March 2020 with a penalty of a fine of $400 for a road rage incident; and
- Although Busch disclosed the issue of his suffering from mental health issues because of his time as a serviceman in Army, the QPS say that the medical report supplied by Busch is not sufficient to demonstrate that Busch is a fit and proper person to hold a firearms licence.
- [7]Busch gave oral evidence, and he was cross-examined by the QPS. Busch has also supplied a statement dated 10 November 2023 and filed in the Tribunal on 21 November 2023. The evidence shows:
- Busch is a married man of approximately 45 years of age who resides near Yeppoon with his wife of approximately 17 years and 2 young children. He says that he has an interest in a business, and he owns the house property in which the family reside.
- Busch was in the army for approximately 10 years until 2009 and undertook two operational overseas tours, one in Indonesia after the Boxing Day tsunami and the other in Afghanistan.
- He is proficient in firearms and explosives and says that he worked as a contractor in Afghanistan for the USA specialising in explosives and bomb removal. He says that he held security clearances from a number of government agencies.
- Busch says that if he was granted a firearms licence he would use the firearm for recreational use and target shooting. He says that he would be able to assist and teach unexperienced shooters how to safely handle, use and store firearms. He also says that he may require a firearms licence use on farming/grazing properties.
- Busch says that he is involved in a business (Vergex Pty Ltd) which specialises in searching for unexploded bombs. See paragraphs 15 to 21 of Busch’s statement filed in November 2023.
- Busch did suffer from post-traumatic stress disorder (‘PTSD’) as a result of his tours overseas where he sought treatment from Dr Peter Rolfe, consultant psychiatrist, for approximately 10 years from 2012. Busch now says that he does not require further medication and he now feels much better and secure with the support of his family. He says that Dr Rolfe no longer treats him because he has retired, and he now knows when to seek treatment.
- Dr Rolfe provided a report dated 9 May 2022 which was supplied to the QPS and has been filed in the Tribunal by QPS on 18 May 2023. In the report at paragraphs 5, 6 and 7, Dr Rolfe considers Busch to be a fit and proper person to hold a firearms licence, the community can have confidence that no improper conduct will occur regarding Busch’s firearms licence and Dr Rolfe provides a firm recommendation that there is no real risk to public or individual safety should Busch’s circumstances change in the future.
- During the hearing I raised the issue that Dr Rolfe’s report was prepared approximately 3 years ago so I gave leave to Busch to obtain a further report from a medical professional.
- A further report from Dr Charis Gauvin, consultant psychiatrist, dated 29 August 2024 was filed in the Tribunal on 24 September 2024. The report supports Dr Rolfe’s opinion that Busch is a fit and proper person to hold a firearms licence. In the report Dr Gauvin says that Busch has transitioned to his care from Dr Rolfe, and he has been treating Busch since June 2024. He says that Busch has, in the past suffered from major depression and PTSD, and he is now suffering from some residual PTSD but this condition is well controlled, and he is diligent in ensuring that his physical needs are addressed with regular exercise, allied health support, and good nutrition.
- In Dr Gauvin’s report he states that Busch is seeking assistance for his chronic pain problems, and he now abstains from drinking caffeine and taking any illegal drugs. Dr Gauvin was aware of his past conduct (i.e., drug charge and public nuisance charge)
- [8]Regarding the other issues raised by the QPS, Busch says:
- The drug driving incident occurred near Nimbin in New South Wales where he was experimenting with the use of cannabis to relieve his chronic back pain. Busch stated that he was prescribed medicinal cannabis for his chronic pain, but this had little effect and he wanted to try illegal cannabis. Busch said that the illegal cannabis had little effect and he discontinued the use of the illegal cannabis.
- Busch said that he was stopped along with numerous other people and there was much confusion at the Lismore Court where he pleaded guilty to the drug charge, and he was discharged with no conviction recorded.
- This incident occurred in August 2017 which is more than 7 years ago. Busch now says that he is receiving treatment for his chronic pain, and he now abstains from using any illegal drugs.
- When he was completing the questionnaire which accompanied the application for a firearms licence he believed, that because he was discharged by the Lismore Court and no conviction was recorded, there was no requirement for him to disclose the incident. Busch says that he did not intend to mislead the QPS.
