Burnett v Queensland Police Service – Weapons Licensing [2025] QCAT 29

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Burnett v Queensland Police Service – Weapons Licensing [2025] QCAT 29 PARTIES: HEIKO TOBIAS BURNETT (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR396-23 MATTER TYPE: General administrative review matters DELIVERED ON: 10 January 2025 HEARING DATE: 11 November 2024; 3 December 2024 HEARD AT: Brisbane DECISION OF: Acting Member Jensen ORDERS: Pursuant to s 24(1)(a) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), the decision made by the respondent on 7 June 2023 to revoke the applicant’s firearms licence is confirmed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms licence under Weapons Act 1990 (Qld) – where applicant convicted of drug offences – where no conviction recorded for the drug offences – where applicant had no other criminal history – where assault charge resolved by private treaty – where new information regarding mental fitness not included in statement of reasons – consideration of public interest grounds, medical fitness – whether the applicant is a fit and proper person to hold a firearms licence Human Rights Act 2019 (Qld), s 3, s 4, s 13, s 24 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 9, s 20, s 21(1), s 24, s 28(3) Weapons Act 1990 (Qld), s 3, s 10B, s 29(1)(d), s 142 Australian Broadcasting Tribunal v Bond [1990] HCA 33 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 Ludgate and Commissioner of Police [2013] WASAT 151 -- 1 of 10 -- 2 The Agile Wallaby Project Inc v Department of Environment and Science [2020] QCAT 121 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: 11 November 2024 – Senior Constable Christian Moore 3 December 2024 – Acting Sergeant Angela Bauer REASONS FOR DECISION The issues [1] The respondent gave the applicant a revocation notice dated 7 June 2023 (‘the decision’) stating that: You are advised that your Firearms Licence No 26573775 is revoked for the following specific reason (s): The Authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to it not being in the public interest. [2] The respondent is therefore not satisfied, pursuant to s 29(1)(d) of the Weapons Act 1990 (Qld) (the ‘Weapons Act’), that the applicant is a fit and proper person to hold a firearms licence due to it not being in the public interest. [3] The applicant subsequently filed an application in this tribunal to review the decision, and seeking an order that the revocation of the firearms licence be vacated and the licence reinstated. [4] Evidence of the applicant’s depression emerged during the hearing. As a result, the respondent further claims that the applicant is in breach of his licence conditions by failing to report his change in his mental fitness1 and that the applicant requires a full medical clearance before the respondent can be satisfied he is a fit and proper person to hold a firearms licence. [5] The question therefore is whether there is sufficient evidentiary basis for this tribunal (“standing in the shoes of the authorised officer”) to be satisfied that the applicant is not a fit and proper person.2 The basis for reviewing the decision [6] By virtue of s 142(1)(a) and s 142(2) of the Weapons Act, the applicant may apply to the tribunal for a review of the decision. Review jurisdiction is conferred on the tribunal under s 9(1) and s 9(2)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (the ‘QCAT Act’). [7] The purpose of a review of a reviewable decision is to produce the correct and preferable decision.3 The tribunal must hear and decide the review by way of a fresh 1 Weapons Act s 24(2)(a)(ii). 2 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 at [35]-[37]; Ludgate and Commissioner of Police [2013] WASAT 151 at [35], [36]. 3 QCAT Act s 20(1). -- 2 of 10 -- 3 hearing on the merits.4 The respondent is required to use its best endeavours to help the tribunal so that it can make its decision on the review.5 The decision maker does not bear an onus of proving that the licensee was not a fit and proper person.6 The tribunal may take into account the material before the tribunal at the time of hearing.7 [8] Pursuant to s 24(1) of the QCAT Act, in a proceeding for a review of a reviewable decision, the tribunal may: (a) confirm or amend the decision; or (b) set aside the decision and substitute its own decision; or (c) set aside the decision and return the matter for reconsideration to the decision- maker for the decision, with the directions the tribunal considers appropriate. [9] Pursuant to s 28(3) of the QCAT Act, in conducting a proceeding, the tribunal is given wide discretion to consider all pertinent material; it is not bound by the rules of evidence and may inform itself in any way it considers appropriate. The Weapons Act provisions [10] The principles and object of the Weapons Act are set out in s 3 which provides: (1) The principles underlying this Act are as follows— (a) weapon possession and use are subordinate to the need to ensure public and individual safety; (b) 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. (2) The object of this Act is to prevent the misuse of weapons. [11] The concept of fit and proper is described in s 10B of the Weapons Act which relevantly provides: (1) 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— (a) the mental and physical fitness of the person; and (b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; and (c) 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 4 QCAT Act s 20(2). 