Rodgers v Queensland Police Service - Weapons Licencing - [2024] QCAT 306

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Rodgers v Queensland Police Service – Weapons Licencing [2024] QCAT 306

PARTIES:

WAYNE PATRICK RODGERS

(applicant)

v

QUEENSLAND POLICE SERVICE- WEAPONS LICENCING

(respondent)

APPLICATION NO/S:

GAR477-20

MATTER TYPE:

General Administrative Review Matters

DELIVERED ON:

29 July 2024

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Member Holzberger

ORDERS:

1. The decision under review is confirmed.

CATCHWORDS

FIRE, EXPLOSIVES AND FIREARMS – FIREARMS – LICENCING AND REGISTRATION – LICENCE OR PERMIT – REVOCATION, CANCELLATION, SUSPENSION OR SURRENDER – failure to comply with license condition – failure to maintain register – whether fit and proper person to hold licence

Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Weapons Act 1990 (Qld)

Weapons Regulation 2016 (Qld)

Comalco Aluminium Bell Bay (Ltd) v O’Connor and Ors
[1995] ALR 657

APPEARANCES & REPRESENTATION:

The matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009

REASONS FOR DECISION

On or about 6 November 2020, Queensland Police Service- Weapons Licencing (‘QPS’) gave notice to East Coast Firearms - Wayne Patrick Rodgers (‘Mr Rodgers’) of revocation of his firearms Dealer’s Licence 50001530 (‘the notice’).
The notice specified the following reasons for the decision:
a) The Authorised Officer is satisfied that you have failed to comply with a condition of your licence.
b) The Authorised Officer is satisfied that you are no longer a fit and proper person to hold your licence due to it not being in the public interest.
In its reasons attached to the notice, QPS asserts that on 2 November 2020, weapons licencing police attended at Mr Rodgers dealership at Captains Creek. That inspection revealed a number of breaches of the weapons regulation, namely:
(a)22 weapons were found in storage despite a condition on his licence requiring there be no more than 20 weapons at the specified premises;
(b)when asked, Mr Rodgers produced his current weapons register but could not produce the previous register, which he said was stored at premises he did not have access to; a condition on his licence prohibited the removal of a register without QPS consent and no such consent had been obtained;
(c)could not produce ‘certain weapons’ listed in the register as his possession; and
(d)could not produce ATA firearm serial number 16-33689 listed in the register as being in his possession and could not explain where it was.
On 4 December 2020, Mr Rodgers applied to the Tribunal for the review of the revocation of the decision. Section 20 of the Queensland Civil and Administrative Tribunal Act 2009 (‘QCAT Act’) requires the Tribunal to hear and determine the application by way of a fresh hearing on the merits, to arrive at the correct and preferable decision.

LEGISLATION

The Weapons Act 1990 (Qld) (‘the Act’) with its subordinate legislation, the Weapons Regulation 2016 and the Weapons Categories Regulation 1997 is consistent with the national approach to the regulation of firearms contained in the National Firearms Agreement 1996.
The principles and object of the Act are set out in section 3:
(1) The principles underlying this Act are as follows—
(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 safe and secure storage and carriage of weapons.
(2) The object of this Act is to prevent the misuse of weapons.
Section 4 of the Act provides:
The object of this Act 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 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.
Section 29 of the Act permits an authorised officer to revoke a weapons licence under circumstances, including if the authorised officer is satisfied that a licensee is ‘no longer a fit and proper person to hold the licence’.
Section 10B(2) sets out a number of circumstances which, if found to exist, deem a person unfit. None of those apply here.
Section 10B(1) sets out the matters which must be taken into consideration to determine whether a person is no longer a fit and proper person to hold the licence, including relevantly, the public interest. The Act provides no further specific assistance in determining what best serves the public interest.

THE EVIDENCE

QPS relied on affidavits of Acting Sergeant Christian Moore and Senior Constable Angela Bauer, both filed in the Tribunal on 19 May 2022, the latter containing considerably more detail than the former and the contents of the original decision.
Mr Rodgers relies on submissions made in response to the notice and to a statement of evidence filed on 1 November 2022. It incorporates his earlier response to the matters contained in the notice and responds to some of the allegations made by Senior Constable Bauer in her affidavit.
QPS filed written submissions on 1 November 2022. Written submissions drafted by solicitors retained by Mr Rodgers were filed on 19 May 2022.
The matter was listed for a hearing on the papers. This is unfortunate. Neither party has provided a complete response to the assertions of the other party and in some cases the responses are inadequate or incomprehensible without further detail. The Tribunal would have benefited from hearing the witnesses cross-examined and having the opportunity to seek further details or clarification.

