BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: BIL v Queensland Police Service – Weapons Licensing [2022] QCAT 150 PARTIES: BIL (applicant) v QUEENSLAND POLICE SERVICE – WEAPONS LICENSING (respondent) APPLICATION NO/S: GAR362-21 MATTER TYPE: General administrative review matters DELIVERED ON: 26 April 2022 HEARING DATE: 3 March 2022 HEARD AT: Brisbane DECISION OF: Member Deane ORDERS: The Queensland Police Service – Weapons Licensing decision of 20 April 2021 to refuse the renewal application is confirmed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – whether the applicant is a fit and proper person to hold a weapons licence Human Rights Act 2019 (Qld), s 8, s 9, s 13, s 23, s 24, s 25, s 27, s 31, s 34, s 48, s 58 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 24, s 33, s 66 Weapons Act 1990 (Qld), s 3, s 4, s 10, s 10B, s 11, s 18, s 24, s 142 CAT v Queensland Police Service [2017] QCATA 43 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58 Magarry v Queensland Police Service Weapons Licensing Branch [2012] QCAT 378 Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717 APPEARANCES & REPRESENTATION: Applicant: Self-represented -- 1 of 9 -- 2 Respondent: Sergeant DM Ayscough REASONS FOR DECISION [1] BIL has held a weapons licence for many years. On 15 February 2021, he applied to renew his licence prior to its expiration.1 The renewal application stated his genuine reason for a weapons licence is that he has an occupational requirement as a primary producer on rural lands, which is a genuine reason for a weapons licence as provided for in section 11 of Weapons Act 1990 (Qld) (the Act). [2] BIL’s renewal application was refused.2 The refusal decision was dated 20 April 2021 (the Decision) and stated that it was not considered to be in the public interest for him to hold a licence authorising the possession of weapons. [3] BIL applied to the Tribunal to review the Decision.3 A person aggrieved by a decision not to renew a licence may apply to the Tribunal to review such a decision.4 Section 33 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act) provides that it applies if the QCAT Act or an enabling Act, in this case the Act, provides that a person may apply to the tribunal to deal with a matter. It sets out the requirements for making an application including that if the application is for the review of a reviewable decision the application must be filed in the registry within 28 days after the applicant is notified of the decision.5 I am satisfied that the application was commenced within time. [4] 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.6 The Tribunal’s function is to reach the correct and preferable decision after a fresh hearing on the merits.7 The Tribunal must decide the review in accordance with the QCAT Act and the Act. [5] There is no presumption that the decision under review is correct.8 [6] Section 3 of the Act 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. [7] Relevantly section 4 of the Act provides: 1 Exhibit 7, p 7-11. 2 Ibid, p 1-4. 3 Exhibit 1, Application to review a decision filed at a regional courthouse on 4 June 2021, received at the Brisbane registry on 8 June 2021. BIL stated, and I accept, that he received the Decision on 18 May 2021. 4 Weapons Act 1990 (Qld), s 142 (the Act). 5 Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 33(3), s 33(4) (QCAT Act). 6 Ibid, s 24. 7 Ibid, s 20. 8 Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9]. -- 2 of 9 -- 3 The object of this Act is to be achieved for firearms by— (a) ….. (b) establishing an integrated licensing and registration scheme for all firearms; and (c) requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and (d) providing strict requirements that must be satisfied for— (i) licences authorising possession of firearms; and (ii) the acquisition and sale of firearms; and (e) ensuring that firearms are stored and carried in a safe and secure way. [8] Section 10 of the Act relevantly provides that: (2) A licence may be issued to an individual only if the person— (a) is— (i) for a licence other than a minor’s licence—an adult; or (ii) …..; and (b) …..; and (c) has access to secure storage facilities for the weapon or category of weapon possession of which is to be authorised by the licence; and (d) is not prevented under this or another Act or by an order of a Magistrates Court or another court from holding the licence; and (e) is a fit and proper person to hold a licence; and (f) has a reason mentioned in section 11 to possess the weapon or category of weapon; and (g) resides only in Queensland. [9] Section 10(2)(a), (2)(c) to (g) applies when applying to renew a weapons licence.9 A reference to the issue of a licence is taken to be a reference to the renewal.10 In deciding a renewal application the authorised officer may consider anything at the officer’s disposal.11 [10] Essentially the question for determination is whether BIL is a fit and proper person to hold a weapon’s licence. [11] 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 upon a renewal of a licence: 9 The Act, s 18(9). 