ELS v Queensland Police Service – Weapons Licensing (No 2) [2022] QCAT 335

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: ELS v Queensland Police Service – Weapons Licensing (No 2) [2022] QCAT 335 PARTIES: ELS (applicant) V QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR109-21, GAR110-21, GAR112-21 MATTER TYPE: General administrative review matters DELIVERED ON: 21 September 2022 HEARING DATE: 14 September 2022 HEARD AT: Brisbane DECISION OF: Member Cranwell ORDERS: The decisions under review made by the Queensland Police Service – Weapons Licensing to revoke ELS’s firearms licence, and to refuse his applications for a concealable licence and security licence (guard) – employee, are confirmed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where applicant breached licence conditions – whether applicant a fit and proper person – whether applicant’s firearms licence should be revoked – whether applicant’s concealable licence and security licence (guard) – employee should be refused Weapons Act 1990 (Qld), s 10B, s 29, s 60 Weapons Regulation 2016 (Qld), s 94 TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505 APPEARANCES & REPRESENTATION: Applicant: Self-represented Respondent: A/Senior Sergeant D Ayscough -- 1 of 6 -- 2 REASONS FOR DECISION ELS has sought review of three decisions of the Queensland Police Service – Weapons Licensing (‘QPS’). The decisions were: (a) to revoke ELS’s firearms licence on 14 January 2021; (b) to refuse ELS’s application for a concealable licence on 5 January 2021; and (c) to refuse ELS’s application for a security licence (guard) – employee on 5 January 2021. In each case, the QPS was not satisfied that ELS was a fit and proper person having regard to his criminal history. Criminal history On 16 September 2016, ELS was fined $500 with no conviction being recorded in respect of the offences dangerous conduct with weapon and secure storage of weapons. The Court Brief described the circumstances of the offences as follows: Police inquired about his weapons and what guns he had in storage. As a result the defendant invited Police into his home to inspect his weapons and safe. During the inspection Police were advised that the keys for his safe were upstairs in the defendant’s bedroom. As a result Police followed the defendant to his bedroom to find a .177 Crossman Air Rifle leaning up against the defendant’s bed. The defendant was immediately detained and rights and cautions issued. Police then questioned the defendant regarding the initial complaint in which the defendant admitted to firing 2 air cartridges from his unloaded .177 Crossman Air Rifle into the air in order to scare off the person throwing rocks and eggs at his property. … After rights and cautions administered the defendant made full admissions to incorrect storage of his Air Rifle when Police attended his home and that he should not have left it next to his bed and should have had it stored in his safe. The defendant apologised for his behaviour stating the rock throwing incident made him very angry and he felt this was the only way he could get his message across to the offenders. On 9 June 2010, ELS was fined $1,000 with no conviction recorded in respect of the offences failure to comply with requirement to stop private vehicle, possession of a knife in a public place or a school and possessing/acquiring restricted items. The Court Brief described the circumstances of the offences as follows: As the defendant entered the roundabout adjacent the Sea World carpark, and instead of travelling to the left and then around the roundabout as required, the defendant turned the bike against the flow of the traffic and executed a U-turn around the centre traffic island. As the defendant executed this manoeuvre, Police sounded the horn of their marked vehicle in the attempt to gain the attention of the defendant. Police observed the defendant turned his head back towards the Police and then rapidly -- 2 of 6 -- 3 increased his speed hearing then in a Southerly direction on Sea World Drive. Police activated lights and sirens and attempted to perform an intercept. The defendant then proceeded to ride his motorcycle at speed up the steep driveway of the Sheraton Mirage Resort, through the concierge area and down the other side of the drive way disregarding the numerous speed bumps and resort pedestrians. The defendant then, without stopping, rode out across both the Southbound and Northbound lanes of Sea World Drive against the flow of traffic causing other motorists to take evasive action to prevent having a collision. The defendant ultimately lost control of his motorcycle and collided with the concrete footpath where Police affected an arrest. …. The defendant indicated to Police where his identification was on his person and as a result Police located a chrome coloured object in his right pocket. Closer inspection of the object revealed that the object was in fact a flick knife with a release button on the side and could be easily activated with the use of one hand. Legislative framework Fit and proper person Section 10B of the Weapons Act 1990 (Qld) (‘the Act’) 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 (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 the public interest; and (d) the public interest. (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; or -- 3 of 6 -- 4 (b) a domestic violence order, other than a temporary protection order, has been made against the person. … (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; or (b) 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. I note that: (a) Section 10B(2)(a)(iii) of the Act does not apply to ELS as no conviction was recorded on 16 September 2016, notwithstanding the offences having occurred within the relevant period. (b) While criminal intelligence has been filed with the Tribunal for the purposes of section 10B(1)(ca) of the Act, I have not unsealed the envelope and have not had regard to that material in making my decision. In TS v