Harm v Queensland Police Service
[2010] QCAT 518
•19 October 2010
| CITATION: | Harm v Queensland Police Service [2010] QCAT 518 |
| PARTIES: | Mr Clinton John Harm |
| v | |
| Queensland Police Service |
| APPLICATION NUMBER: | GAR164-10 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 August 2010 |
| HEARD AT: | Brisbane |
| DECISION OF: | Richard Oliver – Senior Member |
| DELIVERED ON: | 19 October 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: |
|
| CATCHWORDS : | Weapons licensing; application for a license for a category H weapon; consideration of genuine reason for rural or occupational purposes; particular circumstances of the applicant; principals and objects of the Weapons Act considered. |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Clinton John Harm represented by Grant Ireland, solicitor of Kerry Connolly Howard Lawyers. |
| RESPONDENT: | Queenlsand Police Service represented by Sergeant Woolcock. |
REASONS FOR DECISION
Mr Harm is the owner of a 16,400 hectares (42,000 acres) rural property near Chinchilla. The property was purchased on 1 January 2008 as a Leasehold Tenure. It is a condition of the Leasehold Tenure that he use the property for cattle grazing.
Presently, Mr Harm runs about 180 head of cattle on the property with the intention of increasing that to 300 within the next 12 months and in time, he hopes it will have a carrying capacity of about 450 breeders.
Mr Harm does not live on the property but resides on a smaller 500 acre property in south of Rockhampton. He takes younger cattle from the Chinchilla property to the home property for finishing to go to market.
Mr Harm has given evidence both in affidavit form and orally, that there are a large number of feral animals on the Chinchilla property requiring control. These animals include dogs, pigs and foxes. The dogs are a threat to calves and pigs carry a disease which can be transferable to livestock at watering points. There are also a large number of wild horses on the property.
Good rural husbandry requires control of feral animals and pests and the ability to humanly put down injured or diseased livestock including animals other than just the cattle on the property.
Mr Harm describes the Chinchilla property as being divided into a number of small paddocks including what’s referred to as the house paddock of 400 acres, another 2 paddocks of some 3,000 and 4,000 acres respectively with the balance of about 30,000 acres. The property is heavily timbered in places with about 40% being ridge country and balance being undulating with a minimal area of open grazing land (approximately 380 acres).
The property has limited four wheel drive access with most of it being accessed on horseback. Generally when Mr Harm visits the property he will check fences and livestock on horseback. When doing this he needs to carry a weapon to not only control feral animals, but also to deal with injured or diseased livestock he may come across. He has produced photographs of the property which clearly indicate that it is heavily timbered. He said:-
“I currently utilise a rifle while on horseback to conduct pest management on the property. While the rifle is not in use I carry it in the sling across my back. Due to dense forestry in the property, the rifle is often caught up in overhanging branches making it difficult to travel with”.
In addition, using a rifle in the heavily timbered country does, of itself create its own dangers of ricochet and not been able to see well into the distance, given the range of a high powered rifle.
To overcome these difficulties, and recognising the need to have a firearm, the Applicant applied to the weapons licensing branch for a category H concealable firearm license on 27 July 2009. The application was rejected by the Respondent on 28 November 2009. Mr Harm then filed an application to review that decision.
Statutory requirements
10. Possession of a weapon, particularly a concealable weapon, is not as of right. The Weapons Act provides that weapon possession and use are subordinate to the need to ensure public and individual safety.[1] The objects of the Weapons Act are achieved by a licensing system for persons wishing to possess firearms and scheme which ensures that all firearms are registered. Individuals wishing to possess a firearm under a license must also demonstrate that they have a genuine reason for possessing the firearm.[2]
[1] Weapons Act 1990 section 3(1)(a)
[2] Section 4(c)
11. A license will only issue to an individual if they are a fit and proper person to hold the license[3] and have a genuine reason to possess the weapon in a particular category.[4]
[3] Section 10(2)(e)
[4] Section 10(2)(f)
12. Section 11 sets out the genuine reasons and they include:-
a)Sports or target shooting;
b)Recreational shooting;
c)An occupational requirement, including an occupational requirement for rural purposes
13. There is no contest that Mr Harm meets the criteria of section 10 of the Act in that he is a fit and proper person. However the respondent disputes that Mr Harm has established that he has an “occupational requirement for rural purposes” to possess a hand gun being a category H weapon.
14. Mr Harm’s application was rejected on the grounds that he:-
“failed to satisfy an authorised officer that you have good and sufficient reason and that your circumstances such that you should be issued with a license for the purposes of which you require it. Your circumstances do not warrant the issue of a license for the purposes nominated in your application.”[5]
[5] Decision 23 November 2009, affidavit of Sergeant Willcock para 67-68
Evidence and submissions
15. In coming to that conclusion, Sergeant Willcock, in his affidavit, gave sensible and cogent reasons as to why the application was rejected. He said:-
“During my service as a police officer in the Queensland Police Service, I have been stationed at police stations in rural areas, where feral pig and other pests are prevalent. These rural areas include Adavale, Quilpie and Charleville in South-West Queensland and Bowen, Proserpine and Mackay in Central Queensland.
I have assisted primary producers in the operations of rural lands under their control and participated in their efforts to control feral animals including horses, pigs and cattle and the destruction of diseased or crippled stock.From my knowledge and experience the use of category H weapons is limited and an inappropriate type of weapon for the purpose of control of feral horses, pigs, wild dogs, other animals including cattle, except in very limited circumstances. These circumstances include inaccessibility of terrain or distance or vegetation coverage/density, that it is not practicable to obtained a weapon of another category, relocate and humanely destroy a diseased and crippled animal in a reasonable period of time.
