TMC v Queensland Police Service – Weapons Licensing
[2025] QCAT 91
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- TMC v Queensland Police Service – Weapons Licensing[2025] QCAT 91
- Add to List
TMC v Queensland Police Service – Weapons Licensing[2025] QCAT 91
TMC v Queensland Police Service – Weapons Licensing[2025] QCAT 91
QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL
CITATION: | TMC v Queensland Police Service – Weapons Licensing [2025] QCAT 91 |
PARTIES: | TMC (applicant) v queensland police service – weapons licensing (respondent) |
APPLICATION NO/S: | GAR426-23 |
MATTER TYPE: | General administrative review matters |
DELIVERED ON: | 11 March 2025 |
HEARING DATE: | 10 February 2025 |
HEARD AT: | Brisbane |
DECISION OF: | Member Deane |
ORDERS: |
|
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – where the applicant’s licence was revoked – where the applicant was charged and found guilty of drug offences – where no convictions were recorded – where authorised officer had regard to such convictions – whether such convictions can be taken into account in a decision to revoke a weapons licence – whether the applicant is a fit and proper person to hold a weapons licence PRACTICE AND PROCEDURE – JUDICIAL COMITY – Principles applicable in determining whether a decisionmaker may follow a judgment at first instance from same court or tribunal Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 24, s 25, s 31, s 34, s 48, s 58 Penalties and Sentences Act 1992 (Qld), s 12 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3, s 4, s 20, s 24, s 33, s 66 Weapons Act 1990 (Qld), s 3, s 4, s 10B, s 29, s 142 Australian Broadcasting Tribunal v Bond [1990] 94 ALR 11 CTA v Queensland Police Service [2018] QCAT 440 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Liseo v Queensland Police Service [2006] QDC 496 Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717 R v Beissel [1996] QCA 488 Vukolic v Browning [2022] QDC 279 XPR v Queensland Police Service – Weapons Licensing [2025] QCAT 1 |
APPEARANCES & REPRESENTATION: | |
Applicant: | MJ Kelly, Fallu McMillan, Lawyers |
Respondent: | T Ferguson |
REASONS FOR DECISION
- [1]TMC has held a weapons licence for many years. On 30 May 2023, TMC’s licence was revoked (‘the Decision’).[1] The decision maker was satisfied that TMC was no longer a fit and proper person to hold the licence due to it not being in the public interest.
- [2]
- [3]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.[5] The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.[6] The Tribunal must decide the review in accordance with the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) and Weapons Act 1990 (Qld) (‘the Act’). The tribunal stands in the place of the original decision maker and is required to comply with the obligations under the Act to arrive at the correct and preferable decision.[7]
- [4]There is no presumption that the decision under review is correct.[8]
- [5]Section 3 of the Act provides:
- 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.
- [6]Relevantly section 4 of the Act provides:
The object of this Act is to be achieved for firearms by—
- …
- 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]Section 29 of the 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.[9]
- [8]The High Court considered the expression ‘fit and proper person’ in Australian Broadcasting Tribunal v Bond:[10]
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.
- [9]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:
- the mental and physical fitness of the person;
- whether a domestic violence order (‘DVO’) has been made, a police protection notice issued, or release conditions imposed against the person;
- whether the person has stated anything in connection with an application for the renewal of a licence that the person knows is false or misleading in a material particular;
- 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
- the public interest.
- [10]Section 10B also sets out circumstances which, if applicable within the five-year period immediately before the date of the revocation notice, provide that a person is not fit and proper. There is no evidence before me that any of these circumstances are applicable.
- [11]There is also no evidence before me of the making of any DVO nor any evidence TMC has provided false or misleading information.
- [12]The Queensland Police Service (‘QPS’) point to a conviction, although no conviction was recorded, for drug-related offences on 15 May 2023.[11] The evidence is that TMC pled guilty to those charges and was fined $1,500 and that all offences arose from the attendance by police at TMC’s property, at TMC’s request, on 26 February 2023.
- [13]There have been conflicting decisions in the Tribunal as to the consequences of section 12(3) of the Penalties and Sentences Act 1992 (Qld) (‘PSA’) as to whether offending, where no conviction has been recorded, may be taken into account in making a weapon’s licensing decision such as a revocation of the licence.
- [14]Section 12(3) of the PSA provides that a conviction without recording the conviction is taken not to be a conviction for any purpose, and prohibits the entering of the conviction into any records except for stated purposes.
- [15]TMC relies upon the recent decision in XPR v Queensland Police Service – Weapons Licensing (‘XPR’).[12] In that decision the Tribunal, consisting of the President, Mellifont J and Member Olding, found that the offences could not be taken into account because no convictions were recorded.[13] The Tribunal also concluded that ‘when applying section 10B, regard can not be had to convictions for offences for which no conviction has been recorded, or the facts and circumstances of those offences.’[14]
- [16]TMC says, and I accept, that there are no distinguishing factors between TMC’s circumstances and those of XPR.
