Powell v Queensland Police Service

Case [2019] QCAT 418

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL


CITATION:

Powell v Queensland Police Service [2019] QCAT 418

PARTIES:

TIMOTHY IAN CHARLES POWELL
(applicant)
v

QUEENSLAND POLICE SERVICE

(respondent)

APPLICATION NO/S:

GAR048-19

MATTER TYPE:

General administrative review

DELIVERED ON:

26 July 2019

HEARING DATE:

16 April 2019

HEARD AT:

Brisbane

DECISION OF:

Member Dr Collier

ORDERS:

The decisions of the Respondent are confirmed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – where decision made to suspend and revoke weapons licences on basis licensee no longer a fit and proper person to hold a weapons licence – Applicant’s loss of physical capacity – Applicant’s visual infirmity – failure to notify authority of physical incapacity within time required – failure to notify authority of physical incapacity in the manner required

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – whether the licensee remained a fit and proper person to hold a weapons licence – relevant test to assess whether a licensee is a fit and proper person – whether applicant is a fit and proper person to hold a weapons licence

ADMINISTRATIVE LAW – ADMINISTRATIVE TRIBUNALS – QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – what evidence may be considered – evidence that may be considered under the Weapons Act 1990 (Qld) – evidence that may be considered under the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

Customs Act 1901 (Cth), s 233(1)(b)
Customs (Prohibited Imports) Regulations 1956 (Cth),
r 4F
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 28, s 28(3), s 66, s 67(1), Chapter 2 Part 1 Division 3

Weapons Act 1990 (Qld), s 3, s 10B, s 10B(1),
s 10B(1)(a), s 15(4)(a)(i), 15(4)(a)(iv), 18(8), s 28(1)(b),
s 29, s 29(1), s 29(1)(b), s 29(1)(d), s 34, 49A(2), s 142,
s 153, s 133, s 24, Schedule 2
Weapons Regulation 2016 (Qld), r 18(b)

AJO v Director-General Department of Transport [2012] NSWADT 101
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Blissett v Commissioner of Police, New South Wales; Webb Protection Australia Pty Ltd v Commissioner of Police, New South Wales Police [2006] NSWADT 114

CEO of Customs v Powell [2007] QCA 106

Chief Executive Officer of Customs v Powell [2010] QDC 218

Chief Executive Officer of Customs v Powell [2015] QDC 97
Chief Executive Officer of Customs v Powell MAG-00125423/06(0)

Commissioner of Police, New South Wales Police v Mercer (GD) [2005] NSWADTAP 55
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 589
Constantin v Commissioner of Police, NSW Police Force (GD) [2013] NSWADTAP 16
Cormack v Queensland Police Service – Weapons Licensing Unit [2015] QCATA 115
Director of Public Prosecutions v Smith (1991) 1 VR 63

Hughes and Vale Pty Ltd v New South Wales (No. 2) [1995] HCA 28; (1955) 93 CLR 127
KZT v Weapons Licensing Unit – Queensland Police Service & Commissioner of Police

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Details
AGLC
Powell v Queensland Police Service [2019] QCAT 418
Case
[2019] QCAT 418
Decision Date

CaseChat Overview and Summary

In the case of Powell v Queensland Police Service, the Applicant sought to challenge the revocation of his firearms licence by the Queensland Police Service (QPS). The Tribunal was asked to determine whether the decision to revoke the Applicant's licence was lawful and whether the original decision should be stayed pending the outcome of another application. The Applicant, an avid gun owner and collector, had surrendered his weapons to the QPS after receiving Suspension and Revocation Notices due to concerns about his visual impairment. The QPS had suspended the Applicant's licences pending a medical clearance, and subsequently revoked them based on medical reports indicating the Applicant's severe visual impairment.