From my knowledge and experience a category A or B weapon can be carried safely on a 4WD motorbike or a motorcycle or a horse utilising an appropriately mounted carry case or scabbard.
The use of category H weapons in the control of feral animals is at best an opportunistic measure of control.
In determining the appellant’s application I considered that I considered the totality of all information and matters contained in the material available to me.”
16. Sergeant Willcock then went on to refer to the various publications (which are annexed to his affidavit) concerning the management of feral animals including feral dogs, pigs and horses.
17. Although this information is of general assistance, it is not specifically relevant to Mr Harm’s circumstances having regard to the vegetation and terrain of the Chinchilla property. The best method of management is with a firearm, the question here is whether that is a rifle or a handgun.
18. Mr Harm concedes that he has had some success with eradicating feral animals with the use of rifles but says:-
“I have used a rifle on several occasions with success, but I need to improve the opportunities to have a better impact.
Being that the property is very heavily timbered you have a very limited time to set up for a clear shot if you are travelling in a vehicle. Alternatively, if using a horse, (i.e. particularly at mustering time) you can get a lot closer and can manoeuvre around greater areas in a shorter period of time. The downside to this is that it is more difficult to use a rifle on horseback thus making a handgun a more ergonomic, user friendly and safer option…
Dingo’s are a serious problem, and I have lost quite a few calves so far because of them. As for control, I have shot several with the rifle and trapped a couple. This has had minimal effect to date, probably because I have actually seen another 20 more whilst I have been riding around. Unfortunately I do not carry the rifle with me when I am riding due to the thick timber as it would constantly be getting snagged. Baiting is not an option as a use numerous working dogs on the property.”
19. He also explains the practical difficulties in dealing with pigs, wild horses and the occasional feral bull. Irrespective of whether he had a handgun or a rifle, Mr Harm did say during the course of the hearing that he would not discharge a weapon whilst on horseback. To take advantage of opportunities he has to quickly dismount and use the weapon. Mr Harm was asked specifically whether or not he could carry a rifle in a saddle pouch or scabbard, as suggested by Sergeant Willcock, and replied that as he had saddle bags attached to the saddle there was insufficient room for such a carrying case.
20. I was not particularly satisfied with this response because I am aware that such a rifle case can be easily mounted to a saddle and if his current rifles are not suitable for that purpose, he can easily purchase a more compact rifle of an appropriate calibre to deal with these animals. These are matters of general knowledge which I am entitled to take into account.[6]
[6] QCAT Act s. 29
21. Because of concerns raised by Sergeant Willcock as to the appropriate use of a handgun as opposed to a high calibre rifle such as the Applicant’s 243 Winchester bolt action rifle, a statement has been provided by Peter Watts, who is currently a weapons sales manager and service technician with Camp Co in Rockhampton. Although he doesn’t specifically say, I assume this is a business which specialises in the sale of firearms. Mr Watts has had considerable experience with firearms and was in the police force for a number of years with experience in outback towns. Mr Watts’ comments that the applicant’s intention to use a 357 magnum pistol would be as effective as the 243 Winchester for the disposal of feral animals and the humane destruction of livestock. Having regard to the terrain of the Chinchilla property as described to him, he is of the opinion that the use of a handgun would be safer and more practical than a rifle particularly if the property could only effectively be accessed on horseback. This also addresses some of the matters set out in the publications produced by Sgt Willcock as to the management of feral animals.
22. This evidence is of assistance although it is consistent with the evidence already put to the respondent by the applicant.
23. It is not contested that the applicant does have a need for a firearm on the Chinchilla property. In fact he is already licensed to possess a firearm for this purpose; the question remains whether or not this license should extend to a concealable weapon.
Discussion and Conclusion
24. Mr Harm certainly makes out some persuasive arguments as to why a handgun is necessary. Similarly, Sergeant Willcock makes out a very good argument as to why Mr Harm can control feral animals and manage his livestock with the use of a rifle as opposed to a handgun. There is obviously some greater advantage to Mr Harm in having a weapon which is more compact and perhaps safer for close range shooting although I entertain some doubt as to whether or not its limited range would have as an effective result as a rifle that could easily fit in a saddle carrying case or scabbard, with or without a telescope. However, I cannot ignore the evidence of Mr Watts as to the suitability and effectiveness of the handgun proposed to be used by Mr Harm.
25. The decision making process in this application is finely balanced. As I have said both arguments are persuasive and therefore when considering the matter afresh on its merits[7] it is necessary to return to the principles and the objects of the Weapons Act. Those principles and objects include the legislative mandate that public and individual safety is improved by imposing strict controls on the possession of weapons. Also, the Act provides “strict requirements” that must be satisfied before issuing a license authorising the possession of firearms or the acquisition of firearms.
[7] Section 22 of the QCAT Act
26. Here the applicant complies with the strict requirements of section 10 in that he is a fit and proper person. He has a genuine need for a firearms licence for occupational purposes. He has given evidence, which I accept, that he can carry out his occupational requirements safer and more effectively with a handgun as opposed to a rifle having regard to the terrain and heavy vegetation of the Chinchilla property. There is no evidence to the contrary. If there was better vehicle access to a greater proportion of the property, and not necessarily all, the application would be dismissed because special need for a handgun would not have been established. Obviously as the property is improved and opened up the need for a category H weapon may need to be reconsidered. Mr Harm therefore meets the strict requirements of the Act to possess the category of weapon applied for.
27. Accordingly, these findings lead to the inevitable conclusion that in the particular circumstances of this application, the intent of the legislature would not be compromised or the principles of the Act would not be met if Mr Harm was licensed to possess a category H weapon.
28. Therefore, I propose to allow the application and substitute the decision of the respondent to permit the applicant to possess a category H weapon and his licence be amended accordingly.
10
0
0