5 QCAT Act s 21(1). 6 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 at [35]-[37]. 7 Weapons Act s 20(1); The Agile Wallaby Project Inc v Department of Environment and Science [2020] QCAT 121 at [46]. -- 3 of 10 -- 4 (ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates – (i) the person is a risk to public safety; or (ii) that authorising the person to possess a weapon would be contrary to public interest; and (d) the public interest. (emphasis added) (2) 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— (a) the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences— (i) an offence relating to the misuse of drugs; (ii) an offence involving the use or threatened use of violence; (iii) an offence involving the use, carriage, discharge or possession of a weapon … (5) In this section – relevant period means – (a) 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;… The respondent’s case [12] The respondent submits that the applicant is not a fit and proper person to hold a firearms licence and refers to s 10B(1)(a) and s 10B(1)(d) of the Weapons Act and all other available information. In particular, the respondent relies on the following – (a) Statement of reasons (public interest reason) – (i) The charge of unlawfully assaulting Mr Wieland (a person over 60 years) on or about 9 January 2022, resolved out of court by private treaty; (ii) The conviction on 15 March 2022 for drug offences (no conviction recorded); and (b) New information from the applicant and change in circumstances (mental fitness reason) – (i) The applicant does not have a full medical clearance regarding the new issue of his mental health condition of depression which emerged during his evidence. The respondent submits that upon becoming aware of a licensee’s mental health issues, it would suspend the licence pending a full medical clearance from a psychologist or psychiatrist. It is further submitted that this is not the case here because the licence is already -- 4 of 10 -- 5 revoked on public interest grounds; however, the new mental health information must still be addressed. The applicant’s case [13] The applicant submits that his actions towards Mr Wieland were out of character and that he is remorseful and embarrassed by them. He submits that once he realised that his behaviour and mental state was becoming a problem, he took steps to find help, and he admitted himself to a wellness centre called Palladium for rehabilitation. [14] In relation to the drugs charges, the applicant submits that the drugs were for personal use and that it does not define him as an “unfit or improper person” because cannabis is now legally prescribed and more widely accepted in the community. [15] The applicant submits he has provided adequate information from a variety of sources to verify that he is a fit and proper person to hold a firearms licence, and that he does not present a threat to public or personal safety, including from – (a) Senior sergeant Jon Smy (Mr Smy), officer in charge of Bamaga police; (b) Mr Des Debell, Herberton postmaster; (c) Members of the Herberton Gun club; (d) Alice Street Medical Centre. Consideration [16] The approach to the issue of whether a person is a fit and proper person was discussed in Australian Broadcasting Tribunal v Bond [1990] HCA 33 per Toohey and Gaudron JJ at [56] as follows – 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. [17] As to the character references – (a) Mr Smy said – Dear Your Honour, I am respectfully writing a character reference for Mr Heiko Burnett. This reference is of a personal nature and is in no way endorsed by the QLD Police Service, however I believe it necessary to advise below of my profession. I am a serving QLD Police Officer of 33 years and currently hold the rank of Senior Sergeant, Officer in Charge Bamaga Police. -- 5 of 10 -- 6 I have known Mr Burnett and his family for approximately 25 years. Mr Burnett did operate a farm in Wondecla and my children have had the privilege of growing up with his children over that time. During my time as Officer in Charge Herberton Police (2014-2023), I often received invaluable assistance from Mr Burnett in relation to local matters and people. I am aware of the current concerns regarding his weapons licence. Mr Burnett has always been an avid shooter and from my recollection was heavily involved in the running of the Herberton Rifle Club. I have always found him to be a levelheaded, decent and conscientious person but am also aware that during the time of his interactions with Police, he was dealing with a marriage breakdown and a severe back injury. I in no way condone his actions and I only mention this as a mitigating factor for consideration. It is my personal opinion that despite the relevant charges which have eventually led to this hearing, I genuinely believe that he is a fit and proper person to hold a Weapons licence. Respectfully forwarded for your consideration. Yours sincerely, (b) Des Debel said – To whom it may concern, Dear Sir/Madam, Heiko Burnett I presently operate the Herberton Post Office and have done so for the past 24 years. Also a justice of the peace (commissioner for declarations) since April 1991. Heiko Burnett has asked me to provide a character reference which I am happy to do. I have known him since