Misson v Queensland Police Service Weapons Licensing
[2017] QCAT 326
•25 September 2017
CITATION: | Misson v Queensland Police Service – Weapons Licensing [2017] QCAT 326 |
PARTIES: | Timothy John Misson |
| v | |
| Queensland Police Service – Weapons Licensing (Respondent) | |
APPLICATION NUMBER: | GAR245-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | On the papers |
HEARD AT: | Brisbane |
DECISION OF: | Member McLean Williams |
DELIVERED ON: | 25 September 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. Stay Application dismissed. |
CATCHWORDS: | ADMINSTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – MOTIONS, INTERLOCUTORY APPLICATIONS AND OTHER PRE-TRIAL MATTERS – OTHER MATTERS Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 22 Director of Public Prosecutions v Smith [1991] 1 VR 63 |
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
These reasons for decision relate to an Application to stay the operation of a decision suspending the Applicant’s weapons licence, pending the Tribunal having an opportunity to review that decision.
The Applicant is a sergeant in the Queensland Police Service (QPS), and holds the substantive position as Officer in Charge of the Barcaldine Police Station. Since 2001, the Applicant has been qualified as a QPS District Firearms Training Officer and Senior Firearms Instructor, with certification to instruct other police in the use of Glock pistols, Tasers, and R4 semi-automatic assault rifles. The Applicant is also an active sporting shooter, who competes (including internationally), in clay target shooting. The Applicant has represented the QPS in shooting and wishes to be part of a Queensland police team travelling to compete in Tasmania in October 2017, in an effort to be selected as part of an Australian police team.
The Applicant is also rural landholder who resides on a 280-hectare property at Jericho, where he runs beef cattle. The Applicant says[1] that he requires access to weapons in order to deal with pests such as feral pigs and dingos, and for routine stock management.
[1]Affidavit of the Applicant, sworn 7 September 2017, [18] – [21].
In April 2017, the Applicant was issued with two notices to appear in the Barcaldine Magistrates Court in relation to eight firearms offences. These include charges of failing to unload his police weapon and return it to secure police storage (charges 1 & 2); failing to store (non-police) weapons and ammunition at his place of residence in approved storage facilities (charges 3 & 6); unlawfully possessing weapons (charges 4 & 7); unlawfully possessing an unregistered firearm (charge 5); and acquisition of a weapon without a permit or other lawful justification (charge 8). All of the weapons in the Applicant’s possession have since been seized by the police investigating these charges. The charges are not likely to be dealt with before the Barcaldine Magistrates Court until sometime in 2018.
On 27 June 2017, Acting Inspector Mark Lingwood, an Authorised Officer for purposes of the Weapons Act 1990 (Qld), determined that by reason of the aforementioned charges the Applicant may no longer be a fit and proper person to hold a weapons licence, “due to it not being in the public interest”. In consequence, the Applicant was issued with a suspension notice, and was required to immediately surrender his weapons licence.
On 17 August 2017, the Applicant filed an Application to review a decision seeking a review before this Tribunal of the decision of Acting Inspector Lingwood. The Applicant also seeks a stay of the decision under review, pursuant to s 22 of the QCAT Act.
So far as is relevant, s 22 of the QCAT Act provides:
(3) The tribunal may, on application of a party or on its own initiative, make an order staying the operation of a reviewable decision if a proceeding for the review of the decision has been started under this Act.
(4) The tribunal may make an order under subsection (3) only if it considers the order is desirable after having regard to the following-
(a)the interests of any person whose interests may be affected by the making of the order or the order not being made;
(b)any submission made to the tribunal by the decision-maker for the reviewable decision;
(c)the public interest.
The Applicant has sworn an affidavit deposing to the manner in which his interests have been affected by the suspension notice. In addition, the Applicant has filed written submissions. These were received by QCAT on 8 September 2017.
In his affidavit, the Applicant says that his no longer being able to access weapons has created difficulties when managing his property and livestock. Eleven cattle and one stock horse have needed to be destroyed in the period since the Applicant’s weapons licence was suspended, and it has proved inconvenient when arranging for other licensed persons to destroy stock, on his behalf. In the case of the stock horse, the horse’s suffering was prolonged because of that. Further, the Applicant says that approximately 20% of his calves have been lost to predators. In financial terms, the Applicant says that unchecked predation on his calves equates to an approximate loss of $11,000 thus far, this calving season. The Applicant also says that he has been unable to train for, or compete in, sporting shooting events and that he will be unable (should a stay not be granted), to travel to Tasmania to compete in the national competition.
The Applicant further submits that he has no criminal history and that the charges that are pending against him do not involve violence, nor do they arise from instances of harm to any person, and that he is otherwise a person of good standing, with substantial experience in weapons handling. The Applicant also points to the fact that the decision to suspend his weapons licence was not made until some two months after he had been charged with these offences and that he was not served with the suspension notice for a further three weeks, after that.
A seven-page submission dated 15 September 2017 has been made by the decision-maker, opposing the application for a stay. Amongst other things, the Respondent submits that the charged conduct evidences a disregard by the Applicant for the behavioural and procedural requirements of the Weapons Act, contrary to what is now understood as the ‘public interest’.[2] The Respondent submits that this negative behaviour is categorically more significant because the Applicant is a police officer.
[2]Director of Public Prosecutions v Smith [1991] 1 VR 63.
The Tribunal must be guided by the statutory principles that weapon possession and use are subordinate to the need to ensure public and individual safety, and that public and individual safety is improved by imposing strict controls on the possession of weapons.[3] Equally, it must be accepted that s 28(1)(a)(i) and s 28(1)(b) of the Weapons Act do allow for the suspension of a weapons licence when, as here, a licensee has been charged with weapons offences and an authorised officer considers, on reasonable grounds, that the licensee may no longer be a fit and proper person.
[3]Palmer v Queensland Police Service Weapons Licensing Branch (2010) QCAT 149, [15].
In a stay application, it is not necessary to fully determine the question whether the Applicant is a fit and proper person, as would occur during a hearing of the Application to review. Moreover, questions of fitness and propriety are subsumed into the broader balancing exercise required by
s 22(4): as between the interests of the Applicant on one hand, and those of competing ‘public interest’, on the other. That balancing exercise cannot be divorced from the factual context of the case under consideration. In this case that context includes that the Applicant is a police officer and thus a person charged with day-to-day responsibility for enforcing the requirements of the Weapons Act and, as the officer in charge of a rural police station, and a qualified police firearms training officer, a ‘behavioural leader’ both in the community in which he serves, and within the police service. In that context, the concept of public interest must include public confidence in members of the police service upholding the requirements of the Weapons Act, these having been set by the Legislature as the normative standards for responsible gun ownership and use in the community.
Ultimately, in the necessary balancing exercise as between public and private interests, I conclude that the needs of public confidence in the police service outweigh those of the private interests of the Applicant.
The Application for a stay is dismissed.
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