RLB v Queensland Police Service Weapons Licensing - [2024] QCAT 348

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

RLB v Queensland Police Service – Weapons Licensing [2024] QCAT 348

PARTIES:

RLB

(applicant)

v

QUEENSLAND POLICE SERVICE – WEAPONS LICENSING

(respondent)

APPLICATION NO:

GAR294-23

MATTER TYPE:

General administrative review matters

DELIVERED ON:

20 August 2024

HEARING DATE:

13 August 2024

HEARD AT:

Brisbane

DECISION OF:

Member Scott-Mackenzie

ORDERS:

1. The publication of the names of the applicant and his family is prohibited.

2. The decision of the respondent made 31 March 2023 to revoke the applicant’s firearm’s licence number 26580087 under the Weapons Act 1990 (Qld) is set aside.

CATCHWORDS:

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENSING AND REGISTRATION – LICENCE OR PERMIT – RENEWAL AND OTHER MATTERS – review of decision to revoke firearms licence under Weapons Act 1990(Qld) – where applicant’s son gained access to weapon – where applicant took steps to better secure weapons and ammunition – where applicant’s son again gained access to a weapon and ammunition and committed suicide – where applicant uses weapons to generate income – whether applicant is a fit and proper person to hold a firearms licence considering public interest

Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 19, s 20, s 24

Weapons Act 1990 (Qld), s 3, s 4, s 10, s 11, s 10B, s 29, s 142

Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321

Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors [1995] IRCA 540; (1995) 131 ALR 657
Director of Public Prosecutions v Smith [1991] 1 VR 63
Commissioner of Police v Toleafoa [1999] NSWADTAP 9
Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16
Hogan v Hinch [2011] HCA 4

Ward v Commissioner of Police, New South Wales Police Service [2000] NSWADT 28

APPEARANCES & REPRESENTATION:

Applicant:

Mr Neuendorf

Respondent:

Ms. Carey

REASONS FOR DECISION

Application

The applicant has made application to the Tribunal (application) to review a decision of the respondent to revoke his firearms licence number 26568020 (applicant’s firearms licence) (revocation decision).
Non-publication order
The Tribunal, under section 66 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act), may make an order prohibiting the publication of information that might enable a person who has appeared before the Tribunal, or is affected by a proceeding, to be identified. The Tribunal may make a non-publication order on the application of a party to the proceeding or on its own initiative. Here, neither party applied for an order. Notwithstanding, given the circumstances giving rise to the revocation decision, I am satisfied it is appropriate to make the order to protect the identity of the applicant, the applicant’s family, and others.
To the extent appropriate and necessary, the names of persons have been de-identified in these reasons for decision.
Background
The background to the revocation decision and the proceeding now before the Tribunal is tragic.
The applicant’s eldest son, H, suffered from physical and mental health conditions. At age 10 years, he was diagnosed with type I diabetes. He struggled at school.
On 31 October 2016 H gained access to a handgun stored in the applicant’s gun safe. Whilst no one was present at the time, he later said he intended to commit suicide.
The applicant’s family arranged counselling and support for H. Notwithstanding some improvement from time to time, there were periods of depression.
Following H gaining access to a handgun, the applicant removed his weapons from his home, and sought the advice and guidance of the police on better securing the weapons. The applicant’s gun and ammunition safes were moved from his home into a locked shed. The keys to the safes were kept in a locked box inside the shed. The key to the shed was kept on a key ring the applicant carried with him.
The precautions taken by the applicant to secure his weapons and ammunition were approved by police.
On 11 February 2023, notwithstanding the precautions, H gained access to a weapon and ammunition in a safe and committed suicide.
On 30 March 2023 the respondent gave to the applicant a notice revoking his firearms licence (revocation notice).
Information notice and statement of reasons.
The information notice and statement of reasons accompanying the revocation notice, in part C, recites the relevant provisions of the Weapons Act 1990 (Qld) and refers to the decision of the High Court of Australia in Australian Broadcasting Tribunal v Bond[1].
[1][1990] HCA 33; (1990) 170 CLR 321.
The reasons note it is a condition of the applicant’s firearms licence an unauthorised person is not to have access to his firearms. Then, the reasons continue:
I note on 12 February 2023 that an unauthorised person has had access to your firearms and this person has committed suicide utilising one of your firearms. I note you advised the police that yourself and the deceased were cleaning the firearms the day before to go shooting therefore allowing an unauthorised person access.
The reasons concluded it is not in the public interest for the applicant to continue to hold a firearms licence.

