Feeney v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 203

CITATION: Feeney v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 203 PARTIES: Paul Joseph Feeney (Applicant) v Queensland Police Service (Weapons Licensing Branch) (Respondent) APPLICATION NUMBER: GAR175-16 MATTER TYPE: General administrative review matters HEARING DATE: 20 February 2017 HEARD AT: Brisbane DECISION OF: Member Howe DELIVERED ON: 14 June 2017 DELIVERED AT: Brisbane ORDERS MADE: The application for review is dismissed. CATCHWORDS: FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCES AND RELATED MATTERS – LICENCES – ISSUE OF AND GENERALLY – application to review decision refusing renewal of licence for Category H weapon – meaning of occupational requirement – meaning of business – evidence of commercial venture – vermin control – agistment of cattle Weapons Act 1990 s 3, s 4, s 10, s 11, s 13 Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466 Hope v Bathurst City Council [1980] HCA 144 Wilson v Queensland Police Service [2010] QCAT 347 REPRESENTATIVES: APPLICANT: Represented by Patricia Feeney of Counsel RESPONDENT: Represented by Craig Capper, Senior Legal Officer -- 1 of 11 -- 2 REASONS FOR DECISION [1] Mr Feeney has held a concealable firearms licence for occupational purposes under the Weapons Act 1990 (the Act) for many years. That is until he was advised in June 2016 that that licence would not be renewed. [2] Mr Feeney has had long experience and interest in firearms. He completed National Service training in 1959 and from 1960 to the 1990s served in the Australian Army Reserve with a short tour of duty in Vietnam in 1968. He retired from the Reserve at the compulsory age of 50 with the rank of Lieutenant Colonel. [3] He joined the Queensland Military Rifle Club in 1995 and also joined the Sporting Shooters Association of Australia about the same time. [4] Since 2005 he has been responsible for training Queensland Military Rifle Club range officers and safety officers in firearms safety. He has designed a training program and presented it regularly. [5] Since his retirement from the Army Reserve he has pursued his long held interest in recreational shooting. That is separate, he says, from his involvement in the company Professional Vermin Control and Training Pty Ltd (PVCT) which was established in 1997 to undertake professional destruction of feral animals and livestock. [6] He also agists 12 head of stock on a property called Keggabilla owned by a friend and co-director of PVCT. He exchanges his labour on the property for free agistment of his cattle. [7] PVCT was formed in 1997. Mr Feeney says since the company was formed it has provided vermin control to the rural community. Members of the company attend properties depending on need, generally on average 5 or 6 times per year.1 “It is our general practice to charge farmers for our services but those charges are designed to cover our costs and not necessarily to make a profit. We usually take bookings by telephone. It is unusual for us to enter into formal contracts with the farmers for whom we provide services. We have never found the need for formal processes when dealing with farmers who prefer to make an agreement on a handshake.”2 Handgun [8] Mr Feeney maintains that in his experience, when one is required to destroy an animal in close or confined spaces, a handgun is the only safe firearm to be used. There are a number of reasons he gives for that claim. [9] He says in a confined space a rifle may be too powerful with increased risk of over penetration and subsequent ricochet. When shooting at a distance, 1 Ex 1 at [34]. 2 Ibid, [35]. -- 2 of 11 -- 3 a rifle is the most effective firearm and for this reason is fitted with sights that are carefully calibrated for distance. When used at short range the rifle is extremely difficult to aim and is therefore inaccurate. Again this increases the risk to other animals and humans in the vicinity and also increases the likelihood that the animal will not be destroyed as quickly and painlessly as possible. [10] He says in a confined space a rifle may be too powerful with increased risk of over penetration and subsequent ricochet. When shooting at a distance, a rifle is the most effective firearm and for this reason is fitted with sights that are carefully calibrated for distance. When used at short range the rifle is extremely difficult to aim and is therefore inaccurate. Again this increases the risk to other animals and humans in the vicinity and also increases the likelihood that the animal will not be destroyed as quickly and painlessly as possible. [11] He says there are circumstances which he has encountered or he visualises where a handgun rather than a long arm is necessary for destruction of an animal:  Where an animal panics and falls or breaks a leg in a cattle crush. It is common for such severely injured animals to be destroyed. To minimise the pain and distress of the animal it is required to be destroyed in situ. A rifle in those circumstances creates an unacceptably high risk of injury to surrounding animals or people.  When an animal is not killed with a first shot from a rifle and runs into the cover of dense scrub or bush. The shooter may be required to track the animal into the thick scrub. This would be an environment where it would not be possible to aim a rifle accurately which increases the risk that a second shot will not destroy the animal.  When required to destroy an animal in dense bush or undergrowth. Achieving a clear line of rifle fire may be extremely difficult with subsequent risk and danger.  