- [17]As in XPR, there is no evidence before me, as distinct from submissions, as to whether the checks were carried out by a person who had express authorisation to do so or that the checks were necessary for the legitimate performance of the functions of the department, prosecuting authority or legal representative.[15]
- [18]The QPS relies upon Liseo v Queensland Police Service,[16] a decision of the District Court, in which the PSA and the Criminal Law (Rehabilitation of Offenders) Act 1986 (Qld) (‘CLROA’) were read together to permit consideration of charges for which no conviction was recorded in circumstances where the applicant was found to have deliberately given a wrong answer to a question in his application. The Tribunal in XPR expressly considered the application of the CLROA.[17] As referred to earlier in these reasons the QPS do not point to TMC providing any false or misleading information.
- [19]
- [20]In Vukolic v Browning[20] Porter DCJ considered the principles of judicial comity. I have considered the issues for decision. I have carefully considered the persuasive reasoning, particularly as the President formed part of the panel. There is nothing in the reasoning in XPR which indicates to me that it is clearly wrong and ought not be followed.
- [21]I therefore find that I may not have regard to the offences, the plea of guilty or the circumstances leading up to the charges.
- [22]The QPS questioned TMC at the hearing. To the extent that TMC’s answers to questions relate to the facts and circumstances that led up to the charges, I find that I may not have regard to them.
- [23]
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, including traffic offences which may of themselves indicate a flagrant disregard for the law. (references omitted)
- [24]There is no evidence of other offending including any involving weapons or in relation to traffic offences before me. The QPS statement of reasons refers to breach of licence conditions. A copy of the licence is not before me and there is no evidence before me in relation to the alleged condition said to have been breached. The QPS’ representative was not in a position to make clear submissions on this point at the final hearing.
- [25]In the circumstances, there is no evidential basis to form a view or concern:
- that TMC has disregard for the law;
- that TMC exercises poor judgement; and
- as to whether there is a real prospect of TMC misusing weapons if the revocation of the weapons licence is set aside.
- [26]Some medical evidence has been filed. There is nothing in the medical evidence which indicates that TMC is no longer a fit and proper person to hold a weapons licence.
- [27]There is no evidence before me upon which I can rely to find that, if TMC’s licence is reinstated, TMC’s right to possess firearms will present a real risk to public and individual safety.
Human Rights
- [28]The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding this Application, I am acting as a public entity[22] in an administrative capacity. I accept that this proceeding and a decision under the Act potentially impacts TMC’s human rights.[23] I have considered TMC’s human rights and am satisfied that I afforded a fair hearing by considering the oral and written evidence and submissions made by each party. I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.[24] I have considered TMC’s human rights and am satisfied that the decision is compatible with TMC’s human rights as any limitations on those rights are reasonable and justifiable.[25]
Non-publication order
- [29]I find that it is appropriate to make a non-publication order.
- [30]The Tribunal may make an order prohibiting the publication of information that may enable a person who appeared before the Tribunal to be identified.[26] The Tribunal may act on the application of a party or on its own initiative.[27] At the final hearing TMC sought a non-publication order. The QPS did not oppose the order.
- [31]For the reasons set out in XPR,[28] I consider it appropriate to make a non-publication order. This decision is to be published only in a de-identified format. I order that publication of information that may enable TMC to be identified is prohibited other than to the parties.
Summary
- [32]For the reasons set out, the correct and preferable decision is to set aside the Decision.
Footnotes
[1] Exhibit 2, page 1, Revocation Notice.
[2] Exhibit 1, Application to review a decision filed 26 June 2023.
[3] Weapons Act 1990 (Qld), s 142(1)(e) (‘the Act’).
[4] Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4) (‘QCAT Act’).
[5] Ibid, s 24.
[6] Ibid, s 20.
[7] CTA v Queensland Police Service [2018] QCAT 440, [11].
[8] Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].
[9] The Act, s 29(1)(d).
[10] [1990] 94 ALR 11 per Toohey and Gaudron JJ at 56.
[11] R v Beissel [1996] QCA 488.
[12] [2025] QCAT 1. The QPS advised that it had filed an appeal of this decision on 31 January 2025 but that any decision by the Court of Appeal is likely quite some time away.
[13] Ibid, [6].
[14] Ibid, [87].
[15] PSA, s 12 (3A); XPR, [32].
[16] [2006] QDC 496.
[17] [2025] QCAT 1, [88]-[96].
[18] QCAT Act, s 3(c).
[19] Ibid, s 4(d).
[20] [2022] QDC 279, [117]-[123], [142]-[150].
[21] Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717, [33].
[22] Human Rights Act 2019 (Qld), s 9.
[23] Ibid, s 24, s 25, s 31, s 34.
[24] Ibid, s 48.
[25] Ibid, s 8, s 13, s 31, s 48, s 58.
[26] QCAT Act, s 66.
[27] Ibid, s 66(3).
[28] [2025] QCAT 1, [102]; PSA, s 12(3).