- Regarding the road rage incident, Busch says that he considered this a simple traffic offence. He also says that the incident occurred on the Bruce Highway and when he arrived home he reflected on his actions and called the QPS where he made full disclosure. Busch says that he received the infringement notice and paid the fine of $400.
- [9]Since the hearing in May 2024, the QPS have submitted further evidence where Busch was stopped by police on 4 June 2024. At the time Busch was driving on a suspended driver’s licence and he was issued with an infringement notice for driving a motor vehicle without a licence. The QPS say that this evidence is relevant to the question of whether Busch is a fit and proper person to hold a firearms licence.
- [10]In a letter to the Tribunal dated 11 December 2024 Busch’s lawyers submit that a direction hearing should be held to determine whether this further evidence should be admitted and the purpose for seeking to admit this further evidence.
- [11]It is my view that there is no need to conduct a further directions hearing as it is clear why the QPS is seeking to admit this evidence. That is, it shows Busch’s interaction with the policeman who detained him. This evidence should be admitted as leave was granted for Busch to adduce further medical evidence after the hearing, the evidence is relevant, Busch has formally responded to this evidence and this review is a fresh hearing on the merits. See s 20 of the QCAT Act.
- [12]The further evidence relates to a traffic stop by a senior constable of the Highway Patrol at Mt Larcom on 4 June 2024. During the traffic stop there is an exchange between Busch and the senior constable where QPS allege that Busch was displaying “sovereign citizen” ideologies and “beliefs” and he admitted to driving without a valid driver’s licence.
- [13]Sovereign citizen ideology is not specifically defined in Webster’s Dictionary, but the ideology relates to certain individuals who do not believe in the authority of the state (in this case it is the State of Queensland) to impose and enforce laws that may affect them.
- [14]The term “sovereign citizen was discussed in the matter of Pivotto v Queensland Police Service – Weapons Licencing [2025] QCAT 130. At paragraph 32 the presiding member said:
“The origins of the sovereign citizen … are etched in history. It is said to have first begun in America during the patriot movement and draws upon central tenants of social and political philosophy – the social contract, natural rights and the theory of the state.
Its anti-government platforms are strongly embedded with a mixture of conspiracy theories, constitutional re-interpretations and alternative versions of history.
In a nutshell, sovereign citizens are people who believe that the laws of the state do not apply to them as they have revoked their ‘consent’ for this to occur. They consider themselves to be ‘natural’ persons – born with their own natural rights that are unable to be constrained by governments. Often they refer to the ‘common law’ as being the only law they recognise as legitimate.
Usually they oppose the very foundations of our democracy and rely on pseudo legal language, piecemeal, cryptic and often incorrect legal arguments to assert their independence. …
The introduction of the Human Rights Act 2019 (Qld) has seen an increase in human rights arguments. This is a good thing, even if some of those early arguments have been misguided. We are all learning a new area of human rights law.
However, the sovereign citizen argument is a different beast and should not be confused with the proper application of existing human rights law.”
- [15]I have considered the transcript and the body worn camera vision of the incident supplied by QPS. The vision and the transcript raise some issues. For example, Busch stated that he was not driving but “operating on”. He referred to his physical driver’s licence as a “piece of plastic”. When asked to provide his surname, Busch replied “person”. There are other references in the encounter such as a reference to a “legal person” and near the end Busch states “Offense(sic) happening. You don’t have any jurisdiction to do anything with anyone?”. I also note that Busch would not accept the infringement notice and the policeman placed it inside Busch’s vehicle.
- [16]Busch says that he was driving his motor vehicle because his driver’s licence was suspended by SPER because he did not pay a parking fine. In a statement dated 23 January 2025 and filed in the Tribunal on 25 January 2025, Busch says that he was not aware of the parking fine infringement, and he contested the parking fine in the Gladstone Magistrates Court on 23 September 2024. The court convicted Busch, disqualified him from driving for a period of 1 month and fined him $400. Busch also says that he had to pay SPER’s costs which amounted to $700.