When an animal appears from a distance to have been killed with a first rifle shot but on closer inspection is found to be still alive. Danger may present for two primary reasons: the unpredictability of the behaviour of the animal and the difficulty of the shooter positioning himself to take a safe shot.  Where feral pigs have been trapped. Guidelines for shooting feral pigs that have been trapped state that they should be shot from inside and not through the trap. Compliance with the guidelines require the muzzle of the rifle to be inside the trap. It would only be safe to use a handgun in those circumstances because: - It would be extremely difficult to take accurate aim with a rifle when the muzzle is inside the trap. To use a rifle with accuracy we would require the shooter to stand some distance away which would -- 3 of 11 -- 4 increase the risk of the projectile hitting the metal mesh of the trap resulting in a probable ricochet. That would also breach the guidelines. - Close range shooting of a feral pig inside a trap would mean there was a very high probability of over penetration due to the power of a rifle. - Movement of the animal within the confined space of the trap could result in knocking or bumping the firearm at the time of firing. This would be far more likely to occur with a rifle than a handgun due to the length of the weapon. [12] Mr Feeney says some of the properties on which he culls animals with PVCT are familiar to him and he is familiar with the terrain. There are some properties however with which he is not familiar and one never knows what one will come across. He says in his experience safety requires he be properly prepared for any eventuality. [13] In the past he has always carried a handgun with him when working on the property on which he agists his cattle, Keggabilla, or when working on feral animal destruction.3 That is not because it is not possible to use a rifle if an animal needs to be destroyed, and it is often the case that a rifle is the most effective tool. However there are circumstances which can arise unexpectedly or suddenly where a handgun is the only safe option for destruction of an animal. He says the most common occurrence is when an animal has been put down by a rifle shot and on close investigation is found to be still alive. [14] He maintains that though it is not a frequent occurrence for him to use a handgun, he considers it unsafe practice to be without one when working with animals.4 He says the loss of this essential tool would not only mean that he and the people he works with would be exposed to increased danger but it would mean that in certain circumstances they would be unable to dispatch an animal quickly and humanely when the need arises. [15] He was first issued with a category H (concealable firearm) license on 18 August 1997 for sports and target purposes. One year later the licence was endorsed with condition 999 allowing him occupational use of the firearm for animal destruction. Until 2016 the licence was always renewed in accordance with the legislation endorsed with the relevant conditions 999 and AC1, the latter authorising him to use the weapon for “the marking, tranquilizing, control or destruction of animals in the course of the actual conduct of the licensee’s business activities or occupation.” 3 Ibid, [46]. 4 Ibid, [47]. -- 4 of 11 -- 5 [16] On 15 June 2016 he was advised that his licence to use a handgun for occupational purposes would not be renewed. The refusal was in no way a reflection on his character or reputation, which is excellent. [17] Mr Feeney filed an application in the Tribunal on 14 July 2016 seeking review of that decision. Statutory requirements [18] Section 3 of the Act provides that the object of the legislation is to prevent the misuse of weapons. The base principles underlying the Act are that weapon possession and use are subordinate to the need to ensure public and individual safety; and public and individual safety is improved by imposing strict controls on the possession of weapons. [19] By section 4(c) the object of the Act is (in part) achieved by requiring any person who wishes to possess a firearm under a licence to demonstrate a genuine reason for such possession. [20] Section 10(2)(f) provides that a licence may be issued to an individual only if the person has a reason mentioned in section 11 to possess the weapon or category of weapon. By section 11(c) a reason for possession of a weapon is an occupational requirement, including an occupational requirement for rural purposes. Section 13(5) provides that if the reason for possession of a firearm is an occupational requirement, the applicant must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment. [21] This matter involves renewal of an existing licence.5 Section 18(9) provides that the provisions of section 10, including section 10(2)(f), apply to the renewal application. [22] The Tribunal’s review of the decision to refuse to renew Mr Feeney’s handgun licence is by way of fresh hearing on the merits. It is not an appeal from the decision below. Occupational Requirement [23] The initial issue arising for consideration is whether Mr Feeney has established, as a reason for possession of the weapon sought, in this case a handgun, an occupational requirement for such. [24] The Police submit Mr Feeney must demonstrate an occupational requirement under section 11 for possession of the weapon. But they say section 13(5) requires the applicant to also show why possession of a weapon is necessary in a business or employment. If Mr Feeney has no business or employment, he cannot show an occupational requirement for the weapon. 