Powell v Queensland Police Service Weapons Licensing
[2018] QCAT 49
•26 February 2018
CITATION: | Powell v Queensland Police Service – Weapons Licensing [2018] QCAT 49 |
PARTIES: | Timothy Ian Charles Powell |
| v | |
| Queensland Police Service – Weapons Licensing (Respondent) | |
APPLICATION NUMBER: | GAR165-17 |
MATTER TYPE: | General administrative review matters |
HEARING DATE: | 22 February 2018 |
HEARD AT: | Brisbane |
DECISION OF: | Member Cranwell |
DELIVERED ON: | 26 February 2018 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The application to review a decision filed on 28 June 2017 is dismissed. |
CATCHWORDS: | FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OF PERMIT – RENEWAL AND OTHER MATTERS – whether decision under review relates to licence renewal or amendment of condition PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – whether proceedings lacking in substance pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 20, s 47 |
APPEARANCES: | |
APPLICANT: | Mr Powell appeared on his own behalf |
RESPONDENT: | Acting Senior Sergeant Bradford represented the Queensland Police Service – Weapons Licensing |
REASONS FOR DECISION
Mr Powell lodged an application to review a decision with the Tribunal on 28 June 2017. The Form 23 lodged by Mr Powell required him to provide details of the decision to be reviewed. He stated:
Refusal to endorse a Firearms Licence pursuant to s 34(3)(b)(i) and (ii) of the Weapons Regulation 2016 (Qld).
Mr Powell attached copies of a number of documents, including:
a)his firearms licence issued on 19 May 2017; and
b)a letter from the Queensland Police Service – Weapons Licensing (Weapons Licensing) dated 24 May 2017.
Weapons Licensing filed an application for miscellaneous matters on
9 August 2017. Directions were made on 12 October 2017 that this application is to proceed as an application to dismiss the application to review a decision filed by Mr Powell.
Background
On 25 September 2005, Weapons Licensing wrote to Mr Powell advising that it proposed to add the following condition to his firearms:
It is a condition of the licence that the licensee must not possess a detachable magazine with a maximum capacity of more than 10 rounds for Category B weapons which are pump action or level action centrefire rifles possessed under the authority of this licence.
The condition, which at various times had condition codes REM and 999, was subsequently imposed under s 25 of the Weapons Act 1990 (Qld) (the Act).
On 12 March 2006, Mr Powell appealed the imposition of this condition to the Magistrates Court. He requested the following outcome:
If this appeal is upheld, the appellant requests that his firearms licence # 11938824 have the 999 condition removed, AND that the Queensland Police Service pay all costs associated with this appeal.
On 19 April 2017, over a decade later, the Court ordered that the appeal be allowed. Mr Powell consented to these orders.
In the meantime, legislative changes had resulted in the introduction of what is now reg 34 of the Weapons Regulation 2016 (Qld) (the Regulations). This provides:
Prohibition on possession of magazine for particular category B weapons
(1) This section applies to the holder of a firearms licence who is the registered owner of a category B weapon held under the licence.
(2) The holder must not possess a magazine for the weapon—
(a) if the weapon has a lever or pump action—with a maximum capacity of more than 10 rounds; or
(b) if the weapon is a repeating centre fire rifle—with a maximum capacity of more than 15 rounds.
Maximum penalty—10 penalty units.
(3) This section does not apply if—
(a) the holder is the registered owner of a category D or R weapon, held by the holder under another licence, in which the magazine may be lawfully used; or
(b) a condition of the licence mentioned in subsection (1) authorises the holder to possess a magazine, for a category B weapon, with a maximum capacity of more than—
(i) if the weapon has a lever or pump action—10 rounds; or
(ii) if the weapon is a repeating centre fire rifle—15 rounds.
The effect of the legislative changes was such that the 999 code is no longer a licence code listed in Schedule 2 to the Regulations.