Legislative framework

The principles and object of the Weapons Act and how the object is to be achieved for firearms are found in sections 3 and 4 respectively of the Act. The principles are:
(a)weapon possession and use are subordinate to the need to ensure public and individual safety;
(b)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.
The object of the Act is to prevent the misuse of weapons. It is to be achieved for firearms by:
(a)prohibiting the possession and use of all automatic and self-loading rifles and automatic and self-loading shotguns except in special circumstances; and
(b)establishing an integrated licensing and registration scheme for all firearms; and
(c)requiring each person who wishes to possess a firearm under a licence to demonstrate a genuine reason for possessing the firearm; and
(d)providing strict requirements that must be satisfied for:
(i) licences authorising possession of firearms; and
(ii) the acquisition and sale of firearms; and
(e)ensuring that firearms are stored and carried in a safe and secure way.
Limitations on the issue of a licence under the Act are found in section 10. A licence may be issued to an individual only if the person:
(a)is:
(i) for a licence other than a minor’s licence - an adult; or
(ii) for a minor’s licence - at least 11 years and otherwise within the age group prescribed under a regulation for the licence; and
(b)has, under section 10A, an adequate knowledge of safety practices for the use, storage and maintenance of the weapon or category of weapon the possession of which is to be authorised by the licence; and
(c)has access to secure storage facilities for the weapon or category of weapon possession of which is to be authorised by the licence; and
(d)is not prevented under the Weapons Act or another Act or by an order of a Magistrates Court or another court from holding the licence; and
(e)is a fit and proper person to hold a licence; and
(f)has a reason mentioned in section 11 to possess the weapon or category of weapon; and
(g)resides only in Queensland.
The matters an authorised officer must consider 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, are found in section 10B(1) of the Act. Relevantly, amongst other things, the authorised officer must consider:
(a)the mental and physical fitness of the person; and
(b)whether a domestic violence order has been made, a police protection notice issued, or release conditions imposed against the person; and
(c)the public interest.
A person is not a fit and proper person to hold a licence if, in Queensland or elsewhere, within the relevant period:
(a)the person has been convicted of, or discharged from custody on sentence after the person has been convicted of, any of the following offences:
(i)      an offence relating to the misuse of drugs;
(ii)      an offence involving the use or threatened use of violence;
(iii)     an offence involving the use, carriage, discharge, or possession of a weapon; or
(b)a domestic violence order, other than a temporary protection order, has been made against the person.[2]
[2]Weapons Act, s 10B(2).
Relevant period is defined. For the revocation of a licence, the term means the 5-year period immediately before the date of the revocation notice under section 29 is given for the revocation.[3] Here, the revocation notice was given to the applicant on 30 March 2023.
[3]Weapons Act, s 10B(5).
Further, a person is not a fit and proper person to hold a licence if the person is prevented by an order, other than a temporary protection order, of a Queensland court or another court outside Queensland, from holding a licence or possessing a weapon.[4]
[4]Weapons Act, s 10B(4).
A person aggrieved by a decision revoking a licence under the Weapons Act may apply, as provided under the QCAT Act, to the Tribunal for a review of the decision.[5] In exercising its review jurisdiction, the Tribunal has all the functions of the decision-maker for the reviewable decision being reviewed.[6] It must hear and decide a review of a reviewable decision by way of a fresh hearing on the merits.[7]
[5]Weapons Act, s 142.
[6]QCAT Act, s 19.
[7]QCAT Act, s 20(2).
The Tribunal may:
(a)confirm or amend the decision; or
(b)set aside the decision and substitute its own decision; or
(c)set aside the decision and return the matter for reconsideration to the decision-maker for the decision, with the directions the Tribunal considers appropriate.[8]
[8]QCAT Act, s 24(1).
Applicant’s statement of evidence
