Barbagallo v Queensland Police Service Weapons Licencing Branch

[2014] QCAT 207

CITATION: Barbagallo v Queensland Police Service Weapons Licencing Branch [2014] QCAT 207

PARTIES:	Kimberly Ruth Barbagallo (Applicant)
v
Queensland Police Service Weapons Licencing Branch (Respondent)

APPLICATION NUMBER: GAR117-14

MATTER TYPE: General administrative review matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Senior Member O’Callaghan

DELIVERED ON: 28 April 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    The application to stay a decision is dismissed.

CATCHWORDS:

Application for stay of decision – where public interest outweighed interest of applicant

Queensland Civil and Administrative Tribunal Act 2009 (Qld) s 22
Weapons Act 1990 (Qld) s 28

Palmer v Queensland Police Service Weapons Licensing Branch [2010] QCAT 149; cited

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

1. Kimberly Barbagallo’s weapons licence was suspended by Queensland Police Service (‘QPS’) on 7 March 2014. The information notice given by QPS to Ms Barbagallo stated the decision was made on the basis that she had been charged with a serious drug related offence and that she may no longer be a fit and proper person to hold a licence.

2. Mr Barbagallo has applied to the Tribunal for a review of that decision. She also applied for a stay of the decision pending the review. I dismissed her application for a stay. Ms Barbagallo has sought reasons for that decision and these are my reasons.

3. The Tribunal can make an order to stay a decision if it considers it desirable to do so having regard to the interests of any person whose interests may be affected by the order; any submission made to the Tribunal by the decision-maker of the reviewable decision and the public interest.[1]

   [1]Queensland Civil and Administrative Tribunal Act 2009 (Qld) (‘QCAT Act’) s 22(3)-(4).

4. QPS have power to suspend a firearms licence if they are satisfied a licensee has been charged with an offence relating to the misuse of drugs or considers on reasonable grounds that the licensee may no longer be a fit and proper person to hold a licence.[2]

   [2]Weapons Act 1990 (Qld) s 28(1)(a)(i)(A):(b).

5. Ms Barbagallo has submitted in support of her stay application that the decision to suspend should be stayed because it was:

   ·        arbitrary and made without any evidence;

   ·        denies her the presumption of innocence;

   ·        was given without adequate reasons;

   ·        was made without any proper exercise of discretion;

   ·        the deficiencies in the prosecutions case regarding the charge;

   ·        the charge is unrelated to her use of firearms.

6. QPS opposed the granting of the stay. They say the suspension is authorised under the Weapons Act and that Ms Barbagallo’s alleged offending is sufficient to find that it is not in the public interest for her to continue to hold a firearms licence given the seriousness of the alleged drug offences.

7. They say that the legislation clearly contemplates that a persons licence may be suspended at the time they are charged without any conviction.

8. They refer the Tribunal to an earlier QCAT decision on this issue. In Palmer v Queensland Police Service Weapons Licensing Branch[3] the Tribunal said it accepted that the suspension in that case was not based on a presumption of guilt but was an action designed to achieve the objects of the Weapons Act 1990 (Qld) which imposed strict requirements on authorising possession of firearms for public safety reasons. The same finding is appropriate in this case.

   [3][2010] QCAT 149.

9. There is no dispute that Ms Barbagallo has been charged. Ms Barbagallo says there are reasons why the charge should not succeed. These arguments will not doubt be traversed in the criminal proceedings. This however is an application to stay the suspension of her weapons licence and the Tribunal must balance the interests of persons who may be affected by the decision.

10. Ms Barbagallo’s submission focuses on the alleged defects in the reasons given for the decision. Whilst the decision-maker clearly has an obligation to provide proper reasons for the decision, as the review will be a full merits review the question of whether the correct and preferable decision is to suspend her licence will be revisited by the Tribunal afresh. There is no need to identify an error in the decision-makers decision. The immediate issue is whether it is desirable to grant a stay of the decision. As stated by the Tribunal in the Palmer decision:

    The question to be determined in this application is how the Tribunal should respond to the disparate interests of the applicant and the public at a time when the outcome of the charge laid against the applicant is not known.[4]

    [4]Ibid at [14].

11. Ms Barbagallo has provided no submissions to the Tribunal as to how her interests would be effected if the stay is not granted.

12. QPS point out in their submissions that Ms Barbagallo’s licence was issued for an ‘occupational’ need, however she has indicated in her review application that she is a bookkeeper/personal trainer.

13. In circumstances where the alleged criminal conduct of Ms Barbagallo may exhibit a disregard for the standard of conduct accepted and acknowledged to be for the good order of society, the interests of ensuring public safety must outweigh any interest Ms Barbagallo has in having her licence returned prior to the determination of the review.

14. The Tribunal was not satisfied that it was desirable in this case to make an order to stay the operation of the decision.