10 Ibid, s 18(10). 11 Ibid, s 18(5). -- 3 of 9 -- 4 (a) the mental and physical fitness of the person; (b) whether a domestic violence order has been made, police protection notice issued or release conditions imposed against the person; (c) whether the person has stated anything in or in connection with an application for the renewal of a licence, the person knows is false or misleading in a material particular; and (d) 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. [12] Section 10B also sets out circumstances which, if applicable within the 5 year period immediately before the person applies for the renewal of the licence, provide that a person is not fit and proper. There is no evidence before me that any of these circumstances are applicable. [13] The QPS point to a Temporary Protection order (DVO) issued in December 2020 naming BIL as the respondent, which was withdrawn by the applicant in March 2021. The evidence is that the DVO was taken out by BIL’s estranged wife, during a time when they were finalising a property settlement and BIL was to attend to collect his personal possessions from the property at which his estranged wife resided. BIL references comments made by the Magistrate in support of his submissions that the allegations made against him to support the DVO were false. A copy of the transcript was not in evidence before me. During the hearing the Tribunal was able to access and play audio recordings of the DVO proceedings. The Magistrate did not make any findings that the allegations were false but did indicate that he was concerned that the proceedings may have been being used by BIL’s estranged wife for improper purposes given the imminent property settlement in Family Court proceedings. [14] The allegations in the DVO proceedings involved threats of harm, manipulative, controlling and violent behaviour, assault and claims of heavy drinking triggering aggressive behaviour. The evidence is that the DVO proceedings were withdrawn before the evidence of either party could be tested and before any findings were made as to the allegations. [15] As the audio of the DVO proceedings and documents relating to the DVO proceedings formed part of the evidence in this proceeding, in the interests of justice, I made an order prohibiting the publication of that audio and documentary evidence in a way that may enable BIL to be identified.12 The reasons are, therefore, published in a de- identified form. [16] The DVO Proceedings allegations raise concerns as to whether there is a real prospect of BIL misusing weapons if his licence is renewed. [17] BIL gave evidence that he attempted to obtain a psychological report but was unable to do so due to lack of available appointments and including because travel was restricted during the covid pandemic.13 BIL’s evidence is that cost was also a factor given the impact of the Decision on his ability to perform his usual duties. 12 QCAT Act, s 66. 13 Exhibit 5. -- 4 of 9 -- 5 [18] There is therefore no entirely independent evidence to evaluate the level of risk nor to assist the evaluation of BIL’s insights or strategies. [19] BIL’s evidence is that: (a) he denies the allegations of aggressive and abusive behaviour; (b) he is not an aggressive person and that in situations of personal stress he remains calm because ‘it’s no good getting upset’; (c) his ex-wife was physically violent towards him, but he did not seek domestic violence orders because he thought it would ‘look a bit sissy’; (d) he was married for in excess of 30 years and for about 9 years prior to separating for good he was often working at another location and returned only for short periods every couple of months to assist with the business conducted on their joint property; (e) since the Decision his employment has changed. He has been driving trucks; (f) he has held a weapons licence since the ‘registration’ scheme commenced; (g) he has not completed a firearms safety course because this was not a requirement at the commencement of the scheme; (h) he notified the QPS of a change of address where his weapons were regularly stored but did not notify, because he was not aware that he was required to do so, a change of address relating to the address at which he had an occupational requirement for rural purposes. [20] The evidence is that his licence was endorsed with conditions for primary production at a particular location but that he had been employed at two different locations subsequently and those changes had not been notified. [21] Section 24(1) of the Act provides that: It is a condition of each licence that a licensee must, within 14 days of the happening of an event mentioned in subsection (2) (the change), advise an officer in charge of police of the change and the particulars of the change the officer reasonably requires. [22] Section 24(2) of the Act