Brown v Queensland Police Service Weapons Licensing Branch [2014] QCAT 124

CITATION: Brown v Queensland Police Service Weapons Licensing Branch [2014] QCAT 124 PARTIES: Adam Richard Brown (Applicant) v Queensland Police Service Weapons Licensing Branch (Respondent) APPLICATION NUMBER: GAR427-13 MATTER TYPE: General administrative review matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Member Hughes DELIVERED ON: 4 April 2014 DELIVERED AT: Brisbane ORDERS MADE: 1. The Tribunal does not have jurisdiction to review the decision; and 2. The Application is dismissed. CATCHWORDS: WEAPONS – JURISDICTION – where Queensland Police Service rescinded import certification – whether rescission different from no certification – where source of decision Commonwealth legislation – where decision to categorise paintball gun as firearm – where no legal basis to review decision – where no reviewable decision under an enabling Act Customs Act 1901 (Cth), section 229 Customs (Prohibited Imports) Regulation 1956 Queensland Civil and Administrative Tribunal Act 2009 (Qld) ss 6, 17 Weapons Act 1990 (Qld) s 142 Beckett v. Queensland Police Service Weapons Licensing Branch [2011] QCAT 89 Coppens v. Fraser Coast Regional Council [2013] QCAT 378 -- 1 of 4 -- 2 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). REASONS FOR DECISION What is this Application about? [1] The Queensland Police Service has rescinded import certification for certain paintball guns imported and sold by Mr Adam Brown. Mr Brown wants the Tribunal to review the decision and order compensation relating to the seizure of the guns and paintballs. [2] The Tribunal must first decide whether it has jurisdiction to review the decision.1 What is the Tribunal’s jurisdiction? [3] The Tribunal’s jurisdiction to review must be conferred by an enabling Act to review a decision made under that Act.2 An enabling Act can include subordinate legislation.3 [4] The enabling Act here is the Weapons Act 1990 (Qld). That Act relevantly provides that an aggrieved person may apply to the Tribunal for a review of these decisions4: (a) Refusing an application for a licence, permit, approval or other authority under the Act; (b) Refusing to accept the nomination of a person for a shooting club permit; (c) Refusing to accept a shooting club’s representative notice; (d) Imposing or amending a condition applying to a licence, permit, approval or other authority under the Act; and (e) Revoking a delegation to declare membership of a historical society. Is the decision to rescind import certification reviewable? [5] Initially, the QPS had certified the paintball guns for importation by issuing B709D and B709A permits.5 However, on 12 November 2013, the QPS notified Mr Brown that the paintball guns had now been classified as firearms and their import certification rescinded. 1 Tribunal Directions dated 19 February 2014 at paragraph 3. 2 Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 17(1). 3 Ibid s 6(2)(b). 4 Weapons Act 1990 (Qld) s 142. 5 See for example Police Confirmation And Certification dated 9 August 2013 and Police Confirmation And Certification dated 5 November 2013. -- 2 of 4 -- 3 [6] Because the paintball guns are prohibited items6, Mr Brown cannot import them without police certification.7 The certification must be to the effect that he holds a licence or authorisation according to the law of the State to possess the guns, or that a licence or authorisation is not required.8 [7] The Tribunal has previously determined that a decision to certify items for import is not within its jurisdiction: The Service correctly points out that a decision to issue a B709A permit is not a decision under the Weapons Act 1990 but a decision under the Customs (Prohibited Imports) Regulation 1956 (Cth) and the Customs Act 1901 (Cth)… the Service has identified Section 1B of Schedule 6, Part 4 of the Regulations as the source of its delegated power. Therefore, it is clear that the “decision” of the Service cannot be a decision under the Weapons Act 1990 and cannot be a decision within the ambit of section 142 of that Act. If the decision does not fall within section 142, the tribunal does not have jurisdiction.9 [8] Mr Brown argues the Tribunal’s previous determination is not relevant because “without permission (from QPS in the form a B709A) prior to import, (the application) became a Federal matter under Customs (Prohibited Imports) Regulations 1956 and it was not within QCAT’s jurisdiction.” [9] However, it is not the lack of permission (certification) prior to import that determines jurisdiction. It is the source of the decision - to certify or not to certify - that is apposite. [10] Mr Brown sought certification. Certification is provided or not provided pursuant to Commonwealth legislation, regardless of when it is sought. Mr Brown was only able to import the guns because of the initial police certification. That certification was provided under Commonwealth legislation. Similarly, the decision to rescind certification is under Commonwealth legislation. The source of the decision is Commonwealth legislation. It is therefore not a decision reviewable by the Tribunal under the Weapons Act 1990 (Qld). Is the decision to categorise a gun as a firearm reviewable? [11] Mr Brown also argues that his case “is different because the QPS has issued B709A and B709D permits many times for the goods prior to importing” and it is this change to his permits or approvals that is within jurisdiction. [12] The change to Mr Brown’s “permits” is the rescinding of the certifications. These certifications are provided under Commonwealth legislation and are not licences under the Weapons Act 1990 (Qld). 6 Customs Act 1901 (Cth) s 229(1)(b). 7 Customs (Prohibited Imports) Regulation 1956, Regulation 4F. 8 Customs (Prohibited Imports) Regulation 1956, Schedule 6, Part 1, s 4.1(a). 9 Beckett v. Queensland Police Service Weapons Licensing Branch [2011] QCAT 89 at paragraph [7]. -- 3 of 4 -- 4 [13] Understandably, Mr Brown’s application focuses on why he considers this decision to not be correct and its impacts on his business. He posits that the certifications have been rescinded because of the QPS decision to categorise the paintball guns as firearms. [14] However, Mr Brown provides no legal basis for this decision being within the Tribunal’s jurisdiction. He does not identify any provision in the Weapons Act or any other enabling Act conferring jurisdiction on the Tribunal to review the decision to categorise a paintball gun as a firearm.10 [15] The impact of the QPS decision to categorise the paintball guns as firearms may be to require Mr Brown to apply for a licence or similar authority. The Tribunal does have jurisdiction to review a decision to refuse an application for a licence, impose a condition on a licence or revoke or suspend a licence.11 However, the Tribunal does not have jurisdiction to review a decision necessitating an application for a licence. [16] The application is therefore dismissed. What are the appropriate Orders? [17] The appropriate Orders are: 1. The Tribunal does not have jurisdiction to review the decision; and 2. The Application is dismissed. 10 Coppens v. Fraser Coast Regional Council [2013] QCAT 378 at paragraph [28]. 11 Weapons Act 1990 (Qld) s 142(1)(a), (d) and (e). -- 4 of 4 --