The applicant, in accordance with directions given by the Tribunal, filed a statement of evidence. He describes the circumstances surrounding the revocation decision. Then, he continues:
I value my shooting activities and maintain a commercial harvester licence. This allows me to earn additional income by harvesting macropods during quiet periods at our butcher’s shop, especially during COVID–19 related downturns. I appreciate the peace and tranquillity of the night-time roo harvesting, free from customer interruptions, and it has been crucial in supporting our family during slow business periods.
His inability to continue macropods harvesting, the applicant states, has resulted in ‘financial strain’.
The applicant filed with the statement five photographs, three references, a psychology report and a statement by Constable Jenkins dated 8 August 2023. The photographs show the shed, the applicant’s weapons safes, a workbench and the ammunition safe.
The references each testify to the applicant’s good character. Ms Cary, who appeared on behalf of the respondent, conceded the applicant’s character is not in issue, and did not require the referees to attend for cross-examination.
I have taken the references into consideration.
The psychology report states the applicant attended three appointments, on 14 and 28 March 2023 and 14 August 2023 following the loss of his son. The psychologist states that on 14 August 2023 the applicant completed the depression anxiety and stress scale 21 (DASS-21) and scored in the normal range for depression, anxiety and stress.
She concludes:
[The applicant] is functioning from a psychosocial perspective, he continues to manage and work at his family business, exercises regularly and has social interaction with friends at least weekly. [The applicant] reported ongoing grief with regards to the loss of his son at his appointment on 14/08/23, which would be considered a normal reaction given circumstances and timeframe …
Constable Jenkins states he and a partner attended the applicant’s home on 12 February 2023, at approximately 9:20am. The applicant later informed him his weapons are stored in locked gun safes, in a locked shed, and ammunition is stored in a separate safe in the shed. He was unable to enter the shed or find an opening.
The applicant was not present when Constable Jenkins arrived at the applicant’s home. He had the keys to the shed with him. On opening the shed, Constable Jenkins states, both gun safes were locked. The applicant informed him he always has the key to the shed with him and the keys to the gun and ammunition safes are in a locked cabinet in the shed. The cabinet had been opened and a rifle removed from a gun safe.
Constable Jenkins speculates:
I am still not one hundred per cent sure on how [H] obtained [the applicant’s] rifle as the door was locked and the safes were locked.
Respondent's submissions
The respondent, in its submissions, refers to several reported decisions of courts and tribunals, including Ward v Commissioner of Police, New South Wales Police Service[9]. There, at [28], the Tribunal said:
The Tribunal could never be totally satisfied that a person would not pose any risk to public safety if they were given access to a firearm. However, in the context of the Act, the Tribunal must be satisfied that there is virtually no risk.
[9][2000] NSWADT 28.
Filed with the submissions are the revocation notice, information notice and statement of reasons, a statement of the conditions of the applicant’s weapons licence dated 22 September 2020, a statement concerning the incident, incident reports and the applicant’s traffic record. The statement suggests that H may have left the shed door open after he and the applicant cleaned weapons with the intention of going shooting on 12 February 2023.
The reports include a report on the incident on 27 January 2016 and the applicant taking steps to better secure his weapons. It concludes:
Police are of the opinion that firearm security is now ensured as much as possible.
Oral evidence
The applicant gave sworn evidence. In examination in chief, he expanded on the circumstances giving rise to the revocation decision. He disposed of the handgun and, in consultation with police, took steps to better secure his weapons.
In cross-examination, the applicant said that after the incident on 27 January 2016, H informed him he found the keys to the gun safes. The keys, however, were still where the applicant had hidden them.
He believed he had “... covered all bases ...” in better securing his weapons.

