Macallister v Queensland Police Service

[2017] QCAT 264

CITATION:

Macallister v Queensland Police Service [2017] QCAT 264

PARTIES:

Ian Douglas Ferguson Macallister
(Applicant)

v

Queensland Police Service

(Respondent)

APPLICATION NUMBER:

GAR094-17

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

A/Senior Member Paratz

DELIVERED ON:

9 August 2017

DELIVERED AT:

Brisbane

ORDERS MADE:

1.    Ian Douglas Ferguson Macallister is given leave to be legally represented in the proceedings.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where an application for a concealable firearm (handgun) was made by a farmer – where it is claimed that the line of authority of previous decisions is in error and complex questions of law are involved – whether applicant is entitled to legal representation

Geary v Queensland Police Service Weapons Licensing [2017] QCAT 6

APPEARANCES:

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. Mr Macallister is a 78 year old farmer who has extensive landholdings in South-West Queensland. He applied for a concealable firearms license. His application was refused on 17 March 2017.

2. He filed an Application to Review a decision in the Tribunal on 13 April 2017 in relation to the refusal.

3. The Tribunal gave Directions on 28 April 2017 for the filing of materials by the parties. The Queensland Police Service filed a bundle of material on 6 June 2017, and Mr Macallister filed material including witness statements on 3 July 2017.

4. An Application for leave to be represented was filed  by Mr Macallister on 4 July 2017. Directions were made on 6 July 2017 for the filing of submissions, and for the application to be heard on the papers.

5. The Queensland Police Service filed submissions on 13 July 2017 in relation to the application for representation.

6. This is the decision on the Application for representation.

History of the matter

1. Mr Macallister owns three large pastoral properties: ‘Roma Downs’ at Tingun of 22,000 acres; a property at Struan near St. George of 60,000 acres; and a property at Drumfern of 8,000 acres. The total is approximately 90,000 acres.

2. The last two properties have approximately 3,000 head of cattle run on them. Mr Macallister personally participates in all management activities, including mustering and stock management.

3. Mr Macallister says that he needs to carry a firearm for the destruction of distressed stock and feral animals. He says that he needs the use of a category H firearm (concealable firearm – handgun) on all three properties, but particularly on the last two properties, as carrying a longarm is not possible in the thick scrub on parts of the properties.[1]

   [1]Affidavit of Ian Douglas Macallister dated 3 July 2017.

Representation

1. The reasons why representation is needed are stated in the Application as follows:

   I wish to argue complex issues of statutory interpretation, in particular that the authorised Officer has misconstrued the terms ‘genuine need’ and ‘self defence’ under the Weapons Act. I respectfully submit that the tribunal has previously been lead into error on these points by the absence of legal representation to properly argue them. The licence I seek is critical to the conduct of my pastoral enterprise and the welfare of my livestock. I am 78 years old and would be greatly assisted by having legal representation.

2. The Queensland Police Service (‘QPS’) oppose the application for leave to be represented. It submits that neither the facts or law in the matter are complex.[2]

   [2]Submissions Queensland Police Service filed 13 July 2017, 1.

3. The QPS point out that there is no reference within the legislation to ‘genuine need’ or ‘self-defence’,[3] as referred to by Mr Macallister in his application for leave to be represented, and that no question of statutory interpretation of these terms therefore arises.

   [3]Ibid, 2.

4. The QPS says as to the proposition that the tribunal has been led into error previously by the absence of legal representation to properly argue them that:[4]

   This submission by the applicant is rejected in its entirety and is not only offensive to the decision maker but totally misinterprets the role of the Tribunal and the decision maker under the relevant provisions of the QCAT Act.

   [4]Ibid, 3.

Discussion

1. There is a consistent line of authority established over many years from previous decisions of the Tribunal which set out the considerations for use of a handgun on rural properties.[5]

   [5]Geary v Queensland Police Service Weapons Licensing [2017] QCAT 6.

2. Those cases set out the matters that an applicant for a Concealable Firearms licence must establish, with specific regard to the terrain of the particular property on which the firearm is proposed to be used.

3. Mr Macallister suggests that the existing line of consistent authority is wrong, and that this has been due to a lack of legal representation, although his material does not disclose the basis for such an assertion.

4. Mr Macallister is entitled to argue his case, or to have it argued on his behalf if appropriate. His confusion as to the presence of the terms ‘genuine need’ and ‘self-defence’ in the legislation indicates that he would be assisted by representation.

5. Mr Macallister is effectively seeking to overturn a well-established and consistent line of authority, and relevant principles, as to the use of concealable weapons in rural areas.

6. In the interest of fairness, and to enable Mr Macallister to present what might be seen as a difficult argument, it is reasonable that he should be able to be legally represented to do so if he wishes.

7. I direct that Mr Macallister have leave to be legally represented in the proceedings.