- [17]The police stop at Mt Larcom occurred on 4 June 2024 which is a date very close to the hearing date of this review on 28 May 2024.
- [18]Busch says in his statement dated 23 January 2025 that his discourse with the policeman on 4 June 2024 was a “a poor attempt at being humorous” and he complied with all the directions of the policeman. He also states that he employed a driver at a cost of $3,000 during the disqualification period of his driver’s licence.
- [19]On 3 February 2025 I issued further directions for Busch to detail his work qualifications and history in dealing with explosives. By issuing these directions I was seeking clarification whether Busch had any formal authority from any government to have access to and/or to handle explosives. Busch filed an affidavit dated 25 February 2025 in the Tribunal on 25 February 2025. This affidavit shows that Busch is a co-founder of Vergex Pty Ltd which undertakes searches to find potential unexploded ordinance. Vergex Pty Ltd or Busch do not have any lawful authority to access, handle or dispose any unexploded ordinance. This task is undertaken by defence personnel.
- [20]The critical issue in this review is to answer the question…. Is Busch a fit and proper person as set out in s 10B of the WA to hold a Firearms Licence?
- [21]What constitutes a fit and proper person is not specifically defined in the WA Act. Therefore, it is necessary to go to the general caselaw for guidance. As QPS point out the principal authority for this expression is the High Court authority of Australian Broadcasting Authority v Bond [1990] HCA 33 where Toohey and Gaudron JJ said at 56:
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 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.
- [22]Therefore, I believe that the critical questions that must be answered are outlined in the Australian Broadcasting Authority case. The questions are:
- Has improper conduct occurred? and
- Is it likely to occur? and
- Whether the general community will have confidence it will not occur?
- [23]My findings:
- Busch is a 44-year-old army veteran who has turned his life around and he is dealing with his PTSD in a very positive way. He is seeking the appropriate medical assistance in dealing with his PTSD and his chronic back pain.
- He has no criminal convictions, and he has never been involved in any domestic violence incidents. He is well supported by his family.
- Busch understands and is well versed in the use and storage of firearms from his time in the army.
- Busch has served his country in active duty overseas and he has built up a successful business. He and his family are the owners of the family home. He now has a much better relationship with his family. His personal testimonials support this position.
- I cannot take into account his “no conviction” for the drug offence in 2017 and the infringement notice for his driving offence in 2020 because of the principle outlined in the matter of XPR v Queensland Police Service – Weapons Licensing [2025] QCAT 1.
- However, when completing the application form for a firearms licence Busch was asked if he had ever been charged with any offence, including traffic and/or criminal offence which resulted in a court appearance. Busch answered “no”. This was not a correct statement. I accept that Busch may have been confused when completing the application and the drug driving occurred while he was trying to relieve his chronic back pain.
- When completing the application form for a firearms licence Busch also did not disclose his traffic offence history, including the traffic infringement for the road rage incident.
- There is also the traffic stop in June 2024 where Busch admits that he was driving on a suspended driver’s licence. Busch may have felt aggrieved that the suspension of his driver’s licence occurred because of an unpaid parking fine which he was contesting. The fact remains that Busch still drove his vehicle in breach of the law and this breach occurred very shortly after the hearing of this review on 28 May 2024.
- Further in the traffic stop in June 2024 Busch appears to be challenging the authority of the police officer and making statements such as “you don’t have any jurisdiction to do anything with anyone”. He appears to be espousing “sovereign citizen” ideologies such as “I’m not a legal person”. Busch has responded by saying that his actions were a poor attempt at humour and that he complied with all police directions. I have viewed the vision of this interaction and I cannot accept this explanation. I support the QPS submissions on this issue.
- Dr Rofe, a consultant Psychiatrist, provided a report dated 9 May 2022. The report states that Dr Rofe had been treating Busch since 2013 where he says that his PTSD is under control with specific antidepressant treatment. He also says that he has residual PTSD, and he notes that he has bought a property and Busch is engaged in renovating the property.
- Dr Rofe considers he is a fit and proper to hold a firearms licence having regard to whether he may present a risk to himself or the public. In his final recommendation Dr Rofe says that there is no risk to public and individual safety should Busch’s circumstances change.