THE ISSUES IN THE REVIEW

It is submitted on behalf of Mr Rodgers that he has no criminal history, no mental or physical incapacity, allegations of drug use or domestic violence. There is no evidence to suggest otherwise. He has not been charged with breaching any weapons law or regulation.
The only issue it is submitted, is whether all or any of the alleged allegations could be described as ‘administrative errors’.

EXCESS NUMBER OF WEAPONS

It is a condition of Mr Rodgers’ Dealer Licence that he has no more than 20 category A, B or M weapons at the specified premises at any given time.
It is not contested that at the time of inspection on 2 November 2020, more than 20 such weapons were at the premises. QPS detected 22 while Mr Rodgers says there were in fact 23, one of which was missed by the officers.
When Acting Sergeant Moore and Senior Constable Bauer returned to the premises on 9 November 2020, they recorded and seized 22 weapons.
Mr Rodgers’ evidence is that his weapons register indicated he had 20 weapons in his possession until the week prior to the inspection on 2 November 2020, when he received three weapons by post from Tasmania from a then unknown source.
He says that he is ‘well known within the area for his involvement with weapons’[1] and it is not uncommon for persons who no longer want weapons to drop them off to him.
[1]Statement of Wayne Rodgers filed 1 November 2022.
He says that he stored the weapons in his safe with the intention of delivering them to the Bundaberg police, some 1.5 hours away, for disposal but had not had the opportunity to do so before the first inspection.
While he now knows who sent the weapons, he doesn't provide corroborating evidence by that person or in fact identify them or their purpose for sending them to him from Tasmania.
Mr Rodgers also says that those three weapons were contained in annexure WPR1 to his submissions in response to the notice, which I understand to be a list of 76 weapons which QPS records indicated should be in his possessions. It is not explained how these three weapons came to be on that list if received one week earlier with no notification of their existence having been given to QPS by Mr Rodgers.
I am satisfied that Mr Rodger had in his possession, 22 or 23 weapons in breach of a condition of his Dealer Licence. I am not, on the material before me, satisfied with his explanation for that breach.

WEAPONS REGISTER

A requirement of Mr Rodgers’ Dealer Licence states that he is not permitted to remove the weapons register from the specified premises unless prior written consent is obtained from an authorised officer.
It is not contested that the current register was located at the specified premises, but the previous register or registers were not. Mr Rodgers does not contend that he is only required to keep the current register at his specified premises, or that he requested and obtained consent to remove the previous register. He says the previous register was stored at his ‘other storage facility for [his] own personal weapons’.[2]
[2]Ibid, [36].
Senior Constable Bauer's evidence is that Mr Rodgers told her that he ‘kept his books at a lady’s house across the road that he could not get access to’[3] at 986 Round Hill Road.
[3]Affidavit of Angela Bower filed 19 May 2022, [17].
Mr Rodgers says it was his misunderstanding that he only needed to keep the current register. ‘This was an oversight on my behalf and the only mistake I admit to making’.[4]
[4]Statement of Wayne Rogers filed 1 November 2022, [11.37].
I would give Mr Rodgers the benefit of the doubt on this, but there are circumstances which cause me some concern. Mr Rodgers had been put on notice that the QPS wanted to inspect his premises. Senior Constable Bauer suggests that he was actively trying to avoid the inspection. Mr Rodgers denies this.
Senior Constable Bauer says he was evasive in providing information in relation to the storage of his personal weapons, the location of the SPIKA safe referred to in his licence and the location of his house. This is not contradicted by Mr Rodgers in evidence.
Mr Rodgers has never filed an annual return as his Dealer Licence required.
These circumstances combined strongly suggest a lack of cooperation in an inspection.