relevantly provides the events include a change of address, a change in the licensee’s reason or need for possessing or using a weapon, a change in the place entered in the firearms register as the place where a firearm is generally kept if the licensee is the registered owner of the firearm and the revocation of the licensee’s permission to shoot on a landowner’s rural land. [23] Section 24(5) provides that the authorised officer must if the change is to a particular on the licence and the authorised officer is satisfied of the correctness of the change endorse the licence with the change or take the appropriate action in relation to the licence. [24] BIL has been non-compliant with this condition for a number of years. When these matters were drawn to BIL’s attention during the hearing, BIL readily conceded that he was unaware of the extent of these obligations. He appeared genuinely remorseful that he had not fully understood and complied with his obligations. -- 5 of 9 -- 6 [25] The renewal application signed by BIL on 15 February 2021 incorrectly stated the genuine reason address, which appears had been pre-populated in the form. BIL crossed the box to indicate there was no change to his genuine reason.14 There was no change to the reason, but the genuine reason address was years out of date. I am satisfied that his failure to update the address information in the renewal application was not intentional but rather careless. There was no attempt to conceal his employment address. The renewal application genuine reason address information is inconsistent with the property address in the Annexure for Rural Employee provided in support of the renewal application.15 The Annexure contained the most recent genuine reason address. [26] This evidence raises concerns as to whether BIL understands his obligations under the Act and raises concerns as to whether there is a real prospect of BIL continuing to not comply with the Act if his licence is renewed. [27] The Tribunal has previously accepted that:16 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) [28] BIL’s current partner provided a statement17 and was available to confirm her evidence and be questioned. Her evidence is that in the three years she has known BIL, he is not and has not been a heavy drinker, he has not been verbally or physically abusive, has not been manipulative nor displayed controlling behaviour and has not had an uncontrolled outburst. To the contrary her evidence is that is a calm problem- solver. Her evidence is that in situations of personal stress BIL walks away from the conflict. [29] She gave evidence of BIL’s ex-wife being abusive towards her by phone and text messages and that she considered seeking a domestic violence order but did not. [30] This evidence is consistent with BIL’s evidence that he is not aggressive in a domestic relationship. Given the nature of the allegations in the DVO proceedings there is no independent verification of BIL’s evidence about the particular allegations made by his ex-wife. [31] BIL’s employer provided a statement18 and was available to confirm his evidence and be questioned. His evidence is that firearms are an integral part of BIL’s employment given the vegetation on the property and the struggle with dingoes attacking stock and feral pigs eating the cattle feed. [32] BIL’s employer’s evidence is that: (a) BIL has worked for him for over six years, in his experience is honest, has good work ethics, is well respected by clients and has no tendency for violence; 14 Exhibit 7, page 7. 15 Ibid, p 10 – 11, dated 23 March 2021. 16 Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717, [33]. 17 Exhibit 3. 18 Exhibit 4. -- 6 of 9 -- 7 (b) he has never seen BIL violent and in his experience he is not a heavy drinker nor verbally or physically abusive; (c) BIL was in charge of 20 employees, who could be testing but he never received a complaint from members of BIL’s crew about BIL’s behaviour; (d) he insists employees carry a firearm so that they can deal with dingoes; (e) he has never noticed BIL engage in any unsafe weapons behaviours; (f) since the Decision BIL has performed different work for him part-time, which does not require a weapon; (g) if BIL’s weapons licence was renewed he would re-employ him in his previous role; (h) he knows BIL’s ex-wife as she previously worked for him for a period of time, when BIL and she worked for him as a couple. [33] I accept BIL’s employer’s evidence that he had not witnessed any aggressive behaviour by BIL. I also accept the QPS’s submission that behaviour within an intimate domestic relationship may be different to behaviour within an employment relationship. [34] The QPS also point to weapons offences in 2009 where BIL was charged with one count of failing to securely store weapons and one count of possession of unregistered firearms. No conviction was recorded and he was fined $500.19 The QPS documents show that these charges were made following