July 2002 when he purchased a rural property at Wondecla. Our dealing have been on a business level with the post office and also personal with our children attending the same school. I have also found Heiko to be a trustworthy and reliable person. Would recommend him in any future endeavours he is undertaking. Should you require any further information do not hesitate to contact me. Sincerely (c) The members of the Herberton Gun Club said – As a member of the Herberton Gun Club Heiko has always been courteous and polite to all its members. He has never shown any signs of anger or aggression toward any members or colleagues. He goes out of his way to be kind and respectful to those around him and volunteers many hours each week making improvements to the range. At the last AGM Heiko was nominated Secretary of the Herberton Gun Club. Signed Douglas Albert Smith -- 6 of 10 -- 7 Ian Douglas Graham Gary Thomas McKeluey Henry Checkley Trevor Harold Armstrong F L Forster Richard F Williams [18] I place weight on these references as they relate to the applicant’s good character in a personal sense. They are supportive of the applicant and Mr Smy states that he believes the applicant to be a fit and proper person to hold a firearms licence. Also, in the case of the first two listed above, the authors state they have known the applicant for at least 24 years. [19] As to the drug charges on 15 February 2022, the evidence is that the applicant pleaded guilty to growing cannabis plants and using a waterpipe to smoke the cannabis. The matter was finalised in the Atherton Magistrates Court on 15 March 2022. Even though no conviction was recorded, the tribunal can still take this evidence into account in reaching a decision. Although relevant, I do not place much weight on this conviction. I accept the applicant’s evidence that the cannabis and waterpipe were for personal use – it lowered his anxiety and allowed him to live a healthier pain reduced life – and therefore does not define him as an unfit or improper person. I note also that the applicant was 55 years of age at the time and that he had no prior criminal history until this conviction. [20] In relation to the incident on 9 January 2022 involving Mr Wieland, the applicant denies striking Mr Wieland with a baton but agrees holding it near to his face. I do not place much weight on this incident because the evidence of what occurred is disputed and furthermore, the matter was resolved out of court and by private treaty. The applicant has no criminal history in relation to this incident. [21] However, the applicant in his statement dated 18 April 2024 refers to “mental depression” and when questioned about the incident with Mr Wieland during the hearing, the applicant said that – (a) he had separated after a 25 year marriage which he found incredibly difficult to deal with; (b) he went into major depression and was put onto anti-depressants and was losing his marbles; (c) he was in a very deep and dark spot; and (d) this is when he made arrangements with Palladium and went to get some help. [22] Palladium’s brochure describes its services as involving the practice of “mindfulness.” The applicant denies it is a mental health institution. The Palladium invoice provides that the applicant spent 31 days from 25 October 2022 to 24 November 2022. [23] The applicant also provided a letter from Alice Street Medical Centre dated 7 December 2023 setting out his conditions and medications. The entry for 19 October 2022 mentions depression and moderate suicidal ideation and provides as follows – Depression checking self into rehab clinic Gannadah 1/12 Moderate suicidal ideation noted end 2022 05/23 – 5 HTP self-medication -- 7 of 10 -- 8 Ceased 09/23 [24] The original hearing on 11 November 2024 was adjourned and a direction made that the applicant be allowed 14 days to file and serve on the respondent any health report including any report by a psychologist or psychiatrist relating to whether the applicant is or is no longer a fit and proper person to hold a weapons licence. An adjournment of 28 days was suggested but the applicant agreed that 14 days was sufficient time to do this. [25] On that same day, senior constable Moore emailed the applicant a copy of the relevant practice direction being number 7 of 2022 which listed the following details which the tribunal may find of assistance in determining whether to confirm or set aside the decision under review – (a) the history taken from the applicant; (b) an acknowledgement that the practitioner is aware of the adverse material contained in the QPS material; (c) details of the applicant’s physical or mental health conditions, and the applicant’s level of insight into those conditions; (d) the period of time for which the practitioner has been treating the applicant; and (e) the practitioner’s opinion in relation to the fitness and propriety of the applicant to possess or use a firearm, and the reasons for reaching that conclusion. [26] At the resumption of the hearing on 3 December 2024, the applicant had not filed a health report which addressed the matters in the practice direction listed above. The respondent said that it had received a brief note from a general practitioner, but this note did not address the matters in the practice direction. In the respondent’s language, the applicant has not obtained a full medical clearance. [27] It is therefore the