The primary legal issue before the court was whether the QPS was justified in revoking the Applicant's firearms licence based on his visual impairment and other considerations. The court had to assess whether the QPS decision was made in accordance with the legislative framework provided by the Weapons Act, specifically whether the QPS appropriately considered all mandatory factors in determining the Applicant's fitness and propriety to hold a licence. This included evaluating the Applicant's mental and physical fitness, any relevant criminal intelligence, and the public interest. The Applicant argued that the QPS did not adequately consider certain conditions he proposed to mitigate his visual impairment, while the QPS contended that the Applicant's deteriorating health and history of non-compliance with the law justified the revocation.

The court found that the QPS was correct in revoking the Applicant's licence. It concluded that the Applicant's visual impairment and failure to notify the QPS of this condition within the required timeframe were significant factors that justified the revocation. Additionally, the court noted numerous other considerations that reflected the Applicant's pattern of non-compliance with legal requirements and a propensity to disregard the law when it was inconvenient for him. The court found that these considerations, combined with the Applicant's visual impairment, supported the QPS's decision. The Tribunal refused the application for a stay of the original decision, finding that the balance of convenience favoured maintaining the original decision and that staying the decision would require the Tribunal to decide the substantive issue of the Applicant's fitness and propriety, which was not appropriate on an interlocutory application.

The court's decision was that the revocation of the Applicant's firearms licence by the QPS was lawful, and the application for a stay was refused. This decision underscored the importance of compliance with legislative requirements and the need for individuals holding firearms licences to maintain their fitness and propriety, particularly in light of their physical and mental health.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

This Application was considered by the Tribunal as a request by the Applicant for a stay of the original decision of the decision maker pending the final outcome of Application GAR048-19. In its decision on 12 June 2019 this Application also was refused by the Tribunal for the following reasons: (1) the Applicant’s position is not unreasonably compromised if the original decision remains on foot; (2) the public interest is served by refusing to allow the Applicant to handle weapons given his diminished and deteriorating sight; (3) until the Applicant’s fitness and propriety has been considered by the Tribunal public safety is enhanced by maintaining the original decision; (4) the balance of convenience favours maintaining the original decision; and (5) to stay the original decision the Tribunal would have to decide, on an interlocutory application, the substantive issue, that is, whether the Applicant is a fit and proper person to hold a weapons licence. The facts The Applicant is an enthusiastic gun owner, collector and shooter. He owns some twenty-five weapons that are presently in the possession of the QPS, the Applicant having surrendered his weapons based on Suspension Notices and Revocation Notices issued to him by the QPS concerning each of his weapons licences. In its letter dated 12 December 2018 covering its Suspension Notices dated 12 December 2018 served on the Applicant the QPS gave as the substantive reasons for suspending the Applicant’s licences as:…I note that concerns have been raised in relation to the state of your physical health as the result of information received that you suffer from a visual impairment of a severity that may impact your ability to safely handle firearms.…I considered that it is the public interest for your licences to be suspended until a medical clearance is received from your treating Doctor. On receipt of this advice I will then make a determination whether or not to revoke or reinstate your licences. In its letter covering this Suspension Notice the QPS advised the Applicant that he must, within 21 days, obtain a medical practitioner’s report that provided, among other things, the practitioner’s opinion in relation to his fitness and propriety to possess/use firearms and the reason for coming to that conclusion. In relation to the decisions made by the Respondent to revoke the Applicant’s licences, reliance was placed by the decision maker on the documentary evidence of medical practitioners’ reports prepared by the Applicant’s treating GP and ophthalmologist. The report earlier in time was that of the ophthalmologist, dated 3 October 2018, which stated, inter alia:[The Applicant] reports significantly blurred vision for all activities and feels as though it is getting worse over the past year.…iTrace assessment confirms lens function is reduced and lens opacities are present. The right and left lenses are significantly opacified which is limiting his visual function. The Applicant’s GP report, dated 7 January 2019, said, inter alia:[The Applicant] has quite severe bilateral cataracts which have rendered his visual acuity very poor.…With his severe loss of visual acuity it is imperative that he not be allowed to load or discharge a firearm under any circumstances…I can see no medical reason, that I am aware of, why he cannot continue to possess a firearm if he agrees not to load or discharge them.

