Balderson v Queensland Police Service – Weapons Licensing
[2025] QCAT 223
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- Unreported Judgment
- Balderson v Queensland Police Service – Weapons Licensing[2025] QCAT 223
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Balderson v Queensland Police Service – Weapons Licensing[2025] QCAT 223
Balderson v Queensland Police Service – Weapons Licensing[2025] QCAT 223
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | Balderson v Queensland Police Service – Weapons Licensing [2025] QCAT 223 |
PARTIES: | marne lee balderson (applicant) v queensland police service – weapons liceNsing (respondent) |
APPLICATION NO/S: | GAR582-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 9 June 2025 |
HEARING DATE: | 2 June 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Richard Oliver |
ORDERS: | The decision of the respondent is set aside. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS LICENCES AND REGISTRATION – REVOCATION OF LICENCE – where applicant was the holder of a weapons licence – where applicant charged with an traffic offence of having a relevant drug in his blood or saliva – where the respondent revoked his weapons licence on the grounds he was not a fit and proper person – where applicant contends the offence is one relating to the misuse of drugs – where deemed to not be a fit and proper person – where applicant not charged with an offence under the Drugs Misuse Act 1986 (Qld) – whether the phrase “misuse of drugs” related to the traffic offence – whether the applicant a fit and proper person Acts Interpretation Act 1954 (Qld) Drugs Misuse Act 1986 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24 Transport Operations (Road Use Management) Act 1995 (Qld) Weapons Act 1990 (Qld), s 3, s 10B Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363 |
APPEARANCES & REPRESENTATION: | |
Applicant: | Self-represented |
Respondent: | Mr Ferguson of Weapons Licensing |
REASONS FOR DECISION
- [1]On 22 October 2021 the applicant was driving his Landcruiser utility along the Capricorn Highway near Westwood when he was intercepted by police. After identifying himself, he told police that he had a rifle in vehicle behind the seat. The police officer observed the rifle and noticed the bolt of the .22 rifle was not in the rifle and therefore not stored in a safe condition, separate from the rifle, as required by the Weapons Act 1990 (Qld) (“the Act”). He was charged with an offence under the Act and on 12 November 2021 he appeared in the Rockhampton Magistrates Court, pleaded guilty and was fined $400.00 with no conviction recorded.
- [2]In a separate incident on 8 June 2022, he was intercepted on the Landsborough Highway, Longreach. Police administered a roadside drug test which returned a positive result for a “relevant” drug. He was transported back to the Longreach Police Station where he underwent a further test on an “approved saliva analysing instrument operated by an authorised officer”.[1] The saliva analysis established the presence of a prohibited drug, namely Methylamphetamine in his saliva. He was charged with an offence of driving while a relevant drug is present in blood or saliva. The charge was pursuant to s 79(2AA)(a) of the Transport Operations (Road Use Management) Act 1995 (Qld) (“Transport Operations Act”) which provides:
Offence of driving etc. while relevant drug is present in blood or saliva
Any person who, while a relevant drug is present in the person’s blood or saliva—
- Drives a motor vehicle, tram, train or vessel; or
- ……
- ……
is guilty of an offence liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.
- [3]The applicant appeared in the Magistrates Court at Longreach on 8 June 2022, pleaded guilty and was convicted and fined $350 and disqualified from holding a drivers licence for a period of one month. He was not charged with any drug related offence.
- [4]As a consequence of these two events on 19 July 2023 an authorised office from Weapons Licensing revoked the applicant’s weapons licence. The grounds for revocation were that because of the two offences he was not a fit and proper person to hold a weapons license as required by s 10B of the Act.
- [5]On 21 August 2023 the applicant filed an application to review the decision of the authorised officer. As this is a review of the respondent’s decision to revoke the applicant’s weapons licence, section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) requires me to make the correct and preferable decision by way of a fresh hearing on the merits.[2] That is to have regard to the evidence filed by both parties and also the further evidence given at the hearing. It is not the function of the Tribunal to identify error or mistake in the original decision but to look at all of the surrounding circumstances, as has often been said “stand in the shoes of the decision maker, and make another decision afresh”.
- [6]Unfortunately, the applicant did not appear at the hearing. He was telephoned twice but with no answer. I decided to proceed with the hearing because the issue came down to a question of law rather than a factual dispute. By reference to the application for review filed there was no apparent contest as to what had occurred.
- [7]The section 21(2) documents filed by the respondent included a complete criminal history as well as a traffic history. The traffic history is extensive but the respondent does not rely on this, other that the recent drug driving conviction. The criminal history of note is an assault charge in 2013 and being drunk and disorderly in 2014, for which convictions were recorded. Given the time lapse since these events, these charges are also not specifically relied upon. However, that does not mean I cannot take them into account in deciding the matter afresh.
