Powell v Queensland Police Service – Weapons Licensing

[2023] QCAT 504

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Powell v Queensland Police Service – Weapons Licensing [2023] QCAT 504

PARTIES:

TIMOTHY IAN CHARLES POWELL

(applicant)

V

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO/S:

GAR386-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

19 December 2023

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Cranwell

ORDERS:

1.   The application for review is dismissed.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – APPLICATION FOR LICENCE OR PERMIT – OTHER MATTERS – where applicant sought exemption – where exemption refused – whether Tribunal has jurisdiction to review decision to refuse exemption

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 3

Weapons Act 1990 (Qld), s 2

Weapons Regulation 2016 (Qld), Part 26

Applicant RO v Queensland Police Service – Weapons Licensing [2021] QCAT 295

Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159

Ritau v Commissioner of Police, NSW & Anor [2000] NSWADT 186

REPRESENTATION & APPEARANCES: This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)

REASONS FOR DECISION

1. Mr Powell does not hold a firearms licence under the Weapons Act 1990 (Qld) (‘the Act’).

2. On 28 March 2023, Mr Powell wrote to the Commissioner of the Police Service (‘the Commissioner’) seeking an exemption pursuant to section 2(1)(m) of the Act. Under s 2(1)(m), the Act does not apply to a person to whom the Commissioner has granted an exemption. Part 26 of the Weapons Regulation prescribes the way in which the Commissioner may grant an exemption.

3. Specifically, Mr Powell requested the exemption to enable him to possess certain firearms without holding a licence.  Mr Powell sought possession of these firearms for the purposes of selling them before moving overseas.

4. This application for an exemption was refused by the Queensland Police Service (‘the QPS’) on 9 May 2023.

5. Mr Powell lodged an application to review this decision with the Tribunal on 9 June 2023.

6. The QPS filed an application seeking to have the application for review dismissed on 26 October 2023. The QPS submit that a decision to refuse an exemption under section 2(1)(m) is not a reviewable decision under section 142 of the Act.

7. Section 142 confers jurisdiction on the Tribunal to review decisions in the following terms:

   (1) This section applies to the following decisions—

   (a) a decision refusing an application for a licence, permit, approval or other authority under this Act;

   (aa) a decision refusing to renew a licence under this Act;

   (b) a decision refusing to accept the nomination of a person by an applicant for a shooting club permit;

   (c) a decision refusing to accept a representative notice under section 92;

   (d) a decision imposing or amending a condition applying to a licence, permit, approval or other authority under this Act;

   (e) a decision revoking or suspending a licence, permit, approval or other authority under this Act;

   (f) a decision, under section 18D(2), revoking a delegation.

   (2) A person aggrieved by the decision may apply, as provided under the QCAT Act, to QCAT for a review of the decision.

8. It is not in dispute that the potentially applicable paragraph is s 142(1)(a). In particular, the issue is whether an exemption is an ‘approval or other authority’.

9. The QPS relies on the decision of the Appeal Tribunal in Queensland Police Service – Weapons Licensing v Ryder [2019] QCATA 159. In that decision, Senior Member Aughterson and Member Traves held at [18]-[19] and [35]-[36]:

   [T]he phrase or “other authority” is used throughout the Act to refer to an authority under a law of another State. The concept of an “authority” does not therefore, in our view, extend to an exemption.

   …

   The term ‘approval’ is used more extensively to apply to a range of circumstances. These circumstances are, however, clearly identified and leave no scope, in our view, to argue that an “exemption” within the meaning of s 2(1)(m) can be construed as an “approval”. Under the Act, “approvals” can be applied for in respect of: the conduct of an arms fair; a range for weapons target shooting and the conduct of a shooting gallery.

   …

   The appellant submits that the refusal to grant an exemption is not reviewable because the decisions that are reviewable under s 142 of the Act all involve decisions that affect something to which the applicant was already entitled or in respect of which they had a right under the Act to apply. The case of an exemption is different because there is no provision which gives a person the right to apply for an exemption. Section 2(1)(m) of the Act simply refers to the commissioner’s power to grant one. Further, if an exemption is refused, there is no “right affected” by the decision, in the sense that the Act simply continues to apply. This argument has some appeal as a matter of statutory construction. However, the appellant also submits that if an exemption is granted, the terms or conditions upon which it is granted, are reviewable. This is inconsistent. Either an exemption is an “approval” or “other authority” or it is not.

   If the Act is considered as a whole, it becomes clear that an “exemption” from specific provisions of the Act is something different from a “permit”, “approval” or “other authority”. It follows that a decision to refuse an application for an exemption from specific provisions of the Act is not a “reviewable decision” within the meaning of s 142(1)(a) of the Act.

   [footnotes omitted]

10. For completeness, I note that I have previously expressed a different view in Applicant RO v Queensland Police Service – Weapons Licensing [2021] QCAT 295 at [19]-[20] as follows:

    The Macquarie Dictionary contains the following definition of ‘authorise’:

    to give authority or legal power to; empower (to do something)

    Accordingly, it is intrinsic to the term authority that it must authorise (or give power to) a person to do something.

    An example of an authority contained in the Weapons Act which is not a licence, permit or approval may be found in s 2(1)(m), which provides that the Act does not apply to a person:

    to whom the commissioner of the police service in the prescribed manner has granted an exemption from the application of those provisions of this Act specified therein in respect of the application of those provisions.

    An exemption under s 2(1)(m) has the effect of authorising a person to possess and use a weapon other than in accordance with the specified provisions of the Weapons Act. I note that Part 26 of the Weapons Regulation 2016 (Qld) prescribes the way in which the Commissioner may grant an exemption.

11. My comments in Applicant RO were obiter dicta, and the issue of whether an exemption was a reviewable decision was not before me in that case. 

12. Section 3(d) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) lists as one of its objectives ‘to enhance the quality and consistency of decisions made by decision-makers’. In Ritau v Commissioner of Police, NSW & Anor [2000] NSWADT 186, Judicial Member Robinson MA stated at [60]-[61] and [63]:

    The Tribunal is not bound by precedent or the doctrine of stare decisis in the strict sense in relation to being formally bound by earlier decisions of the Tribunal. However, for a number of reasons, I consider the Tribunal should ordinarily follow decisions of the Appeal Panel and decisions of the Tribunal as constituted      by the President or Deputy Presidents.

    The reasons why these decisions should be followed is because they are authoritative and they go some way to seeking to ensure consistency in the Tribunal’s decision-making …

    The Tribunal should only refuse to follow a decision of the Appeal Tribunal or the Tribunal as constituted by the President or Deputy Presidents if it concludes that the previous decision is clearly wrong. That is the approach based upon comity adopted by some other Courts and Tribunals in Australia that are not strictly bound by their own decisions.

13. Notwithstanding my previously expressed views, I am unable to conclude that the approach of the Appeal Tribunal in Ryder is ‘clearly wrong’. While not determinative, it is nevertheless arguable that the omission of the word ‘exemption’ from the words ‘licence, permit, approval or other authority’ in section 142(1)(a) of the Act was intended to exclude review by the Tribunal of decisions to refuse an exemption. In those circumstances, I consider myself bound to follow the decision of the Appeal Tribunal in this case.

14. Accordingly, the Tribunal lacks jurisdiction to review a decision to refuse an exemption under section 142 of the Act.

15. The application for review will be dismissed.