incidents on 11 and 21 August 2009. The incidents involved BIL’s then wife and a member of her family. There is some evidence that an argument over property settlement occurred as BIL and his then wife were in the process of separating. [35] BIL denies the truth of the statements made by his then wife and a member of her family to the QPS. [36] Given the nature of the allegations there is no independent verification of BIL’s evidence about the particular allegations made by his ex-wife and a member of her family. [37] BIL conceded that he had not effectively securely stored his weapons as his then wife had located the key to the gun safe and had accessed his weapons. [38] In these proceedings BIL contends the unregistered weapons were someone else’s but this is inconsistent with the record of the interview at the time and his admission and apparent remorse.20 BIL’s evidence is that the owner of one of the weapons, a relative of his then wife, was not licensed and had at that time recently been released from prison. As he was the only licensee at the premises, he accepted blame. [39] On reflection he concedes he should have taken the weapon to the police and should not have given false information to the police. [40] His evidence is that other unsecured weapons were among his deceased father’s possessions in a tin trunk in a shed and he was not certain whether they were in 19 Exhibit 7, p 15. 20 Ibid, p 37. -- 7 of 9 -- 8 working order. BIL gave evidence in these proceedings that he did not consider he had responsibilities to secure them because they were his father’s possessions. [41] BIL had limited insight into his 2009 offending and based on his evidence in this proceeding, did not fully understand the charges against him. His deceased father’s weapons were on his land and were not secured. His deceased father was incapable of retaining ownership or control of the weapons and incapable of securing the weapons. [42] In deciding this application, I consider the evidence in relation to the mandatory factors.21 In exercising my discretion, I am required to consider whether, in all the circumstances: (a) there is any real prospect of BIL misusing his weapons so that his licence should be not be renewed? (b) if his licence is renewed is his right to possess firearms a real risk to public and individual safety?22 [43] Although BIL’s licence has been renewed since the 2009 offending I consider the evidence in relation to it together with the more recent allegations to form a view as to the risk to public safety as a whole. There is no evidence of any other allegations of aggressive or abusive behaviour by BIL before me. [44] On balance, I accept BIL’s evidence, which is supported by consistent evidence given by BIL’s current partner and his employer as to BIL’s behaviours and nature over the untested evidence of his ex-wife as to BIL’s tendency for abusive, controlling and aggressive behaviours. I am satisfied that there is minimal prospect of BIL misusing his weapons in a situation of conflict. [45] However, in view of BIL’s evidence about the 2009 offending, the failure to notify changes to the genuine reason address and the failure to ensure the application form contained correct information, I am not satisfied that BIL understands his obligations under the Act. The principles underlying the Act include that public and individual safety is improved by imposing strict controls on the possession of weapons.23 This requires licensees to take appropriate steps to understand those strict controls and to comply with them. I am not satisfied, if BIL’s licence is renewed, that his right to possess firearms will not present a real risk to public and individual safety because I am not satisfied that he will comply with his obligations because he has not taken appropriate steps to fully understand them. [46] The Human Rights Act 2019 (Qld) commenced on 1 January 2020. In deciding this Application, I am acting as a public entity24 in an administrative capacity. I have interpreted statutory provisions, to the extent possible that is consistent with their purpose, in a way that is compatible with human rights.25 I accept that these proceedings and a decision under the Act potentially impacts BIL’s rights.26 I have 21 The Act, s 10B. 22 Magarry v Queensland Police Service Weapons Licensing Branch [2012] QCAT 378; CAT v Queensland Police Service [2017] QCATA 43. 23 The Act, s 4. 24 Human Rights Act 2019 (Qld), s 9. 25 Ibid, s 48. 26 Ibid, s 23, s 24, s 25, s 27, s 31, s 34. -- 8 of 9 -- 9 considered BIL’s human rights and am satisfied that the decision is compatible with his human rights as the limitations on those rights are reasonable and justifiable.27 [47] The limitation of BIL’s human rights is consistent with the principles and objects in the Act.28 Summary [48] For the reasons set out, the correct and preferable decision is to confirm the Decision. 27 Ibid, s 8, s 13, s 31, s 48, s 58. 28 The Act, s 3, s 4. -- 9 of 9 --