Fit and proper person and the deeming provision
- [8]At the hearing, the respondent conceded that the weapons storage charge, not having the rifle bolt separate from the rifle, alone would not disqualify the applicant from holding a weapons licence. I agree. However, reliance is placed on the drug driving charge to establish that the applicant is not a fit and proper person. That is because s 10B(2) includes a “deeming” provision where a person commits an offence relating to the misuse of drugs. It provides specifically that:
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
………
(“the deeming provision”)
- [9]At face value the deeming provision is invoked because the applicant was convicted of a driving offence involving drugs, e.g. Methylamphetamine. Hypothetically, if the only disqualifying feature for an applicant for a weapons licence, with an otherwise unblemished history, was a conviction for a driving offence involving a drug under the Transport Operations Act would seem to be a rather harsh outcome.
- [10]This issue was explored somewhat at the hearing. I was not referred to any authorities where the point might have been considered by the Tribunal in the long history of published cases relating to reviews of weapons licensing decisions. I therefore decided to reserve this decision to consider the matter further.
- [11]After some research I was fortunate to find a 2014 decision of a former member of this Tribunal, Member Cullen, which is of assistance in deciding if the deeming provision applies in this case.
- [12]Similar circumstances to these arose in Williams v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 363. In that case the applicant was charged under the Transport Operations Act with an offence of driving while a relevant drug (cannabis) was present in blood or saliva. The respondent contended the deeming provision applied and therefore the applicant was not a fit and proper to hold a weapons licence and revocation followed. The issue in the case was whether the offence related to the misuse of drugs. As the learned Member put it at [4]:
This is because the offence that led to the revocation of Mr Williams’ licence arose out of a traffic incident, and not out of any drug-related charges.
- [13]The learned Member referred to the Drugs Misuse Act 1986 (Qld) (‘Drugs Misuse Act’), in particular the long title which is:
An Act to consolidate and amend the law relating to the misuse of drugs and to make further provision for the prevention of the misuse of drugs for other purposes.
- [14]This then led her to reason at [10] that:
This suggests that, as used in the Weapons Act, the term ‘an offence relating to the misuse of drugs’ can only mean an offence that falls within the Drugs Misuse Act, particularly given the intent of the Drugs Misuse Ac to “consolidate the law” in this respect. There is no other definition of ‘an offence relating to the misuse of drugs’ contained within the Weapons Act. The simple, obvious conclusion is that an offence under the Transport Operations Act cannot be transformed, as the QPS submits, into a drugs misuse offence. The offence that Mr Williams has pleaded guilty to might be described as ‘an offence relating to the driving of a motor vehicle’. The Tribunal finds that the mandatory revocation provisions contained in s 10B(2)(a)(i) of the Weapons Act do not apply in Mr William’s circumstances.
- [15]I respectfully agree with the above comments. However, to take the statement a little further it is noted that the Drugs Misuse Act does cover the field in that Part 2 relates to: possession; supplying, receiving, production and trafficking of drugs. Although not a Code as such, it is very similar and is enforced in conjunction with the provisions of the Criminal Code Act 1899 (Qld).
- [16]The applicant here has been charged with a traffic offence under the Transport Operations Act, not an offence under the Drugs Misuse Act. It seems obvious that the deeming provision is intended to catch those who commit offences relating to the misuse of drugs rendering them not fit and proper to hold a licence. The only offences that relate to the misuse of drugs are those specified in the Drugs Misuse Act. This conclusion is also consistent with the conduct described in the balance of subsection (2)(a) that is, use or threatened use of violence and the use of a weapon.
- [17]Also s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that will best achieve the purpose of the Act is to be preferred.
- [18]The purpose of subsection 2(a) is to ensure those who are convicted of drug offences are not eligible to obtain a weapons licence. Nor are those convicted of acts of violence and weapons offences.
- [19]I have therefore come to the conclusion that the traffic offence, even though it as a result of a prohibited drug being present in the applicant’s saliva, was not an offence relating to the misuse of drugs.
Fit and proper person otherwise
- [20]The applicant is approaching his 48th birthday. Prior to this offence, the Traffic Record shows he has lengthy traffic history dating back to nineties. I don’t intend to traverse each offence but they mainly relate to exceeding the speed limit. There are some others relating to the use of a vehicle and driving an unregistered vehicle. In his application he mainly focuses on the weapons storage offence rather than his traffic driving history. Having said that, he does say that “he has got on with his life and stayed out of trouble”. I accept that, given these events occurred some years ago. Also, there is no information provided by the respondent to suggest otherwise.
- [21]As for the personal history, it is now over 10 years since any anti-social behaviour, although the charges brought against him in 2014 were quite serious. I note after these events his licence was revoked. He subsequently applied for a new weapons and was successful. He was considered a fit and proper person for the new licence.
- [22]His licence is important to him as he uses it in his occupation as a macropod harvester in western Queensland. I accept he has lost income as a result of not having his licence. Also, not having his licence now for nearly two years is a salutary lesson which, hopefully, will ensure the applicant will not find himself in a position where his licence is at risk in the future.
- [23]At the hearing of the application the respondent’s representative conceded that if the deeming provision did not apply to the applicant, then, subject to the Tribunal’s conclusions about the applicant’s history, there was no other basis to oppose the application.
- [24]For the reasons stated I find that the applicant is a fit and proper person to hold a weapons licence.
- [25]Pursuant to s 24 of the QCAT Act the decision of the respondent made on 19 July 2023 revoking the applicant’s weapons licence is set aside.