Evidence

Evidence Before The Court

But, before turning to consideration of whether the conditions proposed by the Applicant meet the tests posited above and whether the original decision should be set aside, I will consider other evidence before the Tribunal that is relevant to whether the Applicant is a fit and proper person to hold a firearms licence.Other evidence to consider The substantive matter here involves the Tribunal reviewing a decision made by another entity under an enabling Act.[16] It is a case where the Tribunal exercises its review jurisdiction in accordance with Chapter 2, Part 1, Division 3 of the QCAT Act. In this case the enabling Act is the Weapons Act, and the entity making the original decision was an authorised officer.[17][16]The power of the Tribunal to review the decision is granted under s 142 of the Weapons Act.[17]Defined in s 153 of the Weapons Act. In making its decision on review the Tribunal stands in the place of the original decision-maker to undertake a fresh hearing on the merits and is required to make a decision that is correct and preferable.[18] Clearly the Tribunal must have access to any information that could have been or was considered by the original decision-maker, plus any other material that becomes available and may be lawfully considered.[18]QCAT Act, s 20. As noted earlier in regard to factors an authorised officer must take into account regarding the suspension and revocation of a licence, Weapons Act s 10B(1) says:(1) In deciding or considering, for the issue, renewal, suspension or revocation of a licence, whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things—(a) the mental and physical fitness of the person; and…(ca) whether there is any criminal intelligence or other information to which the authorised officer has access that indicates—(i) the person is a risk to public safety; or(ii) that authorising the person to possess a weapon would be contrary to the public interest; and(d) the public interest. The language of the legislature here is mandatory: ‘In deciding or considering … whether a person is, or is no longer, a fit and proper person to hold a licence, an authorised officer must consider, among other things …’ (emphasis added). The decision-maker is required to consider the things then listed, ‘among other things’. They are not simply permitted to consider the matters listed, they must do so, and are given wide purview to consider ‘other things’. The things that must be considered include ‘criminal intelligence or other information’ providing they indicate a relevant risk to public safety or the public interest. Criminal intelligence is defined in Schedule 2 of the Weapons Act as:criminal intelligence, in relation to a person, means any information about the person’s connection with or involvement in criminal activity. The language and intent of the legislature as shown here encourages the use of all available information sources by a decision maker when making a decision concerning whether a person is a fit and proper person to hold a weapons licence.

Decision

Reasons for decision

A number of other considerations have been raised during the hearing and in evidence, principally by the Respondent, that may be considered by this Tribunal in making a decision, including:a) The Applicant will be unable to fulfil his participation obligations to undertake shooting practice in respect of his concealable weapons licence as long as his visual impairment persists; [59]b) The Applicant is not reliant on his weapons for a living and so suffers no financial loss from not having them in his possession;c) The Applicant has a sound understanding of the law relating to firearms, in particular his obligations under the Weapons Act in Queensland. He cannot credibly plead ignorance of any of his obligations under the law concerning weapons; andd) Doubts as to whether a licence condition restricting the Applicant from firing weapons or possessing ammunition are enforceable.[59]Weapons Act, s 133.Conclusions as to the Applicant’s fitness and propriety The fact that there are numerically more negative than positive considerations mentioned above is not relevant. What is relevant in making a decision as to the Applicant’s fitness and propriety involves a balance of these considerations. I am entitled to take into account the whole of the Applicant’s character and conduct in making a decision whether to confirm or set aside the decision maker’s original decision. The fact that the Applicant suffered a serious health issue, being his visual impairment, yet failed to notify the QPS within the time specified by law is an issue of concern. The Applicant has suffered in recent years from, inter alia, back and neck injuries, a heart attack, cancer and, most recently, from visual impairment. The Applicant failed to notify the QPS within the 14 days specified by law, or even within what could be considered a reasonable time of his visual impairment. This fact, alone, gives rise to serious concerns about the Applicant’s readiness or willingness to comply with the law when it may not suit him. Many of the negative considerations noted in the list above (such as many of the driving penalties and Court cases involving the importation of weapons or weapon parts) are becoming dated, but reflect a disposition over a long period of time to ignore, or otherwise carelessly or deliberately to break the law. The fact that some offences are recent, such as some motoring offences and the failure to report his health problems to the QPS, suggests that the Applicant remains unable or unwilling to comply with laws when they are not convenient to him. The Applicant stated in his evidence and submissions that he has not fired a firearm since February 2018. The reasons given for this by the Applicant were said to be due to his recovery from cancer surgery and problems with his sight, without specifying dates concerning each. Based on this evidence I am entitled to conclude that the Applicant’s awareness of his visual impairment was a major contributing factor to his decision to cease shooting after February 2018.