submission of the respondent that in the absence of a comprehensive psychiatric assessment and a firm recommendation (a full medical clearance) from a treating practitioner that the applicant is still not a fit and proper person to hold a firearms licence. [28] By contrast, the applicant submits that Palladium was only a wellness retreat and not a mental health facility and that his mental health has been misconstrued. In closing remarks, the applicant conceded that he suffered from depression but submitted that it did not define him as mentally unstable. He submitted that he only went through what any normal person would go through after the separation from his wife and dealing with chronic pain. He submits the evidence supports a finding of him being a fit and proper person in particular that of Mr Smy, a senior police officer. [29] The applicant submits that the evidence of Mr Smy should be accepted because his professionalism would allow him to judge if the applicant is a fit and proper person. However, Mr Smy’s reference as to character asserts that the applicant is a fit and proper person, but the reference only takes into account and is limited to the relevant police charges. Mr Smy does not attempt to address the applicant’s mental health. There is no reference to the applicant’s depression; in any event there is no evidence that Mr Smy is qualified to give an opinion in relation to such health matters. [30] The applicant’s evidence before the tribunal is that he was suffering depression around the time of the incident with Mr Wieland and following. The applicant said that “went -- 8 of 10 -- 9 into major depression and was put onto anti-depressants and was losing [my] marbles; I was in a very deep and dark spot.” I accept that the respondent has acted in accordance with its obligations under the Weapons Act in taking up this issue by requiring a full medical clearance once it became aware of it during the hearing. [31] The applicant was given every opportunity to provide an expert health report for the hearing but failed to do so. There is the direction of Member Cranwell dated 30 January 2024 and the directions of 11 November 2024. Notwithstanding these opportunities, there is no expert medical evidence before the tribunal stating that the applicant is a fit and proper person to hold a firearms licence. [32] Furthermore, the respondent also referred to a requirement of the Weapons Act that a change in the applicant’s mental or physical fitness was to be reported to the police.8 Depression is one of the illnesses to be reported and failure to report was a contravention of a licence condition under s 34 of the Weapons Act. [33] When I consider and weigh all the evidence afresh and having regard to the principles and object of the Weapons Act, any evidence favourable to the applicant in relation to public interest issues is clearly outweighed by the evidence of lack of mental fitness and the lack of a medical clearance in relation to his depression. On the one hand there is clear and undisputed evidence of depression given by the applicant which is a relevant consideration pursuant to s 10B(1)(a) of the Weapons Act in determining whether the applicant is a fit and proper person to hold a licence. By contrast, there is no detailed expert medical evidence which is supportive of the applicant, and which recommends that he is a fit and proper person. [34] I therefore find there is a sufficient evidentiary basis for the tribunal (“standing in the shoes of the authorised officer”) to be satisfied that the applicant is not a fit and proper person to hold a firearms licence.9 I consider the correct and preferable decision is that the respondent’s decision to revoke the applicant’s firearms licence is confirmed. Human Rights Act [35] Notwithstanding that no argument was directed at the impact of the Human Rights Act 2019 (Qld) (the ‘HRA’), I consider that the HRA applies in this matter and potentially impacts the applicant’s human rights, including under s 24 which provides that all persons have the right to own property alone or in association with others and that a person must not be arbitrarily deprived of the person’s property. [36] However, having regard to the principles and object of the Weapons Act, the fact that the object is to be achieved for firearms by providing strict requirements that must be satisfied for licences authorising possession of firearms, I find that the applicant’s human rights have not been limited to an extent and in a manner that is not reasonable and justifiable.10 In so finding, I have had regard to the significance of the purpose of the limitations imposed by the Weapons Act such as: (a) The principle contained in s 3(1)(a) that weapon possession and use are subordinate to the need to ensure public and individual safety; 8 Weapons Act ss 24(1), 24(2)(a)(ii). 9 Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115 at [35]-[37]; Ludgate and Commissioner of Police [2013] WASAT 151 at [35], [36]. 10 See sections 3, 4(d) of the Weapons Act and 13 of the HRA. -- 9 of 10 -- 10 (b) The principle contained in s 3(1)(b) that 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; (c) The object of the Weapons Act to prevent misuse of weapons. Order [37] Pursuant to s 24(1)(a) of the QCAT Act, the decision made by the respondent on 7 June 2023 to revoke the applicant’s firearms licence is confirmed. -- 10 of 10 --