5 Section 18. -- 5 of 11 -- 6 [25] For his part, Mr Feeney contends the requirements of section 13 are purely procedural and simply address administrative aspects of licensing. Mr Feeney says section 11 defines the parameters of genuine reasons for possession of a firearm. Section 13 is subservient to section 11 and does not limit the operation of section 11. Rather the intention of section 13(5) is to require an applicant to provide appropriate evidence by which it can be determined whether the applicant has the genuine reason prescribed by section 11(c), that is, an occupational requirement for possession of a handgun. [26] As to the meaning of the word “occupational” used in section 11, he submits that it should be interpreted broadly. It should not be restricted to a single or dominant activity, nor should it be limited to paid employment or conducting a financially profitable business. If the intention of the legislature had been a narrow and restrictive construction limited to commercial business or employment activities representing a person’s primary or significant source of income, then instead of using the expression “occupational requirement” the words “business” or “employment” would have been used.6 Interpreting ss11 and 13 [27] Section 13(5) refers to an applicant’s “business or employment”. “Business” is defined in Schedule 2 to the Act to mean the business carried on under the authority of a licence. Licence is defined as a licence continued, issued or renewed under the Act and in force at the material time. [28] The definition of business in Schedule 2 does not sensibly apply to the term used in the context of section 13(5). This is not the only provision where the definition under the Act makes little sense. Section 65 deals with a person “who unlawfully carries on the business of trafficking in weapons or explosives.” A business of trafficking in weapons cannot be carried on under the authority of a licence under the Act. It is the illicit nature of activities that constitute trafficking which indeed makes it subject to penalty. [29] The definition of business appearing in Schedule 2 was only introduced into the legislation by the Weapons (Handguns and Trafficking) Amendment Act 2003. The expression in section 13(5) “business or employment” existed well before that definition was introduced. In my opinion the words business and employment in section 13(5) appropriately bear their ordinary and usual meaning. [30] What is the relationship between sections 11(c) and 13(5)? Those provisions were added to the Act by the Weapons Amendment Act 1996. The relevant Explanatory Notes explaining their introduction is helpful. They state with respect to the present section 11 (then numbered section 6) “This section outlines the range of reasons held to be acceptable for 6 Applicant’s prehearing Submissions at [35]. -- 6 of 11 -- 7 possession of a weapon, at least one of which an applicant must demonstrate in order to be eligible for the issue of a firearms licence by operation of s 8.” [31] With respect to section 13 (then numbered section 8), the Explanatory Notes say “This establishes the process by which an application for a licence is made. The section requires that an application be lodged in the manner outlined in the regulation and that it be accompanied with the requisite details to allow a determination to be made.” [32] From that it is clear that section 13 was indeed intended to be a procedural provision dealing with the proof necessary to establish one of the nominated section 11 reasons for possession of a weapon. So if the reason is sports or target shooting, section 13 requires the applicant to provide proof that he or she is a current member of an approved shooting club. If the reason is recreational shooting, the applicant must supply written permission from a landowner authorising him or her to shoot on the land. If the reason is an occupational requirement, “the applicant must state why possession of a weapon is necessary in the conduct of the applicant’s business or employment.”7 [33] What still remains unclear however is what “occupational requirement” means in section 11(c). [34] Given the clear nexus between sections 11 and 13, it seems to me that section 13(5) is available to assist in the interpretation of “occupational requirement” appearing in section 11(c). By the Explanatory notes, section 13(5) identifies the requisite details necessary to allow a decision maker to determine whether a claim of occupational requirement for a weapon is made out. Section 13(5) talks about the necessity of a weapon in the applicant’s business or employment. [35] The Macquarie Dictionary defines “business” as being one’s occupation, profession or trade; also that with which one is principally and seriously concerned; and “to be in business” to earn a living from a commercial activity. [36] The Police urge that the ordinary and usual meaning of the word business used in section 13(5) should apply. They refer to the High Court decision in Hope v Bathurst City Council,8 in that regard, namely “a commercial enterprise in the nature of a going concern, that is, activities engaged in for the purpose of profit on a continuous and repetitive basis”. But a careful reading of that decision shows that what the court there was considering was the meaning of the expression “carrying on the business” rather than simply “business”. The court explained that it was the use of the words “carrying on” which suggested repetition of acts and activities possessing 7 Section 13(5). 