On 27 April 2017, Mr Powell applied to renew his firearms licence which was due to expire the following day. Mr Powell attached an application to renew his licence to a covering letter, which included the following paragraphs:
The Licence now needs to be endorsed to allow me to possess detachable magazines with a maximum capacity of more than 10 rounds for category B weapons possessed under the authority of the Licence.
s 34(3)(b)(i) and (ii) of [the Regulation] allows me to possess detachable magazines with a maximum capacity of more than ten (10) rounds for category B weapons held under the authority of the Licence if the Licence is endorsed with a condition by the Authorised Officer.
On 19 May 2017, Mr Powell was issued with a firearms licence valid until 28 April 2018.
On 24 May 2017, Weapons Licensing wrote to Mr Powell noting that his licence had been renewed, and including the following paragraphs:
As per the consent order, the application of the 999 condition code has been removed from your licence.
As stated previously, the condition code limiting the possession of magazine capacities for Category B Weapons has since been amended into legislation.
As such, you are required, like all other licensee’s in Queensland, to comply with the provisions of Section 34 of [the Regulation].
On 6 October 2017, Weapons Licensing wrote to Mr Powell advising that his application dated 27 April 2017 for a change of conditions to his firearms licence had been rejected.
Statutory framework
Renewal of licences are dealt with in s 18 of the Act. Relevantly, this provides:
(4) An authorised officer must ensure the application is decided—
(a) as soon as practicable after the application is made; and
(b) if the application is not decided on or before the day the licence expires—within 42 days after the day the licence expires.
…
(6) The authorised officer must—
(a) approve the application and renew the licence subject to any conditions the authorised officer may decide; or
(b) reject the application.
Amendments to licence conditions are dealt with in s 25 of the Act. Relevantly, this provides:
(1) An authorised officer may amend the conditions of a licence—
(a) on the licensee’s application; or
…
(5) An authorised officer may refuse to make an amendment under subsection (1)(a) by written notice given to the licensee stating the reasons for the refusal.
Consideration
I am of the view that Mr Powell’s letter dated 27 April 2017 contained two separate and distinct applications:
a)the renewal of his firearms licence; and
b)a condition under s 34(3)(b)(i) and (ii) of the Regulations.
I have formed this view on the basis that a decision to renew Mr Powell’s licence could be made independently of a decision to amend or refuse to amend his licence conditions. That is, the renewal application was not dependent on the outcome of the application to amend the licence conditions.
Weapons Licensing was under a statutory obligation to decide Mr Powell’s renewal application within 42 days pursuant to s 18(4)(b). Weapons Licensing complied with this obligation and renewed Mr Powell’s firearms licence on 19 May 2017. In deciding a renewal application, the authorised officer was able to renew the licence subject to any conditions he or she decided pursuant to s 18(6)(a). In the letter dated 24 May 2017, Weapons Licensing explained that the authorised officer had removed the 999 condition code in accordance with the court orders. In doing so, Weapons Licensing advised Mr Powell of his obligations under reg 34(2) of the Regulations. This is not sufficient, in my view, to constitute a written notice of a decision to refuse to amend Mr Powell’s licence conditions for the purposes of s 25(5) of the Act.
I note in passing that it may have assisted with clarity had Weapons Licensing included a statement in its letter dated 24 May 2017 that the application to amend licence conditions remained under consideration.
Later, on 6 October 2017, Weapons Licensing separately decided Mr Powell’s application to amend his licence to include a condition under reg 34(3)(b)(i) and (ii) of the Regulations. The authorised officer rejected Mr Powell’s application to amend his licence conditions.
It follows that the application to review a decision filed on 28 June 2017 is capable of relating only to the decision by Weapons Licensing to renew Mr Powell’s firearms licence. As Mr Powell’s licence was renewed, and Mr Powell does not contend that his licence should not have been renewed, the application is without substance. I therefore dismiss the application to review a decision filed on 28 June 2017 pursuant to s 47(1)(b) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
I note that Mr Powell has separately sought review of the decision dated
6 October 2017 in proceedings GAR341-17. Weapons Licensing submitted at the hearing before me that GAR341-17 is the appropriate proceedings for Mr Powell to seek review of the decision to refuse to amend his licence conditions. In accordance with s 20(2) of the QCAT Act, that review will be decided “by way of a fresh hearing on the merits”.
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