Madsen v Queensland Police Service Weapons Licensing

[2021] QCAT 108

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Madsen v Queensland Police Service – Weapons Licensing [2021] QCAT 108

PARTIES:

NIELS KAARE MADSEN
(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR224-20

MATTER TYPE:

General administrative review matters

DELIVERED ON:

25 February 2021

HEARING DATE:

10 February 2021

HEARD AT:

Brisbane

DECISION OF:

Member Hughes

ORDERS:

The decision of the Queensland Police Service –Weapons Licensing dated 4 June 2020 to reject the application for the issue or renewal of a firearm licence is confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – GENUINE REASON - whether correct and preferable decision – whether ‘genuine reason’ for weapons - whether ‘occupational requirement’ – whether applicant engaged in primary production as business activity – where evidential onus to provide supporting material – where evidence did not support finding that applicant engaged in business as primary producer – where no supporting evidence of how guns were occupational requirement

Acts Interpretation Act 1954 (Qld), s 35C(1)
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20,

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 11, s 13, s 18

Chivers v State of Queensland (Queensland Health) [2014] QCA 141
Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466
Geary v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 6
Harley v Department of Justice and Attorney-General [2012] QCAT 620
Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58
Laidlaw v Queensland Building Services Authority [2010] QCAT 70
Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225
McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156
O’Neill v Commissioner for State Revenue [2019] QCAT 132
Phillips v Commissioner of Police, NSW Police [2004] NSWADT 101
Shaxson v Queensland Police Service (Weapons Licensing Branch) [2014] QCAT 309
Walker v Queensland Building and Construction Commission [2014] QCAT 228

APPEARANCES & REPRESENTATION:

Applicant:

Self-represented

Respondent:

Sergeant D Ayscough appeared for the Queensland Police Service

REASONS FOR DECISION

What is this Application about?

1. On 6 March 2020, Niels Madsen applied to the Queensland Police Service – Weapons Licensing Unit (QPS) for a firearms licence as a primary producer. On 4 June 2020, the QPS rejected his application because it was not satisfied that Mr Madsen had a ‘genuine reason’ to hold a licence.[1]

   [1]Decision dated 4 June 2020.

2. Mr Madsen has applied to the Tribunal to review the decision.

   What is the purpose of this review?

3. The purpose of this review is to produce the ‘correct and preferable’ decision.[2] The Tribunal does this by a fresh hearing on the merits.[3] This means that Mr Madsen does not need to prove any error by the QPS in its original decision – the original decision is not presumed to be correct.[4]

   [2]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(1).

   [3]Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20(2).

   [4]Harley v Department of Justice and Attorney-General [2012] QCAT 620, [8] citing with approval Kehl v Board of Professional Engineers of Queensland [2010] QCATA 58, [9].

   What is the legislative framework?

4. The Appeal Tribunal has previously adumbrated the circumstances in which a licence may be issued, and the relevant principles set out in the Weapons Act 1990 (Qld) (‘the Act’).[5]

   [5]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156.

5. Section 3 provides the principles and objects of the Act:

   (1) The principles underlying the Act are as follows –

   (a)weapon possession and use are subordinate to the need to ensure public and individual safety;

   (b)public and individual safety is improved by imposing strict controls on the possession of weapons and requiring the safe and secure storage and carriage of weapons.

   (2)     The object of this Act is to prevent the misuse of weapons.

6. Section 4 of the Act sets out how the objects are achieved, including:

   (c)requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm

7. By section 10(2) of the Act, a licence may be issued to an individual only if the person is able to satisfy specified ‘limitations’, including at section 10(2)(f) that the person ‘has a reason mentioned in section 11 to possess the weapon or category of weapon’.[6] By section 18(9), the limitations in section 10 apply to the renewal of a licence.[7]

   [6]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

   [7]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

8. The claimed ‘genuine reason’ in the present case appears at section 11(c): ‘an occupational requirement, including an occupational requirement for rural purposes’.[8] By section 18(5), in deciding the application for renewal, ‘the authorised officer may consider anything at the officer’s disposal’.[9]

   [8]The word ‘genuine’ appears in the heading to the section, as to which see Acts Interpretation Act 1954 (Qld), s 35C(1). In relation to the term ‘genuine reason’, see also s 4(c) of the Weapons Act 1990 (Qld).

   [9]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [4].

   What is the basis for Mr Madsen’s application?

9. Mr Madsen has owned his rural property since 1993, where he has lived and operated small avocado, macadamia and citrus orchards and some mango trees. Unfortunately, they were lost to disease and drought. Although he is currently retired, he aims to re-stock by introducing cattle and replanting some orchards. He maintained that he needs his Category C rifle and Category C shotgun as an occupational requirement[10] for dealing with feral animals and vermin.[11]

   [10]Weapons Act 1990 (Qld), s 10(2)(f).