DISCREPANCIES IN THE REGISTER

The attempt by QPS to reconcile the weapons in Mr Rodgers’ possession with his weapons register was flawed from the outset by errors in QPS records and the failure of Mr Rodgers to provide a complete weapon register and Form 10 books.
On the basis of the material filed by the parties it is, in my view, virtually impossible for the Tribunal to definitively audit that attempted reconciliation.
Mr Rodgers asserts in his response to the application and in written evidence that QPS records indicated that he had, or should have, some 76 weapons in his possession when his premises were inspected on 2 November 2020. This discrepancy as asserted, is substantially a result of errors and omissions in QPS records. Written submissions made on Mr Rodgers’ behalf make reference to a Queensland Audit Office report which concludes that the Weapons Licencing Unit’s firearms register is not accurate, up-to-date, or fit for purpose.
None of this is disputed in QPS evidence or submissions. This is of concern. Clearly errors in the QPS records, as the report suggests, inhibits QPS from effectively monitoring the movement of firearms, and thus its ability to efficiently enforce provisions of the Act.
The failure to adequately maintain its own records may have resulted in QPS having an unrealistic assessment of the weapons in Mr Rodgers’ possession and may have affected their attitude to Mr Rodgers at the time of the inspection however, it does not disqualify QPS from bringing enforcement action under the Act nor does it excuse the apparent breaches of the Act discovered by QPS as a result of their inspection of the premises.
I do not accept that prior to the inspection there were, or should have been, 76 weapons on the premises. Mr Rodgers says he has accounted for all 76 weapons particularised in annexure WPR1. That document, without further commentary, is difficult to interpret. I suspect I understand some of the notations but not others. I note QPS does not appear to take issue with the general assertion that these weapons are accounted for. I draw no inference of wide scale offending prior to the inspection.
I do, however, have some concern relating to the discrepancy in weapons in his possession and the contents of his weapons register.
Senior Constable Bauer’s evidence that she conducted a ‘dip test’ where she asked for production of a weapon that is open in the register. She requested production of Winchester 273909. Mr Rodgers could not produce it and advised verbally it had been destroyed. Senior Constable Bower says that there was no entry in the register and no paperwork regarding its destruction was received by QPS.
Mr Rodgers says the weapon ‘has been completed on register B118301 (form 10 on 17 December 2019) as being destroyed’. It does not explain why the weapon was open in the register provided to QPS.
Senior Constable Bauer chose an Emerald 16-1055 which showed a disposal entry in the register that it had been ‘sent off for warrant work to SA shooting Vic’ but says Mr Rodgers told her that he had sold it to somebody but had not yet completed the register.
Mr Rodgers’ response that he had lodged a Form 10 on 24 December 2019 does not explain why either the transaction that had led to its disposal or his failure to record it in the register.
Mr Rodgers agreed that he had been in error, not entering in the registered disposal of a TC Compass.
Mr Rodgers says that his failure to produce ATA serial number 16-53689 was as a result of a failure on the part of QPS to locate it during their inspection. He says he located it in the storeroom after they had left. Senior Constable Bauer says that he subsequently handed it in to Agnes Walters Police. Mr Rodger gives no reason for this.
Senior Constable Bauer asserted that the register was not sequential. Mr Rodgers explains that he accidentally skipped a page in the register.
Senior Constable Bauer concluded that of the 22 weapons they located in the premises ‘only 11 were actually (according to paperwork submitted) supposed to be at the dealership’.[5] It is unclear whether reference to paperwork relates to the register alone or QPS records of the Form 10 received.
[5]Aaffidavit of Angela Bauer, [22].
She then provides a list of 11 weapons that ‘had issues’. Mr Rodgers says that three of those were not in the list of weapons provided by QPS and were not listed in the QPS Field Property Receipt, a copy of which he produced, which appears to support his assertion. It should be noted that Senior Constable Bauer is referring to the inspection on 2 November 2020 and the field receipt relates to weapons seized on 9 November 2020.
The list also includes the three weapons received from Tasmania dealt with earlier in these reasons. Four of the weapons were Mr Rodgers personal weapons improperly stored on the premises. The final weapon listed is UZKON 150258. Senior Constable Bauer asserts the weapon is listed on the register as destroyed in 2004 but was in Mr Rodgers’ possession. His response is that ‘UZKON 150258 - form 10 440606 on 24/12/18. All proper actions taken.’
I have no idea what that means but it does not explain how he had the weapon in his possession some 16 years after his register says it was destroyed.
Officer Bauer also gives evidence of further anomalies which became evident on the second inspection on 9 November 2020, in relation to six weapons not on the premises on the previous visit. Mr Rodgers responds that one, an Alpine 97943 was transferred to his personal licence and was in storage elsewhere, but the transfer had not gone through. He admitted that a BOITO shotgun located on the premises but listed as destroyed in 2020 had not been destroyed, but he was ‘in the process [of] doing it’ and that three of the guns were always on the premises.
I am satisfied that there are errors or omissions in the register in relation to Winchester 273909, Emerald 16-1055, TC Compass, the three Tasmanian weapons, UZKON 150258 and Alpine 97943. I am also satisfied the two weapons UZKON 150258 and the BOITO shotgun listed as destroyed remained in his possession.

