Peacock v Queensland Police Service Weapons Licensing Branch
[2012] QCAT 102
•9 March 2012
| CITATION: | Peacock v Queensland Police Service Weapons Licensing Branch [2012] QCAT 102 | |
| PARTIES: | Mr Casey William Peacock | |
| v | ||
| Queensland Police Service Weapons Licensing Branch | ||
| APPLICATION NUMBER: | GAR062-12 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 9 March 2012 |
| HEARD AT: | Brisbane |
| DECISION OF: | Mr Jim Allen, Member |
| DELIVERED ON: | 9 March 2012 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | Application to stay a decision is dismissed. |
| CATCHWORDS: | Application for stay – Suspension of weapons licence Queensland Civil and Administrative Tribunal Act 2009, s 22 |
APPEARANCES and REPRESENTATION (if any):
The hearing was conducted on the papers without the parties being present.
REASONS FOR DECISION
Mr Peacock is the holder of a firearms licence under the Weapons Act 1990. A suspension notice[1] was issued by Acting Inspector Cavanagh, an authorised officer of the Queensland Police Service Weapons Licensing Branch in respect of Mr Peacock’s firearms licence on 28 January 2012. The grounds for the suspension of the licence are that Mr Peacock has been charged with an offence involving the use or threatened use of violence and that he may no longer be a fit and proper person to hold a licence. Mr Peacock has made application to the tribunal to review the suspension notice and has also applied for a stay of the decision. These reasons are in respect of the application for the stay of decision in respect of the suspension notice.
[1] Section 28 of the Weapons Act 1990.
The Tribunal’s power to stay a decision under review is contained in section 22(3) of the Queensland Civil and Administrative Tribunal Act 2009. The Tribunal may make an order staying the operation of a reviewable decision only if it considers the order is desirable having regard to the following maters:[2]
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.
[2] Section 22(4) of the Queensland Civil and Administrative Tribunal Act 2009.
The principles[3] of the Weapons Act 1990 are that weapon possession and use are subordinate to the need to ensure public and individual safety, 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.
[3] Section 3(1) of the Weapons Act 1990.
The object[4] of the Act is to prevent the misuse of weapons. This object is to be achieved by[5], amongst others, providing strict requirements that must be satisfied for licences authorising possession of firearms.
[4] Section 3(2) of the Weapons Act 1990.
[5] Section 4 of the Weapons Act 1990.
Mr Peacock’s submissions
Mr Peacock made written submissions in support of his application for a stay. Mr Peacock is a licensed kangaroo harvester and the nature of his work requires him to possess a current firearms licence for his occupation. Mr Peacock is a single parent having equal parenting responsibility for his six year old daughter. Mr Peacock is a homeowner and has a substantial mortgage. The suspension of the firearms licence has altered the routine of his daughter which has affected his relationship with her and the family dynamic. The suspension has also resulted in significant financial pressures on Mr Peacock and his ability to provide for his daughter.
Mr Peacock is said to have limited ability to obtain alternative employment. Mr Peacock is 25 years old. He completed schooling to year 12 and has worked in his current occupation since leaving school. He does not hold any other licences or qualifications which would assist him in obtaining any other or comparative employment. The regional area of Longreach provides limited opportunities for any other employment. He would suffer severe and significant financial and emotional loss if required to relocate from Longreach, in order to obtain alternative employment. The decision of the tribunal in Palmer v Queensland Police service Weapons Licensing Branch[6] is considered not to be applicable because there is no alternative capacity in Mr Peacock’s chosen occupation to engage in work that does not involve having to handle or have access to firearms.
[6] [2010] QCAT 149.
Mr Peacock acknowledges that the interests of the individual are subordinate to the overarching principles of public and individual safety and that the suspension of the firearms licence is not premised upon a presumption of guilt but on the strict requirements of licences authorising possession of firearms imposed by the objects of the Weapons Act 1990. He states however, in considering such a ‘perceived need to ensure public safety’ one must arguably consider whether there is a real or actual need. Given the tribunal’s acceptance of an expanded definition of ‘an offence involving the use of threatened use of violence’[7], there is need, particularly in considering a stay decision to consider the surrounding circumstances of the alleged offending and the character and reputation of Mr Peacock generally[8] to give due regard to the interests of persons affected by the decision. Mr Peacock is said to be charged with the following offences:
a)Create a disturbance in premises in which a licence or permit relates (26 January 2012); and
b)Common assault (26 January 2012).
[7] Pollock v Queensland Police service Weapons Licensing Branch [2011] QCATA 189.
[8]Discussion of the decision in Australian Broadcasting Tribunal v Bond (1990) 94 ALR 11 at 56
Mr Peacock intends to plead not guilty to the offences. The alleged offences occurred on the same day in the early hours of 26 January 2012 after having consumed a large amount of alcohol. It is said that Mr Peacock does not have a serious criminal history which may suggest a pattern of offending or escalating behaviour. The alleged offences do not involve any allegation that Mr Peacock used or threatened to use the weapon subject to the licence. Mr Peacock has not previously been subject to a review by the Queensland Police Service Weapons Licensing Branch. Mr Peacock possessed the firearms subject to the firearms licence for the sole purpose of his occupational requirements.