Ratio Decidendi

Legal Principle Established

Considerations that speak against the Applicant being issued a weapons licence include:a)His present visual impairment;b)Failing to notify the Respondent within the 14 days of his visual loss as required by the Weapons Act,[57] or to notify the Respondent properly or at all;[57]Weapons Act, s 24.c)There have been two previous occasions when his weapons licences were revoked by the QPS;d)His membership of the Sporting Shooters Association of Australia was terminated by the Association and the Applicant has offered no adequate explanation for this;[58]e)The Applicant displaying himself wearing the insignia of the QPS on a public forum without any authority to do so;f)One conviction in 2004 for illegally importing a weapon;g)One charge in 2009 for illegally importing a part of a weapon in (a charge on which he was ultimately acquitted, largely on a legal technical point);h)The Applicant’s regular and consistent behaviour of dissembling and lack of candour when dealing with authorities;i)His ‘self-serving rationalisations’ when dealing with Courts and Tribunals;j)His persistent belief in his rightness while attributing ill-motives or corrupt conduct to others;k)His difficulty in dealing rationally with persons in authority; andl)Numerous road traffic offences over a long period of time, including some relatively recent penalties.[58]Letter from Applicant to Respondent dated 26 April 2018, pars 13-20.Other considerations A number of other considerations have been raised during the hearing and in evidence, principally by the Respondent, that may be considered by this Tribunal in making a decision, including:a) The Applicant will be unable to fulfil his participation obligations to undertake shooting practice in respect of his concealable weapons licence as long as his visual impairment persists; [59]b) The Applicant is not reliant on his weapons for a living and so suffers no financial loss from not having them in his possession;c) The Applicant has a sound understanding of the law relating to firearms, in particular his obligations under the Weapons Act in Queensland. He cannot credibly plead ignorance of any of his obligations under the law concerning weapons; andd) Doubts as to whether a licence condition restricting the Applicant from firing weapons or possessing ammunition are enforceable.[59]Weapons Act, s 133.Conclusions as to the Applicant’s fitness and propriety The fact that there are numerically more negative than positive considerations mentioned above is not relevant. What is relevant in making a decision as to the Applicant’s fitness and propriety involves a balance of these considerations. I am entitled to take into account the whole of the Applicant’s character and conduct in making a decision whether to confirm or set aside the decision maker’s original decision. The fact that the Applicant suffered a serious health issue, being his visual impairment, yet failed to notify the QPS within the time specified by law is an issue of concern. The Applicant has suffered in recent years from, inter alia, back and neck injuries, a heart attack, cancer and, most recently, from visual impairment. The Applicant failed to notify the QPS within the 14 days specified by law, or even within what could be considered a reasonable time of his visual impairment. This fact, alone, gives rise to serious concerns about the Applicant’s readiness or willingness to comply with the law when it may not suit him.