- Dr Rofe also says in his point 6 that the community can have confidence that no improper conduct will occur if Busch was to be issued with a firearms licence. It is Dr Rofe’s opinion that Busch is psychologically stable, and he has a long history of contact with firearms as well as being a firearms instructor.
- Dr Rofe’s report was provided some 3 years ago. I accept that Dr Rofe has given a general recommendation that Busch is a fit and proper person to hold firearms licence. However, he does state that Busch still has some residual PTSD.
- A report dated 29 August 2024 was provided by Dr Gauvin and filed in the Tribunal on 24 September 2024. The report states that Busch is doing well, both mentally and physically, and he is well supported by his wife. The report states that Busch now abstains from all drugs, and he has no thoughts of suicide, self-harm or harm to others. The report also states that Busch has accepted all therapeutic recommendations for major depression and PTSD.
- Dr Gauvin’s report does confirm that Busch is still suffering some residual PTSD and he remains stable and clinically well.
- Dr Gauvin’s report echoes the findings and opinions of Dr Rofe. I do note that Dr Gauvin first reviewed Busch on 26 August 2024 and his report is dated 29 August 2024. The report mentions “each session” so Dr Gauvin would have had at least 2 sessions with Busch. However, in my view, this is a very short period to be making such an assessment.
- Busch is an army veteran who has given great service to his country, and he has paid a significant price in terms of his mental health. He has certainly made great advances in his life regarding his mental health, other health issues and his struggles with alcoholism. He is also supported by his family, and he has established a business where one of its roles is to locate unexploded ordinance. It has been clarified that Busch does not have any lawful authority to access or use explosives. If that was the case, then it would be academic that Busch was the holder of a firearms licence in terms of the harm that could be caused with the improper use of explosives.
- [24]The legislature in ss 3 and 4 of the WA state that there must be strict controls on the ownership and possession of weapons to ensure public and individual safety. The safety of the public is paramount and overrides the rights of the individual. Further the WA stipulates that the holder of a firearms licence must be a fit and proper person to hold such a licence and if the holder breaches a condition, then the Firearms Licence is subject to revocation. This legislation is strictly interpreted because public safety is paramount.
- [25]It is clear that improper conduct has occurred. That is the traffic infringements and the non-disclosure issues.
- [26]Whilst the issue of non-disclosure of being charged with the drug offence in 2017 and the road rage traffic infringement are not major issues, I do have concerns with Busch’s interaction with the policeman at the traffic stop in June 2024. As mentioned previously, Busch appeared to be challenging the legal authority of the policeman conducting the traffic stop and his comments and actions (i.e. not physically accepting the infringement ticket from the policeman) are contrary to those normally expected of the general public. What is also significant is that Busch chose to drive his vehicle knowing that his driver’s licence was suspended, albeit for non-payment of a parking ticket which he was contesting, shortly after the hearing date of his application for review.
- [27]The factors which concern me are:
- Non disclosure of the offence history when Busch made the application for a firearms licence.
- Busch has suffered from major depression and he still has some residual PSTD.
- Shortly after the hearing of the review Busch was detained by police in June 2024 where it was ascertained that he was driving his motor vehicle without a valid driver’s licence.
- During the traffic stop in June 2024 Busch appeared to be challenging the lawful authority of the police to detain him and issue him with an infringement notice.
- [28]Taking all of the above factors into account I find that it is possible that this improper behaviour may occur in the future, and I do not believe that the community will have confidence that it will not reoccur.
- [29]Busch has made great strides in dealing with many issues in his life such as mental health, alcoholism, depression and PTSD and he is now well supported by his family, friends and his business partner. I also accept that using a rifle or shotgun in a recreational setting such as a gun club or shooting range can be very beneficial to a person’s well-being. However, I cannot ignore the issues that I have highlighted previously. I therefore find that the correct and preferrable decision is to confirm the Decision.
- [30]Busch can make another application in future to be the holder of firearms licence. In such case Busch should make full disclosure of his background and provide further up to date medical reports from relevant health providers. During this time Busch can carry out some shooting in a lawful way with a person who is appropriately licensed.