The Respondent’s submissions
Acting Inspector Cavanagh made written submissions on behalf of the Respondent. The Respondent opposes the stay application. Mr Peacock has a history of criminal and traffic offending which compounded with his current alleged offending is sufficient to find that it is not in the public interest for the Applicant to continue to hold a firearms licence. Mr Peacock has relied on an application based on the ground that the interests of another would be affected if the stay is not granted. Whilst it is acknowledged that in this case another person may be affected by not granting a stay of proceeding, the same argument is objectively available to any applicant who has an occupational need to possess firearms.
[10] It is submitted that Mr Peacock has a history of offences both criminal and traffic which are indicative of alcohol related offences. It is clear that the Parliament has identified that persons charged with offences against the Act can have their licences suspended despite the general presumption of innocence. The decision in Palmer v Queensland Police Service Weapons Licensing Branch is referred to in regard to determination of the interests of the applicant and the public at a time when the outcome of the charge is not known. It is submitted that the suspension is authorised on the basis that Mr Peacock has been charged with an offence involving the use or threatened use of violence and that there are reasonable grounds for considering that Mr Peacock may not be a fit and proper person to hold a licence.
That both the QCAT Act and the Act have an overarching consideration of the public interest when making a determination to exercise or not exercise a discretionary power. By virtue of the principles espoused in Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors[9] to sections 3 and 4 of the Act it is submitted that as a matter of law the privilege of weapons possession by the individual is subordinate to the right to the public and individual safety expected in society. The discussion of the “public interest” in Director of Public Prosecutions v Smith[10] was also set out and on this basis Mr Peacock’s known criminal and traffic history along with his alleged recent behaviour shows a disregard for the standards of human conduct tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. Mr Peacock’s behaviour is therefore contrary to the public interest.
[9] (1995) 131 ALR 657 at 681.
[10] [1991] 1 V.R. 52, 63.
[11] After citing relevant authorities[11] it was submitted that Mr Peacock has a record of previous offences and his propensity to offend based on his traffic and criminal history showed that the community could not be satisfied that the Applicant could be trusted to continue to hold a weapons licence. The submissions of Mr Peacock relating to the Bond case suggest that the tribunal should be looking to the character and reputation of Mr Peacock rather than the alleged conduct he has most recently been engaged in. It is submitted that Mr Peacock has concerning criminal and traffic history which is indicative of incidents relating to excessive consumption of alcohol which would indicate he is in fact not of good character or repute generally.
[11]Australian Broadcasting Tribunal v Bond [1990] 91990) 94 ALR 11 at 56 and Sobey v Commercial Agents Board [1979] 22 SASR 70 at 75.
[12] In response to Mr Peacock’s submissions about the offence that Mr Peacock has been charged it was submitted that as a matter of law common assault is an offence the circumstances of which include violence and that the offence of common assault constitutes being charged with an offence involving the use or threatened use of violence.
[13] In isolation when dealing with any occupational base licence the interests of another will be affected by a decision not to stay the decision however by application of the principles of Comalco, Smith, Sobey and Bond (supra), the alleged offences of Mr Peacock and his history of offending generally that it is still considered not to be desirable in the public interest for the Applicant to be granted a stay of decision.
Conclusion
[14] The Tribunal has given due regard to Mr Peacock’s submissions that his and daughter’s interests will be adversely affected if a stay is not granted due to the fact that Mr Peacock is dependant on his firearms licence to pursue his occupation.
[15] The Respondent has acknowledged that the interests of another may be affected and said that the same would apply in any case where an applicant had an occupational need for a licence.
[16] Mr Peacock has sought to distinguish the decision in Palmer on the basis that Mr Palmer may have been able to continue working in his current employment though his firearms licence was suspended and that Mr Peacock would not be able to.
[17] This then has to be balanced against the public interest. It is clear having regard to section 3 of the Weapons Act 1990 that the balance is weighted in favour of the public interest. On the basis that weapons possession and use are subordinate to the need to ensure public and individual safety and that this is improved by imposing strict controls on the possession of weapons.
[18] It is acknowledged that the suspension does not carry a presumption of guilt. The question is, is there a need to ensure public safety. Mr Peacock submits that there is not while the Respondent submits that having regard to Mr Peacock’s criminal and driving history there is a need.
[19] The Tribunal is satisfied that having regard to Mr Peacock’s history and the current alleged offences that it is not desirable in the public interest that he be granted a stay of the decision and that the interests of Mr Peacock and his daughter must in accordance with the objects of the Weapons Act 1990 be subordinate to the public interest.
[20] The application for a stay of the decision of 28 January 2012 is dismissed.
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