Department of Justice and Attorney General – Industry Licensing Unity & Anor (No 2) [2015] QCAT 505 at [12] the Tribunal summarised some of the relevant cases that have considered the meaning of ‘fit and proper person’ as follows: • Whether a person is fit and proper is ‘one of value judgment. In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration’. • The concept of ‘fit and proper’ must be looked at in the context of the activities that the person is or will be engaged. ‘…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 public will have confidence that it will not occur’. Although not an exhaustive list, character (indication of ‘likely future conduct’) or reputation (indication of public perception as to ‘likely future conduct’) may be ‘sufficient’ to find a person is not ‘fit and proper’ to undertake certain activities. • The expression ‘fit and proper’ must be given the ‘widest scope;’ and determined upon its own circumstances. • The applicant must show not only that he is ‘possessed of a requisite knowledge of the duties and responsibilities evolving upon him’ as the holder of a particular licence but must also show he has ‘sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public…’. • ‘Fitness and propriety are flexible concepts’. It involves an assessment of the person’s ‘knowledge, honesty and ability in the context of the role they are seeking to undertake…’. -- 4 of 6 -- 5 • The discretion vested in determining whether a person is ‘fit and proper’ must be exercised to ‘give wide scope for judgement and allow broad bases for rejection’. [footnotes omitted] Revocation Section 29 of the Act gives an authorised officer the power to revoke a firearms licence. It relevantly provides: (1) An authorised officer may, by a revocation notice given to a licensee, revoke the licensee’s licence if the authorised officer is satisfied of any of the following things— (a) the licence has been obtained through fraud or deception; (b) the licensee has been convicted of an offence against any law in force in Queensland or elsewhere involving the use, carriage, discharge or possession of a weapon; (c) the licensee has contravened a condition, participation condition or special condition of the licence; (d) the licensee is no longer a fit and proper person to hold a licence; Section 60(1) of the Act imposes the following condition on a firearms licence: A licensee who has control of a weapon at a place must keep the weapon in secure storage facilities at the place when a person is not in physical possession of the weapon. Maximum penalty—100 penalty units or 2 years imprisonment. This condition is further particularised in the Weapons Regulation 2016 (Qld) (‘the Regulations’): 94 Storage of particular weapons not in person’s physical possession— secure storage facilities … (2) A person who possesses a weapon must, when the weapon is not in the person’s physical possession, store it unloaded in a locked container complying with subsections (5) and (6), with the weapon’s bolt removed or its action broken. … (5) For subsection (2), the container must— … (b) for any other weapon— (i) be a rigid structure made of solid steel or solid timber; and (ii) if the container weighs less than 150kg—be securely fixed to the frame or floor of a permanent building. (6) Also for subsection (2), the container must also— (a) have a sturdy combination lock, keyed lock or keyed padlock; and -- 5 of 6 -- 6 (b) always be locked (other than for the time necessary to insert or remove a weapon, or something else, for a proper purpose). I note that ELS has admitted to contraventions of a condition of his firearms licence for the purposes of s 29(1)(c) of the Act. Specifically, ELS failed to store his firearm in secure storage facilities. This gives an authorised officer, or the Tribunal standing in their place, a discretion to cancel ELS’s firearms licence under section 29(1)(c) of the Act. Consideration I am not satisfied that ELS is a fit and proper person to hold a firearms licence, concealable licence or security licence (guard) – employee. While convictions were not recorded, ELS has engaged in conduct on two occasions which is inconsistent with being a fit and proper person to hold a licence. On the first occasion in 2010, ELS had possession of a category M weapon (a flick knife) in a public place without a licence. On the second occasion in 2016, ELS discharged a firearm in a dangerous manner and failed to securely store the firearm in accordance with the conditions of his licence. In the present proceedings, ELS has filed no evidence in support of his three applications. For example, ELS has not filed any evidence explaining his past behaviour or addressing his risk of reoffending in the future. ELS has not filed any character references in support of his applications. ELS has not filed a report from a psychologist or psychiatrist addressing his suitability to hold a firearms licence. ELS has also not filed any evidence relating to his employment circumstances. ELS’s submissions during the hearing were largely confined to pointing to the absence of other misconduct as a licence holder after 2016. I place little weight on this submission, given there was a six year interval between his offending in 2010 and 2016. In the absence of any probative evidence from ELS, his criminal history speaks for itself in terms of giving rise to a risk to public safety and a resultant lack of fitness and propriety. I will refuse ELS’s applications for a concealable licence and a security licence (guard) – employee on the basis that he is not a fit and proper person to hold a licence. In relation to the revocation of his firearms licence, I will exercise the discretion to revoke ELS’s firearms licence given the risk to public safety associated with him holding a licence. Disposition The decisions under review are affirmed. For completeness, I note that a non-publication order in relation to the ELS’s identity was previously made in the proceedings on 25 March 2022. -- 6 of 6 --