8 Hope v Bathurst City Council [1980] HCA 144, [14] (Mason J). -- 7 of 11 -- 8 something of a permanent character.9 If one excludes the meaning of those additional words “carrying on”, a definition of the ordinary or popular meaning of the term business is available as a commercial enterprise involving activities for the purpose of profit. [37] In my view the words occupational requirement used in section 11(c) also envisage and require an element of commerciality and profit making to the activities proposed as founding a reason for possession of a weapon. [38] In Wilson v Queensland Police Service,10 Senior Member Oliver considered an applicant for a weapons licence who was an equine chiropractor in his regular fulltime occupation, but who, 4 or 5 times each year for about 2 weeks, went to a property to muster and cull cattle. Senior Member Oliver referred to the definition of “occupation” in the Macquarie Dictionary as “ones habitual employment, business, trade or calling; that in which one is engaged,” and “occupational” as “of or relating to occupation; of, relating to, arising from, or connected with an occupation trade or calling.” [39] The learned Senior Member found the applicant’s habitual employment to be that of equine chiropractor. He determined the applicant’s ventures shooting was in fact interrupting his regular employment. He noted: “I accept that Mr Wilson is rewarded for his time and effort in controlling feral and diseased cattle but this reward is in kind rather than actual payment of money consistent with the notion of occupation. There is no formal arrangement for payment, in-kind or otherwise, that one might expect to see between a professional shooter or contract musterer. If such a commercial relationship existed and there was identifiable reward then this could constitute an occupation, even on a part-time basis. The current arrangement is suggestive of relationship between Mr Wilson and Mr Shelly that is of a casual nature, friendship based.” [40] The learned Senior Member concluded a commercial relationship and identifiable reward was necessary to qualify an applicant to claim an occupational requirement for a weapon. I note in that matter though the applicant’s habitual employment as equine chiropractor was commented upon, the basis of the decision was really the lack of any commercial arrangement and an identifiable commercial reward that brought the Tribunal to the conclusion that no occupational requirement for a weapon had been shown. [41] The learned Senior Member suggested that if a commercial relationship exists and there is identifiable reward, then even if the arrangement is only part-time, such could form the basis of an occupational requirement for a weapon within the scope of section 11(c). I concur. [42] I find commercial activity with a view to financial profit is required by applicants relying on occupational requirements as a reason for a weapon. 9 Ibid, [13]. 10 [2010] QCAT 347. -- 8 of 11 -- 9 That is the significant difference to applicants such as a sports or target shooter11, or a recreational shooter12 or collector of weapons13. PVCT and Keggabilla [43] Mr Feeney maintains there are two aspects to his occupational requirement for a handgun, pest extermination forays with PVCT and working 6 or 8 weeks each year on the rural property Keggabilla. [44] Mr Feeney’s evidence was that prior to 1997 and the introduction of stricter gun controls, the other individuals who came together to form PVCT had been shooting together for many years, since they were very young. He met these other individuals through Mr Stiller, the owner of the property Keggabilla. [45] Mr Stiller and others would offer to destroy feral animals on properties using a combination of helicopter and ground shooting. Farmers were only charged for the expenses of the shooting expeditions. The shooters would take their own food and other material to assist the farmers. Prior to 1997 the expeditions were conducted on an informal basis between the friends. [46] When the new gun legislation was introduced in 1997 Mr Stiller and Mr Feeney met with an Inspector of police from the Weapons Licensing Branch to discuss the operations “and to determine a suitable structure and methods of continuing the program to assist farmers while meeting the requirements of the new legislation. We suggested at the meeting that we wanted to form a company and Inspector Crowley agreed that this was an appropriate structure for the enterprise.”14 [47] PVCT was formed in 1997. Since then the company has continued to provide vermin control and training in firearms to the rural community. Mr Feeney says the company members attend properties five or six times a year on average. Any charges made to farmers for their services are charges to cover costs only “and not necessarily to make a profit.”15 It is unusual for them to enter into a formal contract with farmers. They have never found the need and it is all done on a handshake. [48] Mr Feeney supplied an ASIC search of PVCT. There are 12 one dollars shares issued and 12 shareholders. He, together with 6 other of those shareholders, are directors. Mr Feeney was not sure whether the shareholders could also be described as employees.16 The shareholders only have their expenses covered by the company. Mr Feeney receives no income from the company and does not declare any income from the company in his personal tax return. Expenses charged to landholders 11 Section 11(a). 