   [11]Mr Madsen also briefly referred to recreational use and target shooting in his application for review. However, his application for a licence was as a primary producer and no supporting evidence was adduced of his membership of a gun club or other recreational use. Accordingly, the application for review proceeded on the basis of the licence being an occupational requirement for rural purposes.

   Does Mr Madsen have an ‘occupational requirement’?

10. The Act does not define ‘occupational requirement’. However, the applicant must prove that possession of the weapon is ‘necessary’ in the conduct of their business or employment.[12] The Appeal Tribunal has held that this can assist in discerning the intended meaning of the term occupational ‘requirement’.[13] The case law provides these relevant principles:

    (a)A distinction is drawn between use that ‘is not merely a matter of convenience or preference but is a matter of necessity’;[14]

    (b)‘Necessary’ connotes something which is required, rather than something that is merely convenient or a matter of preference;[15]

    (c)Where it is evident that there are few occasions in which a gun is required and where safer alternative ways of carrying a rifle are available, a category H weapon is not ‘necessary’ to meet occupational requirements;[16]

    (d)The use of a concealable weapon will be necessary only ‘where the terrain or special circumstances make the use of a rifle or long-arm weapon impractical or impossible’;[17]

    (e)Whether something is an ‘inherent requirement’ of a particular occupation depends on whether it is an ‘essential element’ of that occupation, rather than a mere incident of the occupation;[18] and

    (f)It is for the applicant for the licence to establish a genuine requirement and it must be an actual rather than potential requirement.[19]

    [12]Weapons Act 1990 (Qld), s 13(5).

    [13]McConnel v Queensland Police Service (Weapons Licensing Branch) [2019] QCATA 156, [11].

    [14]Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225, [28].

    [15]Shaxson v Queensland Police Service (Weapons Licensing Branch) [2014] QCAT 309, [21].

    [16]Geary v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 6.

    [17]Geary v Queensland Police Service (Weapons Licensing Branch) [2017] QCAT 6, [40].

    [18]Chivers v State of Queensland (Queensland Health) [2014] QCA 141, [42].

    [19]Cseke v Queensland Police Service (Weapons Licensing Branch) [2005] QCA 466, [25]; Lever v Queensland Police Service (Weapons Licensing Branch) [2018] QCAT 225, [12].

11. Mr Madsen must prove that he engages in ‘primary production’ as a business activity.[20] Mr Madsen filed photographs to support his claim of conducting business as a primary producer and a one-page montage of undated thumbnail photographs. Many of the photographs were not dated and some showed documents that were indecipherable. No supporting evidence was adduced of how the guns were an occupational requirement such as proliferation and severity of feral animals and vermin and frequency of use.

    [20]Phillips v Commissioner of Police, NSW Police [2004] NSWADT 101.

12. The difficulty with Mr Madsen’s application is the evidence does not support a finding that the guns were necessary for him to conduct a business of primary producer and the Tribunal notes in particular:

    (a)The small scale of the activities;

    (b)The absence of written records or accounts kept of the business;

    (c)The absence of any investigation or planning into the efficient operation of the activities with a view to running it in a businesslike manner;

    (d)The lack of continuity of the activities directed towards generating profits, as well as the lack of evidence of activities towards generating profits;

    (e)The lack of evidence of natural increase or purchases of livestock (cattle) in the relevant period; and

    (f)The lack of tax returns declaring income from the activities.[21]

    [21]O’Neill v Commissioner for State Revenue [2019] QCAT 132, [39].

13. In review proceedings, Mr Madsen has an evidential onus to provide appropriate material to support the decision he seeks:

    Generally, there is no onus. However, practically, a party will want to adduce evidence which supports the party’s case, since the Tribunal can only make its decision on the material before it. In the absence of appropriate evidence, the tribunal will not be free to make the decision sought by the party. This has sometimes been described as an evidentiary burden, but there is no formal onus of proof. The question is whether the Tribunal is satisfied that the provision under consideration can be invoked on the information or material before it.[22]

    [22]Walker v Queensland Building and Construction Commission [2014] QCAT 228, [23] citing with approval Laidlaw v Queensland Building Services Authority [2010] QCAT 70, [23].

14. This has also been described as a ‘practical onus’.[23] The Tribunal cannot make relevant findings without adequate proof:

    In the face of poorly prepared material, the tribunal cannot make assumptions or guess at facts and events or the meaning or importance of material. The tribunal cannot make findings of facts where there is no evidence… Parties must take responsibility for the preparation of their own case.[24]

    [23]Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115, [33].

    [24]Clarke v Cascade Pools (Qld) Pty Ltd [2010] QCAT 323, [3].

15. Mr Madsen has not established that he has an ‘occupational requirement’ for a Category C rifle and Category C shotgun.

    What is the ‘correct and preferable’ decision?

16. The ‘correct and preferable’ decision is that the decision of the Queensland Police Service – Weapons Licensing dated 4 June 2020 to reject the application for the issue or renewal of a firearm licence is confirmed.