Consideration

Introduction

The respondent does not contend the applicant is not a fit and proper person within the meaning of section 10B of the Weapons Act by reason of the considerations in sections 10B(1)(a), (b), (c) or (ca), (2)(a) or (b), or (4). There is no evidence before the Tribunal to suggest otherwise.
The applicant’s firearms licence was revoked on the sole ground he is not a fit and proper person to hold a licence considering the public interest.

Fit and proper person

The term ‘fit and proper person’ is not defined in the Weapons Act. The assessment of whether a person is a fit and proper person to hold a licence is different from, but related to, an assessment of whether a person is of good character. In Australian Broadcasting Tribunal v Bond[10], a decision of the High Court of Australia, Mason CJ, at [63], explained the question whether a person is a fit and proper person is one of value judgement. He continued:
In that process the seriousness or otherwise of particular conduct is a matter for evaluation by the decision maker. So too is the weight, if any, to be given to matters favouring the person whose fitness and propriety are under consideration.
[10](1990) 170 CLR 321.
The expression, Toohey and Gaudron JJ held in the same decision, standing alone carries no precise meaning:
[It] takes its meaning from its context, from the activities in which the person is or will be engaged and the ends to be served by those activities. The concept of “fit and proper” cannot be entirely divorced from the conduct of the person who is or will be engaging in those activities. However, depending on the nature of the activities, the question may be whether improper conduct has occurred, whether it is likely to occur, whether it can be assumed that it will not occur, or whether the general community will have confidence that it will not occur. The list is not exhaustive but it does indicate that, in certain contexts, character (because it provides indication of likely future conduct) or reputation (because it provides indication of public perception as to likely future conduct) may be sufficient to ground a finding that a person is not fit and proper to undertake the activities in question.[11]
(Emphasis added)
[11]Ibid, at [36].
Public interest
In Comalco Aluminium (Bell Bay) Ltd v O’Connor & Ors[12], Wilcox CJ and Keeley J, explained:
The purpose of the reference to ‘public interest’ is to ensure that private interests are not the only matters taken into account; to make clear that the interests of the whole community are matters for the Commission’s consideration. The effect of the reference is to amplify the ‘scope and purpose’ of the legislation.[13]
[12][1995] IRCA 540; (1995) 131 ALR 657.
[13]Ibid, at 681.
The Supreme Court of Victoria (Kaye, Fullagar and Ormiston JJ), in Director of Public Prosecutions v Smith[14], earlier held:
... The public interest is a term embracing matters, among others, of standards of human conduct and of the functioning of government and government instrumentalities tacitly accepted and acknowledged to be for the good order of society and for the well being of its members. The interest is therefore the interest of the public as distinct from the interest of an individual or individuals ...
[14][1991] 1 VR 63.
French CJ, in Hogan v Hinch[15], at [31], said the following about the term:
The term “public interest” and its analogues have long informed judicial discretions and evaluative judgments at common law. Examples include the enforceability of covenants in restraint of trade, claims for the exclusion of evidence on grounds of public interest immunity, governmental claims for confidentiality at equity, the release from the implied obligation relating to the use of documents obtained in the course of proceedings, and in the application of the law of contempt. When used in a statute, the term derives its content from “the subject matter and the scope and purpose” of the enactment in which it appears. The court is not free to apply idiosyncratic notions of public interest.
(Citations omitted)
[15][2011] HCA 4.
The term is an inherently broad concept giving a decision-maker the ability to have regard to a wide range of factors in choosing whether to exercise a discretion adversely to an individual.[16] It allows for issues going beyond the character of a person to be considered, including concerns in relation to public protection, public safety, and public confidence in the administration of the licensing system.[17]
[16]See Commissioner of Police v Toleafoa [1999] NSWADTAP 9, at [25].
[17]See Constantin v Commissioner of Police, New South Wales Police Service (GD) [2013] NSWADTAP 16, at [33].

Conclusion

The substance of the ground for the revocation decision is H gained unauthorised access to the applicant’s weapons on the day he took his life and had access cleaning weapons the day before to go shooting. How H gained access to one of the applicant’s weapons is unknown.
The applicant, following the incident on 27 January 2016, took steps to better secure his weapons. Police inspected the steps taken and expressed the opinion the applicant’s weapons were secured “... as much as possible.”

When Constable Jenkins and his partner arrived at the applicant’s home on 12 February 2023, the shed was locked. The key to the shed was with the applicant. The gun safes inside the shed were locked. The cabinet containing the keys to the gun safes, however, was unlocked.
H assisted the applicant to clean weapons the day before to ready them to go shooting. It is not suggested he did so unsupervised.
The matters mentioned do not give rise to concerns about the public interest for the applicant to hold a firearms licence under the Weapons Act. In my opinion, he is a fit and proper person to do so. In reaching this conclusion, in addition to the circumstances giving rise to the revocation decision, I have had regard to the following:
(a)the applicant’s age and experience with the safe use, storage and maintenance of weapons;
(b)the applicant being without any record of offending, whether offending against the Weapons Act or otherwise;
(c)the applicant’s use of weapons to generate income;
(d)the applicant’s interaction with police following the incident on 27 January 2016, the steps taken by him to better secure his weapons and ammunition and his cooperation with police following the death of his son; and
(e)the references and psychologist’s report.

Decision

The decision of the Tribunal is as follows:
1.The publication of the names of the applicant and his family is prohibited.
2.The decision of the respondent made 31 March 2023 to revoke the applicant’s firearm’s licence number 26580087 under the Weapons Act 1990 (Qld) is set aside.