De Silva v Queensland Police Service, Weapons Licensing Branch - [2014] QCAT 525

CITATION:

De Silva v Queensland Police Service, Weapons Licensing Branch [2014] QCAT 525

PARTIES:	Nissanka Senarath De Silva (Applicant)
v
Queensland Police Service, Weapons Licensing Branch (Respondent)

APPLICATION NUMBER:

GAR367-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

17 October 2014

HEARD AT:

Brisbane

DECISION OF:

Senior Member Oliver

DELIVERED ON:

20 October 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The decisions of the respondent made on 8 October 2013 are confirmed.

CATCHWORDS:

WEAPONS LICENSING – whether applicant a fit and proper person – where interstate Intervention Order made against the applicant – whether the Intervention Order made in 1996 and varied in July 2013 is a current domestic violence order made within the relevant period.

Weapons Act 1990 (Qld) s 10B

Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717;
Urquhart v Queensland Police Weapons Licensing Branch [2011] QCAT 23

APPEARANCES:

APPLICANT:	Self Represented
RESPONDENT:	Senior Sergeant Cavanagh of the Respondent.

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

Mr De Silva held both a concealable firearms licence and a firearms licence issued under the provisions of the Weapons Act 1990 (Qld). On 8 October 2013 the respondent, by its authorised officer, Senior Sergeant Cavanagh, had to consider an application by Mr De Silva for a change of conditions of those licences. In considering the application, Snr Sergeant Cavanagh became aware of ‘an intervention order’ issued out of the Magistrates Court in Victoria on 3 July 2013 the case number is J01583759.
Because of the existence of the intervention order, which is the same as a domestic violence order as referred to in s 10B(2)(b) of the Weapons Act, Snr Sergeant Cavanagh determined that Mr De Silva’s weapons licence had been revoked automatically and therefore made a decision to refuse to add the conditions sought to his licences.
On 8 October 2013 Snr Sergeant Cavanagh issued two Information Notices in respect of each of Mr De Silva’s applications in which it sets out the reasons for the refusal. They are:
Your licence is revoked as a result of a Domestic Violence Order or interstate domestic violence order being issued against you on 3 July 2013.
On 22 October 2013 Mr De Silva filed an application to review the respondent’s decision. In the application, Mr De Silva sets out why the respondent’s decision should be set aside. He says that he is a member of various shooting clubs, is involved in competitive shooting and also uses his weapons on a prawn farm to scare off predatory birds. In further submissions in support of the application, Mr De Silva contends that the 2013 Intervention Order should be disregarded because it is simply a variation of an Intervention Order that was made against him on 18 July 1996. That Intervention Order was made in case number J01583759 which is the same case number in which the 3 July 2013 Intervention Order was made.
Mr De Silva’s submission to the Tribunal is that the original order was made more than five years before his application for the variation of conditions and therefore, it is outside the ‘relevant period’ referred to in s 10B(2)[1] of five years, and should be disregarded.
[1]Defined in s 10B(5).
The application was listed for hearing on 17 October 2014. As this is a merits review of the decision of the respondent, the Tribunal’s function is to produce the correct and preferable decision by way of a fresh hearing on the merits. I should say that apart from some peripheral issues, there is very little dispute of fact concerning the critical issue in the case, that is the making of the Intervention Order.
Although the respondent raises other peripheral issues as to whether or not Mr De Silva is a fit and proper person to hold a weapons licence, as I said, the primary issue is whether the intervention order made in July 2013 is a current intervention order, and falls within the relevant period under s 10B of the Weapons Act. If it does, then by the operation of s 10B(2)(b) Mr De Silva is deemed not to be a fit and proper person to hold a weapons licence. The section is as follows:
(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)…
(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
(b)a domestic violence order, other than a temporary protection order, has been made against the person.
A domestic violence order is defined in Schedule 2 to the Act:
domestic violence order means a domestic violence order under the Domestic and Family Violence Protection Act 2012, and includes an interstate domestic violence order.
Schedule 2 also defines an interstate domestic violence order as follows:
interstate domestic violence order means an interstate order under the Domestic and Family Violence Protection Act 2012, whether or not the interstate order is registered under that Act.
The reference to interstate domestic violence order under the Domestic and Family Violence Protection Act is defined as follows:
interstate order means an order made by a court of another State, a Territory or New Zealand under a law of the other State, Territory or New Zealand that is prescribed under a regulation.
Included in the material filed by the respondent is a copy of s 11 of the Family Violence Protection Act in Victoria. The section not only establishes that the intervention order is a domestic violence order within the meaning of the Weapons Act, but it also says that for the purposes of the Act a ‘final order’ is an order that is varied under s 100, s 119(2)(c) or s 173(2) of that Act. This is such an order.
This then leaves little room to doubt that the order as varied in July 2013 is in fact a current Intervention Order or for the purposes of s 10B, meaning, a current domestic violence order. This order has been made within the last five years and therefore falls squarely within the definition of domestic violence order in s 10B(2). It seems to me, that this conclusion is inevitable and supports the statement in the respondent’s information notice that the determination of Mr De Silva’s application was on the basis of the strict liability or deeming provision under s 10B.
An application to strike out Mr De Silva’s review application was filed in reliance of s 10B. The application was dismissed, presumably because Mr De Silva was appealing the Intervention Order in Victoria. That has not eventuated and even so, it would have made little difference to this review application. On reflection, had the proceeding been struck out, it would have saved the parties considerable time and effort in preparing for this hearing.
Mr De Silva in his submissions raises other issues about his misunderstanding of the application of the Weapons Act and in particular, things that were told to him by police officers, and persons he consulted about his personal situation. It is particularly unhelpful when police officers, although trying to help, relay incorrect information about the application of Weapons Act. All of these matters are of no assistance because I have to apply the legislation which, despite Mr De Silva’s otherwise good character, deems him not a fit and proper person to hold a weapons licence by operation of the legislation. This conclusion is consistent with previous cases on point.[2]
[2]Roesch v Queensland Police Service Weapons Licensing Branch [2013] QCAT 717; Urquhart v Queensland Police Weapons Licensing Branch [2011] QCAT 23.
Therefore, the decisions made by Senior Sergeant Cavanagh on 8 October 2013 are confirmed.