CATEGORY 4 WEAPONS

I am satisfied that four weapons licenced personally to Mr Rodgers were improperly stored at the premises specified in the Dealer Licence at the time of the first inspection.
Despite QPS’s concerns about the storage of his personal weapons, there is no evidence to support any adverse finding in that regard.

THE ROSSI WEAPON

QPS’s concerns in respect of this weapon were not raised during the two inspections of the premises and not in the information notice which set out reasons for the original decision.
They were raised as ‘additional matters’ in the QPS submission filed on 22 April 2021 but were not referenced in the affidavits of Acting Sergeant Moore or Senior Constable Bauer. In those circumstances, it would, in the absence of evidence to support the allegations, be unsafe to place any significant weight on them. However, Mr Rodgers responded to them in his evidence.
The allegations specify that Mr Rodgers hand delivered a weapon to a person in Bundaberg in or about October 2020 but did not provide to the acquirer his part of the Permit to Acquire to enable the acquirer to register the weapon in his name. Mr Rodger did not enter the firearm in his register. Mr Rodgers’ licence required such transactions to take place at the specified premises, not at the premises of the acquirer.
Mr Rodgers acknowledges that he was unaware of the licence requirement and acknowledges that he did not provide the acquirer the required paperwork. He says that he is remorseful and has learned his lesson.
He does not comment on the circumstances of the acquisition, the sale, the allegation that he later took it back and handed it to Gladstone police, or the assertion that it is not held by the police and that its whereabouts are unknown. I am of the view that his response lacks candour.

REVOCATION OF LICENCE

Section 29 of the Act relevantly provides:
(1) An authorised officer may, by a revocation notice given to a licensee, revoked the licensee’s licence if the authorised officer is satisfied of any of the following things—
…
(c)the licensee has contravened a condition, participation condition or special condition of the licensed;
(d)the licensee is no longer a fit and proper person to hold a licence.
…
The use of the words ‘may … if the authorised officer is satisfied of any of the following things’ means that the power to revoke is discretionary in respect of both. Having regard to the objects of the Act, if the authorised officer, or Tribunal in its place, is satisfied that a licensee is no longer a fit and proper person to hold a licence, the decision to revoke should, in the absence of exceptional circumstances, be exercised.
Mr Rodger admits two breaches of his licence condition, namely:
(a) the licencee is not permitted to remove the register from the premises specified hereunder unless the prior written consent is obtained from an authorised officer; and
(b) it is a condition of [this] licence that the licencee has no more than 20 category A, B or M weapons at the specified premises in compliance with the relevant provisions.
While it may be argued that those breaches may not, of themselves, justify the exercise of a discretion to revoke, they are relevant to the consideration of whether Mr Rodgers is a fit and proper person to hold a licence.
The principal consideration in making the decision specifically referenced in section 10B, is the public interest. In Comalco Aluminium (Bell Bay) Ltd v O'Connor and Ors [1995] ALR 657 the High Court held that the reference to public interest is to amplify the scope and purpose of the legislation.

In this regard, the Act’s objects and principles set out earlier in these reasons are quite clear.
In relation to a Dealer’s Licence, the keeping of accurate records is essential to achieving the objects of the Act.
Matters which have been admitted or in respect of which I have made findings which are of concern include:
(a)two admitted breaches of licence conditions;
(b)failure to adequately explain the acquisition and disposal of three weapons off register;
(c)a failure to adequately explain the acquisition of the ‘Rossi weapon’ also apparently off register;
(d)storage of Category H weapons in breach of both the Dealer’s Licence and personal licence.

[69] While I accept the QPS action may have been triggered by the inaccuracy of its own records that does not, in any way, excuse the problem that the investigation uncovered. I do not accept that these matters can be explained away as ‘administrative errors’ or ‘technical breaches’.

The imposition of strict requirements for the possession, storage, acquisition, and carriage of weapons is the essence of achieving the object of the Act. That is particularly so in relation to a Dealer’s Licence.
It is incumbent on the holder of a Dealer’s Licence to be aware of, and comply with, the conditions of the licence and to maintain an accurate and up-to-date weapons register. Clearly either Mr Rodgers was unaware of those conditions and obligations or was unconcerned with them.
In all the circumstances I am satisfied that he is not a fit and proper person to hold a Dealer’s Licence. The decision under review is confirmed.