12 Section 11(b). 13 Section 11(d). 14 Ex 1 at [30]. 15 Ibid, [35]. 16 Transcript, page 1-13, Line 8. -- 9 of 11 -- 10 cover only such things as ammunition, travel, food and something towards the wear and tear on vehicles and rifles. [49] The company keeps accounts and files a tax return but Mr Feeney was vague about the finances and the income derived. He thought the company made a few thousand dollars profit annually and it had been the same for a number of years. Mr Feeney did not know what the gross income of the company was. Indeed Mr Feeney knew very little about the financial affairs of PVCT, despite him being a director. [50] Mr Feeney keeps a register of his handgun use. He characterises use as any carrying of a handgun, rather than shooting it for pest control purposes or to euthanize animals. From the register, the only occasion of use in that broad sense through 2016 prior to execution of his statement of evidence in October 2016 was one visit of 2 days to Mr Stiller’s property, Keggabilla. For 2015 there were 5 visits to Keggabilla and one visit to a property Bullamon Plains. For 2014, there were 7 visits to Keggabilla and again one visit to Bullamon Plains. Annual “use” of a handgun is able to be calculated from the register. It indicates a total of 30 days for 2014, 16 days for 2015 and only 1 day for 2016. Mr Feeney said in evidence there was only the one entry for 2016 because “that was the cut off date”.17 It is not clear what that meant given his statement of evidence was made in October 2016, but I conclude it was shortly after that in around May 2016 that he was advised his licence to carry a handgun for occupational requirements would not be renewed. The 2013 year is incomplete but it covers May to December and records 29 days “use”. [51] The register does not support a contention that as a PVCT shareholder he attends properties 5 or 6 times each year to cull pests, at least not in the last 2 or 3 years. Mr Feeney agreed it has only really been Mr Stiller’s property that he has attended over that period.18 Nor does the register support his contention that he provides Mr Stiller with 6 to 8 weeks labour each year, which he says is in return for cost free agistment. I accept the register is an accurate record of his attendances anywhere with a handgun for occupational requirements for the periods concerned. It was Mr Feeney’s evidence that he always carries a handgun when working on Keggabilla or when destroying feral animals.19 [52] It was suggested that the register of use document only covers a period of something less than 3 years and PVCT has been operating since 1997. But it is not a long history of use of a handgun for occupational purposes, nor that there is a potential for such use that is the relevant consideration. In Cseke v Queensland Police Service (Weapons Licensing Branch)20 the Court of Appeal said “The applicant had to prove he had a genuine occupational requirement to possess a concealable firearm for the 17 T1-16, L40. 18 T1-16, L23-25. 19 Ex 1 at [46-47] and T1-17, L5-17. 20 [2005] QCA 466, [25]. -- 10 of 11 -- 11 destruction of animals. He has not worked with animals for more than three years and has not, even in a voluntary capacity, been asked to shoot injured wildlife. It is not to the point to argue, as the applicant did, that the potential for such use exists and a need to use the gun might arise in the future.” [53] The register suggests Mr Feeney’s use (in the sense of carrying for occupational requirements) of a handgun has much reduced over the last 3 years. It does not support a claim that he currently has, nor for a number of years, has had, regular involvement in PVCT pest eradication forays. Nor does it support the suggested periods attending to rural pursuits at Mr Stiller’s property as claimed. [54] There is generally a dearth of evidence in support of the proposition that the company conducts itself as a commercial enterprise. The company does not bother documenting engagements with landowners for the purpose of vermin eradication. It has always been a handshake situation. In that regard there seems little difference between the activities of the shareholders pre-incorporation and post. There is no evidence of the activities becoming a commercial profit making enterprise following the incorporation of PVCT. Indeed Mr Feeney himself states the company was incorporated not as a commercial venture but as a vehicle to enable the shooting activities of the members to continue after the 1997 legislative strictures were introduced. [55] There is also little evidence about Mr Feeney’s work on Keggabilla. Mr Feeney says he works with Mr Stiller at the latter’s property. He is not paid a wage but in lieu is allowed to agist 12 head of cattle on the property without charge. He does not say what agistment charges he thereby saves each year, nor what income, if any, he earns from the dozen head of cattle. They might not be for sale at all, but for personal consumption. There is simply no evidence about these matters. [56] It is not unreasonable to surmise that Mr Feeney’s dealings with Mr Stiller is like that of the equine chiropractor and the property owner in Wilson, suggestive of a relationship of a casual nature, friendship based. [57] I am unable to conclude that Mr Feeney’s involvement in either PVCT nor in his work on Keggabilla provides an occupational requirement reason for possession of a concealed firearm as required by s11(c) of the Act. On that basis